United States District Court, W.D. Virginia, Charlottesville Division
K. MOON SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court upon Michael Peinovich's
objections to U.S. Magistrate Judge Hoppe's opinion
denying Peinovich's motion to quash Plaintiffs'
subpoenas to Twitter, GoDaddy.com, Cloudflare, and Hatreon,
(dkt. 226), as well as Peinovich's motion to require
Plaintiffs' compliance with Fed.R.Civ.P. 45. (Dkt. 229).
After this Court dismissed Peinovich from this action without
prejudice, (dkt. 335 at 41), the parties advised the Court
that Peinovich's status as a non-party did not moot his
objections. (Dkts. 348, 349). This matter has been fully
briefed and is ripe for decision. Having considered Judge
Hoppe's opinion and Peinovich's objections, the Court
concludes that Judge Hoppe's opinion is not clearly
erroneous or contrary to law. Thus, the Court will overrule
Peinovich's objections and deny Peinovich's motions
to quash and require compliance with Rule 45.
Civ. P. 72 permits a party to submit objections to a
magistrate judge's ruling to the district court within
fourteen days of the magistrate judge's order.
Fed.R.Civ.P. 72; see also 28 U.S.C. § 636(b).
Where, as here, a party objects to a magistrate judge's
ruling on a nondispositive matter, the district court will
modify or set aside the magistrate judge's order only if
it is “clearly erroneous or is contrary to
law.” Fed.R.Civ.P. 72(a). “A ruling is
‘clearly erroneous' only when the totality of the
record leaves the Court with ‘the definite and firm
conviction that a mistake has been committed.'”
Franklin v. Liberty University, Inc., No.
6:16-cv-00065, 2017 WL 3026049, at *1 (W.D. Va. April 26,
2017) (quoting United States v. Gypsum Co., 333 U.S.
364, 395 (1948)). A ruling is “contrary to law”
when it “fails to apply or misapplies relevant
statutes, case law, or rules of procedure.”
Id. “[A]ltering a magistrate's
nondispositive orders [is] extremely difficult to
justify.” Id. (internal quotation and citation
Facts & Procedural History
Plaintiffs issued four subpoenas to non-parties “to
gather evidence related to Defendants' and their
co-conspirators' coordination of and planning for
racially-motivated violence” they allegedly committed
at the “Unite the Right” rally in
Charlottesville, Virginia on August 11-12, 2017. (Dkt. 249 at
2; dkt. 226-2-5). The non-parties subpoenaed were (1)
GoDaddy.com, a web services company that allegedly provided
services to two websites operated and used by certain
defendants, (id. at 2-3); (2) Cloudflare, a web
services company that allegedly provided services to
Peinovich's website and the two aforementioned websites
also serviced by GoDaddy.com, (id. at 3); (3)
Hatreon, a crowd-funding site allegedly used to raise money
for bail following one defendant's arrest in
Charlottesville for conduct committed in connection with the
“Unite the Right” rally, (id. at 4); and
(4) Twitter, a social media platform allegedly used by
various defendants to “disseminate information about
the [Unite the Right] rally” and to “encourage
others” to attend the rally. (Id.).
then a defendant in this case, challenged the subpoenas in
two related motions: first, in a motion to quash the
subpoenas under Fed.R.Civ.P. 45(d) and to issue a
“protective order, ” (dkt. 226); and second, in a
motion to compel Plaintiffs' “full
compliance” with Rules 45(a)(4) and (b)(4) or,
alternatively, to quash the subpoenas. (Dkt. 229).
Specifically, Peinovich objected to requests that GoDaddy.com
and Cloudflare produce “traffic logs to the websites
dailystormer.com, altright.com[, ] and therightstuff.biz for
the dates of August 1 to August 19, 2017, ” because he
argued these logs would contain “personally
identifiable information such as IP and MAC addresses”
about “hundreds of thousands of private citizens who
have done nothing more than visit a website.” (Dkt.
226-1 at 3). More broadly, Peinovich argued that the
subpoenas seek “huge amounts of information, ”
(dkt. 229 at 1), that “cannot possibly help the
[P]laintiff's case” and “would irreparably
harm Peinovich, the companies that were subpoenaed, hundreds
of thousands of private internet users, and the cause of free
speech.” (Dkt. 255 at 3-5, 7).
motions were referred to U.S. Magistrate Judge Hoppe, who
construed the motion to quash as a motion for a protective
order under Fed.R.Civ.P. 26 and denied both of
Peinovich's motions. (Dkt. 304). The Court now turns to
Peinovich's objections to Judge Hoppe's opinion.
objects to Judge Hoppe's (1) denial of a protective order
under Rule 26, and (2) denial of his motion to compel
Plaintiffs' compliance with Rule 45. Both objections
Judge Hoppe's Denial of a Rule 26 Protective
26 allows “[a] party . . . from whom discovery is
sought” to move for a protective order, and the rule
authorizes the court, “for good cause” shown, to
issue such an “order to protect a party or person from
annoyance, embarrassment, oppression, or undue burden.”
Fed.R.Civ.P. 26(c)(1). Parties seeking protective orders
under Rule 26(c) must demonstrate that they “will be
harmed by disclosure.” In re Wilson, 149 F.3d
249, 252 (4th Cir. 1998). Moreover, a party seeking a
protective order must “present a particular and
specific demonstration of fact as to why a protective order
should issue” as part of Rule 26(c)'s “good
cause” requirement. Baron Fin. Corp. v.
Natanzon, 240 F.R.D. 200, 202 (D. Md. 2006) (internal
quotation and citation omitted).
construing Peinovich's motion to quash as a motion for a
protective order under Rule 26, Judge Hoppe found that
Peinovich could not “claim any hardship, let alone
undue hardship” since he has “no obligation to
produce any information under the subpoenas issued to”
third parties Twitter, GoDaddy.com, Cloudfare, and Hatreon.
(Dkt. 304 at 6 (citing Call of the Wild Movie, LLC v.
Smith, 274 F.R.D. 334, 338 (D. D.C. 2011)).
Additionally, Judge Hoppe determined that Peinovich had made
no “specific showing of [any] undue hardship” he
would experience by complying with the subpoenas because the
“alleged risk of harm to Peinovich's reputation or
online business” was “too speculative.”
(Id.). Finally, Judge Hoppe concluded that Peinovich
had “failed to show that any of the subpoenas are
overbroad or irrelevant.” (Id.). Judge Hoppe
found that, “[o]n the contrary, Plaintiffs'
subpoenas are limited in scope to particular topics, persons,
and entities related to the alleged events underlying this
lawsuit and seek documents or ESI covering a relatively short
first argues that Judge Hoppe was wrong to deny a protective
order against Plaintiffs' subpoenas under Rule 26 because
the subpoenas in question infringe on “his and his
supporters' associational rights” under the First
Amendment. (Dkt. 309 at 11). Peinovich contends that has
received “anxious communications from listeners [of his
podcast] concerned about being doxed as a result of the
subpoenas and has lost regular listeners as a result of these
concerns, ” and that many visitors to the online forum
The Right Stuff have “cancelled their accounts
and stopped visiting the site.” (Id.).
Plaintiffs argue that Peinovich has waived his arguments
regarding First Amendment associational rights because he
never raised this argument before Judge Hoppe. (Dkt. 312 at
6-7). Plaintiffs further contend that Peinovich's
associational privilege argument is substantively ...