Judge: Elaine W. Mandel, Case: 19SMCV00935, Date: 2023-12-12 Tentative Ruling

Case Number: 19SMCV00935    Hearing Date: December 12, 2023    Dept: P

Tentative Ruling

Murrey v. Cheaterreport.com et al., Case No. 19SMCV00935

Hearing Date December 12, 2023

Plaintiff Murrey’s Motion to Compel Production of Further Documents from Third Party Meta Platforms, Inc.  

Plaintiff alleges the website www.Cheaterreport.com published defamatory statements about him. On March 22, 2022 the court granted Dr. Murrey leave to conduct limited third-party discovery to identify the person who created the website. Dr. Murrey served subpoenas duces tecum on third parties Amazon, Facebook/Instagram (both owned by Meta Platforms, Inc.), Yahoo and Cloudflare, seeking production of business records.

On January 31, 2023 the court heard plaintiff’s motion to compel further responses to his subpoenas. The court denied as to all requests directed at Meta except requests 15 and 16, which sought documents related to a contractual relationship between Facebook and Cheaterreport and documents demonstrating payments from Cheaterreport to Facebook.

On July 31, 2023 the court held an Informal Discovery Conference. The court issued a minute order stating “[p]laintiff may file a discovery motion if needed.” Upon a party’s motion, a court may make an order directing compliance with a subpoena duces tecum for production of documents. Cal. Code of Civ. Proc. §2016.010.

Plaintiff requests the complete unredacted VISA credit card number an entity called “Cheatersrus” used to pay for advertising on Facebook. While Dr. Murrey’s separate statement seeks further responses to all requests in the original subpoena, those requests are not addressed in the memorandum of points and authorities, so are not addressed. Additionally, the majority of the requests – except for nos. 15 and 16 – were outside the scope of third-party discovery contemplated in the court’s January 31, 2023 order. The court confines its analysis to the Cheatersus credit card information.

Personal financial information falls within the zone of privacy protected by the California constitution. E.g., Williams v. Superior Court (2017) 3 Cal.5th 531, 552. When a party to litigation seeks to discover information subject to the constitutional right to privacy, the party bears the burden of establishing a compelling need for the discovery. Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1014.

Plaintiff states he uncovered evidence linking Cheatersus to Cheaterreport. He presents account information produced in response to his Cloudflare subpoena, which indicates the creator of the Cheaterreport website used the email address liarscheatersrus@protonmail.com. Murrey declaration, exhibit 9.

Next, he quotes a purported Cheaterreport Facebook post which allegedly stated “Cheatersrus is not Cheatersareus.com. Also, liarscheatersrus is not cheaterland.com. We are always the same.” Motion at pg. 4. Since this alleged post is not reproduced or verified, the court cannot rely upon Dr. Murreys’ quotation. Even if the post were verified, it is an out-of-court statement Dr. Murrey seeks to admit for the truth of the matter stated. Absent an exception, it is inadmissible hearsay.

Dr. Murrey presented evidence linking the Cheaterreport website to the Cheatersrus Facebook page—the “liarscheatersrus@protomail.com” email address associated with Cheaterreport. This is not strong enough. Ordering production of an unredacted credit card number would be a substantial intrusion into an unidentified nonparty’s constitutionally protected financial affairs. Dr. Murrey has not shown there is no other way to uncover the identity of the website’s creators, and he has not adequately proven a connection between the Cheaterreport and the Cheatersrus Facebook page. DENIED. No sanctions will issue.