The Virginia Business Litigation Blog
Small businesses often find themselves the target of defamatory online reviews left by anonymous reviewers. In most cases, a subpoena can be issued to the website owner or Internet Service Provider to reveal the poster’s identity (or at least the I.P. address from which the post was written). See, for example, Yelp v. Hadeed Carpet Cleaning, in which the Virginia Court of Appeals held that Yelp could be compelled to comply with such a subpoena. Any such subpoena, however, cannot subject the recipient to undue burden. As illustrated by the recent Maryland case of In re: Subpoena of Daniel Drasin, an overreaching subpoena that places an undue burden on the recipient will be quashed.
Advanced Career Technologies, Inc. (“ACT”) sued John Does 1-10 in a Colorado federal court based on allegedly defamatory comments posted anonymously on the “Random Convergence” blog. In an attempt to discover the identity of the John Does, ACT served a third party subpoena on the blog’s administrator, Daniel Drasin, commanding him to produce any hard drives, servers and any other devices he used to administer the blog, and data stored online via website or application. Drasin moved to quash the subpoena pursuant to Federal Rule of Civil Procedure 45(c)(3) asserting that it was unreasonable, imposed an undue burden and was not likely to lead to relevant evidence.
Federal Rule of Civil Procedure 45(c)(3) provides that a court must quash or modify a subpoena that subjects a person to undue burden. To determine whether a subpoena is unduly burdensome, a court will weigh the benefits and burdens of the subpoena and consider whether the requested information is necessary and whether it is available from another source.
Here, the subpoena would require Drasin to surrender the hard drives of his personal computer to ACT for up to thirty days which would force him to spend up to thirty days without the use of his personal computer. The court found that this created a 
significant burden in today’s technology-dependent world. Additionally, surrendering his personal hard drives would give ACT access to files which could include information such as diaries, personal letters, medical information, photos and financial records. Requiring Drasin to grant ACT access to such personal information clearly constituted a burden particularly considering that Drasin had not been accused of wrongdoing but rather was merely a third party administrator of a blog on which others posted allegedly defamatory comments.
The court found that the benefits of the subpoena were minimal. Drasin had already responded to two other subpoenas via email to ACT with all of the information in his possession. ACT produced no evidence that Drasin’s response to those subpoenas was inadequate. Additionally, the information ACT sought was available from Google, the host of the Random Convergence blog.
The court ultimately found the subpoena to be unduly burdensome and granted Drasin’s motion to quash. The court noted that the subpoena might be acceptable if ACT had exhausted less intrusive options or provided evidence to support its assertion that Drasin’s hard drive likely contained identifying information about the anonymous commenters.