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Free Speech

#TheyLied Plaintiff Suing for Defamation Over Sexual Misconduct Accusations Can't Use Subpoena to Unmask Pro-Defendant GoFundMe Organizers

"The subpoena is ... a classic ‘fishing expedition’ in constitutionally protected waters.”


From today's decision by Judge John Koeltl (S.D.N.Y.) in Watson v. NY Doe 1:

In January 2018, an anonymous post on an Instagram account accused the plaintiff, Ralph M. Watson, of sexual misconduct. The plaintiff alleges that he was terminated from his position at the advertising agency Crispin, Porter & Bogusky ("CP+B") as a result of the accusation. The Instagram account was run by "Diet Madison Avenue" ("DMA"), an anonymous internet group whose stated purpose is to "expos[e] sexual harassment and discrimination in ad agencies …."

On May 22, 2018, the plaintiff brought an action in the Los Angeles, California Superior Court for defamation and related torts against DMA and alleged affiliated individuals. In response to the action, an unknown individual or individuals created a GoFundMe campaign to fundraise for the legal defense of DMA members, titled the "Diet Madison Avenue Legal Defense."

On January 17, 2019, the plaintiff filed an action in this Court against certain individuals, alleging defamation and other common law torts in connection with the allegations of workplace sexual misconduct made against him. DMA Doe is not a defendant in this action. DMA itself is also not a defendant in this action, although some of the defendants were or were alleged to be members of DMA….

On January 8, 2021, the plaintiff issued a subpoena to GoFundMe. The subpoena sought to require GoFundMe to produce: "All information, including identifying information, of any person(s) who created the GoFundMe account 'Diet Madison Avenue Legal Defense[,]' … including but not limited to … [n]ame(s) of all person(s) that created, maintained, and/or received funds from the account[.]" It also sought the addresses, email addresses, phone numbers, and internet protocol addresses for such persons. DMA Doe claims that the information sought would tend to reveal DMA Doe's identity, whether or not DMA Doe played any role in the creation of any allegedly defamatory posts. The plaintiff seeks to use the identifying information yielded by the GoFundMe subpoena to pursue his defamation claims in this Court….

The court concluded that the First Amendment precluded enforcement of the subpoena:

The Supreme Court has recognized that the First Amendment protects anonymous speech…. Accordingly, courts have found that a subpoena that would identify an anonymous speaker raises First Amendment concerns. When deciding whether to quash a subpoena seeking information identifying an anonymous internet user, courts evaluate whether the subpoena would infringe upon the individual's right to anonymous speech under the First Amendment. More specifically, courts in this Circuit consider the five factors developed in Sony Music Entertainment Inc. v. Does 1-40 (S.D.N.Y. 2004), adopted by the Second Circuit Court of Appeals in Arista Recs., LLC v. Doe 3:

(1) the concreteness of the plaintiff's showing of a prima facie claim of actionable harm, … (2) the specificity of the discovery request, … (3) the absence of alternative means to obtain the subpoenaed information, … (4) the need for the subpoenaed information to advance the claim, … and (5) the objecting party's expectation of privacy….

First, the plaintiff argues that he made a "concrete showing of a prima facie claim of actionable harm[.]" … The plaintiff's objections allude to two possible claims that might be suggested by the information provided by the subpoena. The first is a conspiracy claim, but this Court already dismissed the plaintiff's conspiracy claims against all defendants in this case. Yet, in his objection, the plaintiff tries to raise a conspiracy claim again.

Because the Court found that false allegations of rape by NY Doe 2 would be defamatory per se, the plaintiff argues, claims against DMA Doe would also be actionable. However, there are no plausible allegations as to why a person involved in founding or receiving funds from the GoFundMe account would be in a conspiracy with NY Doe 2. Indeed, the specific defamatory statements allegedly made by NY Doe 2 were not made on the GoFundMe internet site. Accordingly, this first claim raised by the plaintiff is not "a concrete showing of a prima facie claim of actionable harm."

The plaintiff has also failed to allege a specific defamation claim that would be uncovered through the subpoena. And, indeed, any new claim of defamation would be barred by New York's one-year statute of limitations for claims of libel and slander. The subpoena is, in short, a classic "fishing expedition" in constitutionally protected waters….

The plaintiff also asserts that his discovery request was sufficiently specific…. The court in Sony held that a subpoena is "sufficiently specific" where there is a "reasonable likelihood that the discovery request would lead to identifying information that would make possible service upon particular defendants who could be sued in federal court."

In this case, the plaintiff claims that the subpoena will uncover identifying information that will allow him to serve the individuals who allegedly defamed him or, at minimum, an integral witness who can provide that information. DMA Doe, the plaintiff argues, is a person on the inside, with actual personal knowledge of the group's postings.

However, this is mere speculation. As Magistrate Judge Freeman observed during the hearing on the motion, assuming that DMA Doe is "someone who's logged onto the DMA account" and "was involved in setting up a GoFundMe page," there is no reason to conclude "that DMA Doe engaged in conduct that was directly relevant to the claims in the case." And the subpoena seeks the identities of all persons who created or maintained the GoFundMe account or received funds from it, irrespective of whether those persons had anything to do with an allegedly defamatory statement. Therefore, the plaintiff's subpoena is overly broad….

While the plaintiff contends that he demonstrated a lack of other means to discover the sought-after information pursuant to the third Sony factor, that is not true…. [T]here are obvious alternative sources, including pursuing discovery from the individual defendants he has identified….

The plaintiff also argues that he demonstrated compliance with the fourth Sony factor by showing that the only means of advancing his remaining claims was through the information sought in the subpoena. But that is also not true. The plaintiff is pursuing claims in this Court against Illinois Doe 1 and NY Doe 2, and he has failed to make any plausible argument that he has a claim against DMA Doe or any other potential defendant.

Thus, the plaintiff has failed to meet his burden under the fourth factor of the Sony test.

Finally, the plaintiff contends that he rebutted DMA Doe's showing that DMA Doe has a reasonable expectation of privacy with respect to the personal information sought, pursuant to the fifth Sony factor. The plaintiff argues that DMA Doe does not enjoy a First Amendment right to protection for defamatory statements. But there is no showing that DMA Doe made any defamatory statements about the plaintiff.

In Sony, the court found that the defendants against whom discovery was sought had a "minimal expectation of privacy" because they used the entity being subpoenaed—internet service provider Cablevision—to download copyrighted songs without permission in violation of Cablevision's user terms of agreement. The facts of this case are completely different. The plaintiff does not allege that DMA Doe made defamatory statements on GoFundMe. Rather, the plaintiff alleges that DMA Doe may have made defamatory statements on Instagram, but there is no evidence to support even that speculation….