Below is text extracted from the pdf file found at http://www.eff.org/legal/cases/merkey_v_yahooscox/merkey_brief_final.pdf, which is presumed to be equivalent to the official scanned court document found at http://scofacts.org/Merkey-Perens-18.pdf.
For the Addenda A through D that are referenced in the text, see the version of this memo that was attached as exhibit 1 to EFF's motion.
For more information, see http://scofacts.org/merkey.


Kurt Opsahl, Esq.                                            
Matt Zimmerman, Esq. 
Corynne McSherry, Esq. 
ELECTRONIC FRONTIER FOUNDATION 
454 Shotwell Street 
San Francisco, CA 94110 
Telephone: (415) 436-9333 
Facsimile: (415) 436-9993 

Margaret Plane (USB # 9550) 
AMERICAN CIVIL LIBERTIES UNION OF UTAH 
FOUNDATION, INC. 
355 North 300 West 
Salt Lake City, Utah  84103 
Telephone:  (801) 521-9862 
Facsimile:  (801) 532-2850 


                 IN THE UNITED STATES DISTRICT COURT
                  DISTRICT OF UTAH, CENTRAL DIVISION

JEFFREY VERNON MERKEY                     No. 2:05-CV-521 DAK 

Plaintiff,                                AMICUS BRIEF OF ELECTRONIC 
                                          FRONTIER FOUNDATION AND 
vs.                                       AMERICAN CIVIL LIBERTIES 
                                          UNION OF UTAH IN OPPOSITION 
YAHOO SCOX members atul666 and            TO PLAINTIFF'S EX PARTE 
saltydogmn; PAMELA JONES a.k.a            MOTION TO CONDUCT 
GROKLAW.COM, a.k.a. OSRM and              EXPEDITED DISCOVERY 
GROKLAW.NET; GRENDEL a.k.a. 
PAGANSAVAGE.COM; MATT MERKEY              Date:  August 17, 2005 
a.k.a MERKEY.NET; BRANDON SUIT            Time: 11:30 a.m. 
a.k.a. MERKEY.NET; JOHN SAGE a.k.a.       Rm: 248 
FINCHHAVEN.COM; MRBUTTLE a.k.a.           Judge:  Hon. Samuel Alba      
IP-WARS.NET; JEFF CAUSEY a.k.a. IP-       Trial Date: Not set   
WARS.NET; AL PETROFSKY a.k.a.             Complaint Filed: July 20, 2005
SCOFACTS.ORG; DOES 1 through 200                

Defendants. 


                             INTRODUCTION

       Plaintiff Jeffrey Vernon Merkey's Motion for Expedited
Discovery and Amended Complaint, which may generously be described as
overreaching and far-fetched, invite this Court to wade into a
substantive and procedural thicket that will unnecessarily tie up the
resources of both the Court and the over 200 potential Defendants
contemplated by the Plaintiff. While the Amended Complaint and Motion
for Expedited Discovery are ripe for challenge on multiple grounds 
and Amici assume that such challenges will be forthcoming  it is of
particular importance that this Court protect the First Amendment and
due process rights of the anonymous Defendants at this stage of the
litigation. Unable to challenge Plaintiff's allegations on their own
as they have yet to be properly informed of the very existence of the
lawsuit, the anonymous Defendants have a Constitutional right to have
their identities protected by the Court until the Plaintiff can meet
minimal pleading and evidentiary requirements.

		    STATEMENT OF ISSUES AND FACTS

       Plaintiff's Amended Complaint, which includes allegations
ranging from treason to murder conspiracies, appears to gravitate
around claims of libel, infliction of emotional distress, and invasion
of privacy. Amended Complaint ("Complaint") at  102-134. His Motion
to Expedite Discovery, by contrast, turns on an alleged violation of
an order from this Court to permit Plaintiff to file under seal a
settlement agreement from a prior litigation. Plaintiff's Ex Parte
Memorandum of Points and Authorities In Support of Motion to Conduct
Expedited Discovery ("Motion") at pp. 4-9. Following Plaintiff's
apparent failure to follow local rules regarding filing exhibits under
seal (see Order attached as Addendum A), these documents were made
available to the public for a brief period of time during which they
were reproduced and posted on a variety of Internet web sites.
Comments critical of Plaintiff regarding the settlement agreement and
other issues were apparently posted on a variety of web sites by a
variety of individuals. Plaintiff subsequently amended his Complaint
to briefly refer to this distribution.


