Spider Labs LTD. v. John Doe
ORDER. Doe's motion to quash the subpoena (ECF No. 1 ) to Charter is GRANTED. By Judge Raymond P. Moore on April 28, 2021. (rvill, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Miscellaneous Case No. 20-mc-00145-RM
SPIDER LABS, LTD.,
This matter is before the Court on Petitioner John Doe’s (“Doe”) motion to quash the
subpoena (ECF No. 1) issued to non-party, Charter Communications, Inc. (“Charter”).
Respondent Spider Labs, Ltd. (“Spider Labs”) has filed a response to the motion (ECF No. 12),
and Doe has filed a reply (ECF No. 14). The parties have also submitted supplemental briefs
further addressing the issues in this matter (ECF Nos. 20, 23, 24, 25); the motion is now ripe for
decision. For the reasons stated below, the motion is granted.
As it happens, this case is pending in the Southern District of New York, Spider Labs,
Ltd. v. Doe, No. 1:20-cv-05457-LAP (S.D.N.Y.). Plaintiff in the underlying case, Spider Labs,
provides cybersecurity software designed to protect companies utilizing digital advertising by
identifying and reducing digital advertising fraud. (ECF No. 1-1 at 2.) Defendant, Doe, is a
computer scientist, fraud fighter, and part-time blogger determined to combat advertising fraud
on the world wide web. (ECF No. 11 at 1.)
Under perhaps a less conspicuous alias than some assumed by other disguised crime
fighters, “Jeff Katzenberg”, Doe emailed several of Spider Labs’ customers attacking the
company’s credibility and technology. (ECF No. 1-1 at 2.) Spider labs then sued Doe for (1)
defamation, (2) tortious interference with prospective economic advantage, (3) tortious
interference with a contractual relationship, and (4) a request for injunctive relief. (ECF No. 1 at
Spider Labs now seeks to unmask Doe. In its effort to do so, Spider Labs subpoenaed
Godaddy.com LLC, Google LLC, LinkedIn Corp., and Charter seeking identifying information
for the device Doe used to transmit the allegedly defamatory emails. Merely days before the
deadline to produce the requested information, Doe moved to quash each subpoena. The other
motions to quash have been granted for reasons discussed below. See In re Rule 45 Subpoenas
Issued to Google LLC & LinkedIn Corp., No. 20-MC-80141-VKD, 2020 WL 7202818 (N.D.
Cal. Dec. 7, 2020) (In re Subpoenas to Google & LinkedIn); Spider Labs Ltd. v. Doe, No. MC20-00039-PHX-SPL, 2020 WL 6262397 (D. Ariz. Oct. 23, 2020).
Fed. R. Civ. P. 45 requires a court to quash or modify a subpoena that requires disclosure
of privileged or other protected matter (if no exception or waiver applies) or subjects a person to
an undue burden. The movant bears the burden of persuasion in a motion to quash a subpoena.
Sea Tow Int’l, Inc. v. Pontin, 246 F.R.D. 421, 424 (E.D.N.Y. 2007). Courts in this Circuit “have
recognized that civil subpoenas seeking information regarding anonymous speakers raise First
Amendment concerns.” Koch Indus., Inc. v. Does, No. 2:10-CV-1275DAK, 2011 WL 1775765,
at *10 (D. Utah May 9, 2011) (citation omitted). Thus, “[b]efore authorizing subpoenas seeking
to strip speakers of their First Amendment right to anonymity, courts require plaintiffs to make a
preliminary showing that their complaint has merit.” Koch Indus., Inc., 2011 WL 1775765, at
Doe’s argument has evolved since the filing of his motion, primarily because of the
Orders issued in In re Subpoenas to Google & LinkedIn and Spider Labs Ltd. Now, in addition
to claiming his First Amendment rights require that the subpoena to Charter be quashed, Doe
asserts that his motion should be granted based on the doctrine of collateral estoppel. (ECF No.
20 at 1.) Spider Labs rejects both contentions. First, Spider Labs argues that Doe’s speech falls
outside the sanctuary of the First Amendment because (1) it made a showing of a prima facie
case for defamation and (2) Doe lacks standing to invoke this constitutional safeguard. (ECF
No. 12 at 1-2.) Second, Spider Labs argues that the Court should decline to collaterally estop
adjudication of this matter as it did not get a full and fair opportunity to litigate each issue. (ECF
The Court will first address the applicability of the collateral estoppel doctrine as that
matter alone may be determinative of Doe’s petition to bar the discovery request.
