SUPER|OR COURT
oF THE

STATE OF DELAWARE

VlleN L. MEDINILLA' LEoNARD L. WlLLlAMs JusTlcE CENTER
JuDGE 500 NoRTH KlNG STREET, SulTE 10400

WlLMlNGToN, DE 19801-3733

TELEPHoNE (302) 255-0626

May 29, 2018
Albert M. Greto, Esquire Kathaleen St. J. McCormick, Esquire
Greto Law Elisabeth S. Bradley, Esquire
715 N. Tatnall Street Young ConaWay Stargatt &Taylor, LLP
Wilmington, DE 19801 Rodney Square
1000 North King Street

Wilmington, DE 19801

Re: Michael Ciabattoni v. Teamsters Local 326, et al.
Case No.: N15C-04-059 VLM

Dear Counsel:

This is the Court’S decision on Plaintiff’ s Motion to Compel Compliance With
Subpoena dated December 13, 2017. The Court has considered Plaintiffs Motion,
non-party Facebook, Inc.’S Opposition filed on December 27, 2017, and Plaintiff’s
subsequent Reply dated April 16, 2018. For the reasons stated below, Plaintiff’s
Motion to Compel is DENIED.

F actual and Procedural Background

Plaintiff has filed a motion pursuant to Superior Court Civil Rule 3 7 to compel
discovery.l Plaintiff served a Subpoena on non-party Facebook, Inc. on November
15, 2017 requesting “the identities of any and all owners, administrators, editors,
moderators, analysts, and live contributors for the Facebook page ‘Bring the
Teamsters to FedEX Freight’ between the dates of December 31, 2014 and January
9, 2015, and in particular the identity, IP Address, and all other information for the

 

l Pl.’s Mot. to Compel Compliance With Subpoena [hereinafter Mot. to Compel].

person(s) responsible.”2 Plaintiffs underlying lawsuit involves multiple claims
involving posts made on the aforementioned Facebook page, including False Light
Invasion of Privacy, Defamation of Character, Tortious Interference with Business
Relationship, Intentional Infliction of Emotional Distress, Breach of Contract, Civil
Conspiracy to Commit the Foregoing Counts, and Direct or Vicarious Liability of
Teamsters Local 326.3

Facebook, Inc. replied to the subpoena on November 24, 2017,4 but Plaintiff
claims that Facebook, Inc. did not comply with Plaintiff s request. Plaintiff claims
that Facebook Inc.’s failure to respond has prejudiced Plaintiff s ability to prosecute
his lawsuit and therefore requests the Court to issue an Order compelling Facebook,
Inc. to provide full and complete responses to Plaintiff within twenty days or face
sanctions.5 Non-party Facebook, Inc. filed opposition on December 27, 2017.6

The Motion has been re-noticed several times, most significantly to allow for
the deposition of former Defendant Travis Eby, the listed former administrator for
the Facebook group in question.7 Mr. Eby was deposed on April 4, 2018. Following
that deposition, the Court requested that Plaintiff s counsel provide an updated reply
in light of any information received at that deposition.8 That reply was filed on April
16, 2018.9 Then, by letter dated May 14, 2018, counsel for non-party Facebook, Inc.
informed the Court that they would be focusing their argument on the First
Amendment protections under the standard set forth in Doe v. Cahill.'O Facebook,
Inc. would not pursue arguments based upon the Stored Communications Act “in

 

2 Mot. to Compel at Ex. A.

3 Second Am. Compl.

4 Mot. to Compel at Ex. B.

5 Mot. to Compel at 11 6.

6 Facebook, Inc.’s Opp. To Pl.’s Mot. to Compel [hereinafter Facebook, Inc.’s Opp.].

7 Email dated Feb. l9, 2018.

8 Email dated Apr. 16, 2018.

9 Pl.’s Reply to Facebook, Inc’s Opp. To Pl.’s Mot. to Compel [hereinafter Pl.’s Reply].

10 Ltr. dated May l4, 2018 regarding Mot. to Compel (citing Doe v. Cahill, 884 A.2d 451 (Del.
2005)).

light of the scope of information Plaintiff is seeking.”ll

A hearing was held on May 15, 2018. Non-party Facebook, Inc. submitted
additional materials for the Court’s consideration.'2 Defendants’ counsel, Jeffrey
Weiner, Esquire, was present at the hearing to observe and did not take a position in
regards to this Motion. Defendants’ counsel only participated upon prompting by
the Court if he wished to make a record or take a position regarding any of the
arguments presented by Plaintiff or Facebook, Inc. On May 16, 2018, he submitted
a transcript from Mr. Eby’s deposition per the Court’s request.y On May 22, 2018,
Plaintiffs counsel submitted additional correspondence for consideration

Contentions of the Parties

Plaintiff argues generally that non-party Facebook, Inc.’s failure to respond to
the subpoena has “prejudiced Plaintiff s ability to prosecute his lawsuit against
Defendants.”13 Plaintiff counsel argues that he attempted to obtain the relevant
information from the Facebook page’s original administrator, Mr. Eby, but that Mr.
Eby had relinquished all access and control over the Facebook page in question to
another individual, Michael Thiemer. Non-party Facebook, Inc. contends that the
identity of anonymous online speakers is protected by the First Amendment, and
Plaintiff fails to meet the burdensome summary judgment standard articulated by the
Delaware Supreme Court in Doe v. Cahz'll14 to compel Facebook, Inc. to produce any
identifying information

Standard of Review

Discovery in a civil case is generally controlled by Delaware Superior Court

 

llld

'2 Facebook, Inc. submitted two additional cases: McVicker v. King, 266 F.R.D. 92 (W.D. Pa.
2010) and Enterline v. Pocono Med. Ctr., 751 F.Supp.2d 782 (M.D. Pa. 2008), as well as a journal
article: Charles N. Insler, In (Partial) Defense of Internet Trolls.' Advocating a Flexible Summary
Judgment Standard Before Unmasking Anonymous Commentators Accused of Defamation, 32-
WTR COMM. LAW. 9 (2016).

