Sines et al v. Kessler et al

Filing 415

MEMORANDUM OPINION. Signed by Senior Judge Norman K. Moon on 2/19/19.

CLERKS OFFICE U.S. DIST. COURT
AT CHARLOTTESVILLE, VA
FILED
02/19/2019

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION

JULIA C. DUDLEY, CLERK
BY: /s/ J. JONES
DEPUTY CLERK

ELIZABETH SINES, ET AL.,
Plaintiffs,

CASE NO. 3:17-cv-00072

v.

MEMORANDUM OPINION

JASON KESSLER, ET AL.,

JUDGE NORMAN K. MOON

Defendants.

This matter is before the Court upon Michael Peinovich’s objections to U.S. Magistrate
Judge Hoppe’s opinion denying Peinovich’s motion to quash Plaintiffs’ subpoenas to Twitter,
GoDaddy.com, Cloudflare, and Hatreon, (dkt. 226), as well as Peinovich’s motion to require
Plaintiffs’ compliance with Fed. R. Civ. P. 45. (Dkt. 229). After this Court dismissed Peinovich
from this action without prejudice, (dkt. 335 at 41), the parties advised the Court that Peinovich’s
status as a non-party did not moot his objections. (Dkts. 348, 349). This matter has been fully
briefed and is ripe for decision.1 Having considered Judge Hoppe’s opinion and Peinovich’s
objections, the Court concludes that Judge Hoppe’s opinion is not clearly erroneous or contrary
to law. Thus, the Court will overrule Peinovich’s objections and deny Peinovich’s motions to
quash and require compliance with Rule 45.
I.

LEGAL STANDARD

Fed. R. Civ. P. 72 permits a party to submit objections to a magistrate judge’s ruling to
the district court within fourteen days of the magistrate judge’s order. Fed. R. Civ. P. 72; see
also 28 U.S.C. § 636(b). Where, as here, a party objects to a magistrate judge’s ruling on a
nondispositive matter, the district court will modify or set aside the magistrate judge’s order only
1

Peinovich requested a hearing on his objections. (Dkt. 309 at 14). Under Local Rule
11(b) and Fed. R. Civ. P. 78(b), the Court has discretion to determine a motion without an oral
hearing. After reviewing the briefing in this matter, the Court finds that oral argument will not
aid the decisional process.
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if it is “clearly erroneous or is contrary to law.”2 Fed. R. Civ. P. 72(a).

“A ruling is ‘clearly

erroneous’ only when the totality of the record leaves the Court with ‘the definite and firm
conviction that a mistake has been committed.’” Franklin v. Liberty University, Inc., No. 6:16cv-00065, 2017 WL 3026049, at *1 (W.D. Va. April 26, 2017) (quoting United States v. Gypsum
Co., 333 U.S. 364, 395 (1948)). A ruling is “contrary to law” when it “fails to apply or
misapplies relevant statutes, case law, or rules of procedure.” Id. “[A]ltering a magistrate’s
nondispositive orders [is] extremely difficult to justify.” Id. (internal quotation and citation
omitted).
II.

FACTS & PROCEDURAL HISTORY

Plaintiffs issued four subpoenas to non-parties “to gather evidence related to Defendants’
and their co-conspirators’ coordination of and planning for racially-motivated violence” they
allegedly committed at the “Unite the Right” rally in Charlottesville, Virginia on August 11–12,
2017. (Dkt. 249 at 2; dkt. 226-2–5). The non-parties subpoenaed were (1) GoDaddy.com, a web
services company that allegedly provided services to two websites operated and used by certain

