FOR PUBLICATION
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`In re: ANONYMOUS ONLINE
`SPEAKERS,
`
`ANONYMOUS ONLINE SPEAKERS,
`Petitioner,
`
`v.
`UNITED STATES DISTRICT
`COURT FOR THE DISTRICT OF
`NEVADA, RENO,
`
`Respondent,
`QUIXTAR, INC.; SIGNATURE
`MANAGEMENT TEAM, LLC;
`APOLLO WORKS HOLDINGS, INC.;
`GREEN GEMINI ENTERPRISES, INC.;
`NORTH STAR SOLUTIONS, INC.;
`NORTHERN LIGHTS SERVICES, INC.;
`SUNSET RESOURCES, INC.; SKY
`SCOPE TEAM, INC.,
`Real Parties in Interest.
`
`No. 09-71265
`D.C. No.
`3:07-cv-00505-
`ECR-RAM
`ORDER AND
`OPINION
`
`Appeal from the United States District Court
`for the District of Nevada
`Edward C. Reed, Senior District Judge, Presiding
`
`Argued and Submitted
`March 2, 2010—Las Vegas, Nevada
`
`Filed January 7, 2011
`
`Before: Sidney R. Thomas, M. Margaret McKeown, and
`Jay S. Bybee, Circuit Judges.
`
`475
`
`(cid:252)
`(cid:253)
`(cid:254)
`

`
`476
`
`IN RE ANONYMOUS ONLINE SPEAKERS
`
`Opinion by Judge McKeown
`
`

`
`478
`
`IN RE ANONYMOUS ONLINE SPEAKERS
`
`COUNSEL
`
`John P. Desmond (argued), Wayne O. Klomp, Jones Vargas,
`Reno, Nevada, for petitioner Anonymous Online Speakers.
`
`Cedric C. Chao (argued), William L. Stern, Maria Chedid,
`and Somnath Raj Chatterjee, Morrison & Foerster LLP, San
`Francisco, California, for real party in interest/cross-petitioner
`Quixtar Inc.
`
`James R. Sobieraj and James K. Cleland, Brinks Hofer Gilson
`& Lione, Chicago, Illinois, for real party in interest/cross-
`petitioner Quixtar Inc.
`
`John Frankovich and Miranda Du, McDonald Carano Wilson
`LLP, Reno, Nevada, for real party in interest/cross-petitioner
`Quixtar Inc.
`
`ORDER
`
`The opinion filed July 12, 2010 and appearing at 611 F.3d
`653, is withdrawn and replaced with the accompanying opin-
`ion.
`
`OPINION
`
`McKEOWN, Circuit Judge:
`
`The proceeding before us is but a short chapter in an acri-
`monious and long-running business dispute between Quixtar,
`Inc. (“Quixtar”), successor to the well-known Amway Corpo-
`
`

`
`IN RE ANONYMOUS ONLINE SPEAKERS
`
`479
`
`ration, and Signature Management TEAM, LLC (“TEAM”).
`Quixtar sued TEAM, claiming that TEAM orchestrated an
`Internet smear campaign via anonymous postings and videos
`disparaging Quixtar and its business practices. As part of the
`discovery process, Quixtar sought testimony from Benjamin
`Dickie, a TEAM employee, regarding the identity of five
`anonymous online speakers who allegedly made defamatory
`comments about Quixtar. Dickie refused to identify the anon-
`ymous speakers on First Amendment grounds. The district
`court ordered Dickie to disclose the identity of three of the
`five speakers.
`
`The Anonymous Online Speakers seek a writ of mandamus
`directing the district court to vacate its order regarding the
`identity of the three speakers. Quixtar cross-petitions for a
`writ of mandamus directing the district court to order Dickie
`to testify regarding the identity of the anonymous speakers
`from the remaining two sources. Because neither party has
`established that it is entitled to the extraordinary remedy of
`mandamus, we deny both petitions.
`
`BACKGROUND
`
`Quixtar is a multilevel marketing business that distributes
`consumer products such as cosmetics and nutritional supple-
`ments through Independent Business Owners (“IBOs”).
`TEAM provides business training and support materials and
`has sold its products, including motivational literature and
`educational seminars, to Quixtar IBOs. TEAM was founded
`by two Quixtar IBOs, Orrin Woodward and Chris Brady. As
`IBOs, their contracts with Quixtar included post-termination
`non-competition and non-solicitation provisions. Disagree-
`ment regarding contract compliance and enforceability came
`to an impasse in August 2007, when both Woodward and
`Brady were terminated as IBOs, and they joined a class action
`against Quixtar.
`
`TEAM and Quixtar became embroiled in several lawsuits
`across the country. In this suit, Quixtar asserts claims against
`
`

