IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON THE REPUBLIC OF KAZAKHSTAN, ) No. 73391-5-1 Respondent, ] DIVISION ONE €~""j v. ] PUBLISHED OPINION *~T-| DOES 1-100, inclusive, Defendants, i*^j LLC MEDIA-CONSULT, v? ^4 Appellant. I FILED: February 22, 2016 Trickey, J. — The Republic of Kazakhstan initiated a California state court 

### lawsuit against 100 unnamed "John Doe" defendants.1 Kazakhstan alleged that these defendants hacked into Kazakhstan's government computer network and 

### stole and published hundreds of privileged and confidential e-mails from highranking Kazakh officials in violation ofCalifornia and United Stateslaw. Inconnection with that lawsuit, Kazakhstan requested that the King County 

### Superior Court issue a subpoena duces tecum to eNom, Inc., anInternetdomain
name registration companylocated in Kirkland, Washington. The subpoenaseeks domain name registrant information and Internet Protocol (IP) and/or Mac addresses forawebsite operatedby "Respublika," anopposition newspaperbased in Kazakhstan that published several of the stolen e-mails. 

### On appeal, we must interpretWashington's news media shield law, RCW 5.68.010, and determine whether it protects the information sought by this

Clerk's Papers (CP) at 50-57.No. 73391-5-1/2 subpoena. The trial court concluded that the news media shield lawdid notapply, and it denied third-party LLC Media-Consult's (LMC) motion to quash subject to certain modifications. We disagree and therefore reverse.
FACTS Appellant LMC is a Russian limited liability company that operates the 

### online publication of Respublika. Irina Petrushova, Respublika's founder and editor-in-chief, owns LMC with her brother. Petrushova founded Respublika in 

### 2000, and the newspaper has been published online since September 2008. Its main website is "www.respublika-kaz.info."2 

### Published weekly, Respublika principally covers business and politics in 

### Kazakhstan, a country in central Asia. According to Petrushova, Respublika is "a 

### forum for expressing opposition to the political regime in Kazakhstan."3 It has consistently published articles critical of Kazakhstan's President Nursultan 

### Nazarbayev. As a result, Petrushova asserts, Respublika's journalists have become targets ofanaggressive intimidation campaign. In 2002, Petrushova left
Kazakhstan in fear for her life. Petrushova continues to run Respublika's editorial board and report on 

### government corruption in Kazakhstan. Petrushova claims that theeditorial team establishedvarious newspapers over the years, but thegovernment shutdown all 

### of them. Printing houses in Kazakhstan refused to publish Respublika's 

### newspapers, and theeditorial team wasforced topublish them on home printers
and in Russia.

2 CP at 77. 3 CP at 78.No. 73391-5-1/3 According to Petrushova, in 2010, the Kazakh government blocked access to Respublika's online portal. As a result, in order to access Respublika's news from Kazakhstan, Respublika's readers have to use proxy servers and other programs that can work around domesticblocking. In 2013, a Kazakh court closed websites associated with Respublika. In 2014, pressure on Respublika mounted in Russia when Russian authorities seized a server that hosted Respublika's
website. 

### In early 2015, Kazakhstan claimed thatit haddiscovered a major breach of 

### its computer systems. According toMarat Beketayev, the Executive Secretary of the Ministry ofJustice ofthe Republic ofKazakhstan, e-mail accounts ofseveral 

### high-ranking government officials were hacked and thousands of e-mails and documents were stolen and posted to various websites. Kazakhstan claims that these e-mails and documents contain confidential and privileged material, 

### including communications between Kazakhstan and its legal advisers who were 

### advising the government on various sensitive matters. Awebsite hosted by WordPress, "https://kazaword.wordpress.com," published several ofthese stolen e-mails.4 Respublika also published several ofthesee-mails, along with anarticle critical of the government. 

