AUSTIN – Google Inc. can't give Beaumont blogger Philip Klein the names of critics who call themselves Operation Kleinwatch and Sam the Eagle, the Supreme Court of Texas ruled on April 15.
All nine Justices agreed that Jefferson County District Judge Donald Floyd abused his discretion when he granted a motion to compel discovery of the names. Klein writes a political blog called Southeast Texas Political Review.
His opponents write the anonymous blogs Operation Kleinwatch and Sam the Eagle. Klein has been involved in litigation with Google to discover the identities of the anti-Klein bloggers so he could sue them for defamation.
Floyd granted Klein's motion to compel discovery because Google agreed to provide names to Klein's businesses, PRK Enterprises and Klein Investments, but the agreement didn't impress the Justices.
"It is true that except where specifically prohibited, the procedures and limitations set forth in the rules pertaining to discovery may be modified in any suit by agreement of the parties," they wrote in an unsigned opinion.
"But PRK and Google were not the only parties to the proceeding," they wrote.
They wrote that Rule 202 requires service of a petition on all with adverse interests.
"PRK and Google could not modify the procedures prescribed by Rule 202 by an agreement that did not include relators," they wrote.
They wrote that the rule requires a court to order a deposition only if it might prevent a failure or delay of justice or if the likely benefit outweighs the burden.
"The trial court did not make either of these findings," they wrote. "Nor can the required findings be implied in support of the trial court's order compelling discovery."
They wrote that PRK made no effort to present a basis for an exception to federal law that prohibits disclosure of subscriber identity without consent.
"Not only are the allegations in its petition and motion to compel sketchy, they mostly concern possible causes of action by Klein, who is not a party to the proceeding," they wrote.
"The rule does not permit the findings to be implied from support in the record," they wrote.
"The intrusion into otherwise private matters authorized by Rule 202 outside a lawsuit is not to be taken lightly," they wrote.
PRK petitioned for discovery against Google and two John Does, in anticipation of suing for copyright violations, defamation, and invasion of privacy.
Google agreed to respond to a subpoena seeking identities of all persons responsible for Sam the Eagle and Operation Kleinwatch, including literary and financial contributors.
Google agreed to provide email and account addresses as well as entry logs and posting logs for a year.
Floyd signed the order in January 2010, and Ninth District appeals judges denied a writ of mandamus last April.
Jeffrey Dorrell represented those behind Sam the Eagle and Operation Kleinwatch.
John Morgan represented Klein's businesses.
Dennis Lynch represented Google.