Wirt v. Twitter, Inc.

ORDER RE: RENEWED MOTION TO COMPEL RE: DKT. NO. 11

JACQUELINE SCOTT CORLEY UNITED STATES MAGISTRATE JUDGE

Before the Court is Daniel P. Wirt's renewed motion to compel Twitter, Inc. to respond to Dr. Wirt's subpoena and produce identifying information about user @Deus_Abscondis. (Dkt. No. 11.) The motion was previously denied without prejudice by Judge Kandis A. Westmore. (Dkt. No. 10.) After carefully considering the parties' briefing, the Court concludes that oral argument is unnecessary, see N.D. Cal. Civ. L.R. 7-1(b), and GRANTS the motion.

BACKGROUND

Dr. Wirt is a retired physician who practiced in the fields of surgical pathology and laboratory medicine for 30 years. (Dkt. No. 11-1 at 6.) In September 2020, Dr. Wirt “became engaged in a heated debate” with @Deus_Abscondis on Twitter. (Dkt. No. 11 ¶¶ 9-13.) On October 8, 2020, @Deus_Abscondis published a tweet with a link to an article about Daniel P. Wirth, an individual who was convicted of fraud. (Id. ¶¶ 21-22.) The tweet connected Dr. Wirt to Mr. Wirth, stating: “He dropped the ‘h'. Now it makes sense - ‘In 2004, it was announced that Wirth together with one of his co-workers had been arrested and later imprisoned for fraud.'” (Id. ¶ 23.) Dr. Wirt is not Mr. Wirth and has never spelled his name with an ‘h' or been convicted of a crime. (Dkt. No. 11-2 ¶¶ 9, 18.) @Deus_Abscondis later published other tweets harassing Dr. Wirt and accusing him of being a criminal, a quack, and a fraud. (Dkt. No. 11-1 at 7-10.) The

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tweets remain publicly available. (Id. at 7, 10.)

Dr. Wirt filed suit in the District of Utah, asserting claims for defamation per se and false light against John Doe, the account holder of @Deus_Abscondis. (Id. at 5-14.) Dr. Wirt served a subpoena on Twitter and now moves to compel. (See Id. at 2-3.)

DISCUSSION

Dr. Wirt's subpoena seeks only basic subscriber information for the account in question, along with the IP addresses associated with the tweets Dr. Wirt alleges were unlawful. There is no dispute that the information Dr. Wirt seeks is relevant; instead, Twitter refuses to comply on the grounds that before it can unmask an anonymous speaker, a judge must determine that the balance of harms warrants unmasking.

The parties agree that to unmask an anonymous speaker, Dr. Wirt must “persuade the court that there is a real evidentiary basis for believing that the [speaker] has engaged in wrongful conduct that has caused real harm to the interests of the plaintiff.” Highfields Capital Mgmt., L.P. v. Doe, 385 F.Supp.2d 969, 975 (N.D. Cal. 2005); see also In re Anonymous Online Speakers, 661 F.3d 1168, 1177 (9th Cir. 2011) (“[T]he nature of the speech should be a driving force in choosing a standard by which to balance the rights of anonymous speakers in discovery disputes.”); (Dkt. No. 10 at 2-3 (concluding that Highfields test applies, based on nature of challenged speech).) If Dr. Wirt meets that burden, the Court must “assess and compare the magnitude of the harms that would be caused to the [plaintiff's and speaker's] competing interests” if the speaker's identity is disclosed. Highfields, 385 F.Supp.2d at 976.

I. Real Evidentiary Basis

A “real evidentiary basis” requires “competent evidence . . . address[ing] all of the inferences of fact that plaintiff would need to prove in order to prevail under at least one of the causes of action plaintiff asserts.” Id. at 975. “The court may not enforce the subpoena if, under plaintiff's showing, any essential fact or finding lacks the requisite evidentiary support.” Id. at 976.

To establish defamation under Utah law, a plaintiff must show: “(1) the defendant published the statements in print or orally; (2) the statements were false; (3) the statements were

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not subject to privilege; (4) the statements were published with the requisite degree of fault; and (5) the statement resulted in damages.” Eskamani v. Auto-Owners Ins. Co., 476 P.3d 542, 548-49 (Utah Ct. App. 2020) (citation omitted). “[D]efamation per se does not require a plaintiff to prove actual damages, ” but “a statement gives rise to a claim of defamation per se only when it is false and it alleges criminal conduct on the part of the plaintiff or conduct which is incongruous with the exercise of a lawful business, trade, profession, or office.” Id. at 549 (cleaned up). Where, as here, “the plaintiff is not a public figure, negligence is the requisite degree of fault.” John Bean Techs. Corp. v. B GSE Grp., LLC, 480 F.Supp.3d 1274, 1322 n.333 (D. Utah 2020). The plaintiff “must plead facts that permit an inference that [the speaker] was at least negligent as to the truth of its statements.” Rusk v. Fid. Brokerage Servs., LLC, No. 2:15-cv-853-JNP, 2018 WL 1620969, at *6 (D. Utah Mar. 30, 2018).

Dr. Wirt's motion and supporting documentation supply the requisite inferences of fact for each of the five elements. Dr. Wirt's declaration attests (1) that @Deus_Abscondis published the October 8, 2020 tweet in print and (2) that the tweet's statements about Dr. Wirt were false because he is not Mr. Wirth. (Dkt. No. 11-2 ¶¶ 15-18.) There is no apparent basis for (3) privilege. As to (4) negligence, Dr. Wirt attests...