In Re Ex Parte Application of Dr. Fredric Eshelman (anonymous online speech)
On June 21, 2023, the ACLU Foundation of Northern California (“ACLU NorCal”) and co-counsel Public Citizen Litigation Group filed a motion to quash on behalf of J. Doe (“Doe”), an anonymous online user who was targeted by a subpoena seeking to unmask their identity after they criticized a wealthy pharmaceutical magnate named Fredric Eshelman.
Eshelman filed an ex parte application in federal court for the Northern District of California seeking to enforce a set of subpoenas to Google for to uncover Doe’s identity. Doe, like Eshelman, is an American, yet Eshelman tried to employ 28 U.S.C. § 1782—a specific procedure designed to obtain discovery for use in foreign proceedings—to attempt an end run around the First Amendment and compel the enforcement of a subpoena and the disclosure of Doe’s identity by Google.
The court initially granted Eshelman’s application but required Google to notify the user about the subpoena. The court also provided Doe and Google a time-limited opportunity to move to quash the subpoenas before Doe's identifying information could be disclosed to Eshelman.
Our motion to quash argued that Doe engaged in protected speech and that Eshelman’s subpoenas should be quashed because they fail the well-established legal test courts use to decide whether a would-be plaintiff has made a showing sufficient to breach a speaker’s anonymity. The motion also argued that Eshelman’s attempted use of section 1782 to expose Doe’s identity was not authorized by the statutory text and would raise serious constitutional concerns if applied to Doe’s speech.
Shortly after we filed Doe’s motion to quash, Eshelman withdrew his subpoena to Google and voluntarily dismissed the case on July 5, 2023.