2

Peinovich concedes that the applicable standard of review is technically the “clear error”
or “contrary to law” standard established by Rule 72(a). Nevertheless, he argues that “given the
critical First Amendment issues” he raises, “the Court should conduct an independent, de novo
review.” (Dkt. 309 at 8). Peinovich cites two out-of-circuit decisions where district courts
reviewed a magistrate judge’s order de novo after defendants raised First Amendment objections.
See, e.g., Kriss v. Bayrock Group, LLC, No. 10-cv-3959, 2016 WL 406375, at *1 (S.D. N.Y.
Feb. 1, 2016) (applying de novo standard of review “in the fullness of caution” but recognizing
“clear error” or “contrary to law” as normal standard). Although it is true that appellate courts
must review “cases raising First Amendment issues” de novo, Bose Corp. v. Consumers Union of
U.S., Inc., 466 U.S. 485, 499 (1984), Rule 72(a) imposes a distinct standard for district courts
reviewing magistrate judges’ non-dispositive decisions. See N.C. State Conference v. McCrory,
No. 1:13-cv-658, 2015 WL 12683665, at *3 (M.D. N.C. Feb. 4, 2015) (applying “clear error” or
“contrary to law” standard in reviewing magistrate judge’s order on motions to compel and
quash, where defendants raised First Amendment objections); In re Application of the U.S. for
an Order Pursuant to 18 U.S.C. § 2703(d), 830 F.Supp.2d 114, 122–27 (E.D. Va. 2011) (same).
Accordingly, the Court will evaluate Judge Hoppe’s opinion under a “clear error” or “contrary to
law” standard of review.
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defendants, (id. at 2–3); (2) Cloudflare, a web services company that allegedly provided services
to Peinovich’s website and the two aforementioned websites also serviced by GoDaddy.com, (id.
at 3); (3) Hatreon, a crowd-funding site allegedly used to raise money for bail following one
defendant’s arrest in Charlottesville for conduct committed in connection with the “Unite the
Right” rally, (id. at 4); and (4) Twitter, a social media platform allegedly used by various
defendants to “disseminate information about the [Unite the Right] rally” and to “encourage
others” to attend the rally. (Id.).
Peinovich, then a defendant in this case, challenged the subpoenas in two related
motions: first, in a motion to quash the subpoenas under Fed. R. Civ. P. 45(d) and to issue a
“protective order,” (dkt. 226); and second, in a motion to compel Plaintiffs’ “full compliance”
with Rules 45(a)(4) and (b)(4) or, alternatively, to quash the subpoenas.

(Dkt. 229).

Specifically, Peinovich objected to requests that GoDaddy.com and Cloudflare produce “traffic
logs to the websites dailystormer.com, altright.com[,] and therightstuff.biz for the dates of
August 1 to August 19, 2017,” because he argued these logs would contain “personally
identifiable information such as IP and MAC addresses” about “hundreds of thousands of private
citizens who have done nothing more than visit a website.” (Dkt. 226-1 at 3). More broadly,
Peinovich argued that the subpoenas seek “huge amounts of information,” (dkt. 229 at 1), that
“cannot possibly help the [P]laintiff’s case” and “would irreparably harm Peinovich, the
companies that were subpoenaed, hundreds of thousands of private internet users, and the cause
of free speech.” (Dkt. 255 at 3–5, 7).
Peinovich’s motions were referred to U.S. Magistrate Judge Hoppe, who construed the

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motion to quash as a motion for a protective order under Fed. R. Civ. P. 26 3 and denied both of
Peinovich’s motions. (Dkt. 304). The Court now turns to Peinovich’s objections to Judge
Hoppe’s opinion.
III.

ANALYSIS

Peinovich objects to Judge Hoppe’s (1) denial of a protective order under Rule 26, and
(2) denial of his motion to compel Plaintiffs’ compliance with Rule 45. Both objections fail.
A.

Judge Hoppe’s Denial of a Rule 26 Protective Order

Rule 26 allows “[a] party . . . from whom discovery is sought” to move for a protective
order, and the rule authorizes the court, “for good cause” shown, to issue such an “order to
protect a party or person from annoyance, embarrassment, oppression, or undue burden.” Fed.
R. Civ. P. 26(c)(1). Parties seeking protective orders under Rule 26(c) must demonstrate that
they “will be harmed by disclosure.”

In re Wilson, 149 F.3d 249, 252 (4th Cir. 1998).

