Advanced Career Technologies, Inc. v. John Does 1-10

Filing 15

MEMORANDUM. Signed by Judge Ellen L. Hollander on 2/12/14. (c/m 2/12/14 jnls, Deputy Clerk) Modified on 2/12/2014 (jnls, Deputy Clerk).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
In re SUBPOENA OF DANIEL
DRASIN

ADVANCED CAREER
TECHNOLOGIES, INC.,
Plaintiff,
v.

Civil Action No. ELH-13-1140
(Related Case: Case No. 13-cv-00304 in
the United States District Court for the
District of Colorado)

JOHN DOES 1-10, all whose true
names are unknown,
Defendants.

MEMORANDUM
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.

1

The Random Convergence blog is hosted by the blog service Blogspot, which is owned
by Google, Inc. (“Google”). ECF 6 at 2.

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.
2

Drasin previously filed a motion to quash the first two subpoenas. I denied the motion
in a Memorandum and Order (ECF 8, 9) filed on July 24, 2013.
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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

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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 Mr. Drasin has with respect to your discovery requests, and I
assume that this matter is now closed with respect to him.”
ACT responded by letter on August 30, 2013. ECF 12-7. It summarized its concerns
about Drasin and his blog and asked that Drasin “voluntarily agree to identify and turn over any
hard drives, servers, and any other devices that he used to administer the Random Convergence
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blog for imaging and investigation by a computer forensics professional . . . .” Id. The letter
also expressed ACT’s belief that Drasin has the information ACT requested because Drasin
“utilized a program known as ‘Sitemeter’ which, among other things, tracks and records the IP
address of every person and computer which posted or commented on the Random Convergence
blog.” Id.
Drasin’s attorney responded on September 6, 2013. ECF 12-8. He maintained that
Drasin “does not want to do battle with [ACT], but he cannot give [ACT] what he does not
have.” Id. He also confirmed that Drasin has an account with Site Meter, and he advised ACT
that Drasin “is amenable to providing [ACT] with an authorization so that [ACT] can access
[Site Meter’s] records.” Id. He concluded: “Mr. Drasin denies that he has done anything
improper. If you have facts to the contrary, please provide them. Otherwise, I assume that this
exercise is a fishing expedition and would remind you of your obligations to the Court.” Id.
Thereafter, the parties engaged in negotiations and, on October 30, 2013, Drasin
forwarded to ACT’s counsel a signed copy of an authorization permitting ACT access to the
records associated with his Site Meter account. ECF 12-9. The next day, October 31, 2013,
ACT filed in the District of Colorado a “Status Report and Motion to Enlarge Scope of
Discovery Order and Subpoena” (“Status Report,” ECF 13-8). In the Status Report, ACT
claimed that Drasin “has yet to produce any information in response to the subpoena and in
compliance with Judge Hollander’s order,” and further advised that Drasin claimed not to have
any information regarding the identities of the posters on the blog. ACT asserted that “it is
appropriate to require some independent factual confirmation that Mr. Drasin does not, in fact,
have the information sought by ACT’s subpoena,” and it asked the court to enlarge the scope of

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the original subpoena, to “allow ACT to proceed with its investigation into the identities of the
anonymous blog posters and commenters . . . .” Id.
On November 7, 2013, Drasin’s counsel contacted ACT by email noting Drasin’s
willingness to “consider allowing a mutually agreed upon computer forensic examiner to inspect
his personal computer if in fact the scope will be as limited as you suggest. To do this . . . [h]e
further needs a written guarantee that . . . [ACT] will stop its harassment and not seek any further
discovery from him.” ECF 12-10. According to Drasin, ACT never responded to the email.
On December 10, 2013, Judge Mix found good cause for ACT to serve an additional, preRule 26(f) conference, third-party subpoena for the “limited purpose of ascertaining the ten Doe
Defendants’ personally identifiable information.” ECF 13-12.

Judge Mix also ordered, id.

(emphasis in original):
The subpoena shall be limited to the production of any hard drives,
servers, and any other devices used by Mr. Drasin to administer the Random
Convergence Blog and data stored online via website or application. Plaintiff may
make a forensic copy of the data on each device and may conduct an appropriate
forensic examination of the data to ascertain the information sought by Plaintiffs
original subpoena. Plaintiff shall return any hard drive, server, or other device
produced by Mr. Drasin within thirty (30) days of production of said devices.
ACT served Drasin with the Subpoena on December 28, 2013. As noted, it commands
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 . . . .” ECF 1212.
Also on December 28, 2013, Drasin’s counsel contacted ACT by email and inquired
whether ACT had subpoenaed Site Meter. ECF 12-13. ACT responded that it had issued a
subpoena to Site Meter, but that it would not “give up on seeking the forensic examination.”
ECF 12-14. On January 21, 2014, Site Meter filed numerous objections to the third-party

