The opinion of the court was delivered by: Judge Caputo
Now before the Court is the Plaintiff's Motion to Compel and for Sanctions (Doc. 9). For the reasons detailed below, the Court will deny this motion.
The Court has jurisdiction in this matter pursuant to 28 U.S.C. § 1331.
On September 25, 2008, Plaintiff Brenda Enterline filed a Complaint against the Pocono Medical Center ("Hospital") alleging that she was subjected to a hostile work environment through an ongoing pattern of sexual harassment and that the Hospital retaliated against her after she complained about this harassment. (Compl., Doc. 1.) On October 9, 2008, The Pocono Record ("Newspaper" or "Respondent") published an article about Plaintiff's lawsuit in its print edition and on its website. (Ex. A, Doc. 15.) In response to the article, several people anonymously posted comments on the Newspaper's website with some of the posters claiming to have personal knowledge of the parties or facts at issue in Plaintiff's suit. (Ex. B, Doc. 15.) On October 20, 2008, the Plaintiff served The Pocono Record a subpoena demanding production of documents pertaining to the identity of individuals who had made these anonymous posts. (Subpoena, Ex. A, Doc. 9.) On November 3, 2008, counsel for The Pocono Record contacted Plaintiff's counsel and requested additional time in which to respond to the subpoena. (Pl.'s Br. in Supp., Doc. 10 at 1-2; Resp. Br. in Opp., Doc. 13 at 2.) Plaintiff's counsel agreed to grant an extension if the Respondent needed more time to compile responsive documents. (Pl.'s Br. in Supp., Doc. 10 at 2; Resp. Br. in Opp., Doc. 13 at 2.) On November 6, counsel for the Newspaper served objections to the subpoena pursuant to Federal Rule of Civil Procedure 45 in a letter sent to Plaintiff's counsel. (Ex. B, Doc. 9.) Specifically, the Respondent objected to the subpoena because (1) the information sought by the subpoena is protected by the First Amendment, (2) the subpoena seeks production of documents that are protected by the reporter's privilege, (3) the subpoena fails to comply with Federal Rule of Civil Procedure 45, and (4) the subpoena is untimely pursuant to Federal Rule of Civil Procedure 26. (Id.)
Plaintiff filed the present motion on November 10, 2008 (Doc. 9) along with a corresponding brief in support (Doc. 10). On November 26, 2008, counsel for Respondent filed their brief in opposition to Plaintiff's motion to compel. (Doc. 13). Accordingly, the Plaintiff's motion has been fully briefed and is currently ripe for disposition.
Plaintiff's brief in support responds to Respondent's articulated objections to the subpoena and identifies five arguments in favor of the Plaintiff's motion to compel. First, Plaintiff argues that The Pocono Record lacks standing to assert First Amendment Rights on behalf of the third-party anonymous commentators. Second, Plaintiff argues that the disclosure of the anonymous commentators' identities is proper in light of tests established and used by other district courts. Third, Plaintiff argues that the reporter's privilege does not apply in this case because the commentators were each acting as an individual journalist, not as a source. Fourth, Plaintiff argues that the subpoena is not unduly burdensome. And finally, Plaintiff argues that the subpoena was timely with respect to Federal Rule of Civil Procedure 26 because the rules governing the timing of discovery in federal civil matters do not apply to third-party subpoenas.
I. Does The Pocono Record Have Standing to Assert First Amendment Rights On Behalf of Third-Party Commentators?
Plaintiff argues that The Pocono Record lacks standing to assert First Amendment Rights on behalf of the third-party anonymous commentators. In particular, the Plaintiff argues that the "Respondent merely operates a website that allows anyone to post comments anonymously. The First Amendment rights of Respondent are not at issue, and Respondent has no basis to assert objections on behalf of individuals not present." (Pl.'s Br. in Supp., Doc. 10 at 2.)
"[T]he question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues." Warth v. Seldin, 422 U.S. 490, 498 (1975). The requirements for federal court standing derive from interpretations of the United States Constitution and from the need for prudent judicial administration. The United States Supreme Court has identified three constitutional standing requirements.
This "irreducible constitutional minimum" of standing requires: (1) that the plaintiff have suffered an "injury in fact"--an invasion of a judicially cognizable interest which is (a) concrete and particularize and (b) actual or imminent, not conjectural or hypothetical; (2) that there be a causal connection between the injury and the conduct complained of--the injury must be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court; and (3) that it be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
Bennett v. Spear, 520 U.S. 154, 167 (1997) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)).
In addition to the constitutional standing requirements, the Supreme Court has established three prudential standing requirements. First, the Supreme Court has held that prudent judicial administration prevents standing "when the asserted harm is a generalized grievance shared in a substantially equal measure by all or a large class of citizens." Warth, 422 U.S. at 499. The second prudential standing requirement is commonly referred to as the "zone of interests" requirement and dictates that "the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, ...