                                                                            FILED
                            NOT FOR PUBLICATION                              JUN 29 2011

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



SI03, INC.,                                       No. 10-35308

              Movant - Appellant,                 D.C. No. 1:07-mc-06311-EJL-
                                                  LMB
  v.

BODYBUILDING.COM, LLC,                            MEMORANDUM *

              Defendant - Appellee.



                    Appeal from the United States District Court
                              for the District of Idaho
                     Edward J. Lodge, District Judge, Presiding

                     Argued and Submitted December 10, 2010
                               Seattle, Washington

Before: BEEZER, O’SCANNLAIN, and PAEZ, Circuit Judges.

       SI03, Inc. appeals from the district court’s order denying its motion to

compel disclosure of identifying information for several individuals who posted

allegedly defamatory messages about SI03 on an online message board. As the




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
facts are known to the parties, we repeat them here only as necessary to explain our

decision.

                                           I

      The degree of scrutiny we give to impositions on speech “varies depending

on the circumstances and type of speech at issue,” and thus “the nature of the

speech should be a driving force in choosing a standard by which to balance the

rights of anonymous speakers in discovery disputes.” In re Anonymous Online

Speakers, No. 09-71625, — F.3d — , 2011 WL 61635, at *2, *6 (9th Cir. Jan. 7,

2011). Accordingly, in cases involving less-protected categories of speech, such as

commercial speech, we apply a less-protective standard for disclosure than in cases

involving core areas of free speech. See id.

                                          A

      To characterize the speech at issue here, we must know the true identities of

the speakers. If the pseudonymous speakers indeed work for SI03’s competitors,

there is good reason to suspect that their harsh criticisms were intended to promote

other, competing products, many of which are discussed in the messages SI03 has

identified. In that case, a less-protective disclosure standard for commercial

speech may be appropriate. See United States v. Schiff, 379 F.3d 621, 626–29 (9th

Cir. 2004) (holding that speech “acting as an advertisement for [the speaker’s] . . .


                                           2
products and services” constitutes commercial speech). But if these speakers are

not agents of SI03’s competitors, then the substance of these comments alone do

not suggest that the speech is “commercial” in nature. It is not enough simply that

the criticisms pertain to SI03’s commercial practices. See Cent. Hudson Gas &

Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 561–63 (1980).

      Of course we cannot know whether the speakers are agents of SI03’s

competitors unless and until their true identities are revealed.

                                           B

      Here, the district court never inquired into the identities of the speakers, but

instead denied SI03’s motion to compel after applying a two-part test derived from

both Doe v. Cahill, 884 A.2d 451 (Del. 2005), and Dendrite International, Inc. v.

Doe, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001). We have recently explained

that the rigorous Cahill standard is “understandable” in a case “involv[ing]

political speech.” Anonymous Online Speakers, 2011 WL 61635, at *6. But in the

context of less-protected speech such as commercial speech, “Cahill’s bar extends

too far.” Id. By the same token, the district court’s even stricter two-part test is

appropriate only, if ever, in a case concerning core areas of free speech.




                                           II


                                           3
      Because the district court assessed SI03’s motion without knowledge of the

speakers’ identities, we have no clear indication that the speech in question is not

commercial. In such a situation, the court should not have applied a standard even

more rigorous than that outlined in Cahill. Rather, the district court should have

determined the nature of the speech at issue before settling upon a standard for

disclosure. Because the nature of the speech here rests upon whether the

anonymous speakers were acting as agents of SI03’s competitors, the court should

take steps to ascertain that fact without disclosing the identities of the

pseudonymous speakers to the public or to SI03.1 Only after the court has

determined the speakers’ relationship to SI03—and correspondingly the nature of

the speech in question—should it determine under what standard to consider the

motion to compel.


      1
          While the speakers’ identifying information could be disclosed to the
district court under seal for in camera review, we recognize that revelation of who
these speakers are is only the first step in the process to revealing whether they
work for SI03’s competitors. During this process, the court may find it necessary
to allow some disclosure to SI03, in order to resolve the underlying issue of the
speakers’ relationship to SI03 and the corresponding nature of their speech. But
any disclosure to SI03 should be limited to “attorneys’ eyes only,” so that the court
can adjudicate the remaining legal issues without revealing the speakers’ identities
to the plaintiffs before it is determined that such disclosure would be appropriate.
       We leave to the district court the task of fashioning specific procedures
appropriate to protect this disclosure process. See Anonymous Online Speakers,
2011 WL 61635 at *7 (discussing “the tools available to the district court to
oversee discovery of sensitive matters that implicate First Amendment rights”).

                                            4
                                         III

      The district court’s order denying SI03’s motion to compel information

pertaining to the identities of the speakers “chimpilico,” “cxm,” “ElMariachi,” and

“INGENIUM” is

      VACATED and REMANDED.




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