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
`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 July 12, 2010
`
`Before: Sidney R. Thomas, M. Margaret McKeown, and
`Jay S. Bybee, Circuit Judges.
`
`9907
`
`(cid:252)
`(cid:253)
`(cid:254)
`

`
`9908
`
`IN RE ANONYMOUS ONLINE SPEAKERS
`
`Opinion by Judge McKeown
`
`

`
`9910
`
`IN RE ANONYMOUS ONLINE SPEAKERS
`COUNSEL
`
`John P. Desmond, Jones Vargas, Reno, Nevada, for the peti-
`tioner.
`
`Cedric C. Chao, Morrison & Foerster LLP, San Francisco,
`California, for the real party in interest and cross-petitioner.
`
`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-
`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.
`
`

`
`IN RE ANONYMOUS ONLINE SPEAKERS
`BACKGROUND
`
`9911
`
`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
`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
`
`

`
`9912
`
`IN RE ANONYMOUS ONLINE SPEAKERS
`
`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
`to reveal the speakers from the remaining two sources—
`“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.
`
`

`
`IN RE ANONYMOUS ONLINE SPEAKERS
`9913
`[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
`depending on the circumstances and the type of speech at issue.1
`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 measure of pro-
`tection, 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 communica-
`tion is neither misleading nor related to unlawful activity.”
`Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n
`of N.Y., 447 U.S. 557, 564 (1980).
`
`[3] The Internet postings and video at issue in the petition
`and cross-petition are best described as types of “expression
`related solely to the economic interests of the speaker and its
`
`1For example, some speech, such as fighting words and obscenity, is not
`protected by the First Amendment. See, e.g., Chaplinsky v. New Hamp-
`shire, 315 U.S. 568, 571-72 (1942) (“There are certain well-defined and
`narrowly limited classes of speech, the prevention and punishment of
`which have never been thought to raise any Constitutional problem. These
`include the lewd and obscene, the profane, the libelous, and the insulting
`or ‘fighting’ words-those which by their very utterance inflict injury or
`tend to incite an immediate breach of the peace.”) (footnote omitted).
`
`

`
`9914
`
`IN RE ANONYMOUS ONLINE SPEAKERS
`
`audience” and are thus properly categorized as commercial
`speech. Central Hudson Gas & Elec. Corp., 447 U.S. at 561.
`The claimed disparagement goes to the heart of Quixtar’s
`commercial practices and its business operations. However,
`this characterization alone does not determine the First
`Amendment protections for the anonymous commercial
`speech central to this case. The Supreme Court has under-
`scored that “an author’s decision to remain anonymous, like
`other decisions concerning omissions or additions to the con-
`tent of a publication, is an aspect of the freedom of speech
`protected by the First Amendment.” McIntyre, 514 U.S. at
`342.
`
`II. PETITION BY ANONYMOUS ONLINE SPEAKERS
`
`We have repeatedly emphasized that “[t]he writ of manda-
`mus 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 mandamus 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 impression, especially when called upon to define the
`scope of an important privilege.”2 Perry v. Schwarzenegger,
`591 F.3d 1147, 1157 (9th Cir. 2010) (internal quotation marks
`and citation omitted).
`
`2Not 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-
`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
`Mohawk, 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).
`
`

`
`IN RE ANONYMOUS ONLINE SPEAKERS
`
`9915
`
`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,
`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-
`
`

`
`9916
`
`IN RE ANONYMOUS ONLINE SPEAKERS
`
`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 expression. It involved neither anonymous
`speakers nor commercial speech. Indeed, we have not previ-
`ously considered First Amendment claims of an anonymous,
`non-party speaker on the Internet in a circumstance involving
`commercial speech.
`
`Anonymous online speech is an increasingly important
`issue in the commercial context, particularly in light of the
`ubiquity of the Internet. Although only two circuit courts have
`addressed analogous situations in published opinions, the
`issue has 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 newspaper to answer a subpoena identify-
`ing an anonymous advertiser. 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 explicitly recognized that
`the anonymous speech at issue was commercial speech, but
`
`

`
`IN RE ANONYMOUS ONLINE SPEAKERS
`
`9917
`
`declined to establish or follow any particular standard, other
`than the general and long-standing precepts governing com-
`mercial speech. The Sixth Circuit, in Midland Daily News,
`noted that as long as commercial speech is about lawful activ-
`ity and is not misleading, it is protected. 151 F.3d at 475 (cit-
`ing Central Hudson 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 identifica-
`tion 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 fur-
`ther 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.
`
`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-
`
`

`
`9918
`
`IN RE ANONYMOUS ONLINE SPEAKERS
`
`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).
`
`A few 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).
`
`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
`
`

`
`IN RE ANONYMOUS ONLINE SPEAKERS
`
`9919
`
`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 commercial cases, the initial
`burden rests on the party seeking discovery and requires vary-
`ing degrees of proof of the underlying claim. In Perry, how-
`ever, we evaluated
`the First Amendment political
`associational rights separately 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
`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
`discovery are highly fact-intensive. White v. City of San
`Diego, 605 F.2d 455, 461 (9th Cir. 1979).
`
`[5] The district court here appropriately considered the
`important value of anonymous speech balanced against a
`
`

`
`9920
`
`IN RE ANONYMOUS ONLINE SPEAKERS
`
`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 Internet, the “speed and power of internet technology
`makes it difficult for the truth to ‘catch up’ to the lie.”
`
`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 commercial speech balanced against a discretionary dis-
`covery order under Rule 26, however, Cahill’s bar extends
`too far.
`
`[6] 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, No. 09-
`559, slip op. at 6-7 (June 24, 2010). For example, in discovery
`disputes involving the identity of anonymous speakers, the
`notion that commercial speech should be afforded less protec-
`tion 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 circumstances
`surrounding the speech serve to give context to the balancing
`exercise.
`
`[7] Nonetheless, the district court did not clearly err in its
`order imposing a high hurdle for disclosure. 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) (citations omitted).
`The district court weighed appropriate considerations and,
`given the decision to disclose the speakers’ identities even
`under the strictest test outlines in Cahill, there was no clear
`
`

`
`IN RE ANONYMOUS ONLINE SPEAKERS
`
`9921
`
`error. If there was error, 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.”3 Second Amended Protective
`Order at 3, Quixtar v. Signature Management Team, 566
`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).
`
`3A 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).
`
`

`
`9922
`IN RE ANONYMOUS ONLINE SPEAKERS
`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.