 |
 |
|
|
|
|
|
|
|
| | | |
|
|
|
|
|
|||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
|
1
.
MEMO FOR MOTION TO QUASH
|
EXTRACTED KEY WORDS
COURT FIRST AMENDMENT INTERNET DOE THIRD PARTY INFOSPACE SPEAKERS DEFENDANTS SILICON PSEUDONYMS SECURITIES FRAUD LITIGATION QUASH BULLETIN BOARDS CLASS ACTION SECURITIES UNDERLYING LITIGATION DISCOVERY POST MESSAGES TMRT DISCLOSURE SILICON INVESTOR WASHINGTON CALIFORNIA TRUE IDENTITY PARTY SEEKING FIRST AMENDMENT RIGHTS PRIVILEGE ANONYMITY JOURNALISTS |
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
In re 2TheMart.com, Inc. Securities Litigation Case No: Misc.
Pending in C.D. California
SACV-9901127 DOC (AMx)
MEMORANDUM IN SUPPORT OF MOTION OF J. DOE TO QUASH SUBPOENA ISSUED TO SILICON
INVESTOR/INFOSPACE, INC.
Movant John/Jane Doe (hereinafter "Doe") used an internet bulletin board to post
messages under the pseudonym "NoGuano." In this action, defendant 2TheMart.com,
Inc. served a third party subpoena to InfoSpace Inc., the operator of the
bulletin board, demanding that it disclose Doe's true identity. Doe asks this
Court to quash the subpoena as it relates to Doe and the other anonymous
speakers named in the subpoena ("the Does"), because it violates their First
Amendment right to speak anonymously.
1. INTRODUCTION
The underlying litigation is a class action securities fraud case currently
pending in US District Court for the Central District of California. The
defendant corporation, 2TheMart.com, Inc. (hereinafter known by its ticker
symbol "TMRT"), issued a subpoena seeking to have online service provider
InfoSpace Inc. reveal the identities of twenty-three speakers who participated
pseudonymously on Internet message boards operated by InfoSpace. See Exhibit A.
The subpoena does not on its face explain why the identities of these speakers
are relevant to the underlying dispute. Indeed, the nature of the suit makes
their relevance unlikely. Under these circumstances, enforcement of a "fishing
expedition" subpoena would terminate the speakers' First Amendment right to
engage in anonymous speech without creating any corresponding benefit.
Accordingly, this Court should quash the subpoena.[1]
The syndrome of third party civil subpoenas issued to Internet service providers
seeking to breach the anonymity of their users is growing increasingly
frequent.[2] It has rarely been subjected to judicial scrutiny, however, partly
because of the short time frames typically involved in bringing a motion to
quash and partly because many internet service providers do not notify their
users before sacrificing their anonymity. This motion presents a good
opportunity for the court to clarify that the test used in other settings where
the First Amendment protects information against forced disclosure should also
be used to evaluate third party subpoenas. The choice to speak anonymously
should not be invalidated by judicial process unless it is clearly shown that
specifically identified information about an anonymous poster is central to the
claims of the party seeking the information, that those claims are viable, and
SNIPPETS:
|
|
2
.
DEMAND FOR JURY TRIAL
|
EXTRACTED KEY WORDS
MAGLIARDITI PLAINTIFF REBEIL SECURITIES EXCHANGE ACT WEB SITE BUSINESS AUCTION ATTORNEY SHARES STOCK INVESTIGATORS LOS ANGELES INTERNET IBM MARKET PRICE CONTROL BOARD REPRESENTATIONS MISLEADING INDIVIDUAL DEFENDANTS ONLINE AUCTIONS ACCOUNTING FIRM STULL TRADING ENVIRONMENT MANAGEMENT LLP COMMON STOCK NEVADA GAMING COMMISSION FEDERAL SECURITIES LAWS |
Michael D. Braun (167416)
STULL, STULL & BRODY
10940 Wilshire Boulevard
Suite 2300
Los Angeles, CA 90024
Telephone: (310) 209-2468
Kevin J. Yourman (147159)
WEISS & YOURMAN
10940 Wilshire Boulevard
24th Floor
Los Angeles, CA 90024
Telephone: (310) 208-2800
Attorneys for Plaintiff
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
SOUTHERN DIVISION
MARY ELLEN HARRINGTON, On Behalf of ) CASE NO.
