U.S. Fourth Circuit - The FindLaw 4th Circuit Court of Appeals Opinion Summaries Blog

Yelp Doesn't Have to Turn Over Reviewers' Identities

Back in October, the Virginia Supreme Court held oral arguments in a case about the limits of anonymous speech. Hadeed Carpet Cleaning wanted to sue the authors of several anonymous Yelp reviews, claiming that had never even been to the business.

The state appellate could said Yelp had to turn over the identities of the reviewers, but last week, the Virginia Supreme Court said no dice to the disclosure -- though not for the fun reasons.

Your Arm Wasn't Long Enough

There's no First Amendment right to make factually false statements, and Hadeed claimed several reviewers weren't customers of his, which would make their reviews false. The problem was, he couldn't be sure that weren't customers until he obtained their identities, which are protected from disclosure, but only if their reviews are true, and the truth or falsity of the review depends on whether they were customers of his.

See the problem?

Rather than spin in circles, the Virginia Supreme Court decided to boot the case out the window on jurisdictional grounds. Hadeed is in Virginia. Yelp is a Delaware corporation with a principal place of business in California, but it's registered to do business in Virginia. A Virginia court issued the subpoena duces tecum ordering Yelp to produce documents.

Problem is, Yelp was never a party to this case, meaning it never consented to personal jurisdiction in Virginia, and Virginia law doesn't provide for exercising subpoena power over non-resident non-parties.

Whoops.

A First Amendment Case Becomes a Personal Jurisdiction Case

Now, I know what you're thinking: "Couldn't the court just use regular old doctrinal standards of personal jurisdiction to figure out whether Yelp could be served if it were a defendant?"

Of course it could! Even though the test can be imported, you'd never use it in this situation: "By contrast, the subpoena power of [a state] court over an individual or a corporation that is not a party to a lawsuit is based on the power and authority of the court to compel the attendance of a person at a deposition, or the production of documents by a person or entity."

There's still the Uniform Interstate Depositions and Discovery Act, which allows litigants to get discovery from out of state. But the UIDDA isn't a panacea; the state still has to "respect the territorial limitations of out-of-state discovery." And, importantly, UIDDA applies only in states that have reciprocal agreements.

Consequently, said the court, the trial court lacked the authority to compel Yelp, an out-of-state corporation, to turn over the documents, but it left open the possibility that Hadeed could have a California court compel the disclosures.

Dissent: The Future Is Here, Today!

Two justices concurred in part and dissenting in part. The dissent took issue with the geography-based interpretation of the majority, which it said was "simply incompatible with the digital era." The fact that the bits comprising the data are physically located in California didn't matter to the minority, which said data don't behave like "documents ... stored in filing cabinets in a file room."

The dissent also said the majority got the law wrong, as Virginia's long arm statute reaches foreign corporations with registered agents who are subject to service of process in Virginia. (This would be the part, though, where the majority says personal jurisdiction for parties is different from jurisdiction for nonparties.)

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