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Sines v. Kessler

United States District Court, W.D. Virginia, Charlottesville Division

February 19, 2019

Elizabeth Sines, ET AL., Plaintiffs,
Jason Kessler, ET AL., Defendants.



         This 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,, 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.[1] 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.

         I. Legal Standard

         Fed. R. 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.”[2] 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 omitted).

         II. 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), 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, (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.).

         Peinovich, 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 and Cloudflare produce “traffic logs to the websites,[, ] and 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).

         Peinovich's 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[3] and denied both of Peinovich's motions. (Dkt. 304). The Court now turns to Peinovich's objections to Judge Hoppe's opinion.

         III. Analysis

         Peinovich 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 fail.

         A. Judge Hoppe's Denial of a Rule 26 Protective Order

          Rule 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).

         After 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,, 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 period.” (Id.).

         Peinovich 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, ”[4] 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 ...

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