7/26/2019 ECF 232 Redacted
1/15
DEPUTY
BRETT KIMBERLIN,
Plaintiff,
v.
FILEDU.S. DISTRICT COURT
DISTRICT OF /1' RYUNITED STATES DISTRICT COURT ,\. LAND
FOR THE DISTRICT OF MARYLAND201~DEC 12 PH 3: 33
GREENBELT DIVISION CL,I)"'" -_.\/\ S Ot FICE
AT GREENBELT
BY
{;)UNo. GJH 133059
NATIONAL BLOGGERSCLUB, et al
Defendants.
MOTION TO IDENTIFY DEFENDANT ACE OF SPADES, THE PERSON
Now comes Plaintiff Brett Kimberlin, pursuant to this Court's December 8,2014
letter order, and moves this Court to issue an order to counsel for Defendant Ace of
Spades the person ("AOS"), to identify him.
1. As Judge Hollander ruled recently in another case of anonymous Internet
blogging, Plaintiff has a right to the identity of an anonymous blogger defendant
who has engaged in tortious conduct against him. In re Subpoena of Daniel Drasin.
Case 1:13-cv-01140-ELH 07/24/13. Judge Hollander's nine-page decision effectively
states the prevailing law and is attached for the Court's consideration. In the instant
case, Plaintiff also needs that information to effectively respond to Defendant ADS's
Motion to Dismiss,
2, AOS has notice that Plaintiff has sought his identity. Plaintiff has repeatedly
sought that identity him for the past 12 months, AOS has had an opportunity to seek
to keep his identity anonymous but all of his motions through two different
attorneys have been unsuccessful. On December 8, 2014, Plaintiff specifically but
without success asked counsel for AOS's identity in order to save time and judicial
resources. See Plaintiffs attached declaration,
!"#$ &'()*+,*-)-./*012 34+56$78 9)9 :;(9>(? @"A$ ( 4B ?
7/26/2019 ECF 232 Redacted
2/15
3. As stated in Plaintiffs Complaint and in his Global Response to Motions to
Dismiss, ADS engaged in wholesale and per se defamation against Plaintiff, not once,
but multiple times. See SACat 30-32, GR 45-6. For example, he falsely stated,
imputed and published in five articles that Plaintitf committed the crime of
"swattings," that he was involved with terrorism" and "murder," that he was trying
to "kill" people, that he is a "thug" and "nefarious,"Jhat he is running "scams," that
he is engaged in "lawless vigilantism," that he is involved with "ongoing crimes," that
he is engaged in "alarming harassments," that he is a "menace," that he is a "one-man
crime wave," that he is "escalating" his criminal activities, that he is engaged in a
"crime in progress," that he is "abusing and corrupting" the justice system, that his
life is one of "escalat(ing) risk taking." that he is "a dangerous man," that he is
engaged in "digital" and "real life terrorism," that he is a "malicious threat to
society," and that he is engaged in "Iawfare." Not only did ADS make these
defamatory statements and publications, he demanded action by others, including
Congress, to stop Plaintiff through various actions including imprisonment and
passing a bill of attainder. His publications were a call to arms against Plaintiff
based on defamatory hysteria-either stop Plaintiff or terrible things will happen.
ADS was using his defamatory statements to destroy Plaintiff by any means.
4. ADS's limited right to anonymous speech is greatly outweighed by Plaintiffs
right to know who has committed tortious conduct against him. Drasin, supra at 7-
8, and In re Anonymous, 661 F.3d at 1176 (recognizing "the great potential for
irresponsible, malicious, and harmful communication and that particularly in the
!"#$ &'()*+,*-)-./*012 34+56$78 9)9 :;(9>(? @"A$ 9 4B ?
7/26/2019 ECF 232 Redacted
3/15
age of the Internet, the speed and power of internet technology makes it difficult for
the truth to 'catch up' to the lie").
