Filed 5/14/14 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

DIGITAL MUSIC NEWS LLC,
Petitioner,

v.

SUPERIOR COURT OF LOS ANGELES COUNTY,
Respondent;
ESCAPE MEDIA GROUP, LLC,
Real Party in Interest. B242700
(Los Angeles County Super. Ct. No. SS022099)

Petition for extraordinary writ

. Richard Stone, Judge. P etition is granted. McKenna Long & Aldridge, Charles A. Bird; Public Citizen Litigation G roup, Paul Alan Levy ; Micah Gabriel Katz for Petitioner. No appearance for Respondent. McPherson Rane, Edwin F. McPherson and Pierre B. Pine; Rosenberg & Giger, John J. Rosenberg for Real Party in Interest.

_______________2

Escape Media Group (Esca pe) operates an Internet service called Grooveshark through which users may upload and retrieve digital music files. UMG Recordings, Inc. owns an extensive music catalog that includes songs by such artists as Buddy Holly, The Jackson 5, Marvin Gaye, and T he Who. In 2010, UMG sued Escape in the Supreme
Court of the State of New York , alleging Escape infringed on copyrights afforded by New York common law by reproduc ing user

- uploaded, copyrighted sound recordings
, stor ing them on its servers, and distribut i ng copies to other users, to its own profit

. Escape denied liability , asserting its conduct was permissible under federal copyright
law

. Digital Music News (Digital) publishes the online newsletter D igital M usic N ews , which focuses on the digital music i ndustry. In 2011, D igital M usic N ews reported that a
music artist unaffiliated with UMG had also accused Esc ape of copyright infringement. The article was followed by approximately 100 reader comments, two of which are of interest here. In them, a reader identified only as “Visitor” represented he or she was an Escape employee and routinely received “direct orders from the top” to upload
music to its servers , where it was store d and made available to third part y users and never removed, even if artists or music labels complain ed

. Under the auspices of the Supreme Court of the State of New York
, County of New York, Escape served a subpoena on Digital (which is not a party to the litigation between UMG and Escape), seeking Visitor’s identity . W hen Digital refused to comply, Escape petitioned the Los Angeles Superior Court pursuant to the Interstate and International Depositions and Discovery Act, Code of Civil Procedure section 2029, et

seq., for enforcement

. The c ourt ordered Digital to comply with the s ubpoena , from which order Digital now appeals. Digital argues information identifying Visitor will not reasonably lead to the discovery of admissible evidence in the New York lawsuit and is protected by Visitor’s right to privacy . We agree with both conte ntions, and will therefore issue a writ of mandate directing the trial court to vacate its order enforcing Escape’s subpoena.3 Statement of Facts
1. The New York Lawsuit
Grooveshark enables third party users to upload , share, download and stream files

con taining audio recordings. On January 6, 2010, UMG sued Escape in New York state
court for state common law copyright infringement and unfair competition, alleging Escape enabled and encouraged Grooveshark users to upload unauthorized copies of
UMG’s recor dings to Grooveshark, which Escape then copied to its servers and subsequently distributed to other Grooveshark users. ( UMG Recordings v. Escape Media Group (Supreme Ct. New York County, 2010, No. 100152).) 1 Escape denied the allegations and asserted a number of affirmative defenses and counterclaims. Among other defenses, Escape claimed immunity under the Digital Millennium Copyright Act (DMCA) , which shields from federal copyright infringement liability an Internet service provider that host s solely third party user materials, so long as it promptly removes copyrighted materials when it becomes aware of the infringement

. 2 (17 U.S.C. § 512 (a)

- (c).) O n April 23, 2013
, t his defense was ordered stricken by the
A ppellate D ivision of the Supreme Court of New York on the ground that DMCA affords immunity only against federal copyright claims, not state common law claims. ( UMG Recs., Inc. v

. Escape Media Group, Inc

. (N.Y. App.Div. 1st Dep ’ t 2013) 107 A.D.3d 51,
59 .) In its answer, Escape also asserted coun terclaims for interference with Escape’s

