Anonymous Online Speakers v. United States District Court

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: ANONYMOUS ONLINE 

SPEAKERS,

ANONYMOUS ONLINE SPEAKERS,

Petitioner,

v.

UNITED STATES DISTRICT No. 09-71265

COURT FOR THE DISTRICT OF D.C. No.

NEVADA, RENO,

Respondent,  3:07-cv-00505-

ECR-RAM

QUIXTAR, INC.; SIGNATURE ORDER AND

MANAGEMENT TEAM, LLC; OPINION

APOLLO WORKS HOLDINGS, INC.;

GREEN GEMINI ENTERPRISES, INC.;

NORTH STAR SOLUTIONS, INC.;

NORTHERN LIGHTS SERVICES, INC.;

SUNSET RESOURCES, INC.; SKY

SCOPE TEAM, INC.,

Real Parties in Interest.



Appeal from the United States District Court

for the District of Nevada

Edward C. Reed, Senior District Judge, Presiding

Argued and Submitted

March 2, 2010—Las Vegas, Nevada

Filed January 7, 2011

Before: Sidney R. Thomas, M. Margaret McKeown, and

Jay S. Bybee, Circuit Judges.

475

476 IN RE ANONYMOUS ONLINE SPEAKERS

Opinion by Judge McKeown

478 IN RE ANONYMOUS ONLINE SPEAKERS

COUNSEL

John P. Desmond (argued), Wayne O. Klomp, Jones Vargas,

Reno, Nevada, for petitioner Anonymous Online Speakers.

Cedric C. Chao (argued), William L. Stern, Maria Chedid,

and Somnath Raj Chatterjee, Morrison & Foerster LLP, San

Francisco, California, for real party in interest/cross-petitioner

Quixtar Inc.

James R. Sobieraj and James K. Cleland, Brinks Hofer Gilson

& Lione, Chicago, Illinois, for real party in interest/cross-

petitioner Quixtar Inc.

John Frankovich and Miranda Du, McDonald Carano Wilson

LLP, Reno, Nevada, for real party in interest/cross-petitioner

Quixtar Inc.

ORDER

The opinion filed July 12, 2010 and appearing at 611 F.3d

653, is withdrawn and replaced with the accompanying opin-

ion.

OPINION

McKEOWN, Circuit Judge:

The proceeding before us is but a short chapter in an acri-

monious and long-running business dispute between Quixtar,

Inc. (“Quixtar”), successor to the well-known Amway Corpo-

IN RE ANONYMOUS ONLINE SPEAKERS 479

ration, and Signature Management TEAM, LLC (“TEAM”).

Quixtar sued TEAM, claiming that TEAM orchestrated an

Internet smear campaign via anonymous postings and videos

disparaging Quixtar and its business practices. As part of the

discovery process, Quixtar sought testimony from Benjamin

Dickie, a TEAM employee, regarding the identity of five

anonymous online speakers who allegedly made defamatory

comments about Quixtar. Dickie refused to identify the anon-

ymous speakers on First Amendment grounds. The district

court ordered Dickie to disclose the identity of three of the

five speakers.

The Anonymous Online Speakers seek a writ of mandamus

directing the district court to vacate its order regarding the

identity of the three speakers. Quixtar cross-petitions for a

writ of mandamus directing the district court to order Dickie

to testify regarding the identity of the anonymous speakers

from the remaining two sources. Because neither party has

established that it is entitled to the extraordinary remedy of

mandamus, we deny both petitions.

BACKGROUND

Quixtar is a multilevel marketing business that distributes

consumer products such as cosmetics and nutritional supple-

ments through Independent Business Owners (“IBOs”).

TEAM provides business training and support materials and

has sold its products, including motivational literature and

educational seminars, to Quixtar IBOs. TEAM was founded

by two Quixtar IBOs, Orrin Woodward and Chris Brady. As

IBOs, their contracts with Quixtar included post-termination

non-competition and non-solicitation provisions. Disagree-

ment regarding contract compliance and enforceability came

to an impasse in August 2007, when both Woodward and

Brady were terminated as IBOs, and they joined a class action

against Quixtar.

TEAM and Quixtar became embroiled in several lawsuits

across the country. In this suit, Quixtar asserts claims against

480 IN RE ANONYMOUS ONLINE SPEAKERS

TEAM for tortious interference with existing contracts and

with advantageous business relations, among other claims.