`
`480
`
`IN RE ANONYMOUS ONLINE SPEAKERS
`
`TEAM for tortious interference with existing contracts and
`with advantageous business relations, among other claims.
`The tortious interference claims are premised on Quixtar’s
`contention that TEAM used the Internet to carry out a “smear
`campaign” with the objective and effect of inducing Quixtar
`IBOs to terminate their contracts at Quixtar and join a com-
`peting multilevel marketing company affiliated with TEAM.
`
`During discovery in this suit, Quixtar took the deposition
`of Dickie, TEAM’s Online Content Manager. Dickie refused
`to answer questions regarding the identity of certain anony-
`mous online speakers. In response, Quixtar brought a motion
`to compel Dickie to testify regarding his knowledge of the
`authors of statements from five different online sources: the
`“Save Us Dick DeVos” blog, the “Hooded Angry Man”
`video, the “Q’Reilly” blog, the “Integrity is TEAM” blog, and
`the “IBO Rebellion” blog. According to Quixtar, statements
`contained in these five fora support its claims of tortious inter-
`ference, including comments such as: “Quixtar has regularly,
`but secretly, acknowledged that its products are overpriced
`and not sellable”; “Quixtar refused to pay bonuses to IBOs in
`good standing”; Quixtar “terminated IBOs without due pro-
`cess”; “Quixtar currently suffers from systemic dishonesty”;
`and “Quixtar is aware of, approves, promotes, and facilitates
`the systematic noncompliance with the FTC’s Amway rules.”
`Quixtar believes that the anonymous speakers of these state-
`ments are actually TEAM officers, employees, or agents.
`
`After reviewing the specific statements from each source,
`the district court ordered Dickie to testify regarding his
`knowledge of the identity of the anonymous online speakers
`from three of the sources: “Save Us Dick DeVos,” the
`“Hooded Angry Man” video, and the “Q’Reilly” blog. The
`Anonymous Online Speakers from those sources filed this
`petition for a writ of mandamus in an effort to block Dickie’s
`testimony. Quixtar opposes the petition and cross-petitions for
`a writ of mandamus directing the district court to order Dickie
`
`

`
`IN RE ANONYMOUS ONLINE SPEAKERS
`
`481
`
`to reveal the speakers from the remaining two sources—the
`“Integrity is TEAM” blog and the “IBO Rebellion” blog.
`
`ANALYSIS
`
`I. ANONYMOUS SPEECH AND THE FIRST AMENDMENT
`
`First Amendment protection for anonymous speech was
`first articulated a half-century ago in the context of political
`speech, Talley v. California, 362 U.S. 60, 64-65 (1960), but
`as the Supreme Court later observed, the Talley decision hark-
`ened back to “a respected tradition of anonymity in the advo-
`cacy of political causes.” McIntyre v. Ohio Elections
`Comm’n, 514 U.S. 334, 343 (1995). Undoubtedly the most
`famous pieces of anonymous American political advocacy are
`The Federalist Papers, penned by James Madison, Alexander
`Hamilton, and John Jay, but published under the pseudonym
`“Publius.” Id. at 344 n.6. Their opponents, the Anti-
`Federalists, also published anonymously, cloaking their real
`identities with pseudonyms such as “Brutus,” “Centinel,” and
`“The Federal Farmer.” Id. It is now settled that “an author’s
`decision to remain anonymous, like other decisions concern-
`ing omissions or additions to the content of a publication, is
`an aspect of the freedom of speech protected by the First
`Amendment.” Id. at 342.
`
`[1] Although the Internet is the latest platform for anony-
`mous speech, online speech stands on the same footing as
`other speech—there is “no basis for qualifying the level of
`First Amendment scrutiny that should be applied” to online
`speech. Reno v. Am. Civil Liberties Union, 521 U.S. 844, 870
`(1997). As with other forms of expression, the ability to speak
`anonymously on the Internet promotes the robust exchange of
`ideas and allows individuals to express themselves freely
`without “fear of economic or official retaliation . . . [or] con-
`cern about social ostracism.” McIntyre, 514 U.S. at 341-42.
`
`[2] The right to speak, whether anonymously or otherwise,
`is not unlimited, however, and the degree of scrutiny varies
`
`