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subpoena it had been issued and then advised ACT that it had “no responsive documents in its
possession, custody, or control.” ECF 13-13.
Discussion
Drasin’s primary contention is that ACT’s subpoena subjects him to an undue burden.
Fed. R. Civ. P. 45(c)(3), titled “Quashing or Modifying a Subpoena,” states, in pertinent part:
“On timely motion, the issuing court must quash or modify a subpoena that . . . (iv) subjects a
person to undue burden.” In Maxtena, Inc. v. Marks, 289 F.R.D. 427, 439 (D. Md. 2012), Chief
Judge Chasanow explained, id.:
“Whether a subpoena subjects a witness to undue burden within the
meaning of Rule 45(c)(3)(A)(iv) usually raises a question of the reasonableness of
the subpoena,” an analysis that requires “weighing a subpoena’s benefits and
burdens” and “consider[ing] whether the information is necessary and whether it
is available from any other source.” 9A Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 2463.1 (3d ed. 2008). This inquiry is “highly
case specific” and involves “an exercise of judicial discretion.” Id. “The burden
of proving that a subpoena is oppressive is on the party moving to quash.” Fleet
Bus. Credit, LLC v. Solarcom, LLC, No. Civ. AMD 05–901, 2005 WL 1025799,
at *1 (D. Md. May 2, 2005) (internal quotation marks omitted).
For the reasons that follow, I conclude that Drasin has shown that the subpoena subjects
him to an undue burden. Therefore, I will quash the subpoena.
A. Rule 45(c)(3)(A)(iv) Analysis
1. Burdens of Subpoena
The Subpoena imposes two types of burden on Drasin. First, in order to comply with the
subpoena, Drasin must surrender his personal hard drives to ACT for up to thirty days. Personal
computers generally cannot function without their hard drives, so this requirement would force
Drasin to spend up to thirty days without the use of his personal computer. See Motion at 8. In
today’s technology-dependent world, this burden is significant.

Second, forcing Drasin to

surrender his hard drives to ACT would give ACT access to Drasin’s personal files. Id. As the
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Ninth Circuit has observed, United States v. Arnold, 454 F. Supp. 2d 999, 1003–04 (C.D. Cal.
2006) (subsequent history omitted):
A laptop and its storage devices have the potential to contain vast amounts
of information. People keep all types of personal information on computers,
including diaries, personal letters, medical information, photos and financial
records. Attorneys’ computers may contain confidential client information.
Reporters’ computers may contain information about confidential sources or story
leads. Inventors’ and corporate executives’ computers may contain trade secrets.
Requiring Drasin to grant ACT access to this personal information certainly constitutes a
burden. To be sure, Magistrate Judge Mix’s order prohibits ACT from using Drasin’s personal
information for any reason other than to protect its own rights in the Colorado Action, but even a
limited invasion of one’s privacy is still an invasion.
These burdens are particularly troubling considering that Drasin has not been accused of
any illegality, nor is he a defendant in the Colorado Action.

Rather, he is merely the

administrator of a blog on which other individuals posted allegedly defamatory comments.
Moreover, as discussed, infra, ACT has alternative means to obtain the information it seeks, such
as serving a subpoena on Google.
2. Benefits of Subpoena
The benefits of the Subpoena appear to be minimal, as there is no indication in the record
that Drasin possesses any information that would be relevant in the Colorado Action beyond that
which he has already provided. As noted, ACT previously served two subpoenas on Drasin.
Those subpoenas commanded Drasin to produce identifying information about 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. Drasin responded to the subpoenas by
sending an email to ACT and explaining: “With respect to the 21 comments you asked Mr.
Drasin to investigate, for 16 of them, Dan Drasin does not have any information other than what
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the individual posted as his or her comments with the name ‘anonymous.’” ECF 12-6. As to the
other 5 comments, Drasin attached to the email the “limited information he could obtain related
to the anonymous posters on his blog.” Memo at 4; see ECF 12-6. That information primarily
consisted of individuals’ names and their user accounts on Google. ECF 12-6.
Although ACT suggests that Drasin’s response was noncompliant with the subpoenas, it
has not provided any evidence, beyond its own unsupported conjecture, that Drasin’s response
was untruthful, incomplete, or inadequate. Nor does it suggest that Drasin was mistaken in his
description of the process by which commenters may post anonymously on the Blog. In fact,
ACT’s primary argument in support of its claim that Drasin has the IP addresses it seeks has
been that Drasin subscribes to a service called Site Meter, which allegedly tracks the IP
addresses of visitors to the Blog. However, this theory has been revealed as entirely unfounded.
Notably, Drasin authorized ACT to access all Site Meter records related to the Blog. ECF 12-9.
ACT then issued a subpoena to Site Meter requesting all data stored online via website or
application used by Mr. Drasin to administer the Random Convergence Blog . . . .” ECF 13-13.
Site Meter responded that it possessed no responsive documents. Id. Thus, ACT’s primary
“support” for its claim that Drasin was withholding information has been exposed as meritless.
ACT also suggests that Drasin must be withholding relevant information because “if Mr.
Drasin really possessed as little information as he claimed, why did he spend so much time and
money fighting the subpoena in the first place?” Status Report at 2. However, just as juries are
instructed not to draw negative inferences from evidentiary objections, the Court will not infer
mendacity from Drasin’s decision to exercise his legal right under Fed. R. Civ. P. 45 to object to
the subpoenas.