### Following theseevents, Kazakhstan commenced anaction in Santa Clara, California superiorcourt against 100 "John Doe" defendants, alleging violations of California and federal law.5 Kazakhstan also commenced an action against the

4CP at203; Report ofProceedings (RP) (Apr. 30,2015) at 7, 12-13. 5 CP at 50-57.No. 73391-5-1/4
unnamed Does in the United States District Court for the Southern District of New York, seeking injunctive relief and damages.6 On March 4, 2015, Kazakhstan initiated this limited action in King County Superior Court. Pursuantto RCW5.51.020, the uniform interstate depositions and discovery act, Kazakhstan sought to serve a subpoena duces tecum on eNom, Inc., a domain name registration company located in Kirkland, Washington. For several years, eNom, Inc. has registered the domain name for Respublika's main website: "www.respublika-kaz.info."7 eNom, Inc. offers a domain privacy service called "ID Protect," which shields a domain name registrant's personal, identifying 

### information.8 Respublika uses eNom's privacy service to shield its current and former registrants' information. 

### The subpoena duces tecum requested certain information associatedwith 

### Respublika's domain name. Defining "domain name" as "www.respublikakaz.info," it requested that eNom produce the following two9 categories of

information: 1. Documents sufficient to show all details of all current and former 

### registrants, including any underlying registrant using a privacy or 

### proxy service, of the Domain Name including, butnot limited to, his or her email address, physical address, phone number, and billing information, including any updated or revised details since registration. 2. Documents sufficientto show the dates, times and corresponding IP Addresses and/or Mac Addresses from which the Domain Name 

### was registered, created ormodified.1101
6Br. of Appellant(LLC Media-Consult) at App. B. 7 CP at 86, 88. 8 CP at 34. 

### 9Initially, Kazakhstan requested three additional categories of documents but it later withdrew these requests. 10CP at 10.No. 73391-5-1/5
LMC, a nonparty, moved to quash the subpoena. LMC argued that the subpoena was oppressive and burdensome, violated Washington's news media shield law, and ran contrary to "core constitutional values."11 It asserted that a protective orderwould be ineffective and unworkableand that the court could grant

no effective relief short of quashing the subpoena. LMC supported itsmotion with a declarationfrom Petrushova. Petrushova 

### detailed threats against Respublika's members. For example, she asserted that one of Respublika's printers quit afterfinding a human skull on his doorstep. In 

### other examples, Petrushova asserted that she received a funeral wreath that marked her fordeath, found a dog's headless body hungfrom one of Respublika's 

### window grates with a threatening note, and found a dog's head outside her apartment door. She also asserted thatRespublika's editorial board's office had been set on fire and that Respublika's newsroom had been firebombed. In her declaration, Petrushova also stated several concerns about the 

### consequences ofdisclosing information about Respublika's current and former domain nameregistrants. Shedeclared that thecurrentownerofthedomain isan individual, not a company. She feared that the Kazakhstan government would 

### bring unfounded civil and criminal claims againstthe domain name registrants and that the registrants would be at risk of physical danger, such as beating, kidnapping, and unlawful detention. She alsoworried that the financiers of the domain name would be persecuted and that the accounts would be frozen. And

11 CP at 24.No. 73391-5-1/6 

### she expressed concern about the effect of this disclosure on other opposition journalists: Disclosure of domain registration and hosting details, both current and former, would undoubtedly lead to enormous pressures on Respublika's current and past registrars and hosting providers. The disclosure would lead to requests to Respublika's registrars and 

### hosting providers to cancel its domains and shut down its websites. Ifour main domain were cancelled or shut down, Respublika would 

### lose a large part of the audience that has been visiting that domain since September 15, 2008. The precedent would also have a tremendous chilling effect on the freedom of the press for any 

### remaining oppositionjournalists who are risking theirlives to report on Kazakhstan.[12] 

### Along with her declaration, Petrushova included copies of newspaper 

### articles detailing thepolitical climate and media crackdown in Kazakhstan. She also included reportsfrom human rights organizationsthatdescribed Kazakhstan's restrictions on freedom ofexpression and classified Kazakhstan as one of the world's most repressive states. 

### Kazakhstan opposed themotion toquash. It argued that thenews media shield law was inapplicable and that the subpoena was not burdensome or 

### oppressive. In support of its position, Kazakhstan provided a declaration from Secretary Beketayev. He denied Petrushova's accusations that Kazakhstan 

### targeted opposition journalists. He asserted that Petrushova and her husband
were working forMukhtarAblyazov, a Kazakh national who hasbeen found by an 

### English court to have defrauded a Kazakh bank of $4.6 billion. Secretary Beketayev asserted that Petrushova and her husband were working on behalfof Ablyazovto propagatethe distribution ofthe hacked e-mails and documents.

