Decisions Roundup: 6th Cir Denies Allegedly Defamed Man's Request for ISP To Give Up Information

Posted by Eriq Gardner

Case: Mordecai Tendler v. jewishsurvivors.blogspot.com

Court: 6th Circuit

Date: July 7

Facts: Appellant Mordecai Tendler obtained a pre-filing discovery order in Ohio to aid in his effort to learn the identities of the anonymous individuals who had posted allegedly defamatory statements about him on the Internet.  When Google, the subject of Tendler’s discovery order, refused to comply with Ohio subpoenas, Tendler filed a request for subpoenas in Santa Clara County Superior Court premised on the Ohio discovery order. Respondents filed a motion to quash the request based on Civil Procedure 425.16, which provides a "cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech..."

Holding: "Even the broadest interpretation of the plain language of section 425.16 cannot stretch it to cover a request for a subpoena.  A request for a subpoena is not a complaint, a cross-complaint, a petition or any equivalent pleading, does not contain any causes of action, and does not serve to initiate a judicial proceeding. A complaint or cross-complaint must contain a statement of the factual allegations constituting the cause of action and a demand for the relief sought by the pleader. ."

Furthermore: The court urges the legislature to address the issue: "There is good reason to believe there has been and will continue to be a corresponding increase in requests for subpoenas served on ISPs and other site hosts to disclose the identities of writers.  Some requests will be based on a legitimate right to discover the source of libelous statements or business disinformation schemes; but some will be solely for the purpose of silencing a critic by harassment, ostracism, or retaliation.

To read the opinion, click here.