## Facts

- An anonymous publicly traded company sued five John Doe defendants in Indiana, alleging anonymous posts on AOL message boards defamed the company and disclosed confidential, material insider information.
- The plaintiff sought the Does’ identities to name and serve them and to pursue the Indiana claims.
- The Indiana court authorized discovery from AOL in Virginia and asked Virginia courts to issue a subpoena duces tecum for identifying information for four AOL subscribers.
- A Virginia subpoena duces tecum issued to AOL seeking subscriber identity information.
- AOL moved to quash under Virginia Supreme Court Rule 4:9(c), arguing the subpoena was unreasonable and oppressive and implicated subscribers’ First Amendment interests in anonymous speech.

## Issues

1. Whether AOL had standing to move to quash a subpoena seeking identifying information about its anonymous subscribers.
2. Whether principles of comity required Virginia to enforce the Indiana discovery order without independent review.
3. What showing is required under Rule 4:9(c), consistent with First Amendment protections for anonymous speech, to compel disclosure of anonymous speakers’ identities.
4. Whether the plaintiff’s showing satisfied that standard so that the subpoena should be enforced rather than quashed.

## Decision

- The court held AOL had standing to challenge the subpoena on behalf of its subscribers.
- The court held comity did not require automatic enforcement of the Indiana discovery order; Virginia would independently assess enforceability under Virginia rules and constitutional concerns.
- The court adopted a threshold standard: disclosure may be compelled when the requesting party shows a legitimate, good-faith basis to contend it may be the victim of actionable conduct and that the identity information is centrally needed to advance the claim.
- Applying that standard, the court denied AOL’s motion to quash and ordered AOL to comply with the subpoena.

## Legal Principles

- Under Virginia Supreme Court Rule 4:9(c), a subpoena may be quashed or modified if it is “unreasonable and oppressive,” requiring consideration of surrounding circumstances and the burdens imposed on the subpoenaed party.
- An ISP may have standing to move to quash a subpoena seeking subscriber identities where enforcement affects the ISP’s interests and subscribers’ anonymity, and where requiring subscribers to litigate individually would be impractical and could defeat anonymity.
- Comity toward an out-of-state discovery order does not eliminate a Virginia court’s duty to independently determine whether a subpoena should be enforced under Virginia procedural rules and constitutional limits.
- Anonymous speech is protected by the First Amendment, but the protection does not extend to defamatory or otherwise unlawful conduct; courts may order unmasking when the requesting party makes a good-faith, non-pretextual showing of actionable wrongdoing and demonstrates that identities are essential to proceed.

## Conclusion

The court enforced a subpoena compelling AOL to disclose identifying information for anonymous subscribers after finding AOL had standing to object, comity did not bar independent review, and the plaintiff made a legitimate, good-faith showing of actionable misconduct with identities centrally necessary to pursue its pending claims.


In re Subpoena Duces Tecum to America Online, Inc., 52 Va. Cir. 26 (Va. Cir. Ct. 2000)