`
`482
`
`IN RE ANONYMOUS ONLINE SPEAKERS
`
`depending on the circumstances and the type of speech at
`issue. Given the importance of political speech in the history
`of this country, it is not surprising that courts afford political
`speech the highest level of protection. Meyer v. Grant, 486
`U.S. 414, 422, 425 (1988) (describing the First Amendment
`protection of “core political speech” to be “at its zenith”).
`Commercial speech, on the other hand, enjoys “a limited mea-
`sure of protection, commensurate with its subordinate position
`in the scale of First Amendment values,” Bd. of Trustees of
`SUNY v. Fox, 492 U.S. 469, 477 (1989), as long as “the com-
`munication is neither misleading nor related to unlawful activ-
`ity.” Central Hudson Gas & Elec. Corp. v. Public Serv.
`Comm’n of N.Y., 447 U.S. 557, 564 (1980). And some speech,
`such as fighting words and obscenity, is not protected by the
`First Amendment at all. See, e.g., Chaplinsky v. New Hamp-
`shire, 315 U.S. 568, 571-72 (1942).
`
`II. PETITION BY ANONYMOUS ONLINE SPEAKERS
`
`[3] In this case, our decision is guided by the interplay of
`these bedrock First Amendment principles with the standards
`governing our review of petitions for writs of mandamus. We
`have repeatedly emphasized that “[t]he writ of mandamus is
`an ‘extraordinary’ remedy limited to ‘extraordinary’ causes.”
`Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Court, 408
`F.3d 1142, 1146 (9th Cir. 2005) (quoting Cheney v. U.S. Dist.
`Court, 542 U.S. 367, 380 (2004)). This limit on our manda-
`mus power is particularly salient in the discovery context
`because “the courts of appeals cannot afford to become
`involved with the daily details of discovery, “ although “we
`have exercised mandamus jurisdiction to review discovery
`orders raising particularly important questions of first impres-
`sion, especially when called upon to define the scope of an
`important privilege.” Perry v. Schwarzenegger, 591 F.3d
`1147, 1157 (9th Cir. 2010) (internal quotation marks and cita-
`tion omitted).1
`
`1Not only is the mandamus standard difficult to meet as a practical mat-
`ter, only in the rare case will we consider interlocutory review of discov-
`
`