1 In its state lawsuit, UMG sought redress only as to recordings created prior to February 15, 1972. This is because t he Copyright Act of 1976, title 17 U nited S tates C ode section 101, et seq., expressly preempts state law copyright protections on material recorded on or after February 15, 1972. (17 U.S.C. § 301(a) & (c)

. )

2 Title II of the DMCA , the Online Copyright Infringement Liability Limitation Ac t , 17 U.S.C. § 512, et seq., c reates a safe harbor for an online service provider against copyright infringement liability if the provider meet s specif ied requirements , one of which is the provider must promptly block access to alleged infringing material or
remove the material from its systems when it receive s notification of an infringement claim from a copyright holder.4

contracts, interference with its business relations
, and anti

- competitive conduct, alleging
UMG caused other companies to end their business relationships with Escape. 3 In October 2011, D igital M usic N ews reported on an email exchange between Escape executives and a member of a rock band who had complained that Grooveshark illegally hosted the band’s copyrighted recordings and refused to take them down . In the
comments section of this article, Visitor claimed to “ work for Grooveshark ” and stated “the administration” required employees to upload files to the Grooveshark database
, which contradicted Escape’s claim that it hosted solely third party recordings as permitted by the DMCA

. The next day, Visitor 4 commented that although Grooveshark
administrators purported to remove copyrighted music when record labels and artists complained, the music was not actually deleted but merely put on “backup
, ” to be made
available at a later time , when the complaining party’s att ention turned elsewhere

.

3 We deny Digital’s request for judicial notice of copyright infringement lawsuits brought against Escape by other music companies , as t hese cases are irrelevant to the issues before us

. (See Arce v. Kaiser Found. Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482 [“We also may decline to take judicial notice of matters that are not relevant to dispositive issues on appeal”].)

4 It is possible the anonymous comments were wr itten by two different authors. Because the parties assume one aut hor wrote both comments, we will also.5

Visitor stated the music was in fact never deleted : “[T]o confirm the fears of [complaining musicians], there is no way in hell you can get your stuff down.” 5
2. The Subpoena and Enforcement On January 9, 2012, Escape served Digital with a subpoena in the New York
action for the production of business records, seeking information concerning Visitor’s identity and communications between Digital and UMG concerning , or documents relating to, Escape, Grooveshark
, or the October 2 011 D igital M usic N ews article. Digital objected to the subpoena and notified Escape that any information about Visitor’s

5 On October 1 7 , 2011, V isitor said: “I work for [Escape]. Here is some information from the trenches: [¶] We are assigned a predetermined amount of weekly uploads to the system and get a small extra bonus if we manage to go above that (not easy). The assignments are assumed as direct orders from the top to the bottom, we don’t just volunteer to ‘enhance’ th e . . . database. [¶] All search results [user searches of the database] are monitored and when something is tagged as ‘not available’, it get’s [ sic ] queued up to our lists for upload. You have to visualize the database in two general sections: ‘known ’ stuff and ‘undiscovered/indie/underground’. The ‘known’ stuff is taken care internally by uploads. Only for the ‘undiscovered’ stuff are the users involved as explained in some posts above. Practically speaking, there is not much need for users to upl oad a major label album since we already take care of this on a daily basis. [¶] Are the above legal, or ethical? Of course not. Don’t reply to give me a lecture. I know. But if the labels and their laywers [ sic ] can’t figure out how to stop it, then I don’t feel bad for having a job. It’s tough times. [¶] Why am I disclosing all this? Well, I have been here a while and I don’t like the attitude that the administration has aquired [ sic ] against the artists. They are the enemy. They are the threa t. The things that are said internally about them would make you very very angry. Interns are promised getting a foot in the music industry, only to hear these people cursing and bad mouthing the whole industry all day long, to the point where you wonder what would happen if [the Web site] gets hacked by Anonymous one day and all the emails leak on some torrent or something. [¶] And, to confirm the fears of the members of [the complaining music artist], there is no way in hell you can get your stuff dow n. They are already tagged since you sent in your first complaint. The administration knows that you can’t afford to sue for infringement.” On October 18, 2011, Visitor said: “Just because you can’t see an album available right now, doesn’t mean it’s not sitting quietly in the background. It is policy to put albums on ‘backup’, when they have to be taken down due to a [copyright claim], to chill things out with the labels and what not. The albums are not deleted, if that’s what you guys think.”6