                                                 1



           Four of the Defendants, drawn into the alleged conspiracy
on the basis of posting on public web sites comments critical of
Plaintiff, are anonymous, appear to have no relationship to each other
or the named Defendants, and are identified only by their online
screen names. These Defendants are identified in the Caption as
atul666, saltydogmn, and Grendel a.k.a.  PaganSavage.com, and
MrButtle. Plaintiff has moved the Court, ex parte, for leave to issue
subpoenas to Internet service providers (and "other attorneys") for
the purpose of locating and identifying the anonymous Defendants,
presumably so that they can be served with summons and be subject to
further discovery proceedings.1 Motion at 9.

            Plaintiff provides no admissible evidence that in any way
substantiates his allegations regarding the anonymous
Defendants. Plaintiff provides no admissible evidence that
demonstrates any effort to identify and serve the
Defendants. Plaintiff now comes before the Court, with little more
than conjecture, seeking to override their First Amendment interests.

                               ARGUMENT

I.  Plaintiff Cannot Meet the Applicable Standard for Expedited
    Discovery.

            Plaintiff's allegations fall short of meeting applicable
standards for expediting discovery.

            A.  Plaintiff Cannot Meet Either the Notaro v. Koch or
                        Good Cause Tests for Expedited Discovery.

            Courts generally apply one of two tests for expedited
discovery. See In re Fannie Mae Derivative Litigation, 227 F.R.D. 142,
142-43 (D.D.C. 2005) (citing a range of courts who have applied both
tests). The Notaro v. Koch test requires plaintiffs to demonstrate (1)
irreparable injury; (2) some probability of success on the merits; (3)
some connection between the expedited discovery and the avoidance of
the irreparable injury; and (4) some evidence that the injury that
will result without expedited discovery outweighs the injury that the
defendant will suffer if the

                                                 
1 Plaintiff also seeks expedited discovery of the identities and
location of the named defendants.  Amici appear here solely in support
of the right to anonymous speech put at risk by Plaintiff's discovery
request.

                                  2


expedited relief is granted. See 95 F.R.D. 403, 405 (S.D.N.Y. 1982)
(denying motion for expedited discovery given, inter alia, significant
gaps in the plaintiff's legal claims); see also Irish Lesbian & Gay
Org. v. Giuliani, 918 F. Supp 728, 730 (S.D.N.Y. 1996) (motion for
expedited discovery denied; organization's document request was not
reasonably tailored to two- week time constraints presented by case,
need for discovery was questionable in light of similarities to prior
case brought by organization, and both sides would have full
opportunity to explore issues at forthcoming evidentiary hearing).

       The more liberal "reasonableness" test calls for courts to
decide motions for expedited discovery based on the "reasonableness of
the request in light of all of the surrounding circumstances . . . ."
Entmn't Tech. Corp. v. Walt Disney Imagineering, 2003 W.L. 22519440,
No. A. 03-3546, *3 (E.D.Pa. Oct. 2, 2003) (internal quotation marks
omitted) (attached as Addendum B); see also Qwest Communications Int'l
Inc. v. WorldQuest Networks, Inc., 213 F.R.D. 418, 419-20
(D. Colo. 2003) (denying expedited discovery where plaintiff had not
filed for preliminary injunction, had yet to serve defendant with
modified or original complaint, and sought a large quantity and range
of documents). Among the factors to be considered are: (1) whether a
preliminary injunction is pending; (2) the breadth of the discovery
requests; (3) the purpose for requesting the expedited discovery; (4)
the burden on the defendants to comply with the requests; and (5) how
far in advance of the typical discovery process the request was made.
See Entmn't Tech. at *3-5.