12 CP at 89.No. 73391-5-1/7 A hearing on LMC's motion to quash occurred on April 30, 2015. After hearing argument from the parties, the trial court concluded that the news media shield law was inapplicable. But the court decided to limit discovery in two ways. First, the court ruled that Kazakhstan could not obtain billing information, and it struck this category from the subpoena. Second, the court limited the produced records to "Attorneys' Eyes Only."13 The trial court denied LMC's motion to quash the subpoena subjectto these modifications. Itentered an orderstating as follows: [e]Nom shall produce the documents in categories 1 and 2 of the subpoena, with the exception of "billing information," by Monday, May 4, 2015. Categories 3, 4, [and] 5 are withdrawn by [Kazakhstan]. The produced records shall be for attorneys' eyes only.'14] LMC appealed to this court. A commissioner of this court granted LMC's motion for an emergency stay of the trial court's order.
ANALYSIS We review a trial court's order granting or denying a motion to quash a subpoena for abuse ofdiscretion. Euaster v. City ofSpokane, 121 Wn. App. 799, 807, 91 P.3d 117 (2004). We also review a trial court's discovery order for an abuse of discretion. T.S. v. Bov Scouts of Am., 157 Wn.2d 416, 423, 138 P.3d 1053 (2006). Acourtabuses its discretion ifits decision is manifestlyunreasonable

or exercised on untenable grounds or reasons. Eugster, 121 Wn. App. at 807. A court shall quash a subpoena ifitrequires disclosure of privileged orother protected information and no exception or waiver applies. CR45(c)(3)(A)(iii).

13RP(Apr. 30, 2015) at 30-31. 14CP at 412.No. 73391-5-1/8 Washington News Media Shield Law LMC argues that the trial court erred in its interpretation ofWashington's

news media shield law. Itcontends that this shield law applies to the parties and records sought in this case, because the purpose of the subpoena is to identify a confidential source. We agree. In general, "[t]he burden ofshowing that a privilege applies in any given situation rests entirely upon the entity asserting the privilege." Guillen v. Pierce County, 144 Wn.2d 696, 716, 31 P.3d 628 (2001), reversed in part. Pierce County v. Guillen, 537 U.S. 129, 123 S. Ct. 720, 154 L. Ed. 2d 610 (2003). Accordingly, LMC has the burden of showing that the news media shield law applies. No court has interpreted Washington's news media shield law. In 

### determining the meaning and scope of a statute, we apply general principles of 

### statutory construction. Statev. Chester, 133Wn.2d 15, 21, 940 P.2d 1374 (1997). Our primary purpose is to ascertain and effectuate the legislature's intent. Anderson v. Dussault, 181 Wn.2d 360, 368, 333 P.3d 395 (2014). We first 

### examine the plain meaning of the statute. "When determining a statute's plain meaning, we consider 'the ordinary meaning ofwords, the basic rules ofgrammar, and the statutory context to conclude what the legislature has provided for in the statute and related statutes.'" Darkenwald v. Emp't Sec. Dep't, 183 Wn.2d 237, 

### 245, 350 P.3d 647 (2015) (quoting In reForfeitureofOne 1970ChevroletChevelle, 166 Wn.2d 834, 838-39, 215 P.3d 166 (2009)). Ifthe meaning is plain on its face,


### wegive effect to thatplain meaning. Ifthe statute is ambiguous, wemay look to other aids of statutoryconstruction, such as the legislative history, to determine

8No. 73391-5-1/9 the legislature's intent. State v. A.G.S., 182 Wn.2d 273, 277-78, 340 P.3d 830 (2014). Statutory construction is an issue of lawthat we review de novo. Washington's news media shield law has its origins in common law. The United States Supreme Court left it to individual states to determine how broadly to recognize a reporter's privilege. Branzburg v. Haves, 408 U.S. 665, 706, 92 S. Ct. 2646, 33 L. Ed. 2d 626 (1972). In Washington, our courts first recognized the 