identity had been deleted as part of Digital’s routine business practice of periodically overwriting data. On March 20, 2012, Escap e petition ed the Los Angeles County Superior Court to enforce the subpoena under the Interstate and International D epositions and Discovery Act, Code of Civil Procedure section 2029 et seq. 6 Digital opposed the petition, arguing the subpoena was moot beca use any information that would identify Visitor had been
overwritten , enforcement of the subpoena would infringe on the First Amendment rights of Digital and Visitor, and disclosure would violate California’s journalist shield law (Cal. Const., art. I, § 2 , subd. (b); Evid. Code, § 1070)

. 7 In reply, Escape argued Digital had no basis for refusing to comply with the subpoena because the First Amendment does not protect false and defamatory anonymous speech. Although Digital denied any discoverable materi al remained on its servers, t he
trial court found a possibility existed that fragmented data identifying Visitor might yet
be retrieved . The court also found Escape established a prima facie case that Visitor’s

comment s were libelous
, and thus un protected by the First Amendment. The court
concluded Visitor’s identity was therefore discoverable and ordered Digital to comply with the subpoena. 8
The trial court subsequently issued a supplemental order addressing the compliance process. The court ordered E scape to purchase and provide Digital with a

6 A ll further statutory references are to the Code of Civil Procedure unless otherwise indicated

.

7 On appeal, Digital has abandoned its argument under California’s journalist shield law.

8 The court ordered Digital to produce: “[ A ] ny and all business records (including, without limitation, e

- mail files, databases, logs of activity on computer systems and/or content and information contained within the [Digital] website or administrative panel, or any backup copies of the data from within either) that [ Digital] has concerning the ” f

irst and s econd a nonymous c omments, or its author, the person identified by the pseudonym Visitor . The court’s order did not address the portion of the subpoena seeking communications and/or documents concerning Escape, Groov eshark, or the October 2011 D igital M usic N ews article. Escape has not pursued that discovery.7

backup server , and ordered Digital to preserve a virtual machine image of i ts server on the backup server and make the image available to a third party forensic examiner under court supervision. The examiner wo uld first indicate to Digital whether any identifying
information was present and then reveal such information to Escape if directed to do so by the court. Escape would pay all expenses related to the data preservation and inspection. Once the inspection was complete, the backup serve r would be expunged of any material. 9 Digital timely appealed both orders and we issued a writ of supersedeas staying discovery

. Pursuant to our request, the parties submitted supplemental letter briefs addressing whethe r section 2017.010 and the California Constitution’s right of privacy preclude discovery of Visitor’s identity

. Discussion
1. Standard of Review Pursuant to the Interstate and International Depositions and Discovery Act, a party to a proceeding in a forei gn jurisdiction may obtain discovery in California by retaining a local attorney to issue a subpoena . (§ 2029.350.) If a dispute arises relating to the subpoena, any party may petition the superior court where the discovery is to be conducted for a prote ctive order or an order enforcing, quashing, or modifying the subpoena. (§ 2029.600.) Such a n order may be reviewed only by petition to the C ourt of
A ppeal for an extraordinary writ

. ( § 2029.650, subd. (a) .) Although Digital filed an appeal here, we de em the appeal to be a writ petition.
A discovery order is reviewed under the deferential abuse

- of

- discretion standard. ( Krinsky v. Doe 6 (2008) 159 Cal.App.4th 1154, 1161.) An appellate court may reverse a
trial court decision for abuse of discretion wh e n the trial court “applies the wrong legal standards applicable to the issue at hand.” ( Doe 2 v. Superior Court (2005) 132 Cal.App.4th 1504, 1517.)

