Summary
The Ninth Circuit vacated and remanded the denial of Gregory Gliner’s application under 28 U.S.C. § 1782 to obtain discovery from Dynadot, Inc. for use in a contemplated defamation proceeding in the United Kingdom. The court held that the district court abused its discretion by denying the application based on assumed First Amendment interests without factual findings or analysis of the statutory and Intel factors. The court stated that the current record did not show that the anonymous website operator or author was protected by the First Amendment, or that the requested discovery implicated a U.S. audience’s right to receive information.
Topics
Practice areas
Questions Presented
- Whether the district court abused its discretion by denying Gliner's § 1782 discovery application solely in light of assumed First Amendment interests without analyzing the statutory requirements or Intel factors.
- Whether the record at the preliminary § 1782 application stage established that the anonymous website operator, pseudonymous author, or U.S. audience possessed First Amendment interests that would be implicated by the requested discovery.
- What proceedings should occur on remand if the district court grants the requested subpoenas.
Holdings
- The district court abused its discretion by denying the application based solely on assumed First Amendment interests, without considering the § 1782 statutory requirements and the Intel discretionary factors.
- At the preliminary procedural stage, the record did not suggest that the First Amendment interests of the website operator or article author were implicated because no evidence showed that either was a U.S. citizen or present in the United States.
- The record did not support a finding that the requested discovery would implicate the First Amendment right of a U.S. audience to receive information and ideas.
- If the district court issues the subpoenas, it must require Dynadot to give, or attempt to give, notice to the operator, author, and other known affected persons and authorize them to challenge the subpoenas by motion to quash or modify.
Key quotations
“In conclusion, no evidence in the current record suggests the implication or infringement of any person’s First Amendment rights, yet the district court assumed both in denying Gliner’s § 1782 application, neglecting the Supreme Court’s admonition against adjudicating § 1782 applications through the lens of U.S. domestic analogues.” (at 14)
Factual background
Gregory Gliner, a dual United Kingdom and United States citizen living in London, intended to bring a defamation action in the United Kingdom concerning an article accusing him of criminal conduct. The article appeared on PoliticalLore.com under the pseudonym Edward Swensson, and the website operator and author could not be identified through public research. Gliner believed Dynadot, a California company providing domain registration and privacy services for the website, possessed information that could identify them, so he sought document production and Rule 30(b)(6) deposition testimony under § 1782.
Procedural history
Gliner sought discovery from California-based Dynadot to identify the anonymous operator of a website and the pseudonymous author of an allegedly defamatory article for use in contemplated defamation proceedings in the United Kingdom. The district court denied the application based on assumed First Amendment interests without analyzing the § 1782 statutory requirements or the Intel discretionary factors, and later denied reconsideration for lack of good cause. The Ninth Circuit vacated and remanded.
Remand instructions
The district court must consider the § 1782 statutory requirements and exercise its discretion under the Intel factors in the first instance. If it issues subpoenas, it must require Dynadot to give, or attempt to give, notice to the operator, author, and any other known affected persons, and authorize Dynadot and affected parties to move to quash or modify the subpoenas.