`
`IN RE ANONYMOUS ONLINE SPEAKERS
`
`483
`
`In evaluating mandamus petitions, we are guided by the
`practically enshrined Bauman factors:
`
`(1) whether the petitioner has no other means, such
`as a direct appeal, to obtain the desired relief; (2)
`whether the petitioner will be damaged or prejudiced
`in any way not correctable on appeal; (3) whether
`the district court’s order is clearly erroneous as a
`matter of law; (4) whether the district court’s order
`is an oft repeated error or manifests a persistent dis-
`regard of the federal rules; and (5) whether the dis-
`trict court’s order raises new and important problems
`or issues of first impression.
`
`Id. at 1156 (citing Bauman v. U.S. Dist. Court, 557 F.2d 650,
`654-55 (9th Cir. 1977)). We do not require every factor to be
`satisfied, and “the absence of the third factor, clear error, is
`dispositive.” Burlington, 408 F.3d at 1146. Ultimately, man-
`damus is discretionary and “even where the Bauman factors
`are satisfied, the court may deny the petition.” San Jose Mer-
`cury News, Inc. v. U.S. Dist. Court, 187 F.3d 1096, 1099 (9th
`Cir. 1999).
`
`A. Standards Guiding Courts in Balancing Discovery
`and the Right to Anonymous Speech
`
`This case is not the first time we have considered the rela-
`tionship between the First Amendment and compelled discov-
`ery in the context of a petition for mandamus. See, e.g., Perry,
`
`ery disputes under the collateral order doctrine. See Mohawk Industries,
`Inc. v. Carpenter, ___ U.S. ___, 130 S. Ct. 599, 606 (2009) (noting that
`courts have generally denied pre-trial review of discovery disputes). In
`Perry, we reserved as a close question “whether Mohawk should be
`extended to the First Amendment privilege.” 591 F.3d at 1156. As in
`Perry, we need not decide that question here because in both petitions, the
`parties rely on mandamus jurisdiction under the All Writs Act, 28 U.S.C.
`§ 1651(a).
`
`

`
`484
`
`IN RE ANONYMOUS ONLINE SPEAKERS
`
`591 F.3d at 1165 (granting a petition for mandamus regarding
`a discovery order compelling disclosure of political campaign
`information). Perry involved the efforts of a party in the
`same-sex marriage suit in California to obtain internal cam-
`paign communications relating to the campaign strategy and
`advertising of the proponents of a ballot proposition. Focusing
`on First Amendment associational rights, we held that the dis-
`trict court erred in determining that “the First Amendment
`privilege, as a categorical matter, does not apply to the disclo-
`sure of internal campaign communications.” Id. at 1161. We
`concluded that permitting discovery “would likely have a
`chilling effect on political association,” and that plaintiffs had
`“not shown a sufficient need for the information.” Id. at 1165.
`
`Although we emphasized that our holding was “limited to
`private internal campaign communications concerning the
`formulation of campaign strategies and messages,” id. at
`1165 n.12, the structure of the analysis is instructive. We first
`considered whether
`the proponents—the opponents of
`disclosure—made a prima facie case of arguable First
`Amendment infringement and then shifted the burden to
`plaintiffs to “demonstrate a sufficient need for the discovery
`to counterbalance that infringement.” Id. at 1164.
`
`[4] The Perry decision rested on the importance of politi-
`cal association and political expression, and it did not involve
`anonymous speakers. Indeed, we have not previously consid-
`ered the First Amendment claims of an anonymous, non-party
`speaker on the Internet in the context of commercial contrac-
`tual relationships like those at issue here. Nor have we consid-
`ered such a challenge in the discovery context.
`
`Two circuit courts have, however, addressed analogous sit-
`uations in published opinions. The issue has also been raised
`in a number of state and federal trial courts, and more cases
`are percolating through the system. In 1998, the Sixth Circuit
`considered a government agency’s motion to compel a news-
`paper to answer a subpoena identifying an anonymous adver-
`
`

