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Matrixx Initiatives v. Doe

In connection with defamation claims pending in Arizona over statements posted on Yahoo! and Silicon Investor message boards, Matrixx obtained subpoenas to Yahoo for two posters, but they had used identity-obfuscation software that deprived Yahoo! of their identifying information. Using information that Yahoo! did have, Matrixx was able to trace one Doe to Barbary. a hedge fund managed by Worthington. Worthington was deposed in San Francisco, but he refused to answer any questions about the identifies of the two Does, including whether he himself was either one. He did admit knowing one of the named defendants in the case. Worthington was ordered to answer the deposition questions, and appealed raising the First Amendment rights of the two Does. For the first time on appeal, Matrixx argued that Worthington lacked standing to pursue their First Amendment rights. The Court of Appeal affirmed on that ground. It noted with apparent approval cases from Virginia and DC where ISP’s had been allowed to defend the First Amendment rights of their customers, but said the relationship between the third party witnesses and the Doe defendants was not such as to allow standing on that ground.

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