Virginia Court Affirms Denial of Motion to Quash Subpoena for AOL Records on Anonymous Poster
November 1, 2002. The Virginia Supreme Court issued its opinion [MS Word] in AOL v. Nam Tai Electronics, affirming a Virginia trial court order refusing an ISP's (AOL) motion to quash a subpoena duces tecum based upon an electronics company's (Nam Tai) California action against anonymous persons who allegedly published false and defamatory messages about it on a Yahoo message board. See also, opinion [TXT] without footnotes. Bottom line: AOL cannot protect the anonymity of its subscriber in this case.
Background. Nam Tai is a Hong Kong based company that makes telecommunication products, palm sized PCs, personal digital assistants (PDAs), linguistic products, calculators and various components including LCD modules and RF modules for mobile phones, transformers and LCD panels. Its stock is traded on the NASDAQ exchange.
Yahoo, an Internet portal, maintains a message board for discussion of Nam Tai stock. America Online (AOL) is, among other things, an Internet service provider based in Loudon County, Virginia.
Nam Tai asserts that numerous anonymous individuals posted defamatory messages about Nam Tai to the Yahoo message board. It further asserts that one such person used the email address email@example.com. "Scovey" received notice of, but did not participate in, the court proceedings described below.
California Action. Nam Tai first filed a complaint in California Superior Court (Los Angeles County) against 51 unnamed individuals alleging violation of the California unfair business practices statutes in connection with their publishing allegedly "false, defamatory, and otherwise unlawful messages" on the Yahoo message board devoted to a discussion of Nam Tai stock.
Nam Tai obtained a subpoena duces tecum from the California Superior Court directing Yahoo to disclose its subscriber data on "scovey2". Yahoo complied. The information that it disclosed revealed that "scovey2" obtained his Internet access through AOL, that "scovey2" used IP address 22.214.171.124 which is registered to AOL, and that "scovey2" provided to Yahoo the alternate email address of "firstname.lastname@example.org".
Nam Tai then obtained a commission for out of state discovery from the California Superior Court to depose AOL's custodian of records in the state of Virginia.
Virginia Action. Nam Tai then filed a praecipe in the Circuit Court of Loudoun County, Virginia, for a foreign subpoena duces tecum. The clerk of the trial court issued the subpoena directing AOL's custodian of records to produce records related to "email@example.com". Rather than comply, AOL filed a motion to quash the subpoena duces tecum, asserting the First Amendment right to speak anonymously. AOL also argued that its motion should be granted, based upon principles of comity. After receiving further guidance from the California Superior Court, the Virginia Circuit denied AOL's motion to quash and directed AOL to comply with the subpoena duces tecum. AOL appealed.
Virginia Supreme Court. The Supreme Court affirmed the trial court order pursuant to principles of comity, and its application of the Uniform Foreign Depositions Act (Virginia Code §§ 8.01-411 through –412.1).
Section 411 provides that "Whenever any mandate, writ or commission is issued out of any court of record in any other state . . . witnesses may be compelled to appear and testify and to produce and permit inspection or copying of documents in the same manner and by the same process and proceeding as may be employed for the purpose of taking testimony or producing documents in proceedings pending in this Commonwealth."
The Virginia Supreme Court, relying on its previously decided case, AOL v. APTC, stated the Virginia will afford comity to an order issued by a court of another state, if certain conditions are met. "First, the foreign court must have personal and subject matter jurisdiction to enforce its order within its own judicatory domain. Second, the procedural and substantive law applied by the foreign court must be reasonably comparable to that of Virginia. Third, the foreign court's order must not have been falsely or fraudulently obtained. And, fourth, enforcement of the foreign court's order must not be contrary to the public policy of Virginia, or prejudice the rights of Virginia or her citizens."
The Court addressed each of these four conditions in its analysis of AOL's
challenge to enforcement of the subpoena. It found that the California subpoena
satisfied all found conditions.