       Plaintiff has not addressed, much less established, the
elements of either test, particularly with respect to the anonymous
Defendants. Applying the Notaro test, Plaintiff does not contend that
he will be irreparably injured if discovery is not expedited. As for
the "reasonableness" test, there is no preliminary injunction pending
and the discovery requests are vague and therefore overbroad (for
example, Plaintiff apparently wishes to subpoena not only information
pertaining to the identified and locations of Defendants, but also
"evidence collected" by unnamed ISPs and


                                  3



"other attorneys"). Motion at 9. Plaintiff's motion could be denied
solely on this basis.

       There is another, more fundamental, reason to deny Plaintiff's
motion. Both the Notaro and "reasonableness" tests invite
consideration of the burden that the requested discovery will place on
defendants. Here, that question is crucial. Plaintiff seeks, inter
alia, the power to issue subpoenas to identify anonymous Defendants
because of their alleged wrongful speech.  Numerous courts have held
that such a request necessarily implicates the right to speak
anonymously and, therefore, must be carefully scrutinized. As set
forth below, Plaintiff's request cannot pass that scrutiny.

       B.  Plaintiff Cannot Meet the Heightened Standard Required by
               the First Amendment.

               1.  Subpoenas Seeking the Identities of Anonymous
                       Speakers Are Subject to a Qualified Privilege.

       Plaintiff's wide-ranging allegations defy easy summary, but the
core of the dispute turns on whether Defendants have engaged in
wrongful, but anonymous, speech on the Internet. It is well-settled
that the First Amendment shelters the right to speak anonymously. See
Buckley v.  Am. Constitutional Law Found., 525 U.S. 182, 200 (1999)
(invalidating, on First Amendment grounds, state statute requiring
initiative petitioners to wear identification badges); Talley v.
California, 362 U.S. 60, 65 (1960) (holding anonymity protected under
the First Amendment because forced "identification and fear of
reprisal might deter perfectly peaceful discussions of public matters
of importance"). These cases celebrate the important role played by
anonymous or pseudonymous writings through history, from the literary
efforts of Shakespeare and Mark Twain through the explicitly political
advocacy of the Federalist Papers. As the Supreme Court has held,
"Anonymity is a shield from the tyranny of the majority," that
"exemplifies the purpose" of the First Amendment: "to protect
unpopular individuals from retaliation . . . at the hand of an
intolerant society." McIntyre v. Ohio Elections Comm'n, 514 U.S. 334,
357 (1995)

(holding that an "author's decision to remain anonymous, like other
decisions concerning


                                  4


omissions or additions to the content of a publication, is an aspect
of the freedom of speech protected by the First Amendment"). Courts
must "be vigilant . . . [and] guard against undue hindrances to
political conversations and the exchange of ideas." Buckley, 525
U.S. at 192. This vigilant review "must be undertaken and analyzed on
a case-by-case basis," where the court's

"guiding principle is a result based on a meaningful analysis and a
proper balancing of the equities and rights at issue." Dendrite Int'l,
Inc. v. Doe No. 3, 775 A.2d 756, 760-61 (N.J. Super.
A.D. 2001). Moreover, that review must take place whether the speech
takes the form of political pamphlets or Internet postings.  Reno
v. ACLU, 521 U.S. 844, 870 (1997) (there is "no basis for qualifying
the level of First Amendment protection that should be applied to" the
Internet).

       Because the First Amendment protects the right to speak
anonymously, a subpoena for anonymous speakers' names and addresses is
subject to a qualified privilege. And, just as in other cases in which
litigants seek information that may be privileged, courts must
consider the privilege before authorizing discovery. See Sony Music
Entmn't v. Does, 326 F.Supp.2d 556, 565

(S.D.N.Y. 2004) ("Against the backdrop of First Amendment protection
for anonymous speech, courts have held that civil subpoenas seeking
information regarding anonymous individuals raise First Amendment
concerns.").

               2.  To Protect the Qualified Privilege, the Court
                       Should Require Notice to Defendants, Review of
                       the Complaint, and Presentation of Argument and
                       Evidence Before Issuing a Subpoena to an
                       Anonymous Defendant.

