Case Name: beIN IP Ltd. v. BeoutQ
Case No.: 17-CV-316099
I. Background and Discovery Dispute
Plaintiff beIN, IP Ltd. (“Plaintiff”) owns rights to exclusively distribute certain sports programs. (Compl., ¶¶ 1, 8-11.) Plaintiff alleges defendant BeoutQ (“Defendant”) pirated this programming and made it available for streaming on its website www.beoutQ.se. (Compl., ¶¶ 1-11.) Plaintiff alleges Defendant accomplished this using services provided by California companies, particularly content hosting, security, and social media services. (Compl., ¶ 11.) Plaintiff asserts causes of action against Defendant for: (1) violation of California’s Unfair Competition Law (the “UCL”); (2) intentional interference with prospective economic relations; (3) negligent interference with prospective economic relations; and (4) intentional interference with contractual relations.
In an effort to ascertain sufficient information about Defendant to serve it with the complaint, Plaintiff served nonparties Twitter, Inc. (“Twitter”) and Facebook, Inc. (“Facebook”) with nearly identical deposition subpoenas for the production of business records, namely records sufficient to identify the Twitter, Facebook, and Instagram users responsible for accounts apparently affiliated with Defendant as well as the content they posted. (Van Niekerk Decl. Re: Facebook, Ex. H; Van Niekerk Decl. Re: Twitter, Exs. H-I.) More specifically, for the accounts identified in the subpoenas, Plaintiff sought each user’s “name, IP address, mobile number, email address, credit card information, geolocation data[,] and physical address” as well as the identifying information for anyone who “replied to, referenced, or otherwise accessed content” posted by the enumerated users. (Ibid.) Additionally, Plaintiff sought the full text, date, time, physical location, and metadata (including IP address) for tweets, posts on Facebook and Instagram, and replies “referencing” the enumerated accounts. (Ibid.)
Facebook and Twitter informed Plaintiff they would not fully comply with the subpoenas because they had concerns about scope and privacy, and so the parties met and conferred in an attempt to informally resolve their dispute. (Van Niekerk Decl. Re: Facebook, Ex. J; Van Niekerk Decl. Re: Twitter, Ex. K.) Plaintiff agreed to narrow the subpoenas by eliminating its requests for the contents of tweets, posts, and replies as well as the identifying information of interacting users who replied to, referenced, or accessed content. (Ibid.) In other words, Plaintiff agreed to limit the subpoenas to the identifying information of the users posting content via the accounts specifically listed. (Ibid.) It also agreed to cover the cost of compliance with the subpoenas upon receipt of an estimate from Facebook and Twitter. (Ibid.)
Facebook and Twitter rejected this proposal. (Van Niekerk Decl. Re: Facebook, Ex. I [Joint Letter]; Van Niekerk Decl. Re: Twitter, Ex. J [Joint Letter].) In their rejection letter, they asserted the subpoenas were overbroad because they sought information with respect to 171 Facebook accounts and 236 Twitter accounts, and countered that information relative to only 15 accounts each would be appropriate. (Ibid.) They also objected on the grounds of relevance, undue burden, privacy, the First Amendment, the federal Stored Communications Act, inaccessibility of electronically stored information, the attorney-client privilege, the work product doctrine, and confidentiality. (Ibid.)
Plaintiff filed two nearly identical motions to compel Facebook and Twitter, respectively, to comply with the subpoenas. The very same day, Facebook and Twitter collectively filed a motion to quash and/or modify the subpoenas.
II. Discussion
Plaintiff moves to compel compliance with the subpoenas pursuant to Code of Civil Procedure section 2025.480, which authorizes such a motion when a deponent fails to produce documents or electronically stored information (“ESI”) in response to a subpoena. (See Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 134.) Facebook and Twitter, as the deponents resisting discovery, bear the burden of justifying their refusal to comply with the subpoenas. (See Williams v. Super. Ct. (2017) 3 Cal.5th 531, 541.) With respect to the motion to quash and/or modify the subpoenas pursuant to Code of Civil Procedure section 1987.1, Facebook and Twitter also bear the burden of substantiating the relief they request because they are the moving parties. (See Coy v. Super. Ct. (1962) 58 Cal.2d 210, 220; see also Code Civ. Proc., § 1985.8, subd. (f).) Because all three motions depend on whether Facebook and Twitter demonstrate there is a basis for excusing their compliance with the subpoenas, in whole or in part, the Court addresses the arguments advanced with respect to all three motions collectively. (See Monarch Healthcare v. Super. Ct. (2000) 78 Cal.App.4th 1282, 1287-88.)