Collateral estoppel, also referred to as issue preclusion, “prevents a party that has lost the
battle over an issue in one lawsuit from relitigating the same issue in another lawsuit” so long as
it has been “determined by a valid and final judgment.” Stan Lee Media, Inc. v. Walt Disney Co.,
774 F.3d 1292, 1297 (10th Cir. 2014) (quotation and citation omitted). By doing so, the doctrine
“aims to promote judicial efficiency, encourage reliance on previously adjudicated matters, and
avoid inconsistent rules of decision.” Id.
For collateral estoppel to apply, four elements must be met:
(1) the issue previously decided is identical with the one presented
in the action in question, (2) the prior action has been finally
adjudicated on the merits, (3) the party against whom the doctrine is
invoked was a party or in privity with a party to the prior
adjudication, and (4) the party against whom the doctrine is raised
had a full and fair opportunity to litigate the issue in the prior action.
Moss v. Kopp, 559 F.3d 1155, 1161 (10th Cir. 2009) (citation omitted).
The Prior Cases. On October 23, 2020, the Arizona court granted Doe’s motion to quash
Spider Labs’ subpoena to GoDaddy, explaining that Spider Labs failed to make a prima facie
showing on each element of its defamation claim.1 Spider Labs Ltd., 2020 WL 6262397, at *2.
Applying New York law, the court found that Spider Labs did “not have the evidence to prove
whether statements [Doe] made in his emails were false,” and, thus, the most basic element of
defamation could not be established. Id.
Similarly, on December 7, 2020, the California court granted Doe’s motion to quash
Spider Labs’ subpoenas to Google and LinkedIn, in part, because the issue of whether Spider
Labs had established a prima facie case for defamation was previously decided by the Arizona
court. In re Subpoenas to Google & LinkedIn, 2020 WL 7202818, at *6. The California court
explained that the central issue before it and the Arizona court was identical, the same parties
had the opportunity to and actually did litigate the issue, and the Arizona court rendered a final
order on the merits.2 Id.
That, however, did not end the California court’s inquiry as it also considered whether
The Arizona court declined to examine Spider Labs’ other claims after finding that it failed to meet all elements of
a defamation claim because defamation was “the claim from which all others stem[med].” Spider Labs Ltd., 2020
Even though the California court found the parties were estopped from relitigating the issue of whether Spider
Labs made a prima facie defamation case, it still addressed the merits of that claim because of the “dearth of
authority regarding application of the collateral estoppel doctrine in the context of parallel ancillary discovery
proceedings.” In re Subpoenas to Google & LinkedIn, 2020 WL 7202818, at *8. After doing so, the California
court found Spider Labs failed to present “evidence supporting the first and third elements of its defamation claim.”
Doe had standing to invoke First Amendment protection since “[t]he parties did not actually
litigate and the District of Arizona did not decide” that issue. Id. at *7. The California court
found that Doe had standing, reasoning that based on facts alleged in the complaint, Doe is a
U.S. Citizen who resides in New York, and, thus, meets the minimum requirements to avail
himself of this constitutional safeguard. Id.
To summarize the issues previously decided, (1) the Arizona and California courts held
that Spider Labs failed to make a prima facie showing for its defamation claim and (2) the
California court held Doe was entitled to invoke First Amendment protections to quash the
subpoena. Based on these prior decisions, the Court finds the doctrine of collateral estoppel
applies in this matter.
First Element. First, the issues previously decided by the Arizona and California courts,
that Doe is entitled to First Amendment protection and that Spider Labs failed to present facts
sufficient to make a prima facie case for defamation, are identical to the ones presented in this
Second Element. Second, when Doe’s motions to quash the subpoenas issued in Arizona
and California were granted, the matters were finally adjudicated on the merits. In general,
“pretrial discovery orders are not final or immediately appealable.” S.E.C. v. Dowdell, 144 F.
App’x 716, 721 (10th Cir. 2005). Nevertheless, “there exist marginal cases falling within a
‘twilight zone’ of finality.” Dowdell, 144 F. App’x at 722 (discussing the finality of a district
court’s order denying a motion to quash a non-party subpoena for purposes of appellate
jurisdiction) (citation omitted). For example, where the court addressing a miscellaneous
discovery proceeding is not the same one in which the main action is being litigated, the only
viable manner in which a party “may challenge the district court’s discovery order is through
direct appeal.” Id. Thus, a sister district court’s order barring discovery is sufficiently final for
purposes of issue preclusion. See Veith v. Pennsylvania, 67 F. App’x 95, 98 (3d Cir. 2003)
(explaining that an “order denying the motion [to quash] was ‘a final order’”) (citation omitted).