5. Plaintiff does not have AOS's identity and this handicaps him with regard to
his response to AOS's motion to dismiss. For example, if AOS'works for the
Government, Plaintiff could show that his actions also fell under 42 USC 1983. If
AOS's name is on documents already in Plaintiffs possession, such as emails,
Plaintiff could show that he committed overt acts in furtherance of the conspiracy
and RICO. If AOS is working for someone or some entity to target Plaintiff, that
would be a relevant factor in this case.
6. Moreover, AOS should not be given special treatment not given other
defendants in this case, all of whom are identified.
7. The only other anonymous defendant in this case, KimberinUnmasked, was
identified pursuant to an Order issued by Judge Algeo from the Montgomery County
Circuit Court, Case No. 380966 CVon November 4,2013.
11/04/2013 Docket
Number: 26
Docket Description:
Docket Type:
Ruling Judge:
Reference Docket(s):
Docket Text:
HEARING
Ruling Filed By: Court Status: Granted
ALGEO, MICHAEL J
Motion: 3 Opposition: 24
HEARING (ALGEO, J.) ON PlAINTIFF'S MOTION TO COMPEL PRE-
ACTION DISCLOSURE DIRECTING GOOGlE.COM AND/OR ITSSUBSIDIARY BlOGGER.COM TO TO DISCLOSE THE IDENTITY AND
ADDRESS OF DEFENDANT ANONYMOUS CYBERSTAlKER,
KlMBERLINUNMASKED (DE#3) -GRANTED. ORDER SIGNED.
PlAINTIFF APPEARED PRO SE. MR. DEL BIANCO APPEARED ONBEHALF OF THE DEFENDANT ANONYMOUS BlOGGER. MR.
REINGOLD APPEARED ON BEHALF OF THE DEFENDANT GOOGlEINC. DEFENDANT'S AARON WALKER, WILLIAM HOGE SR., AND
ROBERT MCCAIN NOT PRESENT.
!"#$ &'()*+,*-)-./*012 34+56$78 9)9 :;(9>(? @"A$ ) 4B ?
7/26/2019 ECF 232 Redacted
4/15
Once that identity was known, KimberlinUnmasked, aka Lynn Thomas, resolved that
state case and two federal cases Plaintiff filed against her.
8. In the case ofADS, his anonymity is hampering any possibility of Plaintiffs
resolving and settling this case with him.
Wherefore, for all these reasons, Plaintiff moves this Court to order counsel to
identify ADS.
Certificate of Service
I certify that I emailed a copy of this motion to Ron Coleman and all other
current attorneys in this case and Lee Stranahan and AliAkbar, and mailed a copy to
Defendants Walker, Hoge, McCainand attorney Michael Smith this 12'h day of
December, 2014.
!"#$ &'()*+,*-)-./*012 34+56$78 9)9 :;(9>(? @"A$ ? 4B ?
7/26/2019 ECF 232 Redacted
5/15
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
GREENBELT DIVISION
BRETT KIMBERLIN,Plaintiff,
v.
NATIONAL BLOGGERSCLUB, et al
Defendants.
No. GJH 13 3059
DECLARATION OF PLAINTIFF BRETT KIMBERLIN RE ACE OF SPADES
I, Brett Kimberlin, declare, under penalty of perjury and pursuant to 28 USC
1746, that the following is true and correct.
1. I have been trying for the pastyearto learn the identity of Ace of Spades,
a defendant in this case. I sought subpoenas in both Virginia and
Maryland federal courts, 1 contacted business associates of his and his
website registrar, I asked his attorneys, and I followed tips that came to
me.
2. I have notified. Ace of Spades through his emails and his attorneys that I
need to know his identity to effectively prosecute this case.
3. I feel handicapped in my ability to respond to Ace of Spades' motion to
dismiss because I do not know his identity.
4. 1have filed motions in two other state cases involving anonymous
bloggers and in both cases the Montgomery County Circuit Court judges
granted my motions to identify the bloggers. In one case, after a trial, I
won a defamation suit against the blogger. In the other case, the
!"#$ &'()*+,*-)-./*012 34+56$78 9)9*( :;(9>(? @"A$ ( 4B 9
7/26/2019 ECF 232 Redacted
6/15
defendant settled after being identified, That second defendant was also
a defendant in this federal case and she resol
time.