9 Currently, Digital has transferred a virtual machine image of its serv er to the backup server provided by Escape, but no other action has been taken

.8

2. California discovery law prohibits disclosure of V isitor’s identity
Althou gh d iscovery sought under the Interstate and International Depositions and Discovery Act is intended for use in a foreign jurisdiction, it is nevertheless governed by California’s Civil Discovery Act, section 2016.010 et seq. (§ 2029.500.) S ection
2017.010 of that act sets forth the permissible scope of discovery in California : “ [A] ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter invo lved in the pending action . . . if the matter either is itself admissible in
evidence or appears reasonably calculated to lead to the discovery of admissible
evidence.” (§ 2017.010.) A party may also obtain discovery of “the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description , nature, custody, condition, and location of any document [or] el ectronically
stored information

. . . . ” ( Ibi d. ) An appellate court may reverse a trial court’s grant of discovery if it concludes the information sought “cannot as a reasonable possibil ity lead to the discovery of admissible evidence or be helpful in preparation for trial.” ( Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 988

- 989.) Only relevant evidence is admissible. (Evid. Code, § 350.)
Relevant evidence is that which has a “tendenc y in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) “Although the scope of civil discovery is broad, it is not limitless.” ( Calcor Space Facility, Inc. v. Superior Court (1 997) 53 Cal.App.4th 216, 223.) Discovery devices must “be used as tools to facilitate litigation rather than as weapons to wage litigation.” ( Id. at p. 221.) A party seeking to compel discovery must therefore “ set forth specific facts showing good cause justifying the discovery sought .” (§ 2031.310, subd. (b)(1); see Calcor Space Facility, Inc. v. Superior Court
, supra , 53 Cal.App.4th at p. 223.) To establish good cause, a discovery proponent must identify a disputed fact that is of consequence in the action and explain how the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove
the fact.9

The facts of consequence in the New York lawsuit between UMG and Escape may
be found in UMG’s complaint and Escape’s affirmative defenses and counterclaims

. I n the New York lawsuit, UMG alleges Escape infringed on its common law copyrights and engaged in unfair compet ition. “A copyright infringement cause of action
in New York consists of two elements: (1) the existence of a valid copyright; and (2) unauthorized reproduction of the work protected by the copyright.” ( Capitol Records, Inc. v. Naxos of Am., Inc. (2005) 4 N.Y.3d 540, 563.) A cause of action for unfair

com petition predicated o n copyright infringement
, “ in addition to unauthorized copying and distribution requires competition in the marketplace or similar actions designed for
commercial benefit [citations]
, or deception of the public [citation].” ( Id. a t pp. 563

- 5 64.)
UMG alle ge s Escape “enable s and encourage s its users to upload digital copies” of
UMG’s recordings to Grooveshark , then copie s those recordings to its servers and
distribute s them to other users. By doing so, Escape infringe s on UMG’s copyrights and unfairly comp ete s with UMG for commercial benefit

. In its answer, Escape denies the allegations and contends its conduct is permitted
under the DMCA

. Title II of t hat act provides in pertinent part: “A service provider shall not be liable . . . for infringement of copyright by reason of” transmission or storage of transitory digital information so long as the transmission or storage is done “at the direction of a person other than the service provider,” is “carried out through an automatic technical process without selection of the material by the service provider,” and does not result in copies of the material being maintained on the system or network “for a longer period than is reasonably necessary for the transmission

. ” (17 U.S.C. § 512(a) & (b).) To enjoy thi s immunity, a service provider who becomes aware of infringing material on its network must “respond[] expeditiously to remove, or disable access to, the material.” ( 17 U.S.C. § 512 (c)(1)(C).) As stated above, Escape’s DMCA
defense was ordered stricken b y the appellate division of the New York Supreme Court. Escape also counterclaims for interference with its contracts and business relations
and anti

- competitive conduct . Under New York law, “[t] o sustain a claim for tortious interference with a contract, it must be established that a valid contract existed which a10

third party knew about, the third party intentionally and improperly procured the breach
of the contract [,] and the breach resulted in damage to the plaintiff.” ( Ullmannglass v. Oneida, Ltd. (2 011) 927 N.Y.S.2d 702, 705.) Where there has been no breach of an existing contract, but only interference with prospective contract rights , the plaintiff must
show the defendant’s conduct amounted to a crime or an independent tort

