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,

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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 States law.

In connection with that lawsuit, Kazakhstan requested that the King County

Superior Court issue a subpoena duces tecum to eNom, Inc., an Internet domain

name registration company located in Kirkland, Washington. The subpoena seeks

domain name registrant information and Internet Protocol (IP) and/or Mac

addresses for a website operated by "Respublika," an opposition newspaper based

in Kazakhstan that published several of the stolen e-mails.

On appeal, we must interpret Washington'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 not apply,

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 ofan aggressive 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 the editorial team

established various newspapers over the years, but the government shut down all

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

newspapers, and the editorial team wasforced to publish 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 domestic blocking. 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 that it had discovered a major breach of

its computer systems. According to Marat Beketayev, the Executive Secretary of

the Ministry ofJustice ofthe Republic of Kazakhstan, 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. A website hosted by

WordPress, "https://kazaword.wordpress.com," published several ofthese stolen

e-mails.4 Respublika also published several ofthese e-mails, along with an article

critical of the government.

Following these events, Kazakhstan commenced an action in Santa Clara,

California superior court against 100 "John Doe" defendants, alleging violations of

California and federal law.5 Kazakhstan also commenced an action against the

4CP at 203; Report of Proceedings (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. Pursuant to 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 associated with

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, but not limited to, his

or her email address, physical address, phone number, and billing

information, including any updated or revised details since

registration.

2. Documents sufficient to show the dates, times and corresponding

IP Addresses and/or Mac Addresses from which the Domain Name

was registered, created or modified.1101

6Br. of Appellant (LLC Media-Consult) at App. B.

7 CP at 86, 88.

8 CP at 34.

9 Initially, 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 order would be ineffective and unworkableand that the court could grant

no effective relief short of quashing the subpoena.

LMC supported its motion with a declaration from Petrushova. Petrushova

detailed threats against Respublika's members. For example, she asserted that

one of Respublika's printers quit after finding 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 hung from one of Respublika's

window grates with a threatening note, and found a dog's head outside her

apartment door. She also asserted that Respublika'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 of disclosing information about Respublika's current and former

domain name registrants. She declared that the current owner ofthe domain isan

individual, not a company. She feared that the Kazakhstan government would

bring unfounded civil and criminal claims against the domain name registrants and

that the registrants would be at risk of physical danger, such as beating,

kidnapping, and unlawful detention. She also worried 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.

If our 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 opposition journalists who are risking their lives to report

on Kazakhstan.[12]

Along with her declaration, Petrushova included copies of newspaper

articles detailing the political climate and media crackdown in Kazakhstan. She

also included reportsfrom human rights organizations thatdescribed Kazakhstan's

restrictions on freedom of expression and classified Kazakhstan as one of the

world's most repressive states.

Kazakhstan opposed the motion to quash. It argued that the news 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 for Mukhtar Ablyazov, a Kazakh national who has been 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 behalf of

Ablyazov to propagate the distribution of the 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 subject to these modifications. Itentered an order stating 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 of discretion. Euaster v. City of Spokane, 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). Acourt abuses its discretion ifits decision is manifestly unreasonable

or exercised on untenable grounds or reasons. Eugster, 121 Wn. App. at 807.

A court shall quash a subpoena ifitrequires disclosure of privileged or other

protected information and no exception or waiver applies. CR 45(c)(3)(A)(iii).

13RP(Apr. 30, 2015) at 30-31.

14 CP at 412.
No. 73391-5-1/8

Washington News Media Shield Law

LMC argues that the trial court erred in its interpretation of Washington's

news media shield law. It contends 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 of showing 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. State v. Chester, 133 Wn.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 re Forfeiture ofOne 1970Chevrolet Chevelle,

166 Wn.2d 834, 838-39, 215 P.3d 166 (2009)). If the meaning is plain on its face,

we give effect to that plain meaning. If the statute is ambiguous, we may look to

other aids of statutory construction, such as the legislative history, to determine

