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In re Subpoena of Drasin

United States District Court, Fourth Circuit

July 24, 2013

In re SUBPOENA OF DANIEL DRASIN
v.
JOHN DOES 1-10, all whose true names are unknown, Defendants. ADVANCED CAREER TECHNOLOGIES, INC., Plaintiff,

Related Case: Case No. 13-cv-00304 in the United States District Court for the District of Colorado

MEMORANDUM

Ellen L. Hollander United States District Judge

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://randomconvergence.blogspot.com/. In particular, ACT lodged claims for “trade libel/ commercial disparagement, ” violations of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), and violations of the Colorado Consumer Protection Act, Colo. Rev. Stat. § 6-1-105. See Verified Complaint (“Complaint, ” ECF 1-1).

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 Random Convergence blog, to produce the “true name, address, telephone number, e-mail address, and Media Access Control address of each of the ten Doe 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 Doe defendants’ First Amendment right to anonymous speech. Fed.R.Civ.P. 45(c)(3), titled “Quashing or Modifying a Subpoena, ” states, in pertinent part:

(A) When Required. On timely motion, the issuing court must quash or modify a subpoena that:
(iii) requires disclosure of privileged or other protected matter, if no exception 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 defendants. Drasin filed a reply (“Reply, ” ECF 7).

The issues have been fully briefed, and no hearing is necessary to resolve them. See Local Rule 105.6. For the reasons that follow, I 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, identifying 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.” Id.

As noted, Drasin is the administrator of a blog known as Random Convergence. See Affidavit of Robert J. Gerberg, Jr., President & Chief Executive Officer of ACT, ¶ 9 (“Gerberg Aff., ” ECF 6-4). According to ACT, Drasin exercises editorial control over the blog. Id.

Since approximately 2007, individuals have posted over 350 anonymous comments on Random Convergence, many of which disparage ACT’s services. See Id . ¶¶ 11, 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 - I just wrote 60 minutes and put out a news release and wrote the major job search sites. These guys are toilet slime bags. STAY AWAY FROM THESE FRAUDS.” Id. at 24. Commenters have also listed the names and phone numbers of ACT executives, which, according to ACT’s Complaint, are not otherwise ...


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