An Italian chef discovers an anonymous critic has negatively reviewed his rigatoni on “PastaLovers.com.” The chef wants to sue the critic for damage to his reputation but doesn’t know who the critic is. Luckily for our chef (and unluckily for our critic), just as all roads lead to Rome, most online speech leads to California. If PastaLovers.com is a domain registered by a U.S. company and the chef can bring a case in a court outside of the United States, the chef could file an application under 28 U.S.C. § 1782—a statute allowing U.S. courts to grant discovery for use in foreign litigation—to unmask his anonymous critic.
The Ninth Circuit recently confronted a similar fact pattern in In re Gliner, No. 24-4624, 133 F.4th 927 (9th Cir. 2025). In that case, Gregory Gliner filed an ex parte application under § 1782 to subpoena Dynadot, Inc., a California company providing domain registration and privacy protection. Gliner wanted Dynadot to produce documents identifying the operator of the website “PoliticalLore.com” and the pseudonymous author of a purportedly defamatory article published on that website. The District Court denied the application, citing the operator’s and author’s First Amendment interests. On appeal, the Ninth Circuit held the district court abused its discretion because the record did “not suggest anyone’s First Amendment interests are implicated,” 133 F.4th at 933, and remanded with instructions to the district court to exercise its discretion by applying the factors set out in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004).
Gliner and the use of § 1782 to identify anonymous online speakers beg an important question that district courts have resolved in various ways: How can courts account for First Amendment rights when considering § 1782 applications?
Gliner at a Glance
Under § 1782, a district court may order discovery in the United States for use in a foreign legal proceeding if three statutory requirements are satisfied: “(1) the person from whom the discovery is sought resides or is found in the district of the district court to which the application is made; (2) the discovery is for use in a proceeding before a foreign tribunal that is within reasonable contemplation; and (3) the applicant is an interested person in that foreign proceeding.” Gliner, 133 F.4th at 932.
Even where these requirements are met, district courts retain broad discretion to grant or deny discovery after considering four non-exhaustive factors the Supreme Court articulated in Intel: (1) whether the discovery sought is otherwise available in the foreign proceeding; (2) the receptivity of the foreign court to U.S. judicial assistance; (3) whether the discovery request seeks to circumvent foreign restrictions on discovery; and (4) whether the request is unduly intrusive or burdensome. 542 U.S. at 264.
The district court in Gliner did not explicitly analyze the statutory elements or Intel factors, focusing instead on whether the proposed subpoenas would violate the operator’s and author’s First Amendment rights. The Ninth Circuit disagreed with the District Court’s First Amendment analysis, holding that “the record does not suggest that anyone’s First Amendment rights are implicated.” 133 F.4th at 933. In particular, the Court emphasized that nothing in the record indicated the anonymous operator or pseudonymous author were U.S. citizens or located within the United States, or that PoliticalLore.com has U.S. users or readers. Id. at 934.
On remand, the Ninth Circuit instructed the district court to consider the statutory requirements and to exercise its discretion under Intel in the first instance, which could encompass “a potential First Amendment issue . . . under the second, third, and/or the fourth Intel factors.” Id. at 933.
Approaches to § 1782 Applications Implicating the First Amendment
District courts have taken a variety of approaches to § 1782 applications implicating First Amendment protection of anonymous online speech, all of which arguably remain viable post-Gliner.
First, some courts apply the “good cause” standard in Rule 26(d) of the Federal Rules of Civil Procedure to § 1782 applications seeking pre-litigation discovery to identify unknown defendants. E.g., In re Hoteles City Express, 2018 WL 3417551, at *3 (N.D. Cal. July 13, 2018) (applying Rule 26(d) good cause standard because “[d]iscovery under § 1782 is guided by the applicable standards found in the Federal Rules of Civil Procedure”). Courts evaluating whether an applicant has established good cause to learn the identity of an unknown party through early discovery consider whether
1) the plaintiff can identify the missing party with sufficient specificity such that the Court can determine that defendant is a real person or entity who could be sued in federal court; (2) the plaintiff has identified all previous steps taken to locate the elusive defendant; (3) the plaintiff’s suit against defendant could withstand a motion to dismiss; and (4) the plaintiff has demonstrated that there is a reasonable likelihood of being able to identify the defendant through discovery such that service of process would be possible.