In evaluating these arguments, the Court considers only whether Facebook and Twitter must produce identifying information for the 171 Facebook accounts and 236 Twitter accounts listed in the subpoenas because Plaintiff affirms it is only seeking that information and does not argue the contents of posts and tweets or the identifying information for the interacting users must be produced. (See Mem. of Pts. & Auth. Re: Facebook at p. 8:1-8; Mem. of Pts. & Auth. Re: Twitter at p. 2:14-28; see also Plaintiff’s Opp. at pp. 6:16-25, 11:25-12:1.) In other words, the Court treats the subpoenas as having been modified, at this juncture, to encompass solely the information relative to these listed accounts. With this scope in mind, the Court turns to the arguments presented by the parties, which concern relevance, overbreadth, undue burden, privacy, and the First Amendment.
A. Relevance and Overbreadth
The first issue is whether the subpoenas seek relevant information. The purpose of discovery is to “take the ‘game’ element out of trial preparation by assisting the parties in obtaining the facts and evidence necessary to expeditious resolution of their dispute.” (Davies v. Super. Ct. (1984) 36 Cal.3d 291, 299 [internal quotation marks and citation omitted].) Consistent with this purpose, information is relevant if it might reasonably assist a party in evaluating its case, preparing for trial, or facilitating settlement. (Gonzalez v. Super. Ct. (1995) 33 Cal.App.4th 1539, 1546.) The subpoenas seek information sufficient to identify and locate the users responsible for social media accounts that appear to have been operated by Defendant as an entity, and which were used to promote its products and services. Put differently, the subpoenas are designed to identify and locate Defendant. Defendant’s identity and whereabouts, including the type or form of its business and its place of business, are unquestionably relevant because, without this information, Plaintiff cannot serve it with the complaint and pursue its claims. (See Yelp, Inc. v. Super. Ct. (2017) 17 Cal.App.5th 1, 18; see also Columbia Insurance Co. v. seesecandy.com (N.D.Cal. 1999) 185 F.R.D. 573, 578.) Accordingly, the subpoenas seek relevant information.
Facebook and Twitter also argue the subpoenas are overbroad. A discovery request that otherwise seeks relevant and discoverable information will be deemed overbroad if it also seeks information that is beyond the scope of discovery. (See Calcor Space Facility, Inc. v. Super. Ct. (1997) 53 Cal.App.4th 216, 224.) Facebook and Twitter do not clearly articulate how the subpoenas are overbroad. For example, while they take the position Plaintiff should be limited to 15 Facebook accounts and 15 Twitter accounts, they do not identify any logical or legal basis for their position. Facebook and Twitter do not demonstrate that only 15 of the accounts identified in each subpoena are relevant. To this point, Plaintiff confirms the accounts listed in each subpoena are only those “that expressly associated themselves with [Defendant]’s operation, sold [Defendant]’s branded products, directly distributed the pirated [ ] content, or assisted [ ] customers having trouble accessing [the] pirated content.” (Van Niekerk Decl. Re: Facebook, ¶ 11; Van Niekerk Decl. Re: Twitter, ¶ 12.) Thus, Facebook and Twitter do not demonstrate the subpoenas are overbroad and should be limited to 15 accounts each.
B. Undue Burden
Facebook and Twitter argue the subpoenas are unduly burdensome. But their analysis is not especially clear. In presenting their argument, they also assert the subpoenas are “unnecessarily duplicative” and the information sought “is not reasonably accessible.” (MTQ Mem. at p. 7:12-14.) The Court addresses each of these arguments, which appear to actually be separate arguments, individually.