Dated this 12th day of December. 2014
!"#$ &'()*+,*-)-./*012 34+56$78 9)9*( :;(9>(? @"A$ 9 4B 9
7/26/2019 ECF 232 Redacted
7/15
Case 1:13-cv-01l40-ELH Document 8 Filed07/24/13 Page 1 of 9
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
In re SUBPOENA OF DANIELDRASIN
ADVANCED CAREER
TECHNOLOGIES, INC.,
Plaintiff,
v.
JOHN DOES 1-10, all whose true
names are unknown,
Defendants.
Civil Action No. ELH-I3-1140
(Related Case: Case No. I3-cv-00304 in
the United States District Court for theDistrict of Colorado)
MEMORANDUM
Advanced Career Technologies, Inc. ("ACT"), plaintiff, sued ten John Doe defendants in
federal court in Colorado, based on allegedly defamatory comments posted anonymously on
"Random Convergence," an internet blog administered by Daniel Drasin, located at
http://randomconvergcncc.blogspot.coml. In particular, ACT lodged claims for "trade IibcV
commercial disparagement," violations of Section 43(a) of the Lanham Act, IS U.S.C. ~ 1125(a),
and violations of the Colorado Consumer Protection Act, Colo. Rev. Stat. ~ 6-1-105. See
Verified Complaint ("Complaint," ECF I-I).
On March 11,2013, Magistrate Judge Kristin Mix of the United States District Court for
the District of Colorado authorized expedited discovery, and granted ACT's motion for leave to
serve third party subpoenas on Drasin, a resident of Maryland.1
Two subpoenas were issued to
Drasin by this Court, commanding him, in his individual capacity and as administrator of the
IACT was also granted leave to serve a subpoena on Google, Inc.
!"#$ &'()*+,*-)-./*012 34+56$78 9)9*9 :;(9>(? @"A$ ( 4B /
http://randomconvergcncc.blogspot.coml./http://randomconvergcncc.blogspot.coml./7/26/2019 ECF 232 Redacted
8/15
Case 1:13-cv-01140-ELH Document 8 Filed 07/24/13 Page 2 of 9
Random Convergence blog, to produce the "true name, address, telephone number, e-mail
address, and Media Access Control address of each of the ten Doc Defendants," based on "the IP
[Internet Protocol] addresses from which they posted and edited posts about [ACT] and its
employees," as identified in "Motion [#11]." ECF 1-3 (brackets in original)2 ECF 1-3 (brackets
in original). "Motion [#11]" appears to refer to ACT's "Amended Motion for Expedited
Discovery," which is attached to the Motion to Quash, at ECF 1-2, and includes a computer
"screen shot" listing twelve IP addresses. See id. at 4.
On April 18, 2013, Drasin, who is self-represented, filed a third-party motion to quash the
subpoenas, pursuant to Fed. R. Civ. P. 45(c)(3)(A)(iii)-(iv) ("Motion," ECF 1), asserting that
they infringe on the Doc defendants' First Amendment right to anonymous speech. Fed. R. Civ.
P. 45(c)(3), titled "Quashing or ModifYinga Subpoena," states, in pertinent part:
(A) When Required. On timely motion, the issuing court must quash or modifYa
subpoena that:
(iii) requires disclosurc of privileged or other protected matter, if no
cxception or waiver applies; or
(iv) subjects a person to undue burden.
ACT opposes the Motion ("Opposition," or "Opp.," ECF 6), arguing that the subpoenas
provide the only feasible method for it to obtain the identities of the anonymous dcfcndants.
Drasin filed a reply ("Rcply," ECF 7).
