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Beresford v. Doe

Superior Court of Delaware

September 12, 2019

Leon Beresford
John Doe(s).

         Maryland Case No. 458653V

          Paula C. Witherow, Esquire Cooch and Taylor, P.A.

          Frederick L. Cottrell, III, Esquire Jason J. Rawnsley, Esquire Richards. Layton & Finger, P.A. One Rodney Square

         Dear Counsel:

         This is the Court's decision on Plaintiffs Motion for Contempt, Request for Sanctions, and Request for an Order Compelling CSC Holdings, LLC ("CSC") to Comply with Subpoena (the "Motion for Contempt").[1] The Court has considered Plaintiffs Motion for Contempt filed on April 26, 2019, non-party CSC'S Opposition to Motion for Contempt filed on May 9, 2019, [2] Plaintiffs Supplemental Brief in Support of its Motion for Contempt filed on May 31, 2019, [3] CSC's Response to Supplemental Brief filed on June 7, 2019, [4] and the arguments made at the hearing held on Plaintiffs Motion for Contempt on May 10, 2019. For the reasons stated below, Plaintiffs Motion for Contempt is DENIED.

         Factual Background

         Plaintiff served a subpoena on non-party CSC on January 11, 2019 requesting that "[a] 11 documents, electronically stored information, or other records, including but not limited to all names, mailing addresses, phone numbers, billing information, date of account creation, account information, and all other identifying information of the individual or account holder who had the Internet Protocol ('IP") address of ("IP Address") on November 17, 2017 at 12:59 p.m."[5] The subpoena requested that the documents be produced at a deposition to be held on February 19, 2019, but was accompanied by a letter indicating that CSC "may be excused from appearing at the February 19, 2019 deposition if you produce the requested documents and records by mailing them in advance to [undersigned counsel.]"[6]

         Plaintiffs underlying lawsuit, filed in Maryland, claims Plaintiff has been damaged, both personally and professionally, by anonymous individuals) who sent emails and tweets to his employer and clients containing racist and homophobic slurs against Plaintiff.[7] Prior to serving CSC with a subpoena, Plaintiff subpoenaed Google, LLC ("Google") and learned that the aforementioned emails were sent from a computer located in the New York City area and that the alleged offenders communicated with Google by using internet access provided by an internet service provider owned by CSC.[8] Plaintiff believes that the IP Address referenced in the subpoena is the IP address that the perpetrators used to open the gmail accounts from which the derogatory emails were sent.[9]

         On January 17, 2019, Mr. John Hernandez, a Service Operations Analyst for Yaana, contacted Plaintiffs counsel by phone.[10] Yaana provides legal compliance operation services for its clients, including CSC.[11] As a Service Operations Analyst, Mr. Hernandez processed subpoenas served on CSC under the supervision of counsel.[12] Plaintiff and CSC dispute the representations made by Mr. Hernandez during this communication. Plaintiff alleges that Mr. Hernandez expressed concerns with the subpoena, but agreed to provide the requested documents.[13] CSC, on the other hand, asserts that Mr. Hernandez never agreed to produce the requested documents and advised Plaintiffs counsel that CSC needed a court order in order to comply with the discovery request pursuant to the Cable Communications Privacy Act (the "Cable Act").[14] According to Mr. Hernandez, he also indicated that CSC would likely not have information responsive to the subpoena in light of CSC's record retention policies and the date for which the information was sought.[15]

         Having not received the documents prior to the scheduled deposition, Plaintiffs counsel traveled from Baltimore, Maryland to Wilmington, Delaware on February 19, 2019 and appeared for the deposition.[16] CSC failed to appear.[17]Plaintiffs counsel did not reach out to Mr. Hernandez again until April 24, 2019, prior to filing the Motion for Contempt.[18] At no time did CSC file a motion to quash the subpoena, seek a protective order, or file written objections to the subpoena.[19]Nor did CSC object to service of the subpoena.

         Contentions of the Parties

         Plaintiff argues generally that non-party CSC'S failure to respond to the subpoena has prejudiced Plaintiffs ability to prosecute his lawsuit and has caused Plaintiff to incur unnecessary legal fees and costs. Plaintiffs counsel contends that he attempted to obtain the relevant information from CSC, through Mr. Hernandez, but that after reluctantly agreeing to provide the requested documents, CSC failed to do so. Non-party CSC argues, among other things, that it never agreed to provide the requested documents and that (i) the subpoena at issue was facially invalid because Plaintiff failed to seek leave of Court prior to issuing the subpoena as required by the Cable Act, and (ii) Plaintiff failed to meet the burdensome summary judgment standard required to compel CSC to produce identifying information of an anonymous internet speaker (or otherwise show that the standard does not apply) as articulated by the Delaware Supreme Court in Doe v. Cahill.[20]

         Standard of Review

         Discovery in a civil case is generally controlled by Delaware Superior Court Civil Rule 26 ("Rule 26").[21] "Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, including the existence, description, nature, custody, condition and location of any documents, electronically stored information (ESI), or tangible things and the identity and location of persons having knowledge of any discoverable matter."[22] However, Rule 26(b)(1) states that the Court shall limit the extent of discovery if it determines that:

(i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive ... or (iii) the discovery sought is not proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.[23]

         In addition, Delaware Superior Court Civil Rule 45 ("Rule 45") specifically addresses subpoenas and provides as follows:

a person commanded to produce and permit inspection and copying may, within 14 days after service of the subpoena . . . serve upon the party or attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials or of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials or inspect the premises except pursuant to an order of the Court. If objection has been made, the party serving the subpoena may, upon notice to the person commanded to produce, move at any time for an order to compel the production.[24]

         With respect to subpoenaed information, Rule 45 further provides "[o]n timely motion, the Court shall quash or modify a subpoena if it . . . requires disclosure of privileged information or other protected matter and no exception or waiver applies."[25] Failure to obey a subpoena without adequate excuse may be deemed a contempt of court.[26]


         A "subpoena is not an invitation to attend. It is a command to appear."[27]Although CSC provides the Court with a number of rational reasons for its failure to respond to the subpoena, it is undisputed that CSC failed to comply with the requirements of Rule 45.

         Pursuant to Rule 45, upon receipt of the subpoena on January 11, 2019, CSC was required to serve Plaintiffs counsel with its written objections to the subpoena within 14 days. On or about January 17, 2019, Mr. Hernandez contacted counsel to Plaintiff by phone regarding CSC's issues with the subpoena. Neither CSC nor any of its representatives reduced its objections to writing. Nor did CSC bring a timely motion before this Court to quash the subpoena based on its belief. Simply put, the telephone call was an insufficient response to the subpoena under Rule 45.

         CSC cites two cases to support its position that it is not obligated to comply with an invalid subpoena, but neither case stands for that proposition.[28] In Hallamore Corp., while the subpoena at issue was ultimately deemed invalid by the District Court on jurisdictional grounds, the subpoenaed third party "served its objections to the subpoena and stated that it would not produce documents responsive to the subpoena."[29] Such action was taken by the subpoenaed third party in accordance with the federal analog to Rule 45.[30] Likewise, in CareToLive, while contending that the subpoena at issue was facially invalid, the subpoenaed third party nevertheless served plaintiffs counsel with objections under Rule 45 of the Federal Rules of Civil Procedure.[31] Therefore, even if a subpoena is facially invalid (which is a matter for the Court to ...

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