OpenMind Sols., Inc. v. Does 1-39, 2011 WL 4715200, at *2 (N.D. Cal. Oct. 7, 2011) (citing Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 573, 578-80 (N.D. Cal. 1999). As a practical matter, the first and fourth considerations will in many cases be coextensive with showings made under the Intel factors, and the second factor, though beyond what Intel requires, is unlikely to deter applicants. The third factor, however—demonstrating that the foreign litigation could survive a motion to dismiss—raises the bar for § 1782 applications that implicate the First Amendment.
Second, courts have applied the test established in Highfields Cap. Mgmt., L.P. v. Doe, 385 F. Supp. 2d 969 (N.D. Cal. 2005)—sometimes in tandem with the Rule 26(d) good cause standard—to determine whether the potential harm of withholding requested discovery is outweighed by the potential chilling effect under the First Amendment of ordering an anonymous speaker unmasked. Under this test, the party seeking discovery must first adduce sufficient evidence “to prevail under at least one of the causes of action" they assert. Id. at 975. If this evidentiary showing is sufficient, courts then balance the harm of denying discovery against the harm to First Amendment rights. Id. at 976. Applying the Highfields test can lead to denying discovery that might otherwise be granted under § 1782. See, e.g., PGS Home Co. Ltd., 2019 WL 6311407, at *6 (N.D. Cal. Nov. 25, 2019) (granting motion to quash § 1782 subpoena in part because harm of denying discovery “is outweighed by the First Amendment concerns related to disclosing the speaker’s identity”).
Third, other courts decline to apply the Highfields test absent evidence that the anonymous speakers are U.S. citizens to whom the First Amendment applies. E.g., Zuru, Inc. v. Glassdoor, Inc., 614 F. Supp. 3d 697, 706 (N.D. Cal. 2022). They therefore do not require applicants to adduce evidence necessary to prevail under a cause of action but may still require the party seeking discovery to show its claim is “plausible.” Id. at 703. Zuru, for example, recognizes that “the merits of the foreign claim aren’t essential,” to adjudicating a § 1782 application, but, after noting the interest in safeguarding speech, finds “[a] peak at the merits will ensure that Zuru has legitimate reasons for outing the anonymous reviewers.” Id. at 703. This approach arguably puts a thumb on the scale whenever a § 1782 application seeks to unmask an anonymous speaker.
Fourth, still other courts require only that the applicant “describe the legal and factual bases for a contemplated foreign legal proceeding, and to explain how the discovery the applicant seeks will aid prosecution of that proceeding,” Team Co., Ltd., 2023 WL 1442886, at *5 (N.D. Cal. Feb. 1, 2023), which falls squarely within the evidence applicants often file to support § 1782 applications that do not implicate the First Amendment. This may be at least in part due to skepticism that § 1782 applications implicate the First Amendment where there is no evidence the anonymous speaker is a U.S. citizen or located in the United States. Id. at 2-3 (anonymous poster’s review “was written in Japanese and directed at a Japanese business, and . . . the review was not directed at the United States or anyone residing in U.S. territory”).
Gliner’s admonition to consider a § 1782 application with potential First Amendment implications with reference to the Intel factors, three of which the Ninth Circuit found could conceivably be relevant, does not clearly foreclose any of these approaches.
What’s Next for Anonymous Speech
The Ninth Circuit’s decision in Gliner is the latest development in courts’ efforts to address § 1782 applications that implicate First Amendment rights, but it is unlikely to be the last. Gliner gives district courts considerable latitude in determining the showing required to find the First Amendment applies to discovery sought in a § 1782 application and, if it does, the circumstances under which the application should nonetheless be granted. And district courts are likely to have ample opportunity to exercise that discretion: nearly 50 § 1782 applications to unmask anonymous online speakers have been filed in the last three years alone.
Courts may choose to follow any of the approaches outlined above, and, when applications are granted, Courts may also choose to consider a variety of pragmatic ways to limit harm caused by unmasking anonymous online speakers, including (i) limiting disclosure of the speaker’s identity to the § 1782 applicant’s counsel; (ii) permitting use of the speaker’s identity in a contemplated foreign proceeding only if the applicant receives leave from the foreign tribunal to seal filings disclosing the speaker’s identity; and (iii) barring the use of the speaker’s identity in any proceedings other than the one reasonably contemplated at the time of the § 1782 application.
The legal landscape in this area is evolving, so platforms hosting anonymous or pseudonymous speech, or providing services to anonymous or pseudonymous speakers, may wish to monitor the latest developments.