The tortious interference claims are premised on Quixtar’s

contention that TEAM used the Internet to carry out a “smear

campaign” with the objective and effect of inducing Quixtar

IBOs to terminate their contracts at Quixtar and join a com-

peting multilevel marketing company affiliated with TEAM.

During discovery in this suit, Quixtar took the deposition

of Dickie, TEAM’s Online Content Manager. Dickie refused

to answer questions regarding the identity of certain anony-

mous online speakers. In response, Quixtar brought a motion

to compel Dickie to testify regarding his knowledge of the

authors of statements from five different online sources: the

“Save Us Dick DeVos” blog, the “Hooded Angry Man”

video, the “Q’Reilly” blog, the “Integrity is TEAM” blog, and

the “IBO Rebellion” blog. According to Quixtar, statements

contained in these five fora support its claims of tortious inter-

ference, including comments such as: “Quixtar has regularly,

but secretly, acknowledged that its products are overpriced

and not sellable”; “Quixtar refused to pay bonuses to IBOs in

good standing”; Quixtar “terminated IBOs without due pro-

cess”; “Quixtar currently suffers from systemic dishonesty”;

and “Quixtar is aware of, approves, promotes, and facilitates

the systematic noncompliance with the FTC’s Amway rules.”

Quixtar believes that the anonymous speakers of these state-

ments are actually TEAM officers, employees, or agents.

After reviewing the specific statements from each source,

the district court ordered Dickie to testify regarding his

knowledge of the identity of the anonymous online speakers

from three of the sources: “Save Us Dick DeVos,” the

“Hooded Angry Man” video, and the “Q’Reilly” blog. The

Anonymous Online Speakers from those sources filed this

petition for a writ of mandamus in an effort to block Dickie’s

testimony. Quixtar opposes the petition and cross-petitions for

a writ of mandamus directing the district court to order Dickie

IN RE ANONYMOUS ONLINE SPEAKERS 481

to reveal the speakers from the remaining two sources—the

“Integrity is TEAM” blog and the “IBO Rebellion” blog.

ANALYSIS

I. ANONYMOUS SPEECH AND THE FIRST AMENDMENT

First Amendment protection for anonymous speech was

first articulated a half-century ago in the context of political

speech, Talley v. California, 362 U.S. 60, 64-65 (1960), but

as the Supreme Court later observed, the Talley decision hark-

ened back to “a respected tradition of anonymity in the advo-

cacy of political causes.” McIntyre v. Ohio Elections

Comm’n, 514 U.S. 334, 343 (1995). Undoubtedly the most

famous pieces of anonymous American political advocacy are

The Federalist Papers, penned by James Madison, Alexander

Hamilton, and John Jay, but published under the pseudonym

“Publius.” Id. at 344 n.6. Their opponents, the Anti-

Federalists, also published anonymously, cloaking their real

identities with pseudonyms such as “Brutus,” “Centinel,” and

“The Federal Farmer.” Id. It is now settled that “an author’s

decision to remain anonymous, like other decisions concern-

ing omissions or additions to the content of a publication, is

an aspect of the freedom of speech protected by the First

Amendment.” Id. at 342.

[1] Although the Internet is the latest platform for anony-

mous speech, online speech stands on the same footing as

other speech—there is “no basis for qualifying the level of

First Amendment scrutiny that should be applied” to online

speech. Reno v. Am. Civil Liberties Union, 521 U.S. 844, 870

(1997). As with other forms of expression, the ability to speak

anonymously on the Internet promotes the robust exchange of

ideas and allows individuals to express themselves freely

without “fear of economic or official retaliation . . . [or] con-

cern about social ostracism.” McIntyre, 514 U.S. at 341-42.

[2] The right to speak, whether anonymously or otherwise,

is not unlimited, however, and the degree of scrutiny varies

482 IN RE ANONYMOUS ONLINE SPEAKERS

depending on the circumstances and the type of speech at

issue. Given the importance of political speech in the history

of this country, it is not surprising that courts afford political

speech the highest level of protection. Meyer v. Grant, 486

U.S. 414, 422, 425 (1988) (describing the First Amendment

protection of “core political speech” to be “at its zenith”).