An objection on the ground of undue burden may be interposed when “‘the burden expense, or intrusiveness of [the] discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.’” (Williams, supra, 3 Cal.5th at p. 549, quoting Code Civ. Proc., § 2017.020, subd. (a).) “An ‘objection based upon burden must be sustained by evidence showing the quantum of work required.’ [Citation.]” (Williams, supra, 3 Cal.5th at p. 549.)
Facebook states it takes up to two minutes to verify each of the targeted Facebook and Instagram accounts. (Jarvis Decl., ¶ 5.) Then, it takes approximately four minutes per account to notify the users that their information will be produced. (Jarvis Decl., ¶ 6.) It takes about 90 seconds to compile and review the production for each account. (Jarvis Decl., ¶ 8.) Finally, some additional time might be spent, roughly more than a minute per account, responding to users’ questions about the notice provided. (Jarvis Decl., ¶ 9.) In total, Facebook estimates it would take 22 hours to prepare a complete production for all 171 accounts. (Jarvis Decl., ¶ 10.)
Twitter states it takes up to five minutes to verify each of the targeted accounts. (Hall Decl., ¶ 5.) Then, it takes approximately two minutes per account to notify the users. (Hall, Decl., ¶ 6.) It takes about ten minutes to compile the production for each account and an additional 30 minutes to review the production for all of the accounts collectively. (Hall Decl., ¶¶ 7-8.) Finally, it takes just over a minute per account to respond to users’ questions about the notice provided. (Hall Decl., ¶ 8.) In total, Twitter estimates it would take 68 hours to prepare a complete production for all 236 accounts. (Hall Decl., ¶ 9.)
Although Facebook and Twitter do present evidence showing the time it will take them to respond to the subpoenas, the Court does not find this time exceeds the value of the information sought. Facebook and Twitter do not cite any authority to support the conclusion that the burden of complying with the subpoenas is inordinate. Furthermore, courts have rejected objections on the ground of undue burden under circumstances involving far more onerous discovery obligations and means of production. (See Pantzalas v. Super. Ct. (1969) 272 Cal.App.2d 499, 504-05; see also Vasquez v. Cal. School of Culinary Arts, Inc. (2014) 230 Cal.App.4th 35, 40.) Additionally, Facebook and Twitter’s argument about undue burden is undercut by the fact that Plaintiff offered to cover the cost of compliance. (See Vasquez, supra, 230 Cal.App.4th at pp. 44-45; Van Niekerk Decl. Re: Facebook, ¶¶ 5-9; Van Niekerk Decl. Re: Twitter, ¶¶ 6-10.) In summary, Facebook and Twitter do not substantiate their argument that the subpoenas are unduly burdensome.
Facebook and Twitter also state the accounts listed in the subpoenas are “duplicative or unnecessarily cumulative.” (MTQ Mem. at p. 8:13.) Although their reasoning is fundamentally unclear, they appear to suggest “accounts that follow the format of @beoutq followed by a number” are essentially the same such that Plaintiff should be limited to information for only one or some subset of the accounts that follow that naming convention. (MTQ Mem. at p. 8:16-17.) As Facebook and Twitter acknowledge, the listed accounts are not identical. The username affiliated with each account varies. Thus, there is no basis for concluding the accounts are literally the same.
Otherwise, it is not particularly clear why accounts with different usernames should be treated as one and the same. The proliferation of false or “spam” accounts on social networks, some operated by humans and others by botnets, is well documented. (Confessore, The Follower Factory, N.Y. Times (Jan. 27, 2018)
Finally, Facebook and Twitter argue the subpoenas seek information not reasonably accessible to them. A party may object to producing ESI if it “is not reasonably accessible because of undue burden or expense.” (Code Civ. Proc., §§ 1985.8, subd. (e), 2025.480, subd. (d).) An objection on that particular statutory ground differs from a general objection based on undue burden and typically arises when, for example, ESI needs to be retrieved and translated from the form in which it is stored into some other usable format. (See Vasquez, supra, 230 Cal.App.4th at pp. 42-43; see also Toshiba America Electronic Components, Inc. v. Super. Ct. (2004) 124 Cal.App.4th 762, 771-72.) The objecting party must first demonstrate the ESI is not reasonably accessible, and even if it does, a court may order the objecting party to produce the ESI if the requesting party establishes good cause. (Code Civ. Proc., §§ 1985.8, subd. (f), 2025.480, subd. (e).) If a court does so, it may order payment by the requesting party of the cost of producing the ESI. (Code Civ. Proc., §§ 1985.8, subd. (g), 2025.480, subd. (h).)
