In re Subpoena Duces Tecum to America Online, Inc

In In re Subpoena Duces Tecum to America Online, Inc.,52 Va. Cir. 26, 2000 WL 1210372, (Va. Cir. Ct. 2000), a publicly traded company sought and obtained an order from an Indiana court authorizing plaintiff to conduct discovery in order to ascertain the identities of certain John Does who posted allegedly defamatory comments on a stock-trading Internet chat room maintained by America Online (AOL). AOL refused to voluntarily comply with the order to disclose its subscribers' identities, contending disclosure of the subscribers' identities pursuant to the subpoena would impair the subscribers' First Amendment rights to speak anonymously. Id. at 2. Ultimately, the circuit court ordered AOL to disclose the identities, establishing a test functionally similar to that put forth in Seescandy.Com, as follows: "A court should only order a non-party, Internet service provider to provide information concerning the identity of a subscriber (1) when the court is satisfied by the pleadings or evidence supplied to that court (2) that the party requesting the subpoena has a legitimate, good faith basis to contend that it may be the victim of conduct actionable in the jurisdiction where suit was filed and (3) the subpoenaed identity information is centrally needed to advance that claim. Id. at 8. The test created by the Virginia Circuit Court departed from that state's traditional legal standard applied when ruling on a motion to quash a subpoena. Id. at 2, 7. Although the Circuit Court ordered disclosure of the identities of the John Doe defendants, it found a more probing evaluation into the "bona fides of plaintiff's claim was necessary in order to properly evaluate the reasonableness of the subpoena request in light of all the surrounding circumstances." Id. at 8.