Commercial speech, on the other hand, enjoys “a limited mea-

sure of protection, commensurate with its subordinate position

in the scale of First Amendment values,” Bd. of Trustees of

SUNY v. Fox, 492 U.S. 469, 477 (1989), as long as “the com-

munication is neither misleading nor related to unlawful activ-

ity.” Central Hudson Gas & Elec. Corp. v. Public Serv.

Comm’n of N.Y., 447 U.S. 557, 564 (1980). And some speech,

such as fighting words and obscenity, is not protected by the

First Amendment at all. See, e.g., Chaplinsky v. New Hamp-

shire, 315 U.S. 568, 571-72 (1942).

II. PETITION BY ANONYMOUS ONLINE SPEAKERS

[3] In this case, our decision is guided by the interplay of

these bedrock First Amendment principles with the standards

governing our review of petitions for writs of mandamus. We

have repeatedly emphasized that “[t]he writ of mandamus is

an ‘extraordinary’ remedy limited to ‘extraordinary’ causes.”

Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Court, 408

F.3d 1142, 1146 (9th Cir. 2005) (quoting Cheney v. U.S. Dist.

Court, 542 U.S. 367, 380 (2004)). This limit on our manda-

mus power is particularly salient in the discovery context

because “the courts of appeals cannot afford to become

involved with the daily details of discovery, “ although “we

have exercised mandamus jurisdiction to review discovery

orders raising particularly important questions of first impres-

sion, especially when called upon to define the scope of an

important privilege.” Perry v. Schwarzenegger, 591 F.3d

1147, 1157 (9th Cir. 2010) (internal quotation marks and cita-

tion omitted).1

1

Not only is the mandamus standard difficult to meet as a practical mat-

ter, only in the rare case will we consider interlocutory review of discov-

IN RE ANONYMOUS ONLINE SPEAKERS 483

In evaluating mandamus petitions, we are guided by the

practically enshrined Bauman factors:

(1) whether the petitioner has no other means, such

as a direct appeal, to obtain the desired relief; (2)

whether the petitioner will be damaged or prejudiced

in any way not correctable on appeal; (3) whether

the district court’s order is clearly erroneous as a

matter of law; (4) whether the district court’s order

is an oft repeated error or manifests a persistent dis-

regard of the federal rules; and (5) whether the dis-

trict court’s order raises new and important problems

or issues of first impression.

Id. at 1156 (citing Bauman v. U.S. Dist. Court, 557 F.2d 650,

654-55 (9th Cir. 1977)). We do not require every factor to be

satisfied, and “the absence of the third factor, clear error, is

dispositive.” Burlington, 408 F.3d at 1146. Ultimately, man-

damus is discretionary and “even where the Bauman factors

are satisfied, the court may deny the petition.” San Jose Mer-

cury News, Inc. v. U.S. Dist. Court, 187 F.3d 1096, 1099 (9th

Cir. 1999).

A. Standards Guiding Courts in Balancing Discovery

and the Right to Anonymous Speech

This case is not the first time we have considered the rela-

tionship between the First Amendment and compelled discov-

ery in the context of a petition for mandamus. See, e.g., Perry,

ery disputes under the collateral order doctrine. See Mohawk Industries,

Inc. v. Carpenter, ___ U.S. ___, 130 S. Ct. 599, 606 (2009) (noting that

courts have generally denied pre-trial review of discovery disputes). In

Perry, we reserved as a close question “whether Mohawk should be

extended to the First Amendment privilege.” 591 F.3d at 1156. As in

Perry, we need not decide that question here because in both petitions, the

parties rely on mandamus jurisdiction under the All Writs Act, 28 U.S.C.

§ 1651(a).

484 IN RE ANONYMOUS ONLINE SPEAKERS

591 F.3d at 1165 (granting a petition for mandamus regarding

a discovery order compelling disclosure of political campaign

information). Perry involved the efforts of a party in the

same-sex marriage suit in California to obtain internal cam-

paign communications relating to the campaign strategy and

advertising of the proponents of a ballot proposition. Focusing

on First Amendment associational rights, we held that the dis-

trict court erred in determining that “the First Amendment

privilege, as a categorical matter, does not apply to the disclo-

sure of internal campaign communications.” Id. at 1161. We

concluded that permitting discovery “would likely have a

chilling effect on political association,” and that plaintiffs had

“not shown a sufficient need for the information.” Id. at 1165.

