In Re: John Doe 1 Document 39

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150 Post Street, Suite 520 San Francisco, CA g4to8 *" KRONENBERGER ROSENFELD o oe SN DN A Se WD YO e& Ny Ww NH HN VN | FF FF FE KF FEO EF ESE OOO Sle

KRONENBERGER ROSENFELD, LLP Karl S. Kronenberger (CA Bar No. 226112) Jeffrey M. Rosenfeld (CA Bar No. 222187) Ruben Pefia (CA Bar No. 328106) 150 Post Street, Suite 520 San Francisco, CA 94108 Telephone: (415) 955-1155 Facsimile: (415) 955-1158 karl@KRInternetLaw.com jeff@KRInternetLaw.com ruben@KRiInternetLaw.com Attorneys for Petitioner John Doe

San Francisco County ie ae, SEP 30 2074 ET — Depuly OBI

SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO JOHN DOE 1, an individual, Petitioner, Vv.

CLOUDFLARE, INC.,

Respondent.

PATRICK S. TOMLINSON,

Plaintiff, Vv.

| JOHN DOES 1-60, NAMES UNKNOWN, Defendants.

Case No. CPF-21-517455 Case No. CPF-21-517455 monomat [P. | ORDER GRANTING PETITIONER JOHN DOE 1’S PETITION TO QUASH SUBPOENA TO CLOUDFLARE, INC. ISSUED FOR CASE PENDING IN FOREIGN JURISDICTION PURSUANT TO CCP §2029.600 AND REQUEST FOR SANCTIONS In re out-of-state action:

Patrick S. Tomlinson v. John Does 1-60, Names Unknown, Case No. 2021CV000500 State of Wisconsin Circuit Court, Milwaukee County Filed by John Doe 1 Date: September 30, 2021 Time: 9:30 a.m.

Ctrm.: 302 Before: The Hon. Ethan P. Schulman [PROP] ORDER GRANTING PETITIONER’S PETITION TO QUASH SUBPOENA

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150 Post Street, Suite 520 San Francisco, CA 94108 > KRONENBERGER ROSENFELD Oo fe NF DN ND Fe WH WN NB NO DR RD DRO eet poe,

The Court, having reviewed and considered Petitioner John Doe’s motion to quash subpoena issued to Cloudflare, Inc., the memorandum of points and authorities and declarations in support thereof, the other related papers and pleadings on file herein, and the arguments of counsel presented at the hearing, and with good cause appearing therefor:

The attached report and recommendation of the judge pro tem is adopted in part. For the reasons ably and thoughtfully discussed in the report, Petitioner John Doe’s motion to quash subpoena issued to Cloudfare, Inc. is granted. (See also in re Rule 45 Subpoenas Issued to Google LIC and LinkedIn Corporation Dated July 23, 2020 (N.D. Cal. 2020) 337 F.R.D. 639, 649-651 [granting anonymous blogger’s motion to quash subpoenas issued to web-based e-mail provider and professional networking website that sought information concerning blogger’s identity and contact information where plaintiff company failed to produce competent evidence supporting prima facie case of defamation].)

Petitioner’s request for a mandatory award of sanctions pursuant to Code Civ. Proc. § 1987.2(c) is granted in the amount of $23,739.25 in attorneys’ fees and costs, which the Court finds is a reasonable and well-documented amount. (See Roe v Halbig (2016) 29 Cal.App.5th 286, 306, 309 [anonymous blogger who filed motion to quash subpoena issued to online service provider, which sought to reveal blogger’s identity for purposes of out-of-state defamation action, was entitled to attorneys’ fees as a prevailing party under § 1987.2(c) where investigator voluntarily dismissed subpoena].)

IT IS SO ORDERED.

DATED: Legh 2,01 Lion Yi v The Hon. Ethan P. Schulman JUDGE OF THE SUPERIOR COURT Case No, CPF-21-517455 1 ppRer] ORDER GRANTING PETITIONER’S PETITION TO QUASH SUBPOENA

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EXHIBIT A

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aM JOHN DOE 1 VS. CLOUDFARE, INC.

