SD9 - Discovery of Electronic Data

Executive Summary:
This Report sets forth the results of the Study conducted pursuant to the directions contained in Senate Joint Resolution 334, 2001 Session of the General Assembly. The Report first introduces the importance of the Internet and World Wide Web as forums for communication protected by Constitutional free speech rights, as recognized by the United States Supreme Court and consistent with pre-existing Virginia law. The role of anonymous speech in this medium is discussed, along with federal and Virginia law relevant to an understanding of the importance that anonymity plays in the free expression of ideas, under protections for free expression, privacy and freedom of association with others.

The Report canvasses the existing case law directly on the topic of requests for confidential information relating to electronic communications, which is not extensive. Analogies from other, more developed, bodies of law are sketched. The prevailing standards for decisions on contested applications to pierce the anonymity of protected communications in civil litigation are discussed: the key to this analysis is that in order for a trial court to perform the balancing of rights necessary for a determination of whether intrusion upon protected anonymous speech will be allowed, the court must first be provided with the information it needs to perform that balancing. To decide these issues, the trial court in Virginia need not decide the merits of the case pending elsewhere, but must have sufficient considerations illuminated by the parties' submissions to permit assessment of the need for the contested information, on the one hand, and the severity of the intrusion on free speech, on the other. Tests applied in this situation by other courts, state and federal, are summarized and assessed in the Report.

A brief summary of how the subpoena process now operates in the federal courts and the Virginia circuit courts is provided in the body of the Report, along with several analogous procedures and doctrines that suggest considerations for inclusion in any effort to provide a unified approach to subpoenas for electronic information.

The relevant considerations and factors are specifically set forth and discussed, and a proposed statute or rule embodying the applicable provisions is then proposed. The procedure discussed involves six steps:

1. Initiation of the Subpoena. The applicant for a subpoena seeking information calculated to identify a person communicating anonymously on the Internet or World Wide Web, must provide to the court in Virginia (either in obtaining a court-issued subpoena or by filing immediately after promulgating an attorney-issued subpoena) at least 30 days prior to the scheduled disclosure, a subpoena package containing the text of the subpoena itself, along with supporting information showing (i) that one or more communications that are or may be tortious or illegal have been made by the anonymous person, or that the party requesting the subpoena has a legitimate, good-faith basis to contend that it may be the victim of conduct actionable in the jurisdiction where suit was filed, (ii) that other efforts to identify the anonymous communicator have proven fruitless, (iii) that the identity of the anonymous communicator is important, i.e., is centrally needed to advance the claim, relates to a core claim or defense, or is directly and materially relevant to that claim or defense, (iv) that the actionability of the communications cannot be determined while the author remains anonymous (i.e. that no motion to dismiss, motion for judgment on the pleadings, or judgment as a matter of law, demurrer or summary judgment-type motion challenging the viability of the lawsuit of the underlying plaintiff, is pending), and (v) that the persons or entities to whom the subpoena is addressed are likely to have responsive information. The applicant serves two copies of these papers upon the subpoenaed party, along with payment sufficient to cover postage for re-mailing of one copy of the application within the United States, registered and with return receipt.

2. Transmission to the Anonymous Communicator. Within five business days after receipt of a subpoena application calling for identifying information concerning a client, subscriber or customer, the subpoenaed party mails one copy thereof, by registered mail or commercial delivery service, return receipt requested, to the client, subscriber or customer whose identifying information is the subject of the subpoena.

3. Time for Objection or Motion. At least five business days prior to the date on which disclosure is sought under the subpoena, any interested person may file a detailed written objection, motion to quash, or motion for protective order, which may set forth all grounds for opposing the disclosure sought in the subpoena, and must address to the extent feasible (i) whether the identity of the anonymous communicator has been disclosed in any fashion, (ii) whether the subpoena fails to allow a reasonable time for compliance, (iii) whether it requires disclosure of privileged or other protected matter and no exception or waiver applies, or (iv) whether it subjects a person to undue burden.

4. Timing of Compliance With Subpoena. The party to whom the subpoena is addressed may not comply with the subpoena earlier than three business days before the date on which disclosure is due, to allow the anonymous client, customer or subscriber the opportunity to object.

5. Stay of Compliance Pending Court Action. If any person files an objection, motion to quash, or motion for protective order, compliance with the subpoena shall be deferred until the appropriate court rules on the obligation to comply.

The Report discusses the operation of these steps, and the draft enactment contains significantly greater detail and more precise language than the summary above.

Conclusion. The Report's Conclusion is that the significance of Internet communications, and the constitutional protections that guard these communications suggest that legislative guidance and implementation of a careful procedure appear highly desirable. The national trend toward increased litigation about anonymous communications imposes repeated burdens on trial courts, and litigation pending in another jurisdiction adds even further layers of complexity to constitutional doctrine, which requires a delicate weighing of competing values. The fact that the anonymous communicators are often laypersons with little access to legal representation complicates the picture still further. Present day subpoena practice does not assure the interested parties sufficient time or procedural protections and fails to equip the courts with information needed to decide disputed applications. Properly crafted rules would assure:

(A) that the Commonwealth's citizens have the full protections the Virginia and federal Constitutions provide to them, and an appropriate and fair opportunity to protect those rights; and

(B) that enterprises who possess identifying information be protected from unnecessary entanglement with litigations, and are compelled to make disclosure only when proper standards have been met; and

(C) that the Commonwealth's judges are provided with the information they need for full and fair consideration of the relevant factors in ruling on such disputes.

Hence codification of the rights and procedures involved is recommended.

Appendices are annexed to the Report, sketching related issues that are not dealt with comprehensively in the body of this submission, summarizing the most complete Supreme Court of Virginia decision dealing with this topic, and setting forth a bibliography of relevant literature.