In the Pokémon franchise of role-playing video games, players travel the world in search of hidden Pokémon. In recent litigation, the Pokémon Company International, Inc. (the Pokémon Company) undertook a similar quest: to find pseudonymous users on the internet. Although the Pokémon Company had a relatively easy time obtaining the necessary discovery, other courts have applied more demanding standards when a party seeks information about an internet user.
On June 22, 2021, the United States District Court for the Western District of Washington entered stipulated judgments in favor of the Pokémon Company for violations of the Defend Trade Secrets Act1 and the Washington Uniform Trade Secrets Act, Wash. Rev. Code § 19.108.010.2 Defendant David Andino Maisonave worked at a company printing a strategy guide for two highly anticipated video games, Pokémon Sword and Pokémon Shield.3 Andino took illicit pictures of the then-unpublished guide and shared them with a friend who eventually shared them with Defendant Bryan Garcia Cruz.4 However, the most interesting part of the litigation transpired prior to the issuance of stipulated judgements when the Pokémon Company twice sought to discover the real identities of the John Doe Defendants that the Pokémon Company could identify only as Discord user WolfenX#5356, WolfenX's source, and Discord user Uxinator#3307.5
In the first motion, filed on November 22, 2019, the Pokémon Company sought discovery from Discord, Inc., 4chan, LLC, and pseudonymous Discord user DimensioNz#3307.6 In the second motion, filed on January 21, 2020, the Pokémon Company sought discovery from Charter Communications, Inc., Verizon Wireless Capital LLC, and Google LLC.7 In both motions, the Pokémon Company articulated a lax four-part standard:
To determine whether "good cause" exists, courts consider whether plaintiff: (1) identifies the John Doe defendant with sufficient specificity that the court can determine that the defendant is a real person who can be sued in federal court, (2) recounts the steps taken to locate and identify the defendant, (3) demonstrates that the action can withstand a motion to dismiss, and (4) proves that the discovery is likely to lead to identifying information that will permit service of process.8
This test is derived from a 1999 Northern District of California case, Columbia Insurance Co. v. seescandy.com.9 Without describing the legal standard that it used to assess Pokémon Company's requests, the court granted both motions.10
By contrast, many jurisdictions have adopted stricter standards for obtaining such ex parte discovery, which often require analyses related to personal jurisdiction and the First Amendment. Furthermore, requesting parties cannot seek the contents of users' messages under the Stored Communications Act. These considerations are discussed in more detail below.
Personal Jurisdiction
Some courts require inquiries into the personal jurisdiction of the party against whom discovery is sought—whether this is the anonymous user or the user's online service provider.11 To minimize personal jurisdiction issues, plaintiffs may try to domesticate a subpoena in the state in which the service provider is located.12 Alternatively, under the Federal Rules of Civil Procedure and in certain states with pre-action discovery procedures, plaintiffs may choose to bring auxiliary actions in the states in which the service provider is located.13
First Amendment and Balancing Tests
Some courts have held that pseudonymous or anonymous users, as well as the host internet service, have a First Amendment right flowing from McIntyre v. Ohio Elections Commission.14 Courts have given weight to this First Amendment right through various balancing tests.15
Many courts have adopted the multi-factor test from Dendrite International, Inc. v. Doe No. 3.16 The Dendrite test requires that plaintiffs 1) "undertake efforts to notify the anonymous posters that they are the subject of a subpoena or application for an order of disclosure, and withhold action to afford the fictitiously-named defendants a reasonable opportunity to file and serve opposition to the application;" 2) "identify and set forth the exact statements … [that] constitute[] actionable speech;" and 3) "produce sufficient evidence supporting each element of its cause of action … prior to a court ordering the disclosure of the identity of the unnamed defendant."17 Finally, Dendrite requires courts to "balance the defendant's First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant's identity."18
