Cohen v. Doe

Thomas D. Horne Judge

David M. Korn, Esquire
Texaco Center
400 Poydras Street
New Orleans, Louisiana 70130-3245 Charles A. Fincher, Esquire
602 S. King Street, Suite 200A
Leesburg, Virginia 20175 Court for the Parish of Orleans, State of Louisiana Division "L," Section 15 Request for Subpoena Duces Tecum issued to America Online ("AOL") Law No. 22357 Gentlemen:

This case came before the Court on its motion of defendants, collectively designated as John Does, by way of a special appearance, to quash a subpoena duces tecum addressed to America Online. The subpoena seeks subscriber information in connection with a lawsuit presently pending in the State of Louisiana. Plaintiff has obtained Letters Rogatory from the civil district Court for the Parish of Orleans, State of Louisiana, Divisions "L," in which due action is pending against the assistant defendants.

In the underlying action pending in Louisiana, Kenneth L. Cohen has claimed damages against John Does 1 through 100 for alleged defamation through the use of an internet message board. An analysis of the instant request is governed by the provisions of § 8.01-411, Code of Virginia, and Rule 4:9(c), Rules of the Supreme Court of Virginia.

By reason of the commission issued by the Louisiana Court, this Court may require the production and inspection of documents, "?in the same manner and by the same process and proceeding as may be employed for the purpose of?producing documents in proceedings pending in (the) Commonwealth." § 8.02-411, Code of Virginia. Pursuant to Rule 4:9 (c), production of the instant records governed by the following;

"Upon the written request therefore filed with the clerk of the court in which the action or suit is pending by counsel off record for any party having not counsel in any pending case, with a certificate that a copy thereof has been mailed, dispatched by commercial delivery service, or transmitted by facsimile, or delivered to counsel of record and to parties having no counsel, the clerk shall, subject to paragraph (c-1) issue to a party not a party therein a subpoena duces tecum which shall command the person to whom it is directed, or someone acting on his behalf, to produce the documents and tangible things?designated and described in said request?"

Counsel for the defendants correctly observes that there are three requirements precatory to the issuance of the subpoena. These are: (1) a written request directed to the clerk; (2) the existence of a pending action, and (3) notice to counsel of record or to a party not represented by counsel.

Counsel for the plaintiff asserts that without the information requested, the parties Cannot be identified. He suggests that such information concerning the identity of the subscribers is the proper subject of discovery. The information sought is relevant and is reasonably calculated to lead to the discovery of admissible evidence. Rule 4:1 (b) (1), Rules of Supreme Court of Virginia.

Is the present action "pending" in Louisiana within the contemplation of the Virginia Rules? This question must be answered in the affirmative. An action at law for money damages is "?commenced by filing in the clerk's office a motion for judgment. The action is then instituted and pending as to all parties defendant thereto?" (emphasis added) Should the identity of the John Doe defendants be learned at a later time, any misnomer may be connected so long as the person is sufficiently identified in the pleading. § 8.01-6, Code of Virginia.

Finally, the Court must address the issue of notice. In order to ensure proper notice is given in accordance with the Rule, the Court will direct that the subpoenaed material be made returnable by America Online to the office of the clerk of this Court there to be held under seal. That upon the return of such material, the clerk shall ensure that copies of the papers in this case be mailed to each of the persons indicated at the subscriber's address upon payment of the costs of such mailing by the plaintiff. The Order reflecting the ruling of the Court shall reflect that each of the individuals to whom notice is sent will have 24 days from the date of mailing to file any objections as they may be advised. The Clerk shall place a certificate of such mailing among the papers to this cause, however, such certificate shall not include the names or addresses to whom such notice was sent.

The Clerk shall draw an order consistent with this opinion, incorporating the provisions herein, to which counsel may note their exception. Included is a copy of such order which is to be endorsed and returned to the Court.

Very truly yours,

Thomas D. Horne

Judge