The Arizona court has ruled on Doe’s motion to quash and subsequently denied Spider
Labs’ motion for reconsideration. Likewise, the California court has ruled on Doe’s motion to
quash. Those proceedings before the Arizona and California courts have ended and the orders
issued are sufficiently final for purposes of collateral estoppel.
Third Element. Third, the party against whom estoppel is invoked, Spider Labs, was a
party in both prior cases.
Fourth Element. Fourth, Spider Labs had ample opportunity to litigate the issues before
the Court. In considering whether a party had a full and fair opportunity to litigate an issue,
courts consider “whether there were significant procedural limitations in the prior proceeding,
whether the party had the incentive to litigate fully the issue, or whether effective litigation was
limited by the nature or relationship of the parties.” Stan Lee Media, Inc., 774 F.3d at 1297
(citation and quotation omitted).
Here, there were no procedural limitations in either of the previous proceedings; Spider
labs had copious opportunity to brief the issues, filed a motion for reconsideration in the Arizona
case, and participated in oral arguments before the California court. Moreover, the Court
discerns no indication that Spider Labs lacked incentive to advocate against Doe’s motions in the
Arizona and California courts or that effective litigation was limited by the parties’ relationship.
In light of the applicable considerations, Spider labs had a full and fair opportunity to litigate the
Therefore, the Court finds the elements for collateral estoppel to apply are met and gives
preclusive effect to the Orders rendered in the Arizona and California courts. Accordingly,
Spider Labs is collaterally estopped from obtaining the information it seeks from Charter and
Doe’s motion must be granted. See Bounkhoun v. Barnes, No. 15-CV-631A, 2020 WL 1526917,
at *4 (W.D.N.Y. Mar. 30, 2020) (granting non-parties’ motions to quash subpoenas because an
identical discovery request had previously been rejected by a state court); Kwolek v. United
States, No. 11-MC-53, 2011 WL 2940984, at *2 (W.D. Pa. July 21, 2011) (finding plaintiff was
precluded from relitigating the issue of whether defendant established a prima facie case for
enforcement of the summons because another district court had previously decided the issue).
The only remaining issue before the Court is whether Doe is entitled to attorneys’ fees for
moving to quash the subpoena under Fed. R. Civ. P. 45(d)(1). Pursuant to that provision, a party
issuing a subpoena “must take reasonable steps to avoid imposing undue burden or expense on a
person subject to the subpoena,” otherwise, the Court can impose an appropriate sanction such as
attorney’s fees. Fed. R. Civ. P. 45(d)(1). An award of fees against a party under Rule 45 is
punitive and should be limited to circumstances where a party takes actions during litigation that
are “‘entirely without color and [have] been asserted wantonly, for purposes of harassment or
delay, or for other improper reasons.’” Gen. Steel Domestic Sales, LLC v. Chumley, No. 13-CV00769-MSK-KMT, 2014 WL 3057496, at *2 (D. Colo. July 7, 2014) (quoting Sterling Energy,
Ltd. v. Friendly Nat. Bank, 744 F.2d 1433, 1435 (10th Cir.1984)).
In support of his request for sanctions, Doe relies on a case concerning similarly aimed
subpoenas to the one at issue in this matter, In re Rule 45 Subpoena Issued to Cablevision Sys.
Corp. Regarding IP Address 18.104.22.168, No. 08-347-ARR-MDG, 2010 WL 2219343, at *11
(E.D.N.Y. Feb. 5, 2010) (Cablevision Sys. Corp.).
In Cablevision Sys. Corp., the court found sanctions to be warranted after a creditor
issued repeated discovery requests to get information it was previously barred from obtaining.
2010 WL 2219343, at *11. There, a month after the creditor’s subpoena of a non-party seeking
to discover an anonymous defendant’s identity was quashed, the creditor re-subpoenaed the same
party for identical information. Id. The creditor then issued another subpoena, this time to a
different non-party, again seeking to discover the defendant’s identity. Id. As one would have
thought, the Cablevision Sys. Corp. court found this conduct to be “troubling.” Id.
Here, unlike in Cablevision Sys. Corp. where the subpoenaing party made repeated
attempts over the course of months to discover the same information a court had previously
barred it from obtaining, Spider Labs issued its subpoenas on the same day with no prior
knowledge of how its request would be resolved. As a result, the Court finds no indication
Spider Labs has acted in bad faith. Accordingly, Doe’s request for attorneys’ fees is denied.
Based on the forgoing, Doe’s motion to quash the subpoena (ECF No. 1) to Charter is
DATED this 28th day of April, 2021.
BY THE COURT:
RAYMOND P. MOORE
United States District Judge
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