Tamburo v. Dworkin, et al

Filing 454

MEMORANDUM Opinion and Order Signed by the Honorable Nan R. Nolan on 7/11/2011.Mailed notice(lxs, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOHN F. TAMBURO, et al.,
Plaintiffs,
v.
STEVEN DWORKIN, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

No. 04 CV 3317
Magistrate Judge Nan R. Nolan

MEMORANDUM OPINION AND ORDER
On February 28, 2011, Plaintiff Versity Corporation (“Plaintiff”) served Defendant Kristen Henry (“Defendant”) with eight document requests. (Mot. ¶ 1.) On
April 6, 2011, Defendant responded with objections to most of the requests and produced 15 pages of documents. (Id. ¶ 3.) On May 5, 2011, Plaintiff filed its Motion,
requesting the Court to compel Defendant to fully comply with the document requests. On May 10, 2011, the Court ordered the parties to meet and confer in a good
faith attempt to reach an agreement regarding Plaintiff’s Motion. After the parties
conferred, only two document requests—Nos. 5 and 6—remain at issue and are the
subject of this Order.1

While Defendant states that Request No. 7 remains at issue (Resp. 1), she contends
that all responsive documents have been produced (id. 8–9) and asserts that she will supplement her response if responsive documents can be retrieved from her damaged hard
drive, (id. nn. 1, 5). In its Reply, Plaintiff does not object to Defendant’s assertions.
1

Document request No. 5 requests APDUG’s membership list and related documents.2 (Mot. 3, Ex. A at 6.) Request No. 6 seeks all messages circulated by and
among the APDUG discussion group (“APDUG Group”). (Id. 3, Ex. A at 7.) Defendant objects to these requests as irrelevant, overbroad and in violation of individual
privacy interests. (Resp. 3–7.) She contends that “the identities of individuals who
engaged in anonymous or pseudonymous communications” are protected from disclosure. (Id. 4.)
It is settled law that “an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect
of the freedom of speech protected by the First Amendment.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342 (1995). “Although the Internet is the latest platform for anonymous speech, online speech stands on the same footing as other
speech—there is ‘no basis for qualifying the level of First Amendment scrutiny that
should be applied’ to online speech.” In re Anonymous Online Speakers, 2011 WL
61635, at *2 (9th Cir. Jan. 7, 2011) (quoting Reno v. ACLU, 521 U.S. 844, 870
(1997)).
“The right to speak, whether anonymously or otherwise, is not unlimited, however, and the degree of scrutiny varies depending on the circumstances and the type
of speech at issue.” In re Anonymous Online Speakers, 2011 WL 61635, at *2. Political speech is afforded the highest level of protection. Meyer v. Grant, 486 U.S. 414,

APDUG (the Alfirin Pedigree Database Users Group) is a Yahoo! discussion group
moderated by Henry, which discusses topics related to the Alfirin pedigree software. (Resp.
3.)
2

No. 04 CV 3317

2

422, 425 (1988). Commercial speech, on the other hand, enjoys “a limited measure of
protection, commensurate with its subordinate position in the scale of First
Amendment values,” Bd. of Trustees of SUNY v. Fox, 492 U.S. 469, 477 (1989), as
long as “the communication is neither misleading nor related to unlawful activity,”
Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N.Y., 447 U.S. 557,
564 (1980). Further, because a court must carefully balance the important value of
anonymous speech against a party’s need for relevant discovery, “commercial speech
should be afforded less protection than political, religious, or literary speech.” In re
Anonymous Online Speakers, 2011 WL 61635, at *6.
Here, the speech on the APDUG Group is clearly commercial speech entitled to
some First Amendment protections. (See Resp. 3 (describing the purpose of the
group as focused on the Alfirin pedigree software).) Nevertheless, because Plaintiff
has acknowledged that it can gather the information it seeks without a need to reveal the identities of persons on the APDUG Group who intend to be anonymous
(Reply 6), the court need not decide whether the speech was misleading or related to
unlawful activity. Plaintiff concedes that Request Nos. 5 and 6 can be satisfied with
the “production of every APDUG message, with only the email address of the posting party blocked.” (Reply 6.) The Court agrees. Individuals who use their names,
addresses or phone numbers when posting messages on the APDUG Group clearly
have no expectation of anonymity. However, redacting email addresses will insure
that those individuals who post to the APDUG Group anonymously or with a pseu-

No. 04 CV 3317

3

donym will have his or her privacy respected.3 Thus, Defendant need not disclose
the identity of any person who intends to remain anonymous.
Nevertheless, seeking all messages posted to the APDUG Group is overbroad
and would include messages not relevant to this litigation. Consequently, the Court
will restrict the production to all messages posted to [e-mail] that
reference: (i) Plaintiffs John F. Tamburo or Versity Corporation; (ii) any of Versity’s
owners, officers, employees, shareholders, affiliates or volunteers; or (iii) any of Versity’s computer programs or websites. All responsive documents shall be produced
unredacted except for the email addresses of the posting parties.
For the reasons stated above, Plaintiff’s Motion to Compel Document Production
by Defendant Henry [418] is GRANTED IN PART AND DENIED IN PART.

E N T E R:
Dated: July 11, 2011
NAN R. NOLAN
United States Magistrate Judge

Defendant seems to suggest that the content of anonymous communications are also
protected from disclosure. (Resp. 6.) However, it is the identity of an anonymous speaker,
not the content of her message, that is protected from disclosure by the First Amendment.
See In re Anonymous Online Speakers, 2011 WL 61635, at *2 (“As with other forms of expression, the ability to speak anonymously on the Internet promotes the robust exchange of
ideas and allows individuals to express themselves freely without ‘fear of economic or official retaliation . . . [or] concern about social ostracism.’” (quoting McIntyre, 514 U.S. at 341–
42); Mobilisa, Inc. v. Doe, 170 P.3d 712, 720 (Ariz. App. Ct. 2007); Doe v. Cahill, 884 A.2d
451, 461 (Del. 2005).
3

No. 04 CV 3317

4