Herself and All Others Similarly Situated, )
) CLASS ACTION
Plaintiff, )
) CLASS ACTION COMPLAINT
vs. ) FOR THE VIOLATION OF
) FEDERAL SECURITIES LAWS
2THEMART.COM, INC., STEVEN W. REBEIL, )
and DOMINIC J. ) JURY TRIAL DEMANDED
MAGLIARDITI, )
)
Defendants. )
_________________________________________ )
Plaintiff, through her attorneys, brings this action on behalf of herself and all others
situated, and on personal knowledge as to herself and her activities, and on information and
belief as to all other matters, based on investigation conducted by counsel, hereby alleges as
follows:
NATURE OF THE CASE
1. This is a class action on behalf of all purchasers of the securities of 2TheMart.Com Inc.,
SNIPPETS:
|
|
3
.
BRIEF OF NON-PARTY INFOSPACE
|
EXTRACTED KEY WORDS
INFOSPACE COURT SUBPOENA CONSTITUTION SPEAKERS LITIGANTS FIRST AMENDMENT CONSTITUTIONAL RIGHTS INTERNET FREEDOM PRIVACY DOCUMENT REQUEST IDENTITY INFORMATION OUTWEIGHS SEEKING PRIOR REQUIRING MESSAGE BOARDS BALANCING TEST CONSTITUTION PROTECTS OVERLY BROAD ACLU COMMUNICATIONS DENDRITE INTL DISCOVERY IDENTITIES PLAINTIFF SUBSCRIBERS DISCLOSURE PRIVATE E-MAIL COMMUNICATIONS |
THE HONORABLE THOMAS S. ZILLY
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
In re 2TheMart.com, Inc.
Securities Litigation, NO. MS01-016
Case Pending in C.D. Cal. SACV-9901127 DOC (AMx)
NON-PARTY INFOSPACE, INC.'S MEMORANDUM IN RESPONSE TO MOTION
OF J. DOE TO QUASH SUBPOENA ISSUED TO SILICON
INVESTOR/INFOSPACE, INC.
DECLARATION OF STEPHANIE CARPENTER
CONTENTS
I. INTRODUCTION 1
II. STATEMENT OF FACTS 3
III. ARGUMENT 4
A. INFOSPACE URGES THE COURT TO ADOPT A BALANCING TEST, REQUIRING
SNIPPETS:
|
|
4
.
OPPOSITION TO MOTION TO QUASH
|
EXTRACTED KEY WORDS
SUBPOENA SPEECH SILICON MESSAGE BOARDS FIRST AMENDMENT DOE INTERNET SECURITIES COURT MOTION DISCLOSURE DEFENSE EVIDENCE UNDERLYING SECURITIES LITIGATION STOCK PRICES MANIPULATION PSEUDONYM QUASH SUBPOENA SILICON INVESTOR ENFORCEMENT SILICON INVESTOR/INFOSPACE PRINCIPLES ANONYMITY IDENTITIES INFOSPACE JOURNALISTS CABOTAJE DECL CONSISTENT COURT DENY |
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
In re 2TheMart.com, Inc., Case No. MS01-016
Securities Litigation, Pending in U.S.D.C. (C.D. Cal.)
SACV 99-1127 DOC (ANx)
DEFENDANTS' BRIEF IN OPPOSITION TO MOTION
OF J. DOE TO PROCEED UNDER PSEUDONYM AND
This Document Relates To: TO QUASH SUBPOENA ISSUED TO SILICON
INVESTOR/INFOSPACE, INC.
ALL ACTIONS. Note for Motion Calendar:
Friday, March 30, 2001
ORAL ARGUMENT REQUESTED
SNIPPETS:
|
|
5
.
MOTION TO QUASH
|
EXTRACTED KEY WORDS
MOTION DOE SILICON INVESTOR QUASH SUBPOENA INFOSPACE NOGUANO PORTION DEFENDANTS PARENT COMPANY INFOSPACE ONLINE MESSAGE BOARDS PSEUDONYMOUS USER PURPOSES MEMORANDUM AUTHORITIES EXHIBITS THERETO CINDY COHN |
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
In re 2themart.com, Inc. Securities Litigation Case No: Misc.
