Monday, May 19, 2014

Fun Times with the Interstate & International Depositions & Discovery Act

Digital Music News LLC v. Superior Court, No. B242700 (D2d1 May 14, 2014)

 The court here grants a writ. It orders the trial court to vacate an order compelling the production of documents subpoenaed by a party in an out-of-state litigation.

The underlying case is a copyright infringement litigation brought by a record company in New York state court. The record company sued the company that runs Grooveshark, a website that permits its users to post and share audio files on the Internet. While the case was pending, Digital Music News, an online newsletter that covers the music industry, wrote a story about other accusations of infringement by Grooveshark. The comments to the story included two posts by “Visitor,” an anonymous commenter purporting to be a Grooveshark employee. Visitor claimed that the allegedly infringing music on Grooveshark was placed on the site directly by Grooveshark’s employees—as opposed to by Grooveshark’s users.

What does a New York state copyright case have to do with California civil procedure?  Well, Digital Music News is out here in California. So the Grooveshark people obtained a subpoena under the Interstate and International Depositions and Discovery Act, Cal. Code. Civ. Proc. §§ 2029.100–700. That Act—let’s not call it the IIDDA—lets a party serve a subpoena to get discovery for an out-of-jurisdiction case. So long as the subpoena is signed by a California admitted lawyer, there’s no need to go through the administratively cumbersome and largely pointless commission process that used to be required to issue a subpoena in an out-of-state case. See §§ 2029.300–350.

When Digital Music News objected for a host of reasons—relevance, California’s shield law, Visitor’s privacy, etc.—Grooveshare filed a petition
under § 2029.600 in L.A. Superior Court to enforce its subpoena. The trial court granted the petition and ordered Digital Music News to undertake some pretty extensive efforts to locate and produce discovery in response. These efforts included making a mirror image of its server and permitting a forensic examiner to search for and produce any information about Visitor’s identity and his/her comments. Digital Music News appealed.

The court first addresses some basic issues regarding the Act. First, under § 2029.650(a), orders issued in enforcement/protective order/quashal proceedings brought under the Act aren’t appealable. They can be addressed only on writ review. But the court deems the appeal a writ, so that isn’t too much of an issue. Second, even though the subpoena comes out of an out-of-state case, under § 2029.500, the Civil Discovery Act governs the discoverability of the subpoenaed evidence. That includes § 2017.010’s definition of discoverable information as “any matter, not privileged, that is relevant to the subject matter involved in the pending action . . . if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.”

The court then grants the writ and quashes the subpoena, primarily on relevance grounds. Visitor’s identity and the veracity of his/her allegations were a sideshow to the merits of the New York litigation. Indeed, the only issue to which they were potentially relevant was Grooveshark’s potentially defense under the Digital Millennium Copyright Act. Grooveshark claimed that it was just hosting the third party content of its users, and thus immune. But that defense was rendered moot when a New York appellate court ruled that the Digital Millennium Act’s safe-harbor provisions don’t apply to state law copyright actions over works of recorded music created before 1972.* With the safe harbor defense stricken, Vistor’s identity and allegations are simply irrelevant to the issues in the New York case. And even were it relevant, it is hard to see how an anonymous hearsay comment could ever make it into evidence in the underlying case, such that the identity of the commenter would matter.

The court also rejected the argument that Visitor’s identity might be relevant in a different federal copyright case—where the safe harbor defense would clearly apply—merited the discovery. The court explains that “allegations in another lawsuit are of no consequence to the determination of this action.”

Alternatively, discovery of Visitor’s identity would violate his or her right to privacy under the California Constitution, which provides ample protection for anonymous speech on the Internet.  Since—particularly given the relevancy discussion above—Grooveshark can’t show that discovery of Visitor’s identity was “directly relevant and essential to the fair resolution” of the New York case, Visitor’s privacy interests trump Grooveshark’s interest in getting discovery. Indeed, if Visitor’s allegations were true, discovery of her or his identify could lead to retaliation. That provides an “even more compelling” reason for nondisclosure.

Writ granted.

*If you are IP-savvy you have probably been confused why the underlying case is in state court, notwithstanding 28 U.S.C. § 1338. The answer is that the claims are expressly limited to state common law copyrights created before February 15, 1972, the date after which Congress expressly preempted state copyright law for recorded works. 

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