### privilege in Senear v. Daily Journal-American, 97 Wn.2d 148, 641 P.2d 1180 (1982). There, the Supreme Court held thatjournalists have a qualified common law privilege with respect to their sources of information, but it confined the 

### privilege to civil cases. Senear, 97Wn.2d at 151, 155. Two years later, in State v. Rinaldo, 102 Wn.2d 749, 755, 689 P.2d 392 (1984), the Supreme Court 

### extended the qualified common law privilege forjournalists tocriminal cases. 

### In 2007, the legislature codified this privilege in RCW 5.68.010. In doing so, it extended the privilege both to members of the news media and to nonnews media parties. 

### RCW 5.68.010(1) applies to the "newsmedia."15 Undersubsection (1), no 

### judicial, legislative, administrative, orother body may compel the news media to testify, produce, or otherwise disclose:

15 The term "news media" is defined by the statute as follows: "(a) Any newspaper, magazine or otherperiodical, book publisher, news agency, wire service, radio ortelevision stationornetwork, cable orsatellite station or network, or audio or audiovisual production company, or any entity that isin the regular business ofnews gathering anddisseminating news or information to the public by any means, including, but notlimited to, print, broadcast, photographic, mechanical, internet, or electronic distribution; (b) Any person who is or has been an employee, agent, orindependent contractor of anyentity listed in (a) ofthissubsection, who is or has beenNo. 73391-5-1/10 (a) The identity of a source of any news or information or any information that would tend to identify the source where such source has a reasonable expectation of confidentiality; or (b) Any news or informationobtained or prepared by the news media in its capacity in gathering, receiving, or processing news or information for potential communication to the public, including, but not limited to, any notes, outtakes, photographs, video or sound tapes, film, or otherdata ofwhatever sort in any medium now known or hereafter devised. This does not include physical evidence of a crime. RCW5.68.010(2) provides that a court may compel disclosure of the news or information described in subsection (1)(b) under certain circumstances. Thus, 

### as the legislature explained in itsfinal bill report, the news media has an absolute 

### privilege with respectto theinformation contained in subsection (1)(a), andit has
a qualified privilege with respectto theinformation contained in subsection (1)(b). Final B. Rep. on H.B. 1366, 60th Leg., Reg. Sess. (Wash. 2007). 

### Washington's newsmedia shield law also containsa provisionfor nonnews 

### media parties. Thatsubsection isRCW 5.68.010(3). In relevant part, it states: Theprotectionfrom compelled disclosurecontained in subsection (1) of this section also applies to any subpoena issued to, or other 

### compulsory process against, a nonnews media party where such subpoena or process seeks records, information, or other communications relating to business transactions between such 

### nonnews media party and the news media for the purpose of 

### discovering the identity ofa source orobtaining news orinformation described in subsection (1) ofthis section.

. ..
engagedin bonafide news gathering for suchentity, andwho obtained or prepared the news or information that is sought while serving in that capacity; or (c) Any parent, subsidiary, oraffiliate oftheentities listed in (a) or(b) ofthis subsection to the extent that the subpoena or other compulsory process seeks news or information described in subsection (1) of this section." RCW 5.68.010(5)(a),(b),(c).

10No. 73391-5-1/11 Here, Kazakhstan's subpoena seeks information from eNom, Inc., an Internetdomain name registration company. The parties do not dispute that eNom is a nonnews media party, and thus, the relevant statutory provision is RCW 5.68.010(3). The parties also do not dispute that the information and records sought in this case fall within the scope of RCW 5.68.010(3), that is, they are "records, information, or other communications relating to business transactions between such nonnews media party and the news media." Kazakhstan seeks: 1. Documents sufficient to show all details of all current and former registrants, including any underlying registrant using a privacy or 

### proxy service, of the Domain Nameincluding, but notlimited to, his or her email address, physical address, phone number, and billing information,'16) including any updated or revised details since registration. 2. Documents sufficientto show the dates, times and corresponding IP Addresses and/or Mac Addresses from which the Domain Name 

### was registered, created ormodified.1171 The heart ofthe dispute is whether this subpoena seeks these records and 

### information "for the purpose ofdiscovering the identity of a source or obtaining
news orinformation described in subsection (1) of this section." RCW5.68.010(3). 