Pending in C.D. California
SACV-99-01127 DOC (AMx)
MOTION OF J. DOE TO PROCEED UNDER
PSEUDONYM AND TO QUASH SUBPOENA
ISSUED TO SILICON
INVESTOR/INFOSPACE, INC.
Note for motion calendar:
March 16, 2001
ORAL ARGUMENT REQUESTED
J. Doe, who has posted written material on bulletin boards operated by Silicon Investor
pseudonym "NoGuano", moves to quash that portion of the subpoena dated January 24, 2001 served by
on Silicon Investor and its parent company Infospace, Inc. that would require identification of the
material on online message boards under pseudonymous user names. J. Doe also moves for leave to
a pseudonym for purposes of this motion.
The motion is supported by a memorandum of points and authorities and exhibits thereto.
DATED this ___ day of _________________, 2001.
ELECTRONIC FRONTIER FOUNDATION AMERICAN CIVIL LIBERTIES UNION
454 Shotwell Street OF WASHINGTON
San Francisco, CA 94110
(415) 436-9333
By:
Aaron H. Caplan
SNIPPETS:
|
|
6
.
PROPOSED ORDER
|
EXTRACTED KEY WORDS
INTERNET PRIVILEGE MOVANT DOE PSEUDONYM CIR MATERIALS SPEECH PROTECTION SPEAK AMENDMENT AMERICAN CIVIL DISCLOSURE ATTORNEY SUBPOENA ASKING PARTY SEEKING OUTWEIGHS SHIELDING IDENTITY REQUESTED INFORMATION ELECTRONIC FRONTIER FOUNDATION CINDY COHN AMERICAN CIVIL LIBERTIES CIVIL LIBERTIES UNION WASHINGTON AARON CAPLAN STAFF ATTORNEY |
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
In re 2themart.com, Inc. Securities Litigation Case No: Misc.
Pending in C.D. California
SACV-99-01127 DOC (AMx)
ORDER GRANTING J. DOE'S MOTION TO
PROCEED UNDER PSEUDONYM AND TO
QUASH SUBPOENA ISSUED TO SILICON
INVESTOR/INFOSPACE, INC.
[Proposed]
Movant J. Doe is allowed to proceed under a pseudonym for purposes of this motion, so that
process does not itself undermine the privacy interest the movant seeks to vindicate. Does I
Advanced Textile Corp., 214 F.3d 1058, 1068 (9th Cir. 2000).
The subpoena dated January 24, 2001 served by defendants on Silicon Investor and its
Infospace, Inc. is quashed to the extent that it would require identification of the persons who
online message boards under pseudonymous user names.
Speech on the internet, including the postings on bulletin boards at issue here, enjoys
protection from governmental interference as does speech in traditional public forums. ACLU v.
824 (E.D. Pa. 1996), aff'd, 521 U.S. 844 (1997). The right to speak anonymously is similarly
Amendment. Buckley v. American Constitutional Law Found. Inc., 525 U.S. 182 (1999); McIntyre v.
Comm'n., 514 U.S. 334 (1995); Talley v. California, 362 U.S. 60 (1960). Where a civil litigant's
identity of an anonymous speaker conflicts with the speaker's desire to remain anonymous, the court
subpoena power to be used only sparingly. This case is similar to other contexts where the First
SNIPPETS:
|
|
7
.
REPLY MEMO FOR MOTION TO QUASH
|
EXTRACTED KEY WORDS
TMRT SPEAKERS SPEECH PROTECTION COURT STOCK MANIPULATION INTERNET FIRST AMENDMENT EVIDENCE SILICON INVESTOR SECURITIES ARGUES SUBPOENA DOE COMMUNICATIONS JOURNALISTS ASSERTION MARKETPLACE SIGNATURE GATHERERS INFOSPACE NOGUANO REASONING MEDIUM ASSOCIATIONS STOCK PRICE CABOTAJE DECL PRIVILEGE RECOGNIZING |
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
Case No: C01-453Z
(formerly MS 01-16)
In re2TheMart.com, Inc. Securities Litigation REPLY MEMORANDUM IN SUPPORT
OF MOTION TO QUASH
ORAL ARGUEMENT REQUESTED
I. THE RIGHT TO SPEAK ANONOMOUSLY REQUIRES PROTECTION AGAINST
UNWARRANTED INVASION
A. The Purported Distinction Between Speaking Anonymously and Remaining
Anonymous Is Unworkable and Unsupported by Case Law
All the parties to this motion agree that the First Amendment protects Doe's right to speak
anonymously, but TMRT argues that the right vanishes the very moment after it is exercised.