2 An IP address is not really an "address" or physical "place" in the usual sense of the
word, and therefore the tcrm can be quite misleading. In fact, it is only an electronic "route" tothe internet assigned by an internet service providcr to a customer on a given date and hour to
providc access to the internet. The route can be assigncd to diffcrent customers on given dates orgiven hours. If a customer accesses the internct briefly and signs off, the IP address is assigned
to another customer. Additionally, "[d]ue to the prevalence of wireless routers, the actual devicethat performcd thc allegedly [unlawful] activity could have becn owned by a relative or guest of
the account owner, or even an interloper without the knowledge of the owner." Patrick Collins,
Inc. v. Doe 1, 288 F.R.D. 233, 237-39 (E.D.N.Y. 2012).
-2-
!"#$ &'()*+,*-)-./*012 34+56$78 9)9*9 :;(9>(? @"A$ 9 4B /
7/26/2019 ECF 232 Redacted
9/15
Case 1:13-cv-01l40-ELH Document 8 Filed07/24/13 Page 3 of 9
The issues have been fully briefed, and no hearing is neeessary to resolve them. See
Local Rule 105.6. For the reasons that follow, 1 will deny the Motion.
Factual Background
ACT is a "career guidance service firm that assists job seekers throughout their job
search." See Compl. ~ 7. It "assist[s] clients in developing a marketing plan that acts as a road
map for the clients' job search, identirying the client's strengths and skills while providing
solutions for any weaknesses, and locating industry options and opportunities in an effort to
maximize the client's chances of securing gainful employment." ld.
As noted, Drasin is the administrator of a blog known as Random Convergence. See
Affidavit of Robert 1. Gcrberg, Jr., President & Chief Executive Officer of ACT, ~ 9 ("Gerberg
Aff.," ECF 6-4). According to ACT, Drasin exercises editorial control over the blog. ld.
Since approximately 2007, individuals have posted over 350 anonymous comments on
Random Convergence, many of which disparage ACT's services. See id. ~~ 1I, 17; Opp. Exh. C
at 16 (ECF 6-3) (screen prints of posts and comments about ACT on Random Convergence).
For example, one post stated: "Scam Scam Scam - 1 just wrote 60 minutes and put out a news
release and wrote the major job search sites. These guys arc toilet slime bags. STAY AWAY
FROM THESE FRAUDS." ld. at 24. Commenters have also listed the names and phone
numbers of ACT executives, which, according to ACT's Complaint, arc not otherwise publicly
available. Compl. ~ 14. ACT "has been unable to veriry or confirm any of the complaints
discussed on the blog." Gerberg Aff. ~ 36.
According to ACT, the anonymous postings are "a sophisticated and coordinated
campaign" intended to "damage ACT's business and reputation." Opp. at 4. It believes that
"[t]he entries on Random Convergence are designed to maximize the effect of the blog by
-3-
!"#$ &'()*+,*-)-./*012 34+56$78 9)9*9 :;(9>(? @"A$ ) 4B /
7/26/2019 ECF 232 Redacted
10/15
Case 1:13-cv-01l40-ELH Document8 Filed 07/24/13 Page 4 of 9
sending spam and driving up the blog's rankings and visibility in the search cnginc Google."
Gcrberg Aff. ~ 15. ACT reports that it has "reccived numcrous emails from potential or current
clients stating that because of the blog, they will no longer be using ACT services." Id. ~ 27.
Additionally, ACT claims that it has "asked to post comments on the Random Convergence Blog
to rebut some of the false statements, but Mr. Drasin refused these rcquests." Id. ~32.
Discussion
Drasin's primary contention is that ACT's subpoenas infringc on the First Amendment
rights of the John Doe defendants to engage in protected, anonymous speech.3
To be sure, "an
author's decision to remain anonymous ... is an aspect of the frcedom of speech protected by
the First Amendment." McIntyre v.Ohio E/ecs. Comm 'n,514 U.S. 334, 342 (1995). "The right
to anonymous speech, however, is not unlimited," Lefkoe v.Jos. A. Bank Clothiers, Inc., 577
F.3d 240, 249 (4th CiT.2009), and the identity of an anonymous speaker may be disclosed during
discovery to protect a litigant's legitimate interest in vindicating his or her legal rights in court.