Significantly, Facebook and Twitter do not actually argue the subpoenas seek data that, although maintained by them in some form, is not reasonably accessible. Rather, they assert they do not have all of the items of information sought, such as credit card information. Put differently, Facebook and Twitter essentially argue some of the information sought is not maintained by them, not that their records of such information are difficult to access. In responding to the subpoenas, Facebook and Twitter need only produce the information they have. (See Code Civ. Proc., §§ 1985, 2020.410, subd. (a), 2025.480, subd. (a).) Otherwise, because they do not actually argue or demonstrate they cannot reasonably access responsive ESI, their argument is not persuasive.
In conclusion, Facebook and Twitter do not demonstrate the subpoenas are unduly burdensome or seek information that is duplicative, unnecessarily cumulative, and not reasonably accessible.
C. Privacy
Facebook and Twitter argue the subpoenas intrude upon their users’ right to privacy. In support, however, they discuss the First Amendment to the United States Constitution. In California, the right to privacy is protected by article 1, section 1 of the California Constitution and is distinct from any right conferred by the United States Constitution. (See American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 326-27.) The right to privacy is not the same as the “First Amendment right to speak anonymously on the Internet.” (See Krinsky v. Doe 6 (2008) 159 Cal.App.4th 1154, 1159.) Furthermore, different legal standards apply for purposes of evaluating discovery requests implicating these distinct rights. (Compare Williams, supra, 3 Cal.5th at p. 552 with Krinsky, supra, 159 Cal.App.4th at pp. 1171-72.) Because Facebook and Twitter do not actually address the right to privacy and the legal standard applicable thereto, they do not substantiate their privacy argument. The Court addresses below the First Amendment argument they actually present.
D. First Amendment
Facebook and Twitter argue their users’ identities cannot be disclosed because they have a First Amendment right to speak anonymously on the internet.
As a preliminary matter, Facebook and Twitter’s supporting analysis is not a model of clarity, and they do not cite legal authority that clearly and directly supports their position. “‘Where a point is merely asserted by counsel without any argument of or authority for its proposition, it is deemed to be without foundation and requires no discussion.’ [Citation.]” (People v. Dougherty (1982) 138 Cal.App.3d 278, 282; see also Cal. Rules of Court, rule 3.1113(b).) Here, despite the inadequacy of Facebook and Twitter’s analysis, the Court will address their argument because it appears to present an issue of first impression and implicates the rights of third parties who are not before the Court.
Facebook and Twitter rely exclusively on two Sixth District cases, namely Krinsky v Doe 6 (2008) 159 CalApp 4th 1154 and Glassdoor, Inc. v. Superior Court (“Glassdoor”) (2017) 9 Cal.App.5th 623. In these cases, the Sixth District considered whether and under what circumstances internet service providers could be compelled to disclose the identities of users who posted statements on their websites. (Krinsky, supra, 159 Cal.App.4th at pp. 1158-59 [defendant posted in message board hosted by Yahoo!]; Glassdoor, supra, 9 Cal.App.5th at pp. 625-26 [employee posted on website hosting employer and workplace reviews].) The Sixth District held that “in an action predicated on anonymous speech, regardless of legal theory, the plaintiff should not be able to discover the speaker’s identity without first making a prima facie showing that the speech in question is actionable.” (Glassdoor, supra, 9 Cal.App.5th at pp. 634-35.) But these cases are distinguishable and Facebook and Twitter do not articulate a basis for extending their holdings here.
First and foremost, Krinsky and Glassdoor involved fundamentally different types of speech than the case at bench. Both cases involved affirmative statements, including statements of opinion, about particular businesses and individuals. (Krinsky, supra, 159 Cal.App.4th at pp. 1158-59; Glassdoor, supra, 9 Cal.App.5th at pp. 625-26.) Neither Krinsky nor Glassdoor involved online advertising of pirated programming. Consequently, it is not obvious the same type of speech, and thus the same First Amendment rights and considerations, are present.