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In sum, it appears from the record that very little benefit, if any, will result from the
Subpoena. ACT has not proffered any credible reason for the Court to disbelieve Drasin’s
contention that he does not have the information sought by ACT.
3. Availability from Other Source
ACT was unable to obtain the requested information from Site Meter.
information it seeks is available from at least one other source: Google.

But, the

Indeed, ACT’s

motivation for subpoenaing hard drives and servers owned by Drasin is curious because, as ACT
acknowledges, ECF 6 at 3, the Random Convergence blog is hosted by Google, and not on a
hard drive or server owned by Drasin.3
The District Court of Colorado has already granted leave for ACT to serve a subpoena on
Google, but the record does not reflect whether ACT has served that subpoena on Google. If
ACT has chosen not to serve the subpoena on Google, it has failed to explain adequately its
reasons for declining to do so.4 Alternatively, if ACT did serve the subpoena on Google and
Google was unable to provide ACT with the information it seeks, then it would be even less
likely that Drasin possess that information.

3

Generally speaking, a blog created using Google’s “Blogspot” service is hosted on
Google’s servers. In somewhat oversimplified terms, this means that the data associated with the
blog is located on a server or other device owned by Google, rather than on the hard drive of the
blog’s creator. This allows the creator of the blog or visitors to the blog to access the
information on the blog from any physical location.
4

On a similar note, ACT’s claim that “it is infinitely less expensive and costly to perform
forensic analysis on Mr. Drasin’s hard drives and devices used to administer the Blog than it is
for Google or Site Meter to sift through billions and billions of bits of data, accumulated over
several years’ time,” Opp. at 10, is disingenuous at best. In all likelihood, Google and Site Meter
have developed efficient methods for indexing and searching their archived data. See generally
Google
Transparency
Report,
available
at
http://www.google.com/transparencyreport/userdatarequests/ (explaining that Google “regularly
receives requests from governments and courts around the world to hand over user data.”). In
any event, ACT’s assertion is based on conjecture.
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In sum, the information ACT seeks—if it exists—appears to be readily available from a
source other than Drasin.
B. Comity
Finally, ACT’s argument that “principles of comity weigh in favor of the Court deferring
to [Magistrate Judge Mix]” is unpersuasive. Drasin is not a party to the action in Colorado, and
it does not appear that he had an opportunity to oppose the Subpoena in that court or to otherwise
persuade Magistrate Judge Mix of its impropriety. See Reply at 8. Moreover, Magistrate Judge
Mix was not required to, and did not, conduct an analysis under Rule 45. Rather, because ACT
asked to conduct discovery prior to a Rule 26(f) conference, Magistrate Judge Mix’s analysis
was limited to Fed. R. Civ. P. 26(d), which governs such requests. Thus, Magistrate Judge Mix
has not issued an order on the relevant question to which I could defer.
In addition, Fed. R. Civ. P. 45(d) explicitly provides that it is the responsibility of the
“the court for the district where compliance is required” to evaluate whether the subpoena
complies with Rule 45. That review would be entirely toothless if the reviewing judge is
required to defer to the judge who granted leave to serve the subpoena.
Conclusion
On this record, I am convinced that the Subpoena would impose an undue burden on
Drasin. It would require Drasin to forego the use of his personal computer for up to a month and
to disclose his personal information to ACT. Further, nothing in the record suggests that ACT
would obtain information relevant to the Colorado Action from Drasin’s hard drives. Finally,
ACT has another avenue available to it that it has apparently chosen not to pursue.
Perhaps the Subpoena would be acceptable if ACT exhausts its less intrusive options
and/or provides the Court with evidence supporting its contention that Drasin’s hard drive is

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likely to contain identifying information about anonymous commenters on a blog hosted by
Google. Until such time, however, I am convinced that the Subpoena imposes an undue burden
on Drasin and therefore it must be quashed.
For the foregoing reasons, I will grant Drasin’s motion to quash the subpoena. An Order
follows.

Date: February 12, 2014

/s/
Ellen L. Hollander
United States District Judge

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