The logical conclusion of TMRT's argument is that a party can use the court's subpoena power to
unmask any anonymous speaker at any time after he or she speaks, destroying pseudonymous
online identities without even giving the speaker the opportunity to object. The purported
distinction between speaking anonymously and remaining anonymous is without a difference.
TMRT is mistaken in its assertion that no Court "ever held that the First Amendment blocks the
efforts of others to determine a speaker's identity." TMRT Brief at 3. Courts commonly protect
the right of speakers to remain anonymous where anonymity enhances the marketplace of ideas
and disclosing speakers' identities would chill speech. An evidentiary showing of need is
required before the machinery of the state may be used to reveal a speaker's identity. "Mere
relevance is not sufficient." Rancho Publications v. Superior Court, 81 Cal.Rptr.2d 274 (Cal.
App. 1999) (applying First Amendment privilege to preserve anonymity of group that purchased
a paid newspaper advertisement).
TMRT argues that the Supreme Court "specifically refused to recognize the right to remain
anonymous" in Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182 (1999).
TMRT Brief at 12. To the contrary, Buckley's primary holdings were to invalidate a state law
requiring signature gatherers to be registered voters, id. at 197, wear name tags, id. at 200, and
file a disclosure form containing their names, addresses, and whether they were paid, id. at 204.
Recognizing the unique obligations of the state to regulate ballot access to ensure fair elections,
id. at 641, the Court mentioned (in dicta) that it did not object to the requirement that completed
petitions be accompanied at the time of filing with an affidavit declaring that the circulator
resides in state, did not bribe the signatories, and similar averments, id. at 189 n.7, 197. The
Court noted that its dicta might not apply if the residency question had been squarely presented.
Id. at 197. In any event, the affidavit did not allow the state to connect any particular signature
gatherer with anonymous speech made while gathering signatures. This holding is a far cry from
TMRT's assertion that no speaker ever has the right to remain anonymous.
SNIPPETS:
|
|
8
.
CIVIL DOCKET
|
EXTRACTED KEY WORDS
DEFENDANT ARTHUR NAKAZATO ENTRY HARRINGTON ANX CENTRAL DISTRICT CALIFORNIA SOUTHERN DIV CIVIL DOCKET DISCOVERY ARTHUR NAKAZATO DKT COURT SECURITIES VIOLATION REBEIL MAGLIARDITI MRGO |
Docket as of September 15, 1999 [retrieved 10/5/99]
Proceedings include all events.
8:99cv1127 Mary E Harrington v. 2TheMart.Com Inc, et al
(ANx)
(ANx)
U.S. District Court
Central District of California (Southern Div)
CIVIL DOCKET FOR CASE #: 99-CV-1127
Mary E Harrington v. 2TheMart.Com Inc, et al Filed: 09/13/99
Assigned to: Judge David O. Carter Jury demand: Plaintiff
Referred to: Discovery Arthur Nakazato
Demand: $0,000 Nature of Suit: 850
Lead Docket: None Jurisdiction: Federal Question
Dkt# in other court: None
Cause: 28:1331 Fed. Question: Securities Violation
MARY ELLEN HARRINGTON, on Michael D Braun
behalf of herself & all others FAX 310-209-2087
similarly situated [COR LD NTC]
plaintiff Stull Stull & Brody
10940 Wilshire Blvd
Suite 2300
Los Angeles, CA 90024
310-209-2468
Kevin J Yourman
FAX 310-209-2348
[COR LD NTC]
Weiss & Yourman
10940 Wilshire Blvd
24th Fl
Los Angeles, CA 90024
310-208-2800
v.
2THEMART.COM INC
defendant
STEVEN W REBEIL
defendant
SNIPPETS:
|
|
|
| | | |
|
|