       The specific tension between this qualified privilege to speak
anonymously and the interest of a plaintiff in obtaining information
from an Internet service provider in order to pursue litigation has
been considered by a variety of federal and state courts over the past
several years.  See, e.g., Doe v. 2theMart.com, 140 F.Supp.2d 1088
(W.D. Wash. 2001) (granting, on First Amendment grounds, motion to
quash subpoena to Internet service provider seeking identification of
anonymous posters of messages critical of defendant); Dendrite, 775
A.2d at771

(requiring strict procedural safeguards be imposed "as a means of
ensuring that plaintiffs do not


                                  5


use discovery procedures to ascertain the identities of unknown
defendants in order to harass, intimidate or silence critics in the
public forum opportunities presented by the Internet"); Columbia
Ins. Co., v. Seescandy.com, 185 F.R.D. 573, 578 (N.D.Cal.1999)
(balancing plaintiff's desire to seek redress for injury against the
legitimate and valuable right to participate in online forums
anonymously or pseudonymously). These courts have repeatedly noted
that, at the outset of the litigation, the plaintiff has done no more
than allege wrongdoing, and a privilege is generally not overcome by
mere allegations. They have further recognized that a serious chilling
effect on anonymous speech would result if Internet speakers knew they
could be identified by persons who merely allege wrongdoing, without
necessarily having any intention of carrying through with actual
litigation. See, e.g., Seescandy.com, 185 F.R.D. at 578 ("People who
have committed no wrong should be able to participate online without
fear that someone who wishes to harass or embarrass them can file a
frivolous lawsuit and thereby gain the power of the court's order to
discover their identity."); see also 2theMart.com, 140 F.Supp.2d at
1093 ("If Internet users could be stripped of . . . anonymity by a
civil subpoena enforced under the liberal rules of civil discovery,
this would have a significant chilling effect on Internet
communications and thus on basic First Amendment Rights. Therefore,
discovery requests seeking to identify anonymous Internet users must
be subject to careful scrutiny by the courts.").

       Recognizing the competing interests of plaintiffs and anonymous
defendants, courts have adopted multi-part balancing tests to decide
whether to compel the identification of an anonymous Internet
speaker. Thus, in Seescandy.com, one of the first cases to address
this issue, the court required the plaintiff to (1) identify the
missing party with sufficient specificity that the court could
determine whether the defendant could be sued in federal court; (2)
make a good faith effort to communicate with the anonymous defendants
and to provide them with notice of the suit  thus assuring them an
opportunity to defend their anonymity; and (3) demonstrate that it had
viable claims against such defendants. 185 F.R.D. at 579.


                                  6
                                   


           More recently, in Doe v. 2theMart.com, the court found that
the Constitution requires a balancing of four factors before a
subpoena can be used to identify anonymous Internet speakers:

           [W]hether: (1) the subpoena . . . was issued in good faith
           and not for any improper purpose, (2) the information
           sought relates to a core claim or defense, (3) the
           identifying information is directly and materially relevant
           to that claim or defense, and (4) [adequate] information
           . . . is unavailable from any other source.  

140 F.Supp.2d at 1092. Since the petitioner had "failed to demonstrate
that the identity of these Internet users is directly and materially
relevant to a core defense in the underlying securities litigation,"
the court granted the speakers' motion to quash the subpoena. Id. at
1090.  As the court noted, "[t]he free exchange of ideas on the
Internet is driven in large part by the ability of Internet users to
communicate anonymously." Id. Similarly, all other federal courts to
address the issue have held that the First Amendment demands a
heightened evidentiary showing to justify such subpoenas. See, e.g.,
Sony Entmn't 326 F. Supp. 2d at 564-65 (denying motion to quash
subpoena to Internet service provider seeking identifying information
for anonymous defendant; summarizing and applying a five-factor
balancing test).2

           In the immediate case, Plaintiff would like to use the
power of a civil subpoena to