8
No. 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 law that 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 that journalists have a qualified common

law privilege with respect to their sources of information, but it confined the

privilege to civil cases. Senear, 97 Wn.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 for journalists to criminal 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 "news media."15 Undersubsection (1), no

judicial, legislative, administrative, or other 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 other periodical, book publisher, news

agency, wire service, radio ortelevision station ornetwork, cable orsatellite

station or network, or audio or audiovisual production company, or any

entity that is in the regular business of news gathering and disseminating

news or information to the public by any means, including, but not limited

to, print, broadcast, photographic, mechanical, internet, or electronic

distribution;

(b) Any person who is or has been an employee, agent, or independent

contractor of any entity listed in (a) ofthissubsection, who is or has been
No. 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 information obtained 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 other data of whatever sort in any medium now known

or hereafter devised. This does not include physical evidence of a

crime.

RCW 5.68.010(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 the information contained in subsection (1)(a), and it has

a qualified privilege with respect to the information contained in subsection (1)(b).

Final B. Rep. on H.B. 1366, 60th Leg., Reg. Sess. (Wash. 2007).

Washington's news media shield law also containsa provision for nonnews

media parties. Thatsubsection is RCW 5.68.010(3). In relevant part, it states:

The protection from compelled disclosure contained 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 or obtaining news or information

described in subsection (1) of this section. . ..

engaged in bona fide news gathering for such entity, and who obtained or

prepared the news or information that is sought while serving in that

capacity; or

(c) Any parent, subsidiary, oraffiliate of the entities listed in (a) or(b) of this

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).

10
No. 73391-5-1/11

Here, Kazakhstan's subpoena seeks information from eNom, Inc., an

Internet domain 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 Name including, but not limited to, his

or her email address, physical address, phone number, and billing

information,'16) including any updated or revised details since

registration.

2. Documents sufficient to show the dates, times and corresponding

IP Addresses and/or Mac Addresses from which the Domain Name

was registered, created or modified.1171

The heart ofthe dispute is whether this subpoena seeks these records and

information "for the purpose of discovering the identity of a source or obtaining

news or information described in subsection (1) of this section." RCW5.68.010(3).

Again, subsection (1) protects against disclosure of, among other things, "The

identity of a source of any news orinformation or any information that would tend

to identify the source where such source has a reasonable expectation of

confidentiality." RCW 5.68.010(1)(a).

16 The trial court struck "billing information" from the subpoena. RP (Apr. 30, 2015) at 29.

17CP at 3.

11
No. 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 either that the registrants are the hackers, or

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

prohibited by the shield law. By seeking to establish that the registrants are the

hackers, Kazakhstan's purpose isto identify "asource ofany newsorinformation."

RCW 5.68.010(1 )(a). By seeking to establish a link to the hackers, Kazakhstan's

purpose is to obtain information "that would tend to identify" a source of news or

information. RCW 5.68.010(1 )(a). Accordingly, thissubpoena falls within the plain

language of the statute.

Kazakhstan argues thatin journalist parlance the word "source" isa term of

art.19 It cites several cases and technical definitions to support this argument,

including one authority that defines "source" as a "[pjerson, record, document or

event that provides 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 of Terms: Journalism,

http://www.info.wsj.com/college/glossary.journalism.pdf).

12
No. 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's journalist.

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—after 69 gigabytes

of documents were anonymously posted to kazaword.wordpress.com."22 LMC's

attorney madesimilar representations tothis court at oral argument for this 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 of any news or information. It also protects against the disclosure of any

information that would tend to identify a source. By requesting registrant

information and IP addresses for the purpose of discovering the identity of the

hackers, Kazakhstan impermissibly seeks information that falls within the plain

language of RCW 5.68.010(1 )(a). Accordingly, LMC's statement that it obtained

the stolen materials from a third-party website does not prevent it from invoking

the news media shield law.

CONCLUSION

We hold thatthe Washington news media shield law prevents disclosure of

the information sought by this subpoena. Thetrial court abused its discretion when

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

additional evidence.

22 Republic of Kazakhstan's Motion to Permit Additional Evidence on Review at Ex. A.

13
No. 73391-5-1/14

it denied 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 not address LMC's arguments

that the discovery order is burdensome and oppressive.

We reverse the denial of the motion to quash the subpoena and remand to

the trial court to dismiss the action.

l^'&h <? v i -J

WE CONCUR:

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14