See, e.g., id. (upholding disclosure of third-party witness's identifying information because there
was a "substantial governmental interest in providing [defendant] a fair opportunity to defend
itself in court ... by requiring the Doe [witness] to reveal its identity and provide the relevant
information," which outweighed the witness's right to anonymous commercial speech); In re
Anonymous Online Speakers, 661 F.3d 1168, 1177 (9th Cir. 2011) (upholding disclosure with
3 Drasin has standing to assert these rights on behalf of the John Doe defendants.
Schaumberg v. Citizensfor a Beller Environment, 444 U.S. 620, 634 (1980) ("Given a case orcontroversy, a litigant whose own activities are unprotected may nevertheless challenge a statute
by showing that it substantially abridges the First Amendment rights of other parties not before
the court."); see, e.g., Enterline v.Pocono Med. Crr.,751 F. Supp. 2d 782, 786 (M.D. Pa. 2008)
(finding that newspaper had standing to assert First Amendment rights of anonymous websitecommenters in challenging subpoena seeking disclosure of commenters' names becausc
commenters "face[d] practical obstacles to asserting their own First Amendmcnt rights" while
retaining anonymity; disclosure would "compromise the vitality of the newspaper's online
forums, sparking rcduced reader interest and a corresponding dccline in revenues"; and
newspaper would "zealously argue and frame the issues").
-4-
!"#$ &'()*+,*-)-./*012 34+56$78 9)9*9 :;(9>(? @"A$ ? 4B /
7/26/2019 ECF 232 Redacted
11/15
Case 1:13-cv-01l40-ELH Document 8 Filed07124/13 Page 5 of 9
respect to identity of three non-party anonymous speakers who allegedly made defamatory
statements about plaintiff. which formed predicate of plaintiffs claims against a business
competitor for tortious interference).
Where a discovcry request impinges on First Amendment rights. courts will "'balance the
burdens imposed ... against thc significance of the ... interest in disclosure,' to determine
whether the 'interest in disclosure ... outweighs the harm .Perry v. Schwarzenegger. 591 F.3d
1141. 1161 (9th Cir. 2010) (citations omitted). With respect to a speaker's anonymity. the
protection accorded "varies depending on thc circumstances and the type of speech at issue." In
re Anonymous. 661 F.3d at 1173. For cxample. courts "typically" protect anonymity in literary,
religious or political speech, whcreas "commercial speech ... 'enjoys a limited measure of
protection. commensurate with its subordinate position in the scale of First Amendment values,'''
Lefkoe. 577 F.3d at 249 (quoting Bd. ofrrs. ofSUNYv. Fox. 492 U.S. 469. 477 (1989)). Further.
"there can be no constitutional objection" to thc regulation of commercial speech that is
"misleading" or "related to unlawful activity." Central Hudson Gas & Elec. Corp. v. Pub. Servo
Comm 'n of N. Y., 447 U.S. 557. 563-64 (1980). Accordingly. courts have recognizcd that "the
nature of the speech" is "a driving force in choosing a standard by which to balancc the rights of
anonymous speakers in discovery disputes," In re Anonymous. 661 F.3d at 1177.
According to Drasin. ACT has not demonstrated that its intercsts in disclosure outweigh
the John Doe defendants' rights to anonymous speech. He relics primarily on the decision of the
Maryland Court of Appeals in Independent Newspapers, Inc. v. Brodie. 407 Md. 415. 966 A.2d
432 (Md. 2009). In Brodie. thc plaintiff brought a defamation action against a newspaper and
several anonymous defendants who posted comments on the newspaper's online discussion
forum. and then subpoenaed the newspaper to obtain the identities of the Doc defendants. See id.
-5-
!"#$ &'()*+,*-)-./*012 34+56$78 9)9*9 :;(9>(? @"A$ . 4B /
7/26/2019 ECF 232 Redacted
12/15
Case 1:13-cv-01l40-ELH Document 8 Filed 07/24/13 Page 6 of 9
at 431-39,996 A.2d at 442-47. The court held that the newspaper was not obligated to comply
with the subpoena because the plaintiff had not made out a prima facie case of defamation. Id. at
440,966 A.2d at 447.