                                                 
2 State courts have set forth similar requirements of notice, review
of the complaint, and presentation of argument and evidence before an
ISP will be compelled to identify an Internet speaker. In Dendrite,
775 A.2d 756 (N.J. Super. A.D. 2001), which remains the only appellate
opinion in the country to face the question squarely, the court
required the would-be plaintiff to: (1) use the Internet to notify the
accused of the pendency of the identification proceeding and to
explain how to present a defense; (2) quote verbatim the allegedly
actionable online speech; (3) allege all elements of the cause of
action; (4) present evidence supporting the claim of violation; and
(5) show the court that, on balance and in the particulars of the
case, the right to identify the speaker outweighs the First Amendment
right of anonymous speech. 775 A.2d at 760-61; see also La Societe
Metro Cash & Carry France v. Time Warner Cable, 2003 WL 22962857, No.
CV030197400S, at *5-6 (Conn. Super. Dec. 2, 2003) (applying a
balancing test and considering evidence that allegedly defamatory
statements were false and caused injury before deciding to allow
discovery concerning the identity of the speaker) (attached as
Addendum C); In Re Subpoena to America Online, 52 Va. Cir. 26, 34
(Vir. Cir. 2000), rev'd on other grounds, 542 S.E.2d 377 (Va. 2001)
(requiring the introduction of the allegedly actionable Internet
speech and that the court be "satisfied by the pleadings or evidence
supplied" that the subpoenaing party had a legitimate basis to contend
that it was the victim of actionable conduct, "and . . . the
subpoenaed identity information [must be] centrally needed to advance
that claim") (attached as Addendum D).

                                  7


identify and locate anonymous speakers, presumably through their
Internet service providers.  These anonymous speakers are sheltered by
the First Amendment. To avoid chilling Internet communication, the
Court should carefully scrutinize Plaintiff's request, balancing his
litigation interests in pursuing this litigation against the anonymous
Defendant's free speech interests.

               3.  Plaintiff Has Not Met the Heightened Standard
                       Required by the First Amendment.

       Plaintiff's underlying Complaint is full of extraordinary
accusations, from conspiracy to murder to identity theft and
defamation. His Motion, however, focuses almost entirely on one
specific issue that has little to do with the central allegations of
the Complaint  the public distribution of a document that was filed
with the original Complaint. Even taken together, his Complaint and
Motion for Expedited Discovery fall far short of meeting the
heightened standards for expedited discovery of the identities of
anonymous defendants.

       Plaintiff cannot meet the balancing test set forth in Columbia
v. Seescandy.com. As an initial matter, he has not shown that there is
an actual person behind the alleged wrongful acts that would be
amenable to suit in federal court. In Seescandy, the plaintiff
established the first element by submitted a list of aliases for the
person whose identity was sought, as well as email messages by the
anonymous defendant that were directly germane to the lawsuit.  Here,
Plaintiff has provided no such evidence. Further, he has not
identified any steps taken to identify the anonymous defendants. In
Seescandy, by contrast, the plaintiff submitted a detailed account of
its efforts to locate and serve the persons whose information was
sought. Finally, Plaintiff has not shown that his suit could withstand
a motion to dismiss. This element is crucial because it helps prevent
plaintiffs from filing frivolous lawsuits solely in order to obtain
information about personal enemies. In Seescandy, the litigant
submitted exhibits supporting central elements of their cause of
action against the anonymous defendant. Here, Plaintiff submits little
more than bare allegations. The exhibits to the Complaint appear to
pertain to his discrimination claims



                                  8


against Novell Corporation, which is not a defendant in this case.3 In
addition, the exhibits to the Motion, even if they were admissible,
pertain almost entirely to the narrow issue of the alleged public
distribution of a sealed document. Plaintiff has not alleged that the
anonymous Defendants had anything to do with that distribution.