There are many variations of the Dendrite test, including the Cahill and Sony tests.19 The Cahill test differs from the Dendrite test in that does not include a separate First Amendment balancing element as part of the test.20 Meanwhile, the Sony standard looks to five factors: 1) whether there is "a concrete showing of a prima facie claim of copyright infringement"; 2) the "specificity of the discovery request"; 3) the "absence of alternative means to obtain subpoenaed information"; 4) a demonstration that "the subpoenaed information is centrally needed … to advance … copyright infringement claims"; and 5) the "defendants' minimal expectation of privacy" in relation to material protected by intellectual property rights.21
Generally, the Dendrite and Cahill standards are considered to be more favorable to users and services,22 while the Sony standard is considered to be more favorable to parties seeking discovery.23 However, there is no universal test, and the applicable standard may vary by jurisdiction.24
Stored Communications Act
Regardless of which standard applies to assess whether discovery of a user's identity is permitted, parties cannot acquire the content of anonymous users' messages from online service providers. The Stored Communications Act expressly prohibits the disclosure of "the contents of any communication" stored by an "electronic communication service" or "carried or maintained" by a remote computing service" in many instances.25 While the Stored Communications Act does allow for disclosure in some limited situations, these exceptions are not generally relevant to civil discovery requests.26
Given the stricter standards adopted by other jurisdictions, the court's decision in Pokémon Company to grant both motions requesting users' identifying information based solely on their online pseudonyms may indicate a clash between the seescandy.com discovery-of-Doe-defendants regime and the numerous First-Amendment-sensitive regimes for discovering anonymous users. It may also suggest a weakness in the system when the as-yet-unknown users cannot argue for the stricter standards. Or it may be that the looser seescandy.com standard makes more sense when the dispute is about intellectual property rather than defamation.
Wilson Sonsini frequently litigates cases about discovery of pseudonymous internet users in different procedural postures and for parties and for third parties. Wilson Sonsini will continue to monitor developments in the pseudonymous user space.
Christina Fuleihan contributed to the preparation of this alert.
[1] 18 U.S.C. § 1836.
[2] Stipulated Judgment, Pokémon Co. Int’l, Inc. v. Cruz, No. 19-cv-1911MJP (W.D. Wash. June 22, 2021), ECF No. 52; Stipulated Judgment, Pokémon Co. Int’l, Inc. v. Cruz, No. 19-cv-1911MJP (W.D. Wash. June 22, 2021), ECF No. 51.
[3] Stipulated Judgment at 1–3, ECF No. 52.
[4] Id.
[5] See Ex Parte Mot. for Expedited Discovery at 4:16–24, Pokémon Co. Int’l, Inc. v. Cruz, No. 19-cv-1911MJP (W.D. Wash. Nov. 22, 2019), ECF No. 3.
[6] Motion to Expedite Discovery (Ex Parte), Pokémon Company Int’l v. Cruz, No. 19-cv-1911MJP, (W.D. Wash. Jan. 21, 2020), ECF No. 3.
[7] Motion for Discovery (Additional), Pokémon Company Int’l v. Cruz, No. 19-cv-1911MJP, (W.D. Wash. Nov. 22, 2019), ECF No. 9.
[8] Motion to Expedite Discovery. (Ex Parte), 6, Pokémon Company Int’l v. Cruz, No. 19-cv-1911MJP, (W.D. Wash. Jan. 21, 2020), ECF No. 3. (citing Nat’l Prods., Inc. v. Does 1-4, NO. C16-0702JLR, 2016 U.S. Dist. LEXIS 68292, at *4–5 (W.D. Wash. May 23, 2016)); Motion for Discovery (Additional) at 4, Pokémon Company Int’l v. Cruz, No. 19-cv-1911MJP, (W.D. Wash. Jan. 21, 2020), ECF No. 9 (citing Nat’l Prods., Inc., 2016 U.S. Dist. LEXIS 68292, at *4–5).
[9] 185 F.R.D. 573 (N.D. Cal. 1999).