### Again, subsection (1) protects against disclosure of, among other things, "The identity ofa source ofany news orinformation orany information thatwould tend to identify the source where such source has a reasonable expectation of confidentiality." RCW 5.68.010(1)(a).

16 Thetrial court struck "billing information" from the subpoena. RP(Apr. 30, 2015) at29. 17CP at 3. 11No. 73391-5-1/12 As Kazakhstan stated in the trial court and on appeal, it seeks the documents in this subpoena for the purpose of identifying the individual who illegally hacked into the e-mail accounts and stole the confidential materials. Specifically, it seeks the IP and Mac addresses to cross-reference against IP addresses that accessed Kazakh government servers at the time of the alleged 

### hacking. And it seeks the domain name registrants' identities because they "can 

### help confirm who hacked into Kazakhstan's computers and stole privileged documents."18 Kazakhstan seeks to establish eitherthat the registrants are the hackers, or 

### that they have information that can lead to the hackers. Both purposes are 

### prohibited by theshield law. By seeking to establish that theregistrants arethe hackers, Kazakhstan's purpose istoidentify "asource ofany newsorinformation." 

### RCW 5.68.010(1)(a). By seeking toestablish a linkto the hackers, Kazakhstan's 

### purpose is toobtain information "thatwould tend to identify" a source ofnews or information. RCW 5.68.010(1 )(a). Accordingly, thissubpoenafalls withintheplain language ofthe statute. 

### Kazakhstan argues thatinjournalistparlancetheword "source" isaterm of art.19 It cites several cases and technical definitions to support this argument, 

### including oneauthority thatdefines "source" as a "[pjerson, record, document or event thatprovides the information for the story."20 Relying on these definitions, Kazakhstan contends that for the news media shield law to apply, LMC must

18 Br. of Resp'tat43. 19 Br. of Resp't at 27. 

### 20 Br. of Resp't at 28 (citing The Wall Street Journal Glossary ofTerms: Journalism, http://www.info.wsj.com/college/glossary.journalism.pdf). 12No. 73391-5-1/13 establish that the registrant is the source that provided the stolen materials directly to Respublika's journalist, or that the registrant would tend to identify the source that provided the stolen materials directly to Respublika'sjournalist. Kazakhstan further claims that LMC is unable to do this, given its statements that it obtained the e-mails from a public source—the WordPress website. In New York federal court, LMC filed a letter21 stating that "Respublika found the documents the same way the rest of the world did—after69 gigabytes 

### ofdocuments were anonymously posted to kazaword.wordpress.com."22 LMC's attorneymadesimilarrepresentations tothis courtatoral argumentforthis appeal. We decline to read the statute so narrowly. The plain language of RCW 

### 5.68.010(1)(a) is very broad. It protects against disclosure of the identity of a source ofany news orinformation. It also protects against thedisclosure ofany information that would tend to identify a source. By requesting registrant information and IP addresses for the purpose ofdiscovering the identity of the 

### hackers, Kazakhstan impermissibly seeks information that falls within the plain 

### language ofRCW 5.68.010(1)(a). Accordingly, LMC's statementthat it obtained the stolen materials from a third-party website does not preventit from invoking
the news media shield law. CONCLUSION 

### We hold thattheWashington news media shield law prevents disclosure of theinformation soughtbythis subpoena. Thetrial courtabuseditsdiscretionwhen

21 We previously granted Kazakhstan's motion to supplement the record with this additional evidence. 

### 22 Republic ofKazakhstan's Motion to PermitAdditional Evidence on Review atEx. A. 13No. 73391-5-1/14 itdenied LMC's motion to quash. In light of this conclusion, we need not address LMC's arguments that the discovery order should be reversed because Kazakhstan is engaging in improper claim splitting or because the subpoena violates the Washington Constitution. We also need notaddress LMC'sarguments that the discovery order is burdensome and oppressive. We reverse the denial ofthe motion to quash the subpoena and remand to the trial court to dismiss the action.



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WE CONCUR: 

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