The Brodie Court articulated a five-part test to "balanc[e) an individual's First
Amendment right to speak anonymously on the Internet against a plaintiff's right to seek judicial
redress for defamation." /d. It said:
[W)hen a trial court is confronted with a defamation action in which anonymous
speakers or pseudonyms arc involved, it should, (I) require the plaintiff to
undertake efforts to notify the anonymous posten; that they arc the subject of a
subpoena or application for an order of disclosure, including posting a message ofnotification of the identity discovery request on the message board; (2) withhold
action to afford the anonymous posters a reasonable opportunity to file and serveopposition to the application; (3) require the plaintiff to identify and set forth the
exact statements purportedly made by eaeh anonymous poster, alleged to
constitute actionable speech; (4) determine whether the complaint has set forth a
prima facie defamation per se or per quod action against the anonymous posters;
and (5), if all else is satisfied, balance the anonymous poster's First Amendment
right of free spcech against thc strength of the prima facie case of defamation
presented by the plaintiff and the necessity for disclosure of the anonymous
defendant's identity, prior to ordering disclosure.
Id. at 456, 966 A.2d at 457 (citing Dendrite Int'/, Inc. v. Doe No.3, 775 A.2d 756, 760-61 (N.J.
Super. Ct. App. Div. 2001)).
Drasin argues that ACT has failed to satisfy the Brodie test. Fin;t, Drasin asserts that
ACT did not undertake to notify the anonymous posten; that they are the subject of a subpoena
by posting a notification on the blog. Motion at 6-7. Second, he claims that ACT has not
identified the particular comments made by the John Doc defendants that it alleges are unlawful,
and therefore this Court cannot "weigh the posten;"] [F)irst [A)mendment right to remain
anonymous against Plaintiffs right to seek judicial redress." Id. at 7. Third, he contends that
ACT cannot make out a prima facie case on any of its claims, because ACT has failed to identify
the actionable comments on which its lawsuit is based. Id. at 7-10.
-6-
!"#$ &'()*+,*-)-./*012 34+56$78 9)9*9 :;(9>(? @"A$ C 4B /
7/26/2019 ECF 232 Redacted
13/15
Case 1:13-cv-01l40-ELH Document8 Filed07/24/13 Page 7 of 9
In response, ACT claims that, under "under principles of comity," this Court should
"defer" to Magistrate Judge Mix's authorization of the subpoenas in this case. Opp. at 7-8
(citing Ulmet v. United States, 888 F.2d 1028, 1031 (4th Cir. 1989)). CitingLefkoe and In re
Anonymous Online Speakers, supra,ACT also argues that the Doe defendants' comments are not
protected under the First Amendment becausc they constitute false and misleading commercial
statements. Opp. at 9-11. Additionally, ACT contends that, even underBrodie, the subpoenas
arc valid because ACT attempted to give notice to the anonymous posters through posts on
Random Convergence; identified the anonymous posts at issue; alleged a prima facie case; and
its interests in vindicating its rights outweigh the First Amendment rights of the John Doc
defendants. See id. at 11-17. ACT adds that it "is willing to enter into a protective order which
limits disclosure of the anonymous posters' identities to just the parties in this lawsuit or just to
their attorneys." Id. at 17.
I agree that ACT has a strong interest in protecting itself from unlawful online speech.
According to ACT, it has suffered harm to its reputation as a result of the blog's extensive
commentary on its business practices that are, according to ACT, false and misleading. For
example, potential and current clients have allegedly declined to use ACT's services because of
the comments on Random Convergence. Gerberg Aff. '\127;see In re Anonymous, 661 F.3d at
1176 (recognizing "the great potential for irresponsible, malicious, and harmful communication
and that particularly in the age of the Internet, the speed and power of internet technology makes
it difficult for the truth to 'catch up' to the lie") (internal quotation marks and citation omitted).
