I was flipping through the Googled hits, and happened across the "Citizen Media Law Project":
The Citizen Media Law Project (CMLP) is jointly affiliated with Harvard Law School’s Berkman Center for Internet and Society, a research center founded to explore cyberspace, share in its study, and help pioneer its development, and the Center for Citizen Media, an initiative to enhance and expand grassroots media.What they had to say about the case was interesting, to say the least, and may help on the 24th, when arguments are presented:
Not surprisingly, Judge McDowell's September 14 letter ruling in the Essent case makes a muddle of all this. First of all, it is bizarrely formatted -- the legal analysis is contained in two paragraphs that are italicized and indented from the rest of the letter, giving the impression that these paragraphs are quoted material, but without any indication of their source. Some independent researched turned up the following observations:
The first paragraph comes almost verbatim from Polito v. AOL Time Warner, Inc., 2004 WL 3768897, at *5 (Jan. 28, 2004), a case involving a subpoena to uncover the identities of anonymous AOL subscribers who allegedly sent the plaintiff harassing e-mail messages. The language that Judge McDowell quotes from Polito, however, relates exclusively to another case, In re Subpoena Duces Tecum to America Online, Inc. (noted above). Specifically, Judge McDowell appears to be invoking the standard applied by that court -- namely, that "the pleadings or evidence" satisfy the court "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." In re Subpoena Duces Tecum to America Online, 2000 WL 1210372, at *8. In that case, the court considered evidence outside the plaintiff's complaint, but it did not make clear whether that was required by its standard.
The second paragraph comes verbatim from Alvis Coatings, Inc. v. Does, 2004 WL 2904405, at *3 (W.D.N.C. Dec. 2, 2004), a case which applied an especially weak version of the "prima facie" standard. There, the court was content that the plaintiff had "averred that the statements are both false and damaging to the Plaintiff's trademark and to its business generally." Id. at 4.
McDowell's letter never explains which standard he is choosing to apply -- Polito, In re Subpoena Duces Tecum, Alvis -- they're all different standards, especially if you look at them closely. Worse, McDowell never even tries to apply the (as yet unknown) standard to the facts of the case. The letter ruling says only:After considering the above [i.e., the two paragraphs taken nearly verbatim from different decisions], the Court hereby concludes that good cause has been shown and the burden by the plaintiff has been met to meet the requirements of the exceptions to the [Cable] Communication[s] Act to grant the request by Plaintiff for the Internet service provider to furnish the name and address of the subscriber.
Apparently, Judge McDowell believes that no evidence to support Essent's claim is required. That is bad enough, but it is a debatable proposition under the case law. He apparently also believes that no analysis of the allegations in the complaint for facial sufficiency is required. Whatever the standard, this is surely wrong.