Although we emphasized that our holding was “limited to

private internal campaign communications concerning the

formulation of campaign strategies and messages,” id. at

1165 n.12, the structure of the analysis is instructive. We first

considered whether the proponents—the opponents of

disclosure—made a prima facie case of arguable First

Amendment infringement and then shifted the burden to

plaintiffs to “demonstrate a sufficient need for the discovery

to counterbalance that infringement.” Id. at 1164.

[4] The Perry decision rested on the importance of politi-

cal association and political expression, and it did not involve

anonymous speakers. Indeed, we have not previously consid-

ered the First Amendment claims of an anonymous, non-party

speaker on the Internet in the context of commercial contrac-

tual relationships like those at issue here. Nor have we consid-

ered such a challenge in the discovery context.

Two circuit courts have, however, addressed analogous sit-

uations in published opinions. The issue has also been raised

in a number of state and federal trial courts, and more cases

are percolating through the system. In 1998, the Sixth Circuit

considered a government agency’s motion to compel a news-

paper to answer a subpoena identifying an anonymous adver-

IN RE ANONYMOUS ONLINE SPEAKERS 485

tiser. NLRB v. Midland Daily News, 151 F.3d 472 (6th Cir.

1998). Just last year, the Fourth Circuit considered whether to

uphold an order allowing a deposition of an anonymous

speaker in a securities fraud class action. Lefkoe v. Jos. A.

Bank Clothiers, Inc., 577 F.3d 240 (4th Cir. 2009).

In both of these cases, the courts held that the anonymous

speech at issue was commercial speech, but declined to estab-

lish or follow any particular standard, other than the general

and long-standing precepts governing commercial speech.

The Sixth Circuit, in Midland Daily News, noted that as long

as commercial speech is about lawful activity and is not mis-

leading, it is protected. 151 F.3d at 475 (citing Central Hud-

son Gas & Elec. Corp., 447 U.S. at 566). The court affirmed

the district court’s denial of the National Labor Relations

Board’s (“NLRB”) motion to compel the identification of the

anonymous advertiser, because it was not the “least extensive

means” the NLRB could use. Id. In Lefkoe, the Fourth Circuit

reiterated that commercial speech enjoys only limited First

Amendment protection and held that “the Doe Client’s

claimed First Amendment right to anonymity [wa]s subject to

a substantial governmental interest in disclosure so long as

disclosure advance[d] that interest and [went] no further than

reasonably necessary.” Id. at 248-49. The court highlighted

the balance between discovery under Federal Rule of Civil

Procedure Rule 26 and protection of anonymous speech: “the

substantial governmental interest in providing Jos. A. Bank a

fair opportunity to defend itself in court is served by requiring

the Doe Client to reveal its identity and provide the relevant

information. Rule 26 explicitly expresses this interest.” Id.

This issue has arisen not infrequently in trial courts; the

paucity of appellate precedent is not surprising because dis-

covery disputes are not generally appealable on an interlocu-

tory basis and mandamus review is very limited. The many

federal district and state courts that have dealt with this issue

have employed a variety of standards to benchmark whether

an anonymous speaker’s identity should be revealed.

486 IN RE ANONYMOUS ONLINE SPEAKERS

To begin, a few courts have declined to adopt a new or dif-

ferent standard to accommodate anonymous speech. See, e.g.,

Klehr Harrison Harvey Brazburg & Ellers v. JPA Dev., No.

0425, 2006 WL 37020, at *8 (C.P. Phila. Jan. 4, 2006) (noting

that “the grafting of new tests onto existing rules threatens to

compromise the values protected by other constitutional pro-

visions, including due process, equal protection, and the right

to a trial by jury”).

A number of courts have required plaintiffs to make at least

a prima facie showing of the claim for which the plaintiff

seeks the disclosure of the anonymous speaker’s identity. See,

e.g., Doe I v. Individuals, 561 F. Supp. 2d 249 (D. Conn.

2008); Highfields Capital Mgmt., LP v. Doe, 385 F. Supp. 2d

969 (N.D. Cal. 2005); Sony Music Entm’t, Inc. v. Does 1-40,

326 F. Supp. 2d 556 (S.D.N.Y. 2004). The lowest bar that

courts have used is the motion to dismiss or good faith stan-

dard. See, e.g., Columbia Ins. Co. v. Seescandy.Com, 185

F.R.D. 573 (N.D. Cal. 1999); In re Subpoena Duces Tecum to

America Online, Inc., No. 40570, 2000 WL 1210372 (Va. Cir.

