Sines v. Kessler
| Decision Date | 06 August 2018 |
| Docket Number | Case No. 18-mc-80080-JCS |
| Parties | ELIZABETH SINES, et al., Plaintiffs, v. JASON KESSLER, et al., Defendants. |
| Court | U.S. District Court — Northern District of California |
An anonymous accountholder identified here as Jane Doe moves to quash a subpoena served on Discord, Inc. ("Discord") issued in a lawsuit pending in the United States District Court for the Western District of Virginia (the "Virginia Action"1) against the alleged organizers of the "Unite the Right" event that occurred in Charlottesville, Virginia on August 11 and 12, 2017. Neither Doe nor Discord are parties to the Virginia Action. The subpoena seeks to discover, inter alia, Doe's account information and the contents of any messages to, from, or concerning her Discord account under the name "kristall.night." In addition, the subpoena seeks to discover the account information and message contents of the named Defendants and of more than thirty other anonymous non-parties. Doe contends that, in addition to being overbroad, the subpoena violates her rights under the First Amendment and the Stored Communications Act (the "SCA"). The Court finds the matter suitable for resolution without oral argument and VACATES the hearing previously set for August 10, 2018. For the reasons stated below, the Motion is GRANTED in part and DENIED in part.
The Virginia Action arises out of the violent rallies, known as "Unite the Right," that occurred on August 11 and 12, 2017 in Charlottesville, Virginia. See generally Libling Decl. (dkt. 9) Ex. 1 (1st Am. Compl. ("FAC")). Plaintiffs are nine individuals who were physically and emotionally injured at the events, which they allege was organized by white supremacists and neo-Nazis for the purpose of terrorizing residents of Charlottesville and engaging in violence. Id. ¶¶ 1-6, 10-19. Plaintiffs allege that Unite the Right led to three deaths and a declaration of a state of emergency by the Governor of Virginia. Id. ¶¶ 224, 278. Defendants include fifteen alleged event organizers and attendees who, Plaintiffs contend, "joined together for the purpose of inciting violence and instilling fear." Id. ¶¶ 3, 20-44. Plaintiffs characterize Defendants as "white supremacist, white nationalist, and neo-Nazi," while Doe refers to the ideology of Unite the Right attendees as "Alt-Right," a terms that some defendants and coconspirators have allegedly used to describe themselves. Id. ¶¶ 21, 45, 72 & n.4; Mot. (dkt. 1) at 1.
In their opposition to the present motion, Plaintiffs succinctly describe the claims in their First Amendment Complaint, and the elements they need to prove that are relevant to the subpoena, as follows:
Plaintiffs in the Virginia Action assert conspiracy to violate Plaintiffs' civil rights in contravention of 42 U.S.C. § 1985(3); failure to prevent that conspiracy under 42 U.S.C. § 1986; civil conspiracy under Virginia law; negligence per se under Virginia law; subjecting Plaintiffs to violence and intimidation in violation of Virginia law; and assault, battery, and intentional infliction of emotional distress under Virginia law. See FAC ¶¶ 336-70. Among the elements of those causes of action are that Plaintiffs must prove that Defendants "positively or tacitly came to a mutual understanding to try to accomplish a common and unlawful plan," Hinkle v. City of Clarksburg, W. Va.. 81 F.3d 416, 421 (4th Cir. 1996); that Defendants' conspiracy had "the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws," 42 U.S.C. § 1985(3), which can be proven through "racially motivated violence," United States v. Roof, 225 F. Supp. 3d 438, 448 (D.S.C. 2016); that Defendants were responsible for "intimidation or harassment" or "violence," Va. Code § 8.01-42.1; and that Defendants' actions were "motivated by racial, religious, or ethnic animosity," Va. Code § 8.01-42.01.
Opp'n (dkt. 8) at 2. The Western District of Virginia denied in large part several motions to dismiss on July 9, 2018. See generally Sines v. Kessler, ___ F. Supp. 3d ___, No. 3:17-cv-00072, 2018 WL 3345300 (W.D. Va. July 9, 2018).
Plaintiffs contend that Defendants used Discord's social-networking services to organize and implement their conspiracy. Id. at 3. Discord provides "private, invite-only 'servers'" that function as an instant messaging platform for only those with access to the server. Id. (citing FAC ¶ 71). Servers can further be divided into "channels" to allow for discussions of specific topics. Id. (citing FAC ¶ 71). Plaintiffs allege that Defendants used a server called "Charlottesville 2.0" and at least forty-three channels to "to plan and direct illegal acts." Id. (citing FAC ¶¶ 72, 76). Plaintiffs have access to records that they believe constitute at least some communications made on the Charlottesville 2.0 Discord server because the communications were leaked by the website "Unicorn Riot Discord Leaks."2 Libling Decl. ¶ 6. Plaintiffs believe the leak was not comprehensive for several reasons, including that the channel for the "leadership" of Unite the Right was not released. Id.; Opp'n at 7 (citing FAC ¶ 83 & n.6).
Plaintiffs allege that statements from the Unicorn Riot Discord leaks include:
Opp'n at 4 (citing FAC ¶¶ 90, 95-97, 111). Plaintiffs allege that Defendants and non-party coconspirators made such statements. See id. According to Plaintiffs, these and other statements show that Defendants and coconspirators had a conspiratorial agreement, and some statementsshow that the conspiracy was based on religious and racial animus. See id. at 3-5.
On August 14, 2017, Discord shut down the servers connected to Unite the Right in an effort to denounce hate and violence. Libling Decl. Ex. 4. Discord retains backup tapes of the servers, but the data formerly hosted on them is no longer available through Discord's website or application to Defendants or other participants. Libling Decl. ¶ 9.
Doe is the operator of the Discord alias or handle "kristall.night," a participant in the Charlottesville 2.0 messages released in the Unicorn Riot leaks. See Mot. at 1; Opp'n at 7; Reply Ex. 1 (Doe Decl.) ¶ 4. Plaintiffs contend that statements she made fall into one of three relevant categories:
Because Plaintiffs believe that the Unicorn Riot leaks are not comprehensive, they issued a subpoena to Discord seeking all documents and communications related to Unite the Right. See generally Mot. Ex. 1 (subpoena); Libling Decl. Ex. 2 (same). Of particular interest to this motionis Document Request 7, which requests "[a]ll documents and communications to, from, or concerning the following individuals, including user information about the following individuals' Discord accounts, as well as any images or documents posted by the following individuals." Id. at 9. The subpoena then lists forty-nine individuals and/or account names, including all Defendants and more than thirty non-parties. Id. at 9-11. Doe's handle, "kristall.night," is one of those listed. Id.
The Virginia court issued a protective order in connection with the discovery in this case. See generally Libling Decl. Ex 3 (protective order). The protective order provides that parties can designate information provided in discovery as either "confidential" or "highly confidential." Id. ¶ 2. Information designated as "confidential" may be disclosed only to the parties, counsel for the parties, expert witnesses, trial or deposition witnesses, stenographers and videographers, the Court, and any other person agreed to in writing by the parties. Id. ¶ 4. "Highly confidential" information may be disclosed only to counsel for the parties, expert witnesses, stenographers and videographers, the Court, and any other person agreed to in writing by the parties, as well as...
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