13 Mot. to Compel at 11 6.

14 Doe v. Cahill, 884 A.2d 451 (Del. 2005).

Civil Rule 26.15 “Parties may seek discovery of any non-privileged, relevant matter,
as well as information reasonable calculated to lead to the discovery of admissible
information.”16 However, Rule 26(b)(1) states that the Court shall limit the extent
of discovery if it determines that:

The discovery sought is unreasonably cumulative or duplicative . . . is
obtainable from some other source that is more convenient, less
burdensome, or less expensive . . . [or] is unduly burdensome or
expensive, taking into account the needs of the case, the amount in
controversy, limitations on the parties’ resources, and the importance
of the issues at stake in the litigation.17

In addition, parties must “take reasonable steps to avoid imposing undue burden or
expense on a person subject to that subpoena.”18 For subpoenaed information, “[o]n
timely motion, the Court shall quash or modify a subpoena if it . . . requires
disclosure of privileged information or other protected matter and no exception or
waiver applies.”19

Discussion

First, under Rule 37, this Court cannot compel Facebook, Inc. where Plaintiff
has not met his burden, particularly for seeking discovery from a third party.
Plaintiff has not taken reasonable steps to avoid imposing an undue burden on a
disinterested non-party. Indeed, by Plaintiff s own admission, he has not exhausted
other less burdensome avenues of obtaining the requested information20 This Court

 

15 DEL. SUPER. CT. Clv. R. 26.

16 HuffFund Inv. P’Ship v. CKX, Inc., 2012 WL 3552687, at *l (Del. Ch. Aug. 15, 2012).
17 DEL. SUPER. CT. CIv. R. 26(b)(1)(i)_(iii).

18 DEL. SUPER. CT. Civ. R. 45(0)(1).

19 DEL. SUPER. CT. Clv. R. 45(c)(3)(A)(i)-(ii).

20 Plaintiff admits that he “may or may not be able to obtain the information requested from
Michael Thiemer.” Pl.’s Reply at 11 5. Also, at the hearing, Plaintiff merely represented that it was
“unlikely” that he would be able to obtain the requested information by deposing other known
individuals, such as Mr. Michael Thiemer or Mr. Christopher Buschmeier. The Court additionally
notes that Mr. Eby identified another individual at his deposition who may have the requested
information Jennifer Carpenter or “Jennifer from Indianapolis.” Dep. of Mr. Travis Eby (Apr. 4,

4

finds that where two, if not three, persons have yet to be deposed, and discovery is
still ongoing, Plaintiff has not demonstrated that he cannot obtain the information
from another source. Thus, this Court questions the timeliness of Plaintiff’ s filing.

Second, even assuming it was a timely filing, the Court agrees with Facebook,
Inc. that Plaintiff has not met the high standard articulated by the Delaware Supreme
Court in Doe v. Cahil[21 in order to obtain the identifying information of an
anonymous internet speaker.22 Anonymous internet speech is protected by the First
Amendment, and therefore, to overcome that constitutional protection, Plaintiff is
required to attempt to notify the anonymous speaker23 and “submit sufficient
evidence to establish a prima facie case for each essential element of the claim in
question.”24 Here, Plaintiff has failed to meet these requirements

Plaintiff claims that he is unable to provide notice until he knows the identity
of the speaker. Yet the Supreme Court anticipated this conundrum and articulated
that “when a case arises in the internet context, the plaintiff must post a message
notifying the anonymous defendant of the plaintiffs discovery request on the same
message board where the allegedly defamatory statement was originally posted.”25
If for some reason Plaintiff would be unable to do so, he must still have made a
reasonable effort to notify the speaker. He has not done so here. Plaintiff also has
not met the summary judgment standard and has not “introduce[d] evidence creating
a genuine issue of material fact for all elements of a . . . claim within the plaintiffs
control.”26 Plaintiff s argument that Cahill only applies to political speech is without
merit.27 Thus, Plaintiff s Motion to Compel is DENIED.

 

2018) at 30:21_31:01; 33:10~11.

21 Doe v. Cahill, 884 A.2d 451 (Del. 2005).

22 See also SunEnergyl, LLC v. Brown, 2015 WL 7776625 (Dei. super. Ct. Nov. 30, 2015)_

23 Cahill, 884 A.2d at 460 (“We retain the notification provision in the Dendrite test. Thus, to the
extent reasonably practicable under the circumstances, the plaintiff must undertake efforts to notify

the anonymous poster that he is the subject of a subpoena or application for order of disclosure.”).

24 Id. at 463 (quoting Colgain v. Oy-PartekAb (In re Asbestos Lil‘ig.), 799 A.2d 1151, 1152 (Del.
2002) (emphasis in original)).

25 Id. at 461.
26 Id. at 463 (emphasis removed).

27 See Mobz'lisa, Inc. v. Doe, 170 P.3d 7l2, 720 (Ariz. Ct. App. 2007).
5

Sincerely,

 

/ vivian‘ii. Mediniiia
Judge

oc: Prothonotary
cc: All counsel via File&Serve
Jeffrey M. Weiner, Esquire