Moreover, a party seeking a protective order must “present a particular and specific
demonstration of fact as to why a protective order should issue” as part of Rule 26(c)’s “good
cause” requirement. Baron Fin. Corp. v. Natanzon, 240 F.R.D. 200, 202 (D. Md. 2006) (internal
quotation and citation omitted).
After construing Peinovich’s motion to quash as a motion for a protective order under
Rule 26, Judge Hoppe found that Peinovich could not “claim any hardship, let alone undue
hardship” since he has “no obligation to produce any information under the subpoenas issued to”
third parties Twitter, GoDaddy.com, Cloudfare, and Hatreon. (Dkt. 304 at 6 (citing Call of the
Wild Movie, LLC v. Smith, 274 F.R.D. 334, 338 (D. D.C. 2011)). Additionally, Judge Hoppe
3

Peinovich does not object to Judge Hoppe’s decision to construe his motion to quash as a
motion for a protective order, or Judge Hoppe’s decision that Peinovich has standing to
challenge the subpoenas, (dkt. 304 at 2–4), and the Court finds nothing clearly erroneous or
contrary to law in Judge Hoppe’s decision on these matters.
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determined that Peinovich had made no “specific showing of [any] undue hardship” he would
experience by complying with the subpoenas because the “alleged risk of harm to Peinovich’s
reputation or online business” was “too speculative.” (Id.). Finally, Judge Hoppe concluded that
Peinovich had “failed to show that any of the subpoenas are overbroad or irrelevant.” (Id.).
Judge Hoppe found that, “[o]n the contrary, Plaintiffs’ subpoenas are limited in scope to
particular topics, persons, and entities related to the alleged events underlying this lawsuit and
seek documents or ESI covering a relatively short period.” (Id.).
Peinovich first argues that Judge Hoppe was wrong to deny a protective order against
Plaintiffs’ subpoenas under Rule 26 because the subpoenas in question infringe on “his and his
supporters’ associational rights” under the First Amendment. (Dkt. 309 at 11). Peinovich
contends that has received “anxious communications from listeners [of his podcast] concerned
about being doxed as a result of the subpoenas and has lost regular listeners as a result of these
concerns,”4 and that many visitors to the online forum The Right Stuff have “cancelled their
accounts and stopped visiting the site.” (Id.). Plaintiffs argue that Peinovich has waived his
arguments regarding First Amendment associational rights because he never raised this argument
before Judge Hoppe. (Dkt. 312 at 6–7). Plaintiffs further contend that Peinovich’s associational
privilege argument is substantively without merit, since the subpoenas in question do not target
“associations or groups,” “membership lists,” or other entities and materials courts have found to
implicate First Amendment associational rights. (Id. at 7).
Plaintiffs are correct that Peinovich did not raise his associational privilege argument
before Judge Hoppe. Although Peinovich asserted in his initial motion that users may be
“subject to doxing, intimidation, and harassment” as a result of enforcing the subpoenas, and
4

Plaintiffs define “doxing” as an “Internet practice in which someone’s private personal
information is published in an effort to punish or shame the target.” (Dkt. 312 at 4).
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further stated that the subpoenas would “have a chilling effect on free speech generally,” he
raised these concerns in support his argument that the subpoenas imposed an “undue burden” on
him because of the harm such a chilling effect might have on his business. (Dkt. 226 at 4; see
also Dkt. 255 at 5). Peinovich only developed his associational privilege argument once Judge
Hoppe had already ruled on his motions.
Generally, a “magistrate’s decision should not be disturbed on the basis of arguments not
presented to him.” Zen42 LLC v. Washington and Lee University, No. 6:17-cv-00053, 2018 WL
4625627, at *6 (W.D. Va. Sep. 26, 2018) (quoting Contravest Inc. v. Mt. Hawley Ins. Co., 273 F.
Supp. 3d 607, 620 (D. S.C. 2017)). See also Baird v. CCDC/CCSCC, No. 2:08-00044, 2008 WL
4999252, at *2 (S.D. W. Va. Nov. 20, 2008) (noting that a “district court’s Rule 72(a) review is
further limited in that issues not raised before the magistrate should not be considered”).
However, “it appears most districts in the Fourth Circuit” have “followed the holding in United
States v. George, 971 F.2d 1113, 1118 (4th Cir. 1992),” which held that a “district court must
consider objections to the magistrate judge’s ruling, even if the objections are new arguments on
an issue.” Zen42 LLC, 2018 WL, at *6. Thus, the Court must assess Peinovich’s associational
privilege argument.
Peinovich’s associational privilege argument is without merit. The subpoenas at issue
here do not seek information courts have previously found covered by the First Amendment’s
associational privilege, such as the “identities of rank and file members” of an advocacy
organization, “mailing lists and lists of conference attendees,” “contributor lists,” or “past
political activities” of the members of an organization. Sexual Minorities of Uganda v. Lively,
No. 3:12-30051, 2015 WL 4750931, at *3 (D. Mass. Aug. 10, 2015) (collecting cases). See also
NAACP v. State of Ala. ex rel. Patterson, 357 U.S. 449, 462 (1958) (noting that the associational

