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In re Subpoena of Drasin

United States District Court, District of Maryland

February 12, 2014

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 Lipton Hollander United States District Judge

In this case, I must determine whether to quash a subpoena issued by Advanced Career Technologies, Inc. (“ACT”) to a non-party, Daniel Drasin.

ACT is the plaintiff in a case pending in federal court in Colorado (the “Colorado Action”). There, ACT sued ten John Doe defendants based on allegedly defamatory comments posted anonymously on “Random Convergence, ” an internet blog administered by Daniel Drasin, located at http://randomconvergence.blogspot.com/ (the “Blog”).[1] 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). Drasin is not a party in the Colorado Action.

On December 10, 2013, Magistrate Judge Kristin Mix of the United States District Court for the District of Colorado granted ACT’s motion for leave to serve a third party subpoena on Drasin, a resident of Maryland. On December 28, 2013, ACT served the subpoena (the “Subpoena, ” ECF 12-12) on Drasin. The Subpoena, which was the third subpoena served on Drasin by this Court in connection with the Colorado Action, commanded Drasin to produce “[a]ny hard drives, servers, and any other devices used by YOU to administer the Random Convergence Blog and data stored online via website or application . . . .” Id.[2]

On January 10, 2014, Drasin filed in this Court a third-party motion to quash the Subpoena, pursuant to Fed.R.Civ.P. 45(c)(3) (“Motion, ” ECF 12), asserting that it is unreasonable, imposes an undue burden on him, and is not likely to lead to relevant evidence. ACT opposes the Motion (“Opposition, ” or “Opp., ” ECF 13), and has submitted several exhibits. It argues that the Subpoena complies with Fed.R.Civ.P. 45 and that principles of comity weigh in favor of deferring to the order of Magistrate Judge Mix. Drasin filed a reply (“Reply, ” ECF 14).

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).

ACT claims the anonymous postings are “a sophisticated and coordinated campaign” intended to “damage ACT’s business and reputation.” Opp. at 4. In its view, “[t]he entries on Random Convergence are designed to maximize the effect of the blog by sending spam and driving up the blog’s rankings and visibility in the search engine Google.” Gerberg Aff. ¶ 15. ACT reports that it has “received numerous 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 requests.” Id. ¶ 32.

On March 11, 2013, Magistrate Judge Mix authorized expedited discovery and granted ACT’s motion for leave to serve third party subpoenas on Drasin. As noted, two subpoenas were previously issued to Drasin by this Court. They commanded 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.” ECF 1-3. ACT was also granted leave to serve a subpoena on Google, ECF 6 at 14, but the record does not reflect whether ACT ever served that subpoena on Google. On April 18, 2013, Drasin, then self-represented, filed a third-party motion to quash the subpoenas, ECF 1, asserting, inter alia, that they infringed on the Doe defendants’ First Amendment right to anonymous speech. In a Memorandum and Order of July 24, 2013, this Court denied the motion to quash. See ECF 8, 9.

On August 15, 2013, Drasin, through counsel, wrote an email to counsel for ACT. ECF 12-6. In the email, Drasin outlined the different ways in which a visitor to the Blog may post a comment, id.:

When someone wishes to post a comment on Random Convergence, he or she fills out a form on the blogger website and then posts his or her comments. The poster can optionally sign the post with a Google-account-name, an email address, an OpenId., a free-form name or URL, or simply “Anonymous.” If any of the non-anonymous options are used, the comment will appear on the blog with the comment beginning as follows: “<moniker> says …” followed by the comment. If the poster chooses to use a Google-account-name, the moniker will be underlined and selectable in the viewing webpage. Selecting the moniker takes one to the public information that the poster/Google user has chosen to make available. If the poster chooses another moniker, the moniker may simply be text and read “un-selectable.” If the poster chooses to post as Anonymous, then the comment will begin with “Anonymous says …” followed by the body of the post. The word Anonymous will not be selectable and there will be no other information available.

Drasin further advised that most individuals who posted comments on the Blog did so anonymously, and he explained that he had no records of those who chose to remain anonymous. Id. Drasin did, however, provide the information he possessed about the commenters who had not posted anonymously, all of which appears to be information that would be available to anyone who visits the Blog. Id. The letter concluded, id.: “In short, we have provided you with all the relevant information that ...


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