Ct. Jan. 31, 2000) (reversed on other grounds, America

Online, Inc. v. Anonymous Publicly Traded Co., 542 S.E. 2d

377 (Va. 2001).

Other courts have relied on a standard that falls somewhere

between the motion to dismiss and the prima facie standards.

In Doe v. 2TheMart.Com, 140 F. Supp. 2d 1088 (W.D. Wash.

2001), the court drew from Seescandy.Com and America

Online, but recognized that a higher standard should apply

when a subpoena seeks the identity of an anonymous Internet

user who is not a party to the underlying litigation. See id. at

1095 (noting that identification is only appropriate where the

compelling need for discovery outweighs the First Amend-

ment right of the speakers because litigation may continue

without disclosure of the speakers’ identities); accord Seders-

ten v. Taylor, No. 09-3031-CV-S-GAF, 2009 WL 4802567

(W.D. Mo. Dec. 9, 2009); Enterline v. Pocono Med. Ctr.,

3:08-CV-1934, 2008 WL 5192386 (M.D. Pa. Dec. 11, 2008).

IN RE ANONYMOUS ONLINE SPEAKERS 487

[5] The district court in this case applied the most exacting

standard, established by the Delaware Supreme Court in Doe

v. Cahill, 884 A.2d 451 (Del. 2005). The Cahill standard

requires plaintiffs to be able to survive a hypothetical motion

for summary judgment and give, or attempt to give, notice to

the speaker before discovering the anonymous speaker’s iden-

tity. Id. at 461. The court in Cahill therefore required that the

city councilman plaintiff “ ‘submit sufficient evidence to

establish a prima facie case for each essential element’ ” of

his defamation claim. Id. at 463 (quoting Colgain v. Oy

Partek Ab (In re Asbestos Litig.), 799 A.2d 1151, 1152 (Del.

2002)). The court pointed to its “concern[ ] that setting the

standard too low will chill potential posters from exercising

their First Amendment right to speak anonymously,” id. at

457, and reasoned that “the summary judgment standard more

appropriately balances a defamation plaintiff’s right to protect

his reputation and a defendant’s right to speak anonymously.”

Id. at 462.

Interestingly, in each of these cases, the initial burden rests

on the party seeking discovery and requires varying degrees

of proof of the underlying claim. In Perry, however, we eval-

uated the First Amendment political associational rights sepa-

rately from the underlying claims and adopted a “heightened

relevance standard” requiring plaintiffs to “ ‘demonstrate[ ] an

interest in obtaining the disclosures . . . which is sufficient to

justify the deterrent effect . . . on the free exercise . . . of [the]

constitutionally protected right of association.’ ” 591 F.3d at

1164 (quoting NAACP v. Alabama, 357 U.S. 449, 463 (1958)

(omissions and alterations in Perry)).

With this broad array of standards in mind, we consider the

Anonymous Online Speakers’ petition for mandamus.

B. No Clear Error

We begin with the premise that a district court “has wide

latitude in controlling discovery” and that decisions governing

488 IN RE ANONYMOUS ONLINE SPEAKERS

discovery are highly fact-intensive. White v. City of San

Diego, 605 F.2d 455, 461 (9th Cir. 1979).

The district court here appropriately considered the impor-

tant value of anonymous speech balanced against a party’s

need for relevant discovery in a civil action. It also recognized

the “great potential for irresponsible, malicious, and harmful

communication” and that particularly in the age of the Inter-

net, the “speed and power of internet technology makes it dif-

ficult for the truth to ‘catch up’ to the lie.”

[6] Against this backdrop, the district court applied Cahill,

which elevates the bar to disclosure to the highest level.

Because Cahill involved political speech, that court’s imposi-

tion of a heightened standard is understandable. In the context

of the speech at issue here balanced against a discretionary

discovery order under Rule 26, however, Cahill’s bar extends

too far. As in Perry and as recently illustrated by the Supreme

Court in Doe v. Reed, we suggest that the nature of the speech

should be a driving force in choosing a standard by which to

balance the rights of anonymous speakers in discovery dis-

putes. See Perry, 591 F.3d at 1160-61; Doe v. Reed, ___ U.S.