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privilege covers “[c]ompelled disclosure of membership in an organization engaged in advocacy
of particular beliefs” (emphasis added)). Peinovich cites no decision extending First Amendment
associational privileges to the type of information Plaintiffs seek, namely data regarding
“individuals who updated and accessed” various websites relevant to ongoing civil litigation.
(Dkt. 312 at 7).
To the extent that Peinovich’s objection is simply a restatement of his contention before
Judge Hoppe that enforcement of Plaintiffs’ subpoenas would impose an “undue burden” on his
business, the Court finds nothing clearly erroneous or contrary to law in Judge Hoppe’s
determination that Peinovich’s arguments were too “speculative.” (Dkt. 304 at 6). Although
Peinovich asserts in his objections that he has continued to “receive anxious communications
from listeners concerned about being doxed as a result of the subpoenas,” such assertions are no
more concrete or well-supported than the near-identical assertions Judge Hoppe considered and
rejected as too speculative. See Baron Fin. Corp., 240 F.R.D. at 202 (noting that a party seeking
a protective order must “present a particular and specific demonstration of fact as to why a
protective order should issue” as part of Rule 26(c)’s “good cause” requirement).
B.

Judge Hoppe’s Denial of Rule 45 Motion

Peinovich raises a cursory objection to Judge Hoppe’s denial of his motion to compel
Plaintiffs’ compliance with Fed. R. Civ. P. 45(a)(4) and (b)(4). Rule 45(a)(4) provides that if a
subpoena “commands the production of documents” or electronically stored information, a
“notice and a copy of the subpoena must be served on each party” before the subpoena “is served
on the person to whom it is directed.” Rule 45(b)(4) requires proof of service only “when
necessary.” Judge Hoppe found that documents “attached to Peinovich’s motion show that
Plaintiffs complied with their obligations under Rule 45(a)(4) by serving ‘a notice and a copy of

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the subpoena’” on Peinovich before serving the subpoenas on the third parties to whom they
were directed. (Dkt. 304 at 7). Judge Hoppe further found that Peinovich had made no concrete
showing that “proof of service” under Rule 45(b)(4) was necessary, such as “to support a motion
to compel compliance with a subpoena or to hold a nonparty in contempt of court.” (Id. (citing
Plastic the Movie Ltd. v. Doe, No. 3:15-cv-385, 2015 WL 125856114, at *1 (M.D. Fla. Nov. 24,
2015)).
Peinovich objects to Judge Hoppe’s ruling, arguing that Plaintiffs have “concealed”
information required by Rule 45 and thereby deprived him of “fair notice” to “oppose the
subpoenas.” (Dkt. 309 at 14). Peinovich offers no specific argument that undermines Judge
Hoppe’s finding that Plaintiffs complied with Rule 45(a)(4), and Peinovich again presents no
concrete showing that proof of service under Rule 45(b)(4) was necessary.

Moreover,

Peinovich’s contention that he has been deprived of fair notice to oppose the subpoenas rings
hollow, since Peinovich has now had two opportunities to challenge Plaintiffs’ subpoenas: first
before Judge Hoppe, followed by a second bite at the apple with his present objections. Finding
nothing plainly erroneous or contrary to law in Judge Hoppe’s denial of Peinovich’s motion to
compel compliance with Rule 45, the Court overrules Peinovich’s objection.
IV.

CONCLUSION

Peinovich’s objections are not well-taken and will therefore be overruled. Judge Hoppe’s
opinion denying Peinovich’s motions to quash Plaintiffs’ subpoenas and to compel compliance
with Rule 45 is neither plainly erroneous nor contrary to law. An accompanying order will issue.
19th
Entered this _____ day of February, 2019.

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