. ( Carvel Corp.
v. Noon an (2004) 3 N.Y.3d 182, 190. ) Escape alleges UMG has engaged in a “legal jihad” in which it coerces third party companies to breach their contracts with Escape and
terminat e beneficial relationships, the goal being “to destroy Escape by cutting off [its]
sources of revenue.” It was not readily apparent to us how the identity of Visitor, who , similar to UMG, claimed Escape routinely violated copyrights on sound recordings , would lead to
admissible evidence refuting UMG’s allegations or supporting Escape ’s defenses or
counterclaims . We therefore asked Escape to explain in a supplemental brief how discovery of Visitor’s identity was reasonably calculated to lead to the discovery of
admissible evidence. Escape first states without elaboration that Visitor’s identity is “most assuredly”
relevant to Escape’s DMCA defense. This is a conclusion, not an explanation , much less a showing of specific facts demonstrating discovery of Visitor’s identity is reasonably
calculated to lead to admissible evidence . To est ablish its DMCA defense Escape would have had to prove, among other things, that it removes copyrighted material when informed of an infringement. Escape fail s to explain how the identity of Visitor

— who claims the opposite

— would lead to evidence supportin g the defense. In any event, Escape’s DMCA defense was ordered stricken by the A ppellate
D ivision of the New York State Supreme Court , which held the defense immunizes a service provider only from federal copyright claims, not state common law claims such as those a t issue here

. The defense therefore raises no currently disputed “fact that is of consequence to the determination of the action” (Evid. Code, § 210), rendering Visitor’s
comments irrelevant.11

Escape insists that the viability of its DMCA defen se “ is far from resolved with either finality or certainty,” because in Capitol Records v. Vimeo (S.D.N.Y. Dec. 31, 2013) 2013 U.S.Dist. L exis 181882 ( Vimeo ), the United States District Court for the Southern District of New York certified an interlocutory appeal on the DMCA immunity
issue to the United States Court of Appeals for the Second Circuit

. But this merely establishes the possibility that Escape’s DMCA defense might someday be reinstated

— assuming the Second Circuit accepts the Vimeo appeal, and r ules DMCA immunity applies to state common law claims, and Escape moves on that basis to reinstate its DMCA defense, and the New York Supreme Court grants the motion. Speculation about

a remote

- in

- time possibility does not constitute reasonable calculatio n that discovery will lead to evidence concerning a fact currently in dispute. Escape next argues Visitor’s c omments are relevant to any claim by UMG that Escape may be secondarily liable for infringement of UMG’s copyrights . Escape argues
it must identif

y Visitor “ as a predicate to exposing the A nonymous C omments as false, ”
which will refute any allegation that Escape knew about or supervised direct infringement of UMG’s copyrights by Escape employees. The argument is meritless. First, UMG makes no all egation pertaining to secondary liability based on the conduct of Escape’s employees

. Rather, it alleges Escape enables Grooveshark users to upload music, which is then copied , stored, and
distributed to other users. “Relevant evidence” means evidence “h aving any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210 , italics added .) Escape’s operation of Grooveshark in the manner UMG alleges is not in dispute, as Escape e xpressly admit ted the practice in its

answer . The only issue is whether the practice violates UMG’s copyrights, which is a12

question of law, not fact. Although Escape contends Visitor’s comments are un true, that

out

- of

- court quarrel is of no consequence t o the determination of UMG’s lawsuit. 10 Even if UMG had alleged

— perhaps in response to Escape’s now

- defunct DMCA
defense

— that Escape employees personally uploaded copyrighted music to Grooveshark’s database and refused to take it down when asked, Escape sti ll fails to explain how discovery of Visitor’s identity would tend in reason to lead to evidence disprov ing UMG’s allegation

. Visitor said two things of consequence: (1) He/she is an Escape employee; and (2) Escape administrators encouraged employees to infringe on copyrights. Escape apparently believes disproving one or both of these out

- of

- court claims would somehow disprove UMG’s allegations

. We fail to see how. Even if Escape were able to show Visitor lacked evidence to support his or her claims

— fo r example by showing Visitor was not in fact an Escape employee or was motivated by mischief or spite

— such a showing would have no tend ency in reason to prove UMG
lacked evidence supporting its allegations

. If Escape proposes to demonstrat e affirmatively that its practices are not as Visitor described
, Visitor’s identity would be unnecessary to such a proof