Here, Plaintiff seeks information about the social media accounts Defendant used as a business, which accounts bear its logo and link to its website. Defendant used these accounts to post advertisements and promotions for its unlawful streams of different sporting events. (See Van Niekerk Decl. Re: Facebook, Exs. D-G; Van Niekerk Decl. Re: Twitter, Exs. D-G.) Unlike in Krinsky and Glassdoor, Plaintiff does not seek the identity of individuals who posted about or reviewed Defendant’s business. (Van Niekerk Decl. Re: Facebook, ¶ 11; Van Niekerk Decl. Re: Twitter, ¶ 12.) This distinction is significant because the First Amendment “accords less protection to commercial speech than to other constitutionally safeguarded forms of expression.” (Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 952 [internal quotation marks and citation omitted].)
Commercial speech is defined as speech that proposes a commercial transaction. (Kasky, supra, 27 Cal.4th at p. 956.) Where, as here, the speaker is engaged in commerce and the speech consists of statements about the product or service being provided and/or aims to promote the product or service, the speech is commercial. (See id. at pp. 960-64; see also Yelp, supra, 17 Cal.App.5th at p. 11 [anonymous review of business was not commercial speech]; Doe 2 v. Super. Ct. (2016) 1 Cal.App.5th 1300, 1317, fn. 10.)
No California court has applied the rule announced in Krinsky to commercial speech, and no federal court has required a similar showing under these circumstances. (See In re Anonymous Online Speakers (9th Cir. 2011) 661 F.3d 1168, 1176 [compiling cases].) The Court is persuaded that “the nature of the speech should be a driving force in choosing a standard by which to balance the rights of anonymous speakers in discovery disputes.” (Id. at pp. 1176-77.) Thus, the commercial nature of the speech does not justify applying the rule announced in Krinsky here.
To be sure, in Krinsky and Glassdoor, the Sixth District’s primary concern was that unmasking individual anonymous speakers might chill speech. (Krinsky, supra, 159 Cal.App.4th at pp. 1162-63; Glassdoor, supra, 9 Cal.App.5th at pp. 630-31.) But commercial speech has been described as “hardier than noncommercial speech in the sense that commercial speakers, because they act from a profit motive, are less likely to experience a chilling effect from speech regulation.” (Kasky, supra, 27 Cal.4th at p. 955.) Consequently, those same concerns do not justify adopting the rule in Krinsky here.
Plaintiff presents evidence that Defendant pirated its programming and promoted the pirated content using Facebook and Twitter’s social media services. (Van Niekerk Decl. Re: Facebook, ¶¶ 1-3 & Exs. A-G; Van Niekerk Decl. Re: Twitter, ¶¶ 1-3 & Exs. A-G.) Plaintiff has thus presented evidence sufficient to satisfy the Court that it “is not merely seeking to harass or embarrass the speaker or stifle legitimate criticism.” (Krinsky, supra, 159 Cal.App.4th at p. 1171.) Accordingly, Plaintiff makes a showing sufficient to overcome Facebook and Twitter’s objections based on the First Amendment.
E. Conclusion
For the reasons set forth above, the Court concludes there is no basis for excusing compliance with, quashing, or modifying the subpoenas as narrowed by Plaintiff. Accordingly, Facebook and Twitter’s motion to quash and/or modify the subpoenas is DENIED and Plaintiff’s motions to compel compliance with the subpoenas, specifically the request in each subpoena for information relative to the listed accounts, are GRANTED. Facebook and Twitter shall make a reasonable attempt to notify the users, as is their standard practice, within 10 days and produce responsive documents and ESI 21 days thereafter to afford any individual user an opportunity to respond. (See Krinsky, supra, 159 Cal.App.4th at p. 1171; see also Yelp, supra, 17 Cal.App.5th at pp. 14-15; Code Civ. Proc., § 1987.1, subd. (b).) Out of an abundance of caution, the Court orders Plaintiff, its attorneys, and agents, to refrain from disseminating the information ultimately obtained to any nonparty except for use in the present litigation.
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