`
`IN RE ANONYMOUS ONLINE SPEAKERS
`
`485
`
`tiser. NLRB v. Midland Daily News, 151 F.3d 472 (6th Cir.
`1998). Just last year, the Fourth Circuit considered whether to
`uphold an order allowing a deposition of an anonymous
`speaker in a securities fraud class action. Lefkoe v. Jos. A.
`Bank Clothiers, Inc., 577 F.3d 240 (4th Cir. 2009).
`
`In both of these cases, the courts held that the anonymous
`speech at issue was commercial speech, but declined to estab-
`lish or follow any particular standard, other than the general
`and long-standing precepts governing commercial speech.
`The Sixth Circuit, in Midland Daily News, noted that as long
`as commercial speech is about lawful activity and is not mis-
`leading, it is protected. 151 F.3d at 475 (citing Central Hud-
`son Gas & Elec. Corp., 447 U.S. at 566). The court affirmed
`the district court’s denial of the National Labor Relations
`Board’s (“NLRB”) motion to compel the identification of the
`anonymous advertiser, because it was not the “least extensive
`means” the NLRB could use. Id. In Lefkoe, the Fourth Circuit
`reiterated that commercial speech enjoys only limited First
`Amendment protection and held that “the Doe Client’s
`claimed First Amendment right to anonymity [wa]s subject to
`a substantial governmental interest in disclosure so long as
`disclosure advance[d] that interest and [went] no further than
`reasonably necessary.” Id. at 248-49. The court highlighted
`the balance between discovery under Federal Rule of Civil
`Procedure Rule 26 and protection of anonymous speech: “the
`substantial governmental interest in providing Jos. A. Bank a
`fair opportunity to defend itself in court is served by requiring
`the Doe Client to reveal its identity and provide the relevant
`information. Rule 26 explicitly expresses this interest.” Id.
`
`This issue has arisen not infrequently in trial courts; the
`paucity of appellate precedent is not surprising because dis-
`covery disputes are not generally appealable on an interlocu-
`tory basis and mandamus review is very limited. The many
`federal district and state courts that have dealt with this issue
`have employed a variety of standards to benchmark whether
`an anonymous speaker’s identity should be revealed.
`
`

`
`486
`
`IN RE ANONYMOUS ONLINE SPEAKERS
`
`To begin, a few courts have declined to adopt a new or dif-
`ferent standard to accommodate anonymous speech. See, e.g.,
`Klehr Harrison Harvey Brazburg & Ellers v. JPA Dev., No.
`0425, 2006 WL 37020, at *8 (C.P. Phila. Jan. 4, 2006) (noting
`that “the grafting of new tests onto existing rules threatens to
`compromise the values protected by other constitutional pro-
`visions, including due process, equal protection, and the right
`to a trial by jury”).
`
`A number of courts have required plaintiffs to make at least
`a prima facie showing of the claim for which the plaintiff
`seeks the disclosure of the anonymous speaker’s identity. See,
`e.g., Doe I v. Individuals, 561 F. Supp. 2d 249 (D. Conn.
`2008); Highfields Capital Mgmt., LP v. Doe, 385 F. Supp. 2d
`969 (N.D. Cal. 2005); Sony Music Entm’t, Inc. v. Does 1-40,
`326 F. Supp. 2d 556 (S.D.N.Y. 2004). The lowest bar that
`courts have used is the motion to dismiss or good faith stan-
`dard. See, e.g., Columbia Ins. Co. v. Seescandy.Com, 185
`F.R.D. 573 (N.D. Cal. 1999); In re Subpoena Duces Tecum to
`America Online, Inc., No. 40570, 2000 WL 1210372 (Va. Cir.
`Ct. Jan. 31, 2000) (reversed on other grounds, America
`Online, Inc. v. Anonymous Publicly Traded Co., 542 S.E. 2d
`377 (Va. 2001).
`
`Other courts have relied on a standard that falls somewhere
`between the motion to dismiss and the prima facie standards.
`In Doe v. 2TheMart.Com, 140 F. Supp. 2d 1088 (W.D. Wash.
`2001), the court drew from Seescandy.Com and America
`Online, but recognized that a higher standard should apply
`when a subpoena seeks the identity of an anonymous Internet
`user who is not a party to the underlying litigation. See id. at
`1095 (noting that identification is only appropriate where the
`compelling need for discovery outweighs the First Amend-
`ment right of the speakers because litigation may continue
`without disclosure of the speakers’ identities); accord Seders-
`ten v. Taylor, No. 09-3031-CV-S-GAF, 2009 WL 4802567
`(W.D. Mo. Dec. 9, 2009); Enterline v. Pocono Med. Ctr.,
`3:08-CV-1934, 2008 WL 5192386 (M.D. Pa. Dec. 11, 2008).
`
`