___, 130 S. Ct. 2811, 2817-18 (2010). For example, in discov-

ery disputes involving the identity of anonymous speakers,

the notion that commercial speech should be afforded less

protection than political, religious, or literary speech is hardly

a novel principle. See Lefkoe, 577 F.3d at 248 (inasmuch as

the speech in question is of a commercial nature it “enjoys

less First Amendment protection”). The specific circum-

stances surrounding the speech serve to give context to the

balancing exercise.

By contrast with Cahill, this case does not involve

expressly political speech but rather speech related to the non-

competition and non-solicitation provisions of Quixtar’s com-

mercial contracts with its IBOs. We need not, however,

decide if the speech at issue here constitutes commercial

speech under the Supreme Court’s definition in Central Hud-

IN RE ANONYMOUS ONLINE SPEAKERS 489

son. See 447 U.S. at 561-62. Even if the speech was commer-

cial, the district court’s choice of the Cahill test did not

constitute clear error.

[7] The clear error standard is highly deferential and is

only met when “the reviewing court is left with a ‘definite and

firm conviction that a mistake has been committed.’ ” Cohen

v. U.S. Dist. Court, 586 F.3d 703, 708 (9th Cir. 2009) (cita-

tions omitted). The district court weighed appropriate consid-

erations and, given the decision to disclose the speakers’

identities even under the strictest test outlines in Cahill, there

was no clear error. If there was error at all, it was an error

with no consequence. Cf. Sinclair v. TubeSockTedD, 596 F.

Supp. 2d 128 (D.D.C. 2009) (declining to adopt a standard

because plaintiff’s claim would fail under either the Cahill or

Dendrite standard).

[8] We decline to consider the other four Bauman factors,

because we conclude that the third factor, whether the district

court’s order was clearly erroneous, is dispositive. Burlington,

408 F.3d at 1146. We deny the anonymous speakers’ petition

for writ of mandamus. We leave to the district court the

details of fashioning the appropriate scope and procedures for

disclosure of the identity of the anonymous speakers. On this

point, we note that the parties have a protective order in place

that provides different levels of disclosure for different cate-

gories of documents to various recipients, such as disclosure

for “Attorneys’ Eyes Only.”2 Second Amended Protective

Order at 3, Quixtar v. Signature Management Team, 566

2

A similar issue arose in a related case pending in the Circuit Court for

the County of Kent in Michigan. On May 11, 2010, that court issued an

opinion denying the Anonymous Online Speakers’ motion to quash Dic-

kie’s deposition, during which he would presumably reveal the names of

the persons who made anonymous Internet postings about Quixtar. In

allowing the deposition to proceed, the court directed that only counsel

may be present at the deposition, and the deposition transcript will be “for

attorney eyes only.” If either party believes the presence of a non-attorney

is necessary, the court noted that it would entertain such a motion. The

court also noted that in the absence of a decision from this court, it would

consider a motion by either party to strike portions of the transcript and/or

remove the “for attorney eyes only” condition. Indep. Bus. Owners Ass’n

Int’l v. Woodward, No. 07-08513-CZ (Kent County Cir. Ct. (Mich.) May

11, 2010).

490 IN RE ANONYMOUS ONLINE SPEAKERS

F.Supp.2d 1205 (D.Nev. 2009) (No. 437). A protective order

is just one of the tools available to the district court to oversee

discovery of sensitive matters that implicate First Amendment

rights. See Perry, 591 F.3d at 1164 (noting that a protective

order can ameliorate the harms of disclosure).

III. CROSS-PETITION BY QUIXTAR

[9] In its cross-petition, Quixtar seeks reversal of the dis-

trict court’s order denying the motion to compel testimony

from Dickie regarding the identity of the anonymous authors

of the “Integrity is TEAM” and the “IBO Rebellion” blogs.

The cross-petition suffers from a fundamental error—Quixtar

fails to present any foundation for its request for mandamus

relief. Quixtar’s cross-petition lacks even a citation to our

opinion in Bauman, which established the factors we consider

to evaluate a writ of mandamus. Quixtar’s cross-petition falls

into the category of a garden variety discovery dispute: it

offers no extraordinary circumstance that merits exercising

our mandamus power.

CONCLUSION

Neither party has shown that it is entitled to relief. We deny

both the Anonymous Online Speakers’ petition and Quixtar’s

cross-petition for writ of mandamus.

PETITION AND CROSS-PETITION DENIED.