As courts [PDF] have established standards for subpoenas to ISPs in online defamation lawsuits, they have raised new questions.
Professor Wasserman has raised the question whether these standards are a part of state substantive defamation law that federal courts would apply in diversity actions under Erie or are instead mere procedural rules. My article from JTLP, Who’s Exposing John Doe? Distinguishing Between Public and Private Figure Plaintiffs in Subpoenas, argues that the constitutional distinction between public and private figures in defamation law should apply to certain procedural issues also. My proposal would appear to be a substantive distinction that federal courts would apply under Erie. The court opinions [PDF] fashioning standards also discuss substantive and constitutional issues in developing the procedural rules.
What do you think?