`
`IN RE ANONYMOUS ONLINE SPEAKERS
`487
`[5] The district court in this case applied the most exacting
`standard, established by the Delaware Supreme Court in Doe
`v. Cahill, 884 A.2d 451 (Del. 2005). The Cahill standard
`requires plaintiffs to be able to survive a hypothetical motion
`for summary judgment and give, or attempt to give, notice to
`the speaker before discovering the anonymous speaker’s iden-
`tity. Id. at 461. The court in Cahill therefore required that the
`city councilman plaintiff “ ‘submit sufficient evidence to
`establish a prima facie case for each essential element’ ” of
`his defamation claim. Id. at 463 (quoting Colgain v. Oy
`Partek Ab (In re Asbestos Litig.), 799 A.2d 1151, 1152 (Del.
`2002)). The court pointed to its “concern[ ] that setting the
`standard too low will chill potential posters from exercising
`their First Amendment right to speak anonymously,” id. at
`457, and reasoned that “the summary judgment standard more
`appropriately balances a defamation plaintiff’s right to protect
`his reputation and a defendant’s right to speak anonymously.”
`Id. at 462.
`
`Interestingly, in each of these cases, the initial burden rests
`on the party seeking discovery and requires varying degrees
`of proof of the underlying claim. In Perry, however, we eval-
`uated the First Amendment political associational rights sepa-
`rately from the underlying claims and adopted a “heightened
`relevance standard” requiring plaintiffs to “ ‘demonstrate[ ] an
`interest in obtaining the disclosures . . . which is sufficient to
`justify the deterrent effect . . . on the free exercise . . . of [the]
`constitutionally protected right of association.’ ” 591 F.3d at
`1164 (quoting NAACP v. Alabama, 357 U.S. 449, 463 (1958)
`(omissions and alterations in Perry)).
`
`With this broad array of standards in mind, we consider the
`Anonymous Online Speakers’ petition for mandamus.
`
`B. No Clear Error
`
`We begin with the premise that a district court “has wide
`latitude in controlling discovery” and that decisions governing
`
`

`
`488
`
`IN RE ANONYMOUS ONLINE SPEAKERS
`
`discovery are highly fact-intensive. White v. City of San
`Diego, 605 F.2d 455, 461 (9th Cir. 1979).
`
`The district court here appropriately considered the impor-
`tant value of anonymous speech balanced against a party’s
`need for relevant discovery in a civil action. It also recognized
`the “great potential for irresponsible, malicious, and harmful
`communication” and that particularly in the age of the Inter-
`net, the “speed and power of internet technology makes it dif-
`ficult for the truth to ‘catch up’ to the lie.”
`
`[6] Against this backdrop, the district court applied Cahill,
`which elevates the bar to disclosure to the highest level.
`Because Cahill involved political speech, that court’s imposi-
`tion of a heightened standard is understandable. In the context
`of the speech at issue here balanced against a discretionary
`discovery order under Rule 26, however, Cahill’s bar extends
`too far. As in Perry and as recently illustrated by the Supreme
`Court in Doe v. Reed, we suggest that the nature of the speech
`should be a driving force in choosing a standard by which to
`balance the rights of anonymous speakers in discovery dis-
`putes. See Perry, 591 F.3d at 1160-61; Doe v. Reed, ___ U.S.
`___, 130 S. Ct. 2811, 2817-18 (2010). For example, in discov-
`ery disputes involving the identity of anonymous speakers,
`the notion that commercial speech should be afforded less
`protection than political, religious, or literary speech is hardly
`a novel principle. See Lefkoe, 577 F.3d at 248 (inasmuch as
`the speech in question is of a commercial nature it “enjoys
`less First Amendment protection”). The specific circum-
`stances surrounding the speech serve to give context to the
`balancing exercise.
`
`By contrast with Cahill, this case does not involve
`expressly political speech but rather speech related to the non-
`competition and non-solicitation provisions of Quixtar’s com-
`mercial contracts with its IBOs. We need not, however,
`decide if the speech at issue here constitutes commercial
`speech under the Supreme Court’s definition in Central Hud-
`
`