Moreover, ACT is in need of the identities of these eommenters to pursue its legal claims
concerning the online speech. See Lefkoe, 577 F.3d at 249; e.g., Columbia Ins. Co. v.
seescandy.com, 185 F.R.D. 573, 577-78 (N.D. Cal. 1999) (rccognizing need for parties injured
-7-
!"#$ &'()*+,*-)-./*012 34+56$78 9)9*9 :;(9>(? @"A$ D 4B /
7/26/2019 ECF 232 Redacted
14/15
Case 1:13-cv-01l40-ELH Document 8 Filed 07/24/13 Page 8 of 9
by anonymous online tortfeasors to discover the tortfeasors' identities in order to permit service
and obtain relief); see also Gerberg Aff. '\137 ("The only way to veritY the identity of anonymous
posts is by the Internet Protocol address that individual used to post on the Random Convergence
blog.").
ACT's interest In disclosure clearly outweighs the Doe defendants' limited First
Amendment right of anonymity. See In re Anonymous, 661 F.3d at 1176-77. Given that the
speech in question is of a commercial nature, and allegedly false and misleading, it "enjoys less
First Amendment protection." Lejkoe, 577 F.3d at 248; see Central Hudson, supra, 447 U.S. at
563-64 (discussing commercial speech); see also Ashcroft v. Free Speech Coalition, 535 U.S.
234, 245-46 (2002) (explaining that First Amendment protection "docs not embrace certain
categories of speech, including defamation").
ACT has also satisfied the procedural requirements set forth inBrodie, although they are
not binding on this Court. In particular, ACT avers that Drasin posted a letter from ACT on the
blog, "putting all posters on notice that ACT would seek a subpoena" if the defamatory
comments were not rcmoved. Opp. at 13; Gerberg Aff. '\I 34. Additionally, ACT claims that it
attempted to address the defamatory comments by posting directly to Random Convergence, but
Drasin deleted its posts. Opp. at 13; Gerberg Aff. '\1'\132,34.
Further, I reject Drasin's argument that ACT has not identified adequately the allegedly
unlawful posts. To be sure, not all of the comments in the exhibits submitted by ACT arc
offensive, and thus the identities of those who made those remarks would be irrelevant to ACT's
claims that commenters "published disparaging, false, defamatory and harmful statements." See
Opp. at 15-16. Nevertheless, ACT has provided voluminous exhibits that dctail the many
offensive comments made on the Random Convergence blog which form the basis of its suit.
-8-
!"#$ &'()*+,*-)-./*012 34+56$78 9)9*9 :;(9>(? @"A$ & 4B /
7/26/2019 ECF 232 Redacted
15/15
Case 1:13-cv-01140-ELH Document 8 Filed 07/24/13 Page 9 of 9
See generally Opp. Exh. 3 (ECF 6-3). Judge Mix determined that ACT is entitled to expedited
discovery as to these comments, see Opp. at 1, and I will not second-guess that determination.
See Ulmet, supra, 888 F.2d at 1031 (discussing principles of judicial comity); e.g., Gregory-
Portland Ind Sch. Dist. v.Texas Educ. Agency, 576 F.2d 81, 83 (5th Cir. 1978) (concluding that
comity precluded one district court from issuing an order that conflicted with an injunction
issued by another district court in the same matter).
Although I cannot be certain that each IP address corresponds to an offensive comment,
absolute certainty is not required. Moreover, plaintiff has agreed to a protective order, and the
Doe defendants' privacy concerns will be addressed adequately by a protective order limiting
disclosure of the defendants' identifying information to the parties and their counsel.
Conclusion
For the foregoing reasons, I will deny the Motion. An Order follows.
Date: July 24, 2013 lsi
Ellen L. Hollander
United States District Judge
-9-
!"#$ &'()*+,*-)-./*012 34+56$78 9)9*9 :;(9>(? @"A$ / 4B /
Recommended