DOE v. BLACKRABBIT19 (2022)

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:

Papers Numbered

Notice of Motion, Affirmation in Support, and Exhibits thereto 1

Affirmation in Opposition and Exhibits thereto 2

Upon the foregoing papers and after due deliberation, following oral argument, the Decision/Order on this motion is as follows:

Facebook User fakespeare999 A/K/A hurtfulsloth (defendant in this matter, hereinafter referred to as “Facebook User”) moves this Court for an Order, pursuant to CPLR § 2304, to quash the Non-Party Subpoena Duces Tecum (hereinafter referred to as “Subpoena”) issued by Jane Doe (hereinafter referred to as “Plaintiff”), seeking all documents, including IP addresses and login information, concerning Facebook User's Facebook accounts, on the grounds that the Subpoena is facially defective and improper under the Stored Communications Act (hereinafter referred to as “SCA”), and that service upon Facebook User was improper.

Facebook User claims the Subpoena seeks disclosure of information that is prohibited by the SCA and is overly broad in its reach of “all documents.” NYSCEF Doc. 4, P. 3. Facebook User further claims he was not directly served regarding the disclosure of his information, instead the Subpoena was served upon Facebook, rendering service improper due to lack of notice.

Plaintiff claims the Subpoena was validly served upon Facebook rather than Facebook User, since Facebook has special knowledge of and control over the pertinent information sought, including but not limited to the accounts' IP addresses, login information, and other basic subscriber information. And that through Facebook's actions, in accordance with their own policy of notifying users prior to turning over such information, Facebook had given notice to Facebook User who was thus fully informed of the circumstances and reasons for Plaintiff requesting such disclosure.

Pursuant to CPLR § 3122, if a party opposes the disclosure sought by a subpoena that party must, “[w]ithin twenty days of service of a notice or subpoena duces tecum under rule 3120 serve a response which shall state with reasonable particularity the reasons for each objection.”

This action was commenced on December 1, 2020, by Plaintiff's filing of a Summons with Notice via NYSCEF followed by the Subpoena, dated December 10, 2020. Facebook User's motion to quash was filed on February 23, 2021, and therefore was more than twenty days after the date of service. Even if this Court were to take into account the date which Facebook User first became aware of the Subpoena through Facebook's actions, February 2, 2021, the motion was still filed more than twenty days later. Facebook User's motion to quash is denied as it was not filed in a timely manner.

The attorneys appearing for Facebook Users “fakespeare999” and “hurtfulsloth” allege that they have not been served personally nor otherwise with the Summons with Notice, or any other pleading filed in this matter to date.

Facebook User moves, in the alternative, pursuant to CPLR § 3103, for a protective order limiting the scope of the materials to be disclosed and setting forth a protocol for the maintenance of confidential information and materials, claiming the material sought in the Subpoena to be overly broad and in violation of the SCA.

Plaintiff opposes Facebook User's motion, arguing that the IP addresses and login information for Facebook User's accounts are material and necessary to the discovery of evidence regarding the alleged sharing of Plaintiff's intimate images online. Plaintiff also argues that the information being sought is non-content information and thus does not violate the SCA.

While the SCA prohibits an electronic service provider from “knowingly divulg[ing] to any person or entity the contents of a communication while in electronic storage by that service,” notably, there is a distinction between content and non-content information. 18 U.S.C. § 2702(a)(1). Content information includes content that, “when used with respect to any wire, oral, or electronic communication, includes any information concerning the substance, purport, or meaning of that communication.” 18 U.S.C. § 2510(8). “In contrast, logs of account usage, mailer header information (minus the subject line), list of outgoing e-mail addresses sent from an account, and basic subscriber information are all considered to be non-content information.” People v Harris, 36 Misc 3d 868, 871 (Crim Ct 2012). IP addresses and login information are non-content information as they do not concern the substance or meaning of any communication, but rather they contain specific logs of account usage and other specific subscriber information.

Plaintiff is seeking non-content information relating to the accounts allegedly owned by Facebook User, specifically IP address data, login information, and other basic subscriber information for those accounts. Plaintiff has not expressed any desire for the disclosure or discovery of messages, posts, or other stored content information connected to such accounts that is protected by the SCA, nevertheless caution must be exercised so no such information shall be exchanged that may violate Facebook User's privacy rights under the SCA.

CPLR § 3103 provides that a “court may on motion of any party or of any person from whom or about whom discovery is sought, make a protective order denying, limiting, conditioning or regulating the use of any disclosure device to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts.”

Since the “individual or entity who seeks a protective order bears the initial burden to show either that the discovery sought is irrelevant or that it is obvious the process will not lead to legitimate discovery,” Facebook User must demonstrate that adhering to the disclosure demanded in the Subpoena will have such result or cause unreasonable cost or prejudice. Liberty Petroleum Realty, LLC v Gulf Oil, L.P., 164 AD3d 401, 403 (1st Dept 2018). “[O]nly then does the burden shift to the subpoenaing party to demonstrate that the information sought is material and necessary.” Id. at 404. Otherwise, “so long as the disclosure sought is relevant to the prosecution or defense of an action, it must be provided by the nonparty.” Matter of Kapon v Koch, 23 NY3d 32, 38 (2014).

Facebook User has not met his burden and is not entitled to a protective order to deny or otherwise limit disclosure in this matter. Facebook User has not provided the Court with sufficient proof that the disclosure sought by the Subpoena is irrelevant to the cause of action, obvious that no legitimate information will be discovered, or that it will cause any unreasonable prejudice to him. The information requested in the Subpoena would not reveal any of Facebook User's personal information, images, or posts, and is limited to only non-content account data and basic subscriber information. Because Facebook User did not meet his burden as movant, no burden shifts to Plaintiff. Facebook User's motion for a protective order limiting the scope of disclosure sought in the Subpoena is denied.

Accordingly, it is hereby,

ORDERED AND ADJUDGED that Facebook User's motion to quash the Subpoena is denied. It is further,

ORDERED AND ADJUDGED that Facebook User's motion for a protective order limiting the scope of materials to be disclosed is denied. It is further,

ORDERED AND ADJUDGED that Plaintiff shall serve a copy of this Order together with the Notice of Entry within thirty (30) days of entry of this Order.

This constitutes the Decision and Order of the Court.

Wilma Guzman, J.