`
`IN RE ANONYMOUS ONLINE SPEAKERS
`
`489
`
`son. See 447 U.S. at 561-62. Even if the speech was commer-
`cial, the district court’s choice of the Cahill test did not
`constitute clear error.
`
`[7] The clear error standard is highly deferential and is
`only met when “the reviewing court is left with a ‘definite and
`firm conviction that a mistake has been committed.’ ” Cohen
`v. U.S. Dist. Court, 586 F.3d 703, 708 (9th Cir. 2009) (cita-
`tions omitted). The district court weighed appropriate consid-
`erations and, given the decision to disclose the speakers’
`identities even under the strictest test outlines in Cahill, there
`was no clear error. If there was error at all, it was an error
`with no consequence. Cf. Sinclair v. TubeSockTedD, 596 F.
`Supp. 2d 128 (D.D.C. 2009) (declining to adopt a standard
`because plaintiff’s claim would fail under either the Cahill or
`Dendrite standard).
`
`[8] We decline to consider the other four Bauman factors,
`because we conclude that the third factor, whether the district
`court’s order was clearly erroneous, is dispositive. Burlington,
`408 F.3d at 1146. We deny the anonymous speakers’ petition
`for writ of mandamus. We leave to the district court the
`details of fashioning the appropriate scope and procedures for
`disclosure of the identity of the anonymous speakers. On this
`point, we note that the parties have a protective order in place
`that provides different levels of disclosure for different cate-
`gories of documents to various recipients, such as disclosure
`for “Attorneys’ Eyes Only.”2 Second Amended Protective
`Order at 3, Quixtar v. Signature Management Team, 566
`
`2A similar issue arose in a related case pending in the Circuit Court for
`the County of Kent in Michigan. On May 11, 2010, that court issued an
`opinion denying the Anonymous Online Speakers’ motion to quash Dic-
`kie’s deposition, during which he would presumably reveal the names of
`the persons who made anonymous Internet postings about Quixtar. In
`allowing the deposition to proceed, the court directed that only counsel
`may be present at the deposition, and the deposition transcript will be “for
`attorney eyes only.” If either party believes the presence of a non-attorney
`is necessary, the court noted that it would entertain such a motion. The
`court also noted that in the absence of a decision from this court, it would
`consider a motion by either party to strike portions of the transcript and/or
`remove the “for attorney eyes only” condition. Indep. Bus. Owners Ass’n
`Int’l v. Woodward, No. 07-08513-CZ (Kent County Cir. Ct. (Mich.) May
`11, 2010).
`
`

`
`490
`
`IN RE ANONYMOUS ONLINE SPEAKERS
`
`F.Supp.2d 1205 (D.Nev. 2009) (No. 437). A protective order
`is just one of the tools available to the district court to oversee
`discovery of sensitive matters that implicate First Amendment
`rights. See Perry, 591 F.3d at 1164 (noting that a protective
`order can ameliorate the harms of disclosure).
`
`III. CROSS-PETITION BY QUIXTAR
`
`[9] In its cross-petition, Quixtar seeks reversal of the dis-
`trict court’s order denying the motion to compel testimony
`from Dickie regarding the identity of the anonymous authors
`of the “Integrity is TEAM” and the “IBO Rebellion” blogs.
`The cross-petition suffers from a fundamental error—Quixtar
`fails to present any foundation for its request for mandamus
`relief. Quixtar’s cross-petition lacks even a citation to our
`opinion in Bauman, which established the factors we consider
`to evaluate a writ of mandamus. Quixtar’s cross-petition falls
`into the category of a garden variety discovery dispute: it
`offers no extraordinary circumstance that merits exercising
`our mandamus power.
`
`CONCLUSION
`
`Neither party has shown that it is entitled to relief. We deny
`both the Anonymous Online Speakers’ petition and Quixtar’s
`cross-petition for writ of mandamus.
`
`PETITION AND CROSS-PETITION DENIED.