            Neither can Plaintiff satisfy the 2themart.com
factors. First, he has not demonstrated that his request for subpoena
was made in good faith. In 2theMart.com, the court found that the
party seeking the information could reasonably believe that some of
the information sought was relevant to one of its defenses, but noted
that the subpoena also sought entirely irrelevant private
information. That overbreadth demonstrated a disregard for the privacy
and First Amendment rights of online users that, the court held,
"while not demonstrating bad faith per se, weighs against [the
subpoenaing party] in balancing the interests here." 140 F.Supp.2d at
1096.  Similarly, even if the information Plaintiff seeks here may be
relevant to one small portion of his Complaint  the distribution of
the settlement agreement  he has not alleged that the anonymous
Defendants had anything to do with that distribution. Any subpoena
request that seeks their information is overbroad and demonstrates an
improper disregard for privacy and free speech rights.

            Second, Plaintiff has not shown that the information
sought relates to a core claim or defense. In 2theMart.com, this
factor weighed against the subpoenaing party where the requested
information related to just one of twenty-seven affirmative defenses,
a generalized assertion of lack of causation. Here, the bulk of
Plaintiff's Complaint concerns allegations of online threats, violent
language, identity theft, intentional infliction of emotional
distress, and defamation. He devotes just three paragraphs of the
Complaint to the online distribution of the settlement agreement, yet
that appears to be virtually the entire basis of his Motion. Lacking
some showing

                                                 
3 Amici refer here to the exhibits to the first Complaint, which Amici
has reviewed for the sake of completeness. The Amended Complaint
refers to but does not attach these exhibits.

                                  9


that the information sought relates to a more central claim, this
factor weighs against him.

        Third, Plaintiff has not bothered to explain the material
relevance of the identities of the anonymous Defendants. Given the
fundamental importance of the free speech rights at stake, he should
be required to do so before the factor be given any weight.

        Finally, Plaintiff has not shown that the information he seeks
is unavailable from any other source. For example, he has not offered
a shred of evidence of any attempt to locate the anonymous
Defendants. He simply asserts, without evidentiary support, that he
attempted to email one of the anonymous Defendants, pagansavage.com,
and that this Defendant does not have an identifiable address of
service. Motion at 6. He says nothing about his efforts to locate the
remaining Defendants.

        Plaintiff cannot meet either of the leading federal balancing
tests. His wild accusations and sloppy investigation cannot justify
burdening the anonymous Defendants' fundamental right to anonymous
speech. The Court should not authorize a subpoena until
individualized, admissible evidence is presented about each anonymous
Defendant.  

II.  If Discovery Is Permitted, Additional Protections Should Be Put
     In Place.

While judicial economy is best served by denying the request for
discovery of the identity of anonymous speakers in this proceeding, if
the Court determines that the right to speak anonymously should be
litigated through individual motions to quash, Amici respectfully
request the following procedures to ensure notice and an opportunity
to assert these rights: (1) to direct any subpoena recipients to
provide notice, within seven days of their receipt of the subpoena, to
each person whose personal information is sought; (2) to allow the
Defendants fourteen days from the time notice was received to file a
motion to quash; and (3) to preclude any disclosure pending the
disposition of any motion to quash.





                                  10



			      CONCLUSION

       Amici strongly believe that Plaintiff's suit is far too
premature, his allegations far too speculative, and his evidence far
too weak to permit him to intrude upon the First Amendment protections
that have defended anonymous speakers since the foundation of this
country. Online speakers who exercise their right to speak anonymously
on the Internet increasingly find themselves at risk of unwarranted
legal proceedings, in part because of the difficulty speakers have
countering  or even learning of  claims against them. Without
adequate procedural safeguards, necessary to take into account the
uneven litigation playing field, lawsuits designed to intimidate, to
harass, and to chill anonymous speech will remain attractive to those
who dislike Constitutionally protected criticism.

       The immediate case provides a clear example of the fundamental
unfairness that could result from an uncritical application of liberal
discovery rules. Plaintiff's Motion does not meet any recognized
standard for obtaining expedited discovery, much less the heightened
standard that must be applied when fundamental free speech rights are
at stake.  It should be denied.

Dated: August 15, 2005


            Respectfully submitted, 
            ____________________________ 
            Margaret Plane 
            American Civil Liberties Union of Utah Foundation, Inc. 

            Electronic Frontier Foundation 

            Attorneys for Amicus Curiae 











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