Risk Management

Yelp Dodges Subpoena for Info About Reviewers

The Virginia Supreme Court says Yelp doesn't have to disclose the identities of anonymous posters in a defamation suit brought by a cleaning company.
Matthew HellerApril 16, 2015

In a case with First Amendment implications, the Virginia Supreme Court ruled Thursday that a judge could not force Yelp, a provider of crowdsourced reviews of local businesses, to turn over information about anonymous posters who allegedly defamed a Virginia carpet-cleaning company.

A trial judge had cited Yelp for contempt for refusing to comply with a subpoena in which Hadeed Carpet Cleaning requested documents that would reveal the identity and other information of seven people who posted anonymous, negative reviews of its services on Yelp. Hadeed filed a defamation suit in 2012 against the reviewers, identifying them only as John Doe’s.

The Virginia Court of Appeals upheld the trial court’s decision, ruling that the reviewers’ free speech rights “must be balanced against Hadeed’s right to protect its reputation.”

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But a 5-2 majority of the Supreme Court on Thursday vacated the contempt order — though it did so purely on jurisdictional grounds, without addressing the free-speech issues.

Under the state’s discovery rules, the court ruled, Virginia courts cannot compel nonresident non-parties to produce documents located outside of the state.

“The information sought by Hadeed is stored by Yelp in the usual course of its business on administrative databases within the custody or control of only specified Yelp employees located in San Francisco, and thus, beyond the reach of the [trial] court,” the majority opinion said.

Yelp had argued, among other things, that the seven reviewers were engaging in constitutionally protected anonymous speech and Hadeed needed, as a threshold matter, to produce evidence of wrongdoing before the court could impose on their First Amendment rights.

In a dissent, Justice Bill Mims said the idea that a court’s power to compel production of records is based on the geographic location of those records is “simply incompatible with the digital era.”

“The majority opinion appears to presume that records are still printed on paper as documents and stored in filing cabinets in a file room, where they can be seen and touched,” he wrote “This practice is waning in modern interstate commerce and soon only nostalgic vestiges will remain, the lingering artifacts of an earlier age.”