. In either case, Visitor’s identity has no tendency in reason to prove or disprove any disputed fact of consequence to the action, and is not reasonab ly calculated to lead to such proof. Escape argues Visitor’s identity “would obviously be germane” to its
counterclaim s for interference with business relations if, as Escape has long suspected, Visitor’s comments were planted by UMG. Th e argument is wit hout merit. In its counterclaims, Escape alleges that in 2010 , UMG contacted Hewlett Packard, INgrooves (a digital music distribution company), Apple iStore, Google, and MusicAds (a Madrid, Spain company that sells ad space on W eb sites) and dissuaded
th em from doing business with Escape. Nothing in the record suggests Escape’s

10 No thing in the record suggests UMG will rely on Visitor ’s assertion that Escape employees uploaded music to Grooveshark’s database, to support either of its causes of action. In fact, in response to Escape’s discovery request, UMG indicated it possessed no information related to Visitor’s identity.13

counterclaims pertain in any way to Visitor’s 2011 comments on the D igital M usic N ews W eb site or that those comments caused third party companies to end business relationship s or terminate contract s with Escape. Moreover, Escape offer s no explanation supporting its belief that Visitor might be associated with UMG

. Escape’s argume nt that
Visitor is a UMG plant rests on pure speculation, not reasonable calculation. Finally, Esca pe argues Visitor’s identity is relevant to a federal lawsuit in which
UMG specifically references Visitor’s comments to bolster its allegation that Escape engaged in copyright infringement

. In 2011, UMG and several other record labels filed a
lawsuit in the Southern District of New York against Escape for violation of federal copyright laws. 11 (

Arista Music v. Escape Media Group ( S.D.N.Y. 2011, No. 8407).) For reasons discussed above, we suspect Visitor’s identity would be irrelevant even in
that lawsuit , as an anonymous comment on the Internet is nugatory both as a matter of pleading and of proof, and would not rise to the status of a disputed fact until such time as the plaintiff attempts to call Visitor into court

. At any rate, allegations in another
lawsuit are of no consequence to the determination of th is action. In sum, Visitor’s identity is not reasonably calculated to lead to the discovery of
admissible evidence in the underlying lawsuit between UMG and Escape.
3

. Visitor’s privacy interests ou tweigh Escape’s need for disclosure Even if Visitor’s identifying information was reasonably calculated to lead to admissible evidence, his or her right to privacy under the California Constitution would outweigh Escape’s need for the information. 12 “The right to speak anonymously draws its strength from two separate constitutional wellsprings: the First Amendment ’ s freedom

11 We deny Digital’s request for judicial notice of memoranda of law relating to Escape’s motion to dismiss in this federal case. As the subpoena in the case before us arises out of UMG’s lawsuit against Escape in New York state court, these memoranda are irrelevant.

12 Digital possesses standing to assert Visitor’s constitutional rights. (See Rancho Publications v. Superior Court (1999) 68 Cal.App.4th 1538, 1541 [a non

- party “to civil litigation (such as a new spaper) [may] assert the constitutionally protected rights of an author to remain unknown”].)14

of speech and the right of privacy in article I, section 1 of the California Constitution .” ( Rancho Publications v. Superior Court , supra , 68 Cal.App.4th at p p

. 1540

- 1541.) The
California Constitution provides that all people have a right of privacy. ( Cal. Const., art. I, § 1.) T h is express right is broader than the implied federal right to privacy

. ( American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 326.) Th e California privacy right “protects the speech and privacy rights of individuals who wish to promulgate their information and ideas in a public forum while keeping their identities secret
, ” and “limits
what court s can compel through civil discovery.” ( Rancho Publications v. Superior
Court , supra , 68 Cal.App.4th at p p. 1547

- 1548.) Both California courts and federal courts have recognized the value in extending the protections afforded anonymous speech to speech made via the Internet . (See generally Reno v. AC