[10] Order Granting Plaintiff’s Mot. to Expedite Discovery (Ex Parte), Pokémon Company Int’l v. Cruz, No. 19-cv-1911MJP, (W.D. Wash. Dec. 10, 2019), ECF No. 5; Order Granting Plaintiff’s Motion for Discovery (Additional), Pokémon Company Int’l v. Cruz, No. 19-cv-1911MJP, (W.D. Wash. Jan. 30, 2020), ECF No. 11.
[11] See, e.g., VPR Internationale v. Does 1-1017, No. 11-2068, 2011 U.S. Dist. LEXIS 64656, at *6 (C.D. Ill. Apr. 29, 2011) (no personal jurisdiction until service; otherwise, the court’s authority could be used to conduct a fishing expedition”); Zoni Language Ctrs., Inc. v. Glassdoor Inc., No. 158400/2016, 2017 N.Y. Misc. LEXIS 329, at *3–4, *8 (“[R]espondent's website does not constitute transacting business for purposes of New York's long-arm statute and this Court cannot exercise personal jurisdiction over respondent.”); cf. Attkisson v. Holder, 925 F.3d 606, 628 (4th Cir. 2019) (“[A] court generally lacks personal jurisdiction over unserved parties.”); Industrias De Papel R. Remenzoni S.A. v. Banco De Investimentos Credit Suisse (Brasil) S.A., No. 650932/12, 2014 N.Y. Misc. LEXIS 142, at *19 (N.Y. Sup. Ct., N.Y. Cty. Jan. 14, 2014).
[12] See, e.g., Cal. Civ. Proc. Code § 2029.100 to .900; Yelp Inc. v. Hadeed Carpet Cleaning Inc., 770 S.E.2d 440, 443–44 (Va. 2015) (explaining that subpoena power may not be coextensive with personal jurisdiction and that the “the law of the state in which the witness resides or where the documents are located” will govern most issues).
[13] See, e.g., Fed. R. Civ. P. 27(a)(1) (“A person who wants to perpetuate testimony about any matter cognizable in a United States court may file a verified petition in the district court for the district where any expected adverse party resides.”); Ala. R. Civ. P. 27(a)(1); NY CPLR 3102(c).
[14] McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 357 (1995).
[15] See, e.g., Del. Valley Aesthetics, PLLC v. Doe, No. 20-0456, 2021 U.S. Dist. LEXIS 122257, at *13 (E.D. Pa. June 30, 2021) (“different standards are adopted in different jurisdictions” out of concern for the potential “chill” of “First Amendment rights”).
[16] Dendrite Int’l, 342 N.J. Super 134 (App. Div. 2001).
[17] Id.
[18] 342 N.J. Super at 141–42.
[19] Cahill v. John Doe No. One, 879 A.2d 943, 946 (Del. Super. 2005), rev’d sub nom. John Doe No. 1 v. Cahill, 884 A.2d 451 (Del. 2005); Sony Music Entm’t Inc. v. Does 1-40, 326 F. Supp. 2d 557 (S.D.N.Y. 2004).
[20] Cahill, 884 A.2d at 460–61.
[21] Sony Music Entm’t, 326 F. Supp. 2d at 564–67.
[22] Thomas M. Cooley Law Sch. v. Doe, 300 Mich. App. 245, 274 (Mich. Ct. App. 2013).
[23] See, e.g., Greenbaum v. Google, 845 N.Y.S. 2d 695, 698 (N.Y. Sup. Ct. 2007).
[24] See, e.g., Gunning v. Doe, 2017 ME 78, ¶ 32 (“We should engage in our own assessment of whether to impose a ‘heightened burden’ in defamation claims against anonymous speakers asserting First Amendment protection.”).
[25] 18 U.S.C. § 2702(a).
[26] 18 U.S.C. § 2703(b); 18 U.S.C. § 2702(c).
