Message Board Operator Fights Discovery Order Requiring Disclosure of Identities and Private Messages — Concerned Citizens for Crystal City v. City of Crystal City

[Post by Venkat]

Concerned Citizens for Crystal City, et al. v. City of Crystal City, et al., No. ED 94135 (Mo. Ct. App.; Oct. 26, 2010)

In 1991, Pittsburgh Plate and Glass Company shut down a factory in Crystal City (Missouri), and Crystal City undertook efforts to redevelop this property. Wings Enterprises expressed an interest in the property and met with the City regarding potential redevelopment efforts. Thomas Kerr, who owned the adjoining property formed Concerned Citizens for Crystal City, a non-profit that opposed the Wings redevelopment proposal (and presumably, had its own ideas for what form the redevelopment should take).

William Ginniver became the president of CCCC and set up a forum for concerned citizens to discuss the Wings proposal. Posters could post anonymously but had to register by providing an email address in order to post to the forum. Ultimately, the City approved the Wings proposal, and CCCC filed suit, alleging among other things that the City violated Missouri’s Sunshine Law in connection with the redevelopment discussions. Wings intervened in the lawsuit as a defendant.

In the course of discovery, Wings sent over a request for production to Ginniver seeking:

a complete copy, in native format, of all information in [Ginniver's] possession that had been posted on the domain http://www.clearpillar.com;

a complete copy, in native format, of all databases in [Ginniver's] possession related to any forum that [had] appeared on http://www.clearpillar.com, with all copies to include, among other things, the IP addresses related to each post, member names and email addresses, and the text of private messages on the database.

Ginniver objected, and the trial court largely rejected his objection, ordering him to produce “a full and complete copy, in native format, of all information in his possession or control, that [had] been posted [to http://www.clearpilllar.com].” The court also ordered Ginniver to answer deposition questions regarding the identity of users who posted on the forum.

Ginniver filed an interlocutory appeal of the discovery order but neither the Court of Appeals nor the Missouri Supreme Court decided to hear the appeal. Ginniver then produced a copy of all public messages posted to the forum but withheld “unposted private messages,” and “any information that could have uniquely identified the users of the forum.” In response, Crystal City and Wings moved for default judgment as a sanction. The trial court granted this request.

The Court of Appeals held that dismissal as a sanction was overly drastic, and the discovery requests were overly broad to begin with. The content of the postings were sufficient for the City or Wings to seek identification of particular posters (or bring this issue before the court at a later time). The court cited to the rules regarding protective orders and hinted that a previously offered stipulation by defendants (to a protective order) may sufficiently address any concerns on the part of the posters (or on Ginniver’s part), and that if CCCC failed to comply with a properly narrowed discovery request, the sanction of dismissal may then be appropriate.

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This looks like a narrow escape for plaintiff from what looks like an initial bad ruling from the trial court. The Court of Appeals has an opportunity to clear up confusion regarding the various categories of information, but beyond providing some vague guidance, the Court of Appeals did not give the trial court much to work with.

Status of private messages: It appears that Ginniver sought to withhold private messages, but the court didn’t delve into whether the messages were truly private and what that would have meant for purposes of discovery. I recently posted on a decision from Pennsylvania ordering disclosure of a plaintiff’s log-in and passwords for his Facebook and MySpace pages, where the court didn’t delve into the various categories of information and whether they were truly public or private. (“Court Orders Disclosure of Facebook and MySpace Passwords in Personal Injury Case — McMillen v. Hummingbird Speedway.”) That decision also did not discuss the effect (if any) of the Stored Communications Act on private messages. This court’s decision suffers from many of the same problems.

Identification of anonymous posters: Although the court alludes to the standards for when a litigant can identify an online poster, and hints that First Amendment interests are at stake here, it’s unlikely that defendants would satisfy any of the standards for identifying all of the posters. This case involves citizen communications criticizing the government’s activity, and the First Amendment interests are therefore particularly strong. Even if it did not announce the applicable test, it would have been nice for the court to recognize this, and send a message that a fishing expedition seeking to identify all of the posters was inappropriate.

This case looks like a good candidate for intervention by one of the many public interest groups who have fought (and won) battles around online anonymity.

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