L U (1997) 521 U.S. 844, 870; Krinsky v. Doe 6
, supra , 159 Cal.App.4th 1154.) “The use of a pseudonymous screen name offers a safe outlet for the user to experiment with novel ideas, express unorthodox poli tical views, or criticize corporate or individual be havior without fear of intimidat ion or reprisal. In addition, by concealing speakers ’ identities, the online forum allows individuals of any economic, political, or social status to be heard without supp ression or other intervention by the media or more powerful figures in the field.” ( Krinsky v. Doe 6
, supra , 159 Cal.App.4th at p. 1162. ) “The ‘ ability to speak one’s mind ’ on the Internet ‘ without the burden of the other party knowing all the facts abou t one’s identity can foster open communication and
robust debate. ’ ” ( Doe v. 2TheMart.com Inc. (2001) 140 F.Supp.2d 1088, 1092 .) “[W]hen the constitutional right of privacy is involved, the party seeking discovery of private matter must do more than satis fy the section 2017 [.010] standard. The party seeking discovery must demonstrate a compelling need for discovery, and that compelling need must be so strong as to outweigh the privacy right when these two competing interests are carefully balanced.” ( Lan tz v. Superior Court (199 4) 28 Cal.App .4th 1839, 1853

- 1854; see also Planned Parenthood Golden Gate v. Superior
Court (2000) 83 Cal.App.4th 347, 367 [courts must balance the privacy interests of the person subject to discovery against the litigant’s need f or discovery].) A discovery15

proponent may demonstrate compelling need by establishing the discovery sought is directly relevant and essential to the fair resolution of the underlying lawsuit. ( Planned Parenthood Golden Gate v. Superior Court
, supra , 83 C al.App.4th at p. 367; Johnson v. Superior Court (2000) 80 Cal.App.4th 1050, 1071 .) Applying this balancing test we conclude Visitor’s privacy interest outweigh s Escape’s need to discover his or her identity. That interest begins with Visitor’s need for a venue from which to be heard without fear of interference or suppression. Visitor’s anonymity also frees him or her from fear of retaliation, an even more compelling interest
if Visitor truly is an Escape employee, as represented, because exposure c ould endanger

not only his or her priva cy but also livelihood. On the other hand, Escape’s need for the discovery is practically nonexistent. I f
Visitor is not an Escape employee, his or her opinion about Grooveshark not only lack s foundation but would be un dermined by Visitor’s misrepresentation concerning employment, and would therefore be of little or no probative value in this or any litigation. And a s discussed above, Visitor’s comments , even if made by an employee
,

are only tangentially related to UMG’ s lawsuit , as Visitor makes allegations UMG does not make and undermines a defense Escape is now barred from raising. In no sense is Visitor’s identity essential to a fair resolution of the UMG lawsuit. This is not a case where the veil of anonymity must be drawn aside to afford a victim
redress for the anonymous speaker’s defamation ( Krinsky v. Doe 6
, supra , 159 Cal.App.4th at pp. 1666

- 16 67, 1173 ) , obscenity ( Roth v. United States (1957) 354 U.S. 476, 483 ) , libel ( Beauharnais v. Illinois (1952) 343 U.S. 2 50, 266 ), copyright infringement ( Harper & Row
, Publishers, Inc. v. Nation Enter prise s (1985) 471 U.S. 539, 555

- 5 5 6 ), misleading or commercial speech ( Cent ral Hudson Gas & Elec tric Corp.
v. Pub lic Serv ice Comm ’ n (1980) 447 U.S. 557, 563

- 5 64 ) , or use of ‘ fi ghting words ’ ( Chaplinsky v. New Hampshire (1942) 315 U.S. 568, 573 ). Visitor has done nothing more than provide commentary about an ongoing public dispute in a forum that could hardly be more obscure

— the busy online comments section of a digital trade ne ws paper

. Such comment ary ha s become ubiquitous on the Internet and is widely perceived to carry16

no indic ium of reliability and little weight . W e will not lightly lend the subpoena power of the courts to prove, in essence, that Someone Is Wrong On The Int ernet

. Given our holdings above, we decline to address Digital’s argument that routinely deleted data controlled by a non

- party cannot be subject to forensic examination under the principles of electronic discovery. Disposition The petition for writ of m andate is granted. The trial court is directed to vacate its order granting Escape’s petition to enforce the subpoena and to enter a new order denying the petition. The writ of supersedeas is dissolved. Digital is to recover its costs on appeal.
CERTIF IED FOR PUBLICATION

CHANEY, J.

We concur:

ROTHSCHILD, Acting P. J.

JOHNSON , J.