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 Chilling Effects Clearinghouse > John Doe Anonymity > Notices > Sample Notice of Subpoena for identity of John Doe (NoticeID 30, http://chillingeffects.org/N/30) Printer-friendly version

December 03, 2001

 

Sender Information:
[Internet Service]
Sent by: [Private]
[Private]

Recipient Information:
[Internet service user]
[Private]


Sent via: E-mail
Re: Sample Notice of Subpoena for identity of John Doe

We are writing to inform you that Yahoo! has been served with a subpoena requiring disclosure of information related to your user account at Yahoo!

The subpoena was issued in an action entitled:
CASE NAME AND NUMBER


pending in:
COURT NAME

The subpoena, dated DATE, requires that Yahoo! produce documents related to your Yahoo! account. Please be aware that your communications with Yahoo! may also be discoverable.

The attorney for the subpoenaing party,
ATTORNEY INFORMATION

Please be advised that Yahoo! will respond to the subpoena 15 days from the date of this notice, unless we have notice that a motion to quash the subpoena has been filed, or the matter has been otherwise resolved.

You may wish to consult an attorney to advise you about the foregoing. Please contact the subpoenaing party to obtain a copy of the subpoena. If you wish to contact Yahoo! regarding this matter, please direct your correspondence to
notice-user@yahoo-inc.com.
--

 
FAQ: Questions and Answers

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Question: What should I do if I receive notice that my ISP has received a subpoena for my data?

Answer: First you should decide whether you wish to fight to protect your identity, Internet usage records, or whatever else is being sought. You might want to ask your ISP for a copy of the subpoena if they haven't already provided one. If you decide to fight it, you should inform the ISP immediately, and you may want to request that they delay compliance to give you time to find a lawyer. Then find a lawyer, who will file a motion to have the subpoena thrown out. (If your lawyer can later prove that the lawsuit was frivolous, you may be able to recover legal fees if your state has passed an anti-SLAPP statute.)


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Question: What is a subpoena (also spelled "subpena")?

Answer: A subpoena is a formal demand that a person or company produce evidence in or for a civil or criminal lawsuit. A subpoena duces tecum (the kind most commonly used in John Doe cases) requires only the production of identified documents or categories of documents.


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Question: Don't judges review subpoenas before they are sent to ISPs?

Answer: No. The issuing of civil subpoenas is not monitored by the court handling the case. Under the normal rules of discovery in civil lawsuits, parties to a suit can simply send a subpoena to anyone they believe has information that could be useful. That information doesn't even have to be relevant to the lawsuit, as long as it could possibly lead to the discovery of relevant information. The only way that a court will evaluate an identity-seeking subpena is if either the ISP or the target of the subpoena files a motion asking the judge to block the subpoena. Unfortunately, in practice that rarely happens. That is because these subpoenas usually have a short, roughly 7-day deadline, and because many people never even find out that their Internet data has been subpoenaed.


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Question: How do CyberSLAPP plaintiffs discover the identity of anonymous Internet critics?

Answer: CyberSLAPP plaintiffs usually get the personal information you gave an ISP or online message board when you signed up (name, address, telephone number, etc.). Some web sites that host discussion boards might only have your e-mail address, in which case a second subpoeana to the ISP that hosts that address will reveal your identity. In many cases, even more detailed information about your use of the Internet can be obtained; it's important to realize that when you go online, you leave electronic footprints almost everywhere you go. (With advanced knowledge of the Internet, however, there are ways to cover your tracks.)


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Question: What does "respond" to the subpena mean?

Answer: Usually, it means that the ISP will give the requested information to the requesting person. In some cases, ISPs have resisted requests for information on behalf of their customers, but this is not the norm. Unless specifically told differently by your ISP, you should assume that your ISP will turn over your information as part of its response.


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Question: How much time would I have to try to fight a subpoena?

Answer: The ISP's deadline for complying with a subpoena can vary depending on the judge, the jurisdiction where the case was filed, and other factors. A typical deadline is 7 days. This isn't much time, so again you may want to request an extension of the deadline from the ISP and the court so your lawyer can prepare your challenge to the subpoena.


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Question: What is a "motion to quash" a subpoena?

Answer: This is a formal request for a court to rule that your information should not be given to the requesting party. This normally includes the request, plus a legal brief (sometimes called a memorandum of points and authorities) explaining why, by law, your information should not be turned over. Samples of briefs filed in John Doe cases are available at:

EFF Archive, Cullens v. Doe, http://www.eff.org/Privacy/Anonymity/Cullens_v_Doe/
http://www.citizen.org/litigation/briefs/IntFreeSpch/articles.cfm?ID=5801


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