Case No. CPF-21-517455 Initial Hearing Date: June 29. 2021 Dept. 302 Hearing Date: September 23, 2021 DOE 1 'S PETITION TO QUASH SUBPOENA TO CLOUDFLARE, INC. ISSUED FOR CASE PENDING IN FOREIGN JURISDICTION PURSUANT TO CCP§ 2029.600 AND REQUEST FOR SANCTIONS.

Introduction:

The underlying foreign jurisdiction action is brought in Wisconsin by Patrick Tomlinson against multiple Doe defendants seeking damages for defamation and harassment. Tomlinson has not been able to identify the true identities of any of the Does he sued in his home state. Respondent Cloudfare, Inc. is a website operator in California which hosts a forum titled “OnA Forums”. The forum was created anonymously by Doe 1. Does 2-60 sued in the Wisconsin action have anonymously posted and published defamatory statements Plaintiff seeks to learn the identity of Doe 1 to depose him to learn the identities of Does 2-

60. Doe 1 seeks in this Petition to Quash to invoke the constitutional and privacy protections of the Communications Decency Act, 47 USC§ 230 and Krinsky v. —Doe 6, 159 Cal. App 4th 1154 (2008).

Petitioners Position in Support of Petition:

The decision to remain anonymous is an aspect of freedom of speech protected by the First Amendment of the U.S. Constitution. Speech on the internet is also accorded First Amendment protection. Through the use of chat rooms any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through Web pages, mail exploders, and newsgroups, the same individual can become a pamphieteer."

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Freedom of speech has its limits. When vigorous criticism descends into defamation constitutional protection is no longer available. Targets of online aspersions may seek redress by filing a lawsuit against their unknown detractors. However a defamation plaintiff cannot invoke legal process to identity an anonymous speaker by filing an unsupported complaint. When a plaintiff files a complaint and seeks to use a subpoena to compel a website host or ISP to identify an anonymous defendant, the defendant may then assert his or her First Amendment right to speak anonymously through an application for a protective order or, as here, a motion to quash the subpoena.

Plaintiff must satisfy two requirements to overcome a defendant's constitutional right to preserve his or her anonymity. First, if the defendant has not received notice of the attempt to lift the shield of anonymity, the plaintiff must make reasonable efforts to provide such notice. Second, the plaintiff must make a prima-facie showing that a case for defamation exists' by setting forth evidence that a libelous statement has been made. ~ The required quantum of evidence needed to satisfy this second element is that which will support a ruling in favor of a plaintiff if no controverting evidence is presented. In any action predicated on anonymous speech theory the plaintiff should not be able to discover the speaker's identity without showing the speech in question is actionable.

Tomlinson has not and cannot overcome Petitioner's First Amendment right to anonymity because Tomlinson has not and cannot satisfy the second Krinsky requirement-i.e., Tomlinson does not set forth evidence supporting any claim against Petitioner.

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All Tomlinson's claims against Petitioner in the Wisconsin Action are based on the Statements published on OnA Forums. All Statements were authored and published by third-party users of OnA Forums, not by Petitioner. Petitioner did not author, edit, contribute to, or publish the third-party Statements except in his role as the operator of OnA Forums. Because Tomlinson seeks to treat Petitioner as the author or publisher of the Statements in the Wisconsin Action his claims are barred by the CDA.

Similarly, Tomlinson cannot come forth with any evidence Petitioner acted with actual malice, given that Petitioner did not publish any of the Statements. _ Because Petitioner did not author or publish the Statements, Tomlinson cannot substantiate his defamation claim against Petitioner, and the Court should quash

the Subpoena.

Hearing Officer’s Request For Further Briefing to Identify Doe 1 Specific Defamatory Statements Following the initial hearing on June 29, 2021 in furtherance of the “Krinsky” criteria for discovery of anonymous internet postings the undersigned issued the following request for further briefing by Tomlinson. “The hearing on the above titled Petition was held before me on June 29, 2021 in Department 302/Discovery and was continued for further hearing following issuance of a report and recommendation to the Dept. 302 Judge. Required for preparation of said recommendation is second further briefing from Patrick Tomlinson (hereinafter “Tomlinson”) as follows:

Krinsky vs. Doe 6, 159, (2008) Cal. App .4** 1154 (“Krinsky”) established the evidentiary standard for compelling identification of an anonymous poster on an internet web site necessary for overruling a poster’s constitutional right of anonymity. The Krinsky standard is "When there is a factual and legal basis for believing libel may have occurred, the writer's message will not be protected by

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the First Amendment." The plaintiff must "establish that its action can withstand a motion to dismiss for failure to state a claim upon which relief can be granted ... {and] produce sufficient evidence supporting each element of its cause of action. ZL Technologies, Inc. v. Does 1-7, (2017) 13 Cal. App. 5th 603 later held “plaintiff seeking compulsory disclosure of an allegedly libelous speaker's identity must state a legally sufficient cause of action against the defendant and must make a prima-facie showing of the elements of that cause of action.” The Court is unable from Tomlinson’s evidentiary submissions to date to discern Does 1’s specific actionable libel language on which he relies. Noted is Tomlinson’s Wisconsin complaint does not set forth libel specifics as to that defendant. ; The Court offers Tomlinson a further opportunity to provide the Court with unambiguous Krinsky evidentiary compliance, He is directed on or prior to August 27, 2021 to serve and file a supplemental pleading, courtesy copy to the undersigned at sbs@sbslawsf.com, setting forth the cause-of-action specificity with citations to the Petition’s evidentiary record.

Tomlinson’s Position in Opposition to Petition and in Response to Request for Specific Evidence The Court requested additional briefing on Plaintiff's prima-facie case requirement as it relates to Petitioner's role in Plaintiffs lawsuit involving anonymous speech under Krinsky v. Doe 6, 159 Cal. App. 4th 1154. Specifically, the Court requested evidentiary proof with citations to the evidentiary record to support each element of Plaintiffs libel claim.

Krinsky requires a Plaintiff to set-forth evidence to support each element of a cause of action (e.g., libel) before compelling the disclosure of the identity of an anonymous author of speech. Once that showing is made, Plaintiff is authorized to pursue discovery through relévant information likely to lead to admissible evidence, including the name and identity of all witnessés with information

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relevant to Plaintiffs claim.

Plaintiff has met Krinsky requirements. Libel requires "(1) a false statement; (2) communicated by speech, conduct or in writing to a person other than the one defamed; and (3) the communication is unprivileged and tends to harm one's reputation, lowering him or her in the estimation of the community or deterring third persons from associating or dealing with him or her.” A statement is defamatory per se if it imputes criminal conduct to a Plaintiff. Here, the evidence in the record recites defamatory publication on Petitioner's website: "Patrick Tomlinson is a pedophile and a child rapist. He verbally and physically abused his ex-wife Adrienne. These are facts, plain and simple ... Not a single instance of me calling Pat a pedophile has been a Joke." Wisconsin law finds accusations of pedophilia to be actionable per se and not subject to any applicable First Amendment privilege even they are made in public or quasi-public proceedings. Rape is a crime in Wisconsin and accusations of criminal conduct constitute defamation per se. Consequently, Plaintiff has pled a cause of action for libel and supported each element of his claim with evidence in the record demonstrating that the statements were published, (2) false, and (3) carry a defamatory meaning. - To the extent discovery reveals Petitioner did not publish the above defamatory statements, Plaintiff must still conduct discovery on Petitioner to find out who did. Doe | identity is essential to plaintiff's prosecution of his Wisconsin claim.

To obtain the identity of the author of the above statement, Plaintiff must take two steps. First, he has to learn the identity of Petitioner, Doe 1, as the website owner or operator. This is because the subpoenaed entity, Cloudflare, Inc.,

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cannot tell Plaintiff who posted the specific defamatory statements on Petitioner's website; Cloudflare can only identify the owner and operator of the website. However, Petitioner as owner and operator of the website where the defamatory statements were published can identify the writers of the defamatory statements. No other party can produce the information necessary to prosecute Plaintiff's valid

defamation claim.

The right to conduct discovery includes an entitlement to learn the identity and location of persons having knowledge of any discoverable matter. A separate compulsory ‘balancing test’ need not be applied in a case where the plaintiff has already demonstrated a prima facie case of defamation. Since Plaintiff has already satisfied his burden of showing that the false accusations of rape and pedophilia are actionable, he can pursue discovery relevant to those claims without being

required to make a separate showing against Petitioner.

Petitioner enjoys sufficient protection under the law to assuage his concerns if discovery reveals he did not author the actionable statements. If Petitioner did not author the above statement he is protected from being treated as the publisher of content authored by others under Section 230 of the Communications Decency

Act and escapes.

Similarly, if Petitioner did not author the actionable statements he is not entitled to anonymity under Krinsky because Krinsky only protects authors of anonymous speech from being unmasked for their anonymous. Krinsky did not hold Plaintiffs must make a prime facie case against both the author of statements and the website owner or operator where defamatory speech is published. Nor did Krinsky hold that website owners have a right to remain anonymous for discovery

purposes.

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Merely running a website does not constitute speech for defamation purposes and does not implicate Krinsky protections for website operators. Consequently, to the extent discovery reveals Petitioner did not publish the above defamatory statements Plaintiff may still conduct discovery on Petitioner to find out who did. Petitioner will only be burdened with discovery like any other thirdparty witness.

Admittedly, Plaintiff has not obtained a confession at this early juncture from each anonymous defendants including Doe 1. The specific authorship for each specific defamatory writing posted by Does 2-60 being the subject of Plaintiff's discovery efforts. However, Plaintiff cannot be burdened with proving his case twice, once without discovery and once again with it. To the extent discovery reveals the owner of the website did not publish any of the defamatory statements, Plaintiff may still conduct discovery on Petitioner to find out who did. In essence, the Court has erroneously asked Plaintiff to apply the Krinsky twice in two very different contexts: once as it relates to establishing certain statements are defamatory (a burden Plaintiff has met above), and yet again to prove that the website operator was the publisher of that speech (a burden not articulated by Krinsky).

Analysis and Basis for Hearing Officer Recommendation The undersigned has reviewed Tomlinson’s pleadings and submitting | supporting evidence to determine if there is any evidence Doe 1 personally posted defamatory statements on the Cloudfare platform and thereby met the Krinsky criteria. The Hearing Officer’s factual finding is he has not met the Krinsky proof of defamation requirement in his Wisconsin or California filings.

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It is not disputed Doe 1 anonymously created the OnA Forum which provided the communication vehicle facilitating defamation and harassment by others.

Thus the question to be resolved is whether Communications Decency Act, 47 USC§ 230 applies to him. Neither party has cited a California opinion in which that direct issue is addressed. It appears to be an issue of first impression. The Communications Decency Act of 1996 provides “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” These provisions have been interpreted to confer broad immunity against defamation liability for those who use the Internet to publish information that originated from another source.

In Barrett v. Rosenthal 51 Cal. Rptr. 3d 55 (2006) the Supreme Court held, “We granted review to decide whether section 230 confers immunity on “distributors.” Because this case involves the liability of an individual rather than a service provider, we asked the parties to address the definition of the statutory term “user.” We also requested briefing on whether the immunity analysis is affected if a user engages in active rather than passive conduct. We conclude that section 230 prohibits “distributor” liability for Internet publications. We further hold that section 230(c)(1) immunizes individual “users” of interactive computer services, and that no practical or principled distinction can be drawn between active and passive use.” Doe 1 meets the definition of a “user” who has engaged in passive use of the internet. As such and as harsh a result as it is for Tomlinson, the mandate of section 230 must prevail in this case and the Petition to Quash granted.

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Conclusion:

The Petition of John Doe 1 to quash the Cloudfare subpoena should be granted. Based on the fact there is no case directly holding the creator of a forum

to be section 230 protected, the request for monetary sanctions should be denied.

Dated: September 17, 2021

Steven B. Stein Discovery Hearing Officer