Legal Commentary

The Maryland Court of Appeals last month established a standard for when a defamation plaintiff suing an anonymous on-line poster can enforce a subpoena against the non-party ISP to obtain the identities of the anonymous speakers. Commentary on the case here.

The court thoroughly discussed the standards that various state and federal courts have adopted for when such a subpoena should be enforced, ultimately adopting a three-part test: 1) the plaintiff must attempt to give notice to the Doe defendants that a court order has been sought to obtain the Doe identities and await a possible response; 2) the plaintiff must identify the precise statements alleged to be defamatory; 3) the plaintiff must make a prima facie showing of defamation; and 4) the court must balance the anonymous poster's First Amendment interests in anonymous speech with the strength of that prima facie case. The court was trying to balance First Amendment concerns inherent in such discovery efforts, a problem that arises primarily in defamation cases (which tend to arise in state court), but also could come up in copyright cases (which are brought exclusively in federal court).

So here is a nice Erie question: In a diversity action, must a federal court apply the state-law standard for when a plaintiff can subpoena the identity of an anonymous poster or can it utilize a different federal standard? Are these standards part of substantive state defamation law, where a federal court must follow state law? Or do they reflect an interpretation of the federal Constitution, which state and federal courts are equally competent to interpret? Or is it an interpretation of the procedural rules governing subpoenas, in which case federal courts interpret and apply one set of rules and state courts interpret and apply a different set?

Thoughts?