Domingo Rivera Cyber Lawyer Blog

Internet lawyer Domingo Rivera blog on cyber law topics

The Way back machine data may be admissible to support a conviction

Way back machine data admitted in Court - Domingo J. Rivera
The Wayback Machine, located at is a web site that enables you to see what a particular Web site looked like at some time in the past, from 1996 to the present.  At the Wayback Machine site, you can search for and link to the past version of many web sites as they were at various "snapshots" in time.  ...
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Malibu Media v Doe - Copyright Subpoena

This is one of the cases involving the Malibu Media efforts to identify a "John Doe" defendant.  In this case, the Court granted the subpoena to identify the potential defendant - By: Domingo J. Rivera

Malibu Media John Doe subpoena case

JOHN DOE, subscriber assigned IP address, Defendant.
Case No. 1:16-cv-01059-AWI-SKO
October 25, 2016

       Plaintiff Malibu