Judge Gregory Keosian, Case 23STCP00424 2023-04-12 Tentative Ruling

Judge: Gregory Keosian, Case: 23STCP00424, Date: 2023-04-12 Tentative Ruling

Case Number: 23STCP00424 Hearing Date: April 12, 2023 Dept: 61

Petitioner Dr. Misha Mutizwa’s Petition to Enforce Interstate Subpoena under Code of Civil Procedure § 2029.600 is DENIED.

I. MOTION TO PERMIT ANONYMOUS INTERNET DISCOVERY

Petitioner Dr. Misha Mutizwa (Plaintiff) is the plaintiff in an underlying out-of-state action taking place in Cuyahoga County, Ohio, against various Doe defendants. The Complaint in the underlying action states that Plaintiff is a physician practicing in Ohio, who maintained an anonymous Twitter account that he uses to discuss reality television series. (Motion Exh. B (“Complaint”) ¶ 4.) Plaintiff amassed a large online following, and some critics. (Complaint ¶¶ 7–8.) Certain accounts not at issue in the present motion — Doe Defendants 2–4 — on January 28, 2022, informed their followers that they had discovered the identity behind Plaintiff’s popular account, and would disclose that information. (Complaint ¶¶ 11–12.) On February 5, 2022, John Doe 1 — the defendant at issue here — created a Twitter account disclosing Plaintiff’s name, the website for his practice, the name and address of Plaintiff’s employer, and other identifying information. (Complaint ¶ 13.) The other defendants posted screenshots of the Doe 1 account, linking it to Plaintiff’s anonymous account. (Complaint ¶¶ 17–19.) The conduct of Defendants has cost Plaintiff standing in his personal and professional communities. (Complaint ¶ 29.)

The Civil Discovery Act permits a party to an out-of-state action to seek a subpoena in this state by filing a petition in the county in which discovery is sought. (Code Civ. Proc. § 2029.300.) “If a dispute arises relating to discovery under this article, any request for a protective order or to enforce, quash, or modify a subpoena, or for other relief may be filed in the superior court in the county in which discovery is to be conducted and, if so filed, shall comply with the applicable rules or statutes of this state.” (Code Civ. Proc. § 2029.600, subd. (a).) As this is essentially a motion to compel a respondent, Twitter, Inc., to comply with a subpoena, the motion is properly analyzed under statutory provisions ordinarily applicable to such a dispute.

If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.

(Code Civ. Proc. § 1987.1, subd. (a).)

Here, since Plaintiff seeks the identifying information of a presently anonymous website host, based on comments and content hosted on the website, two requirements must be met: 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.” (Glassdoor, Inc. v. Superior Court (2017) 9 Cal.App.5th 623, 634.) Second, “the plaintiff should not be able to discover the speaker's identity without first making a prima facie showing that the speech in question is actionable.” (Id. at p. 635.) The showing must be sufficient to support a ruling in the plaintiff’s favor. (See ibid.)

Plaintiff has previously filed a petition for identical relief in another department of this court, and the court denied the petition on the grounds that Plaintiff had failed to make a prima facie showing that the speech at issue for any of the four underlying counts in Plaintiff’s Ohio complaint were actionable under applicable Ohio law. (Motion Exh. D.) The court held that the association of Plaintiff with his anonymous Twitter account offering commentary on reality TV did not rise to the level of a “highly offensive” publication as would be necessary to support a claim for public disclosure of private facts under Ohio law. (Id. at p. 5, citing Templeton v. Fred W. Albrecht Grocery Co. (Ohio Ct. App. 2017) 72 N.E.3d 699, 701 [describing elements of the tort].) The court further found that Plaintiff had not shown the validity of his claim for intrusion upon seclusion, where he had no evidence that the Defendants had come by their information wrongfully, and where Plaintiff’s employment information was elsewhere freely available on the internet. (Motion Exh. D at p. 6, citing Retuerto v. Berea Moving Storage & Logistics (Ohio Ct. App. 2015) 38 N.E.3d 392, 406 [describing elements of tort of invasion of privacy].)

The court also found that Plaintiff had not shown the prima facie merit of his false light or defamation claims, on the grounds that the communications complained of — characterizing Plaintiff as a racist and a misogynist — were nothing “more than the opinions of zealous reality TV fans.” (Motion Exh. D at pp. 6–8.)

Plaintiff acknowledges that this order denying his prior petition was issued on September 29, 2022. (Petition ¶ 14.) Plaintiff contends, however, that the decision was “without prejudice” as to John Doe 1, the person whose identity Plaintiff seeks in the present subpoena. (Motion at p. 3; Stebbins Decl. ¶¶ 14–15.) But neither the ruling that Plaintiff presents, nor the minute order entered on the date of that hearing, records any such limitation. (See 22STCP02593 9/29/22 Minute Order.)

The petition is therefore properly denied as an improper motion for reconsideration under Code of Civil Procedure § 1008. However, even assuming that the present petition is not barred by the prior order, the logic of the prior order remains persuasive against the prima facie validity of Plaintiff’s claims. Plaintiff presents new testimony to the effect he never made any publicly available connections between his real-life identity and his pseudonymous participation, and went to great lengths to eliminate associations between himself and his pseudonymous account. (Mutizwa Decl. ¶¶ 9–11.) But the gravamen of a public disclosure claim under Ohio law is not merely the disclosure of information that Plaintiff does not want to be disclosed; any such disclosure must be “highly offensive and objectionable to a reasonable person of ordinary sensibilities.” (35 Ohio Jur. 3d Defamation and Privacy § 176.) And the matter disclosed in this case was the association of Plaintiff in his professional capacity as a physician and in his capacity as an internet pop cultural commentator. Such an association is no more objectively offensive with the evidence that Plaintiff now presents than it was with his prior showing.

Plaintiff’s showing as to intrusion upon seclusion likewise remains lacking. The previous ruling found that Plaintiff had no evidence that Defendants had acquired their information by wrongful means, and reiterated that Plaintiff’s identity as a physician was already public information. (Motion Exh. D.) Plaintiff’s supplemental showing in the present motion consists of no affirmative evidence that any defendant intruded upon his privacy, but rather the declaration of Plaintiff and his counsel that they have attempted to locate potential public links between Plaintiff’s identity and his pseudonymous Twitter account, and have failed to find any. (Stebbins Decl. ¶¶ 5–9; Mutizwa Decl. ¶¶ 9–11.) But such indirect evidence does not support an affirmative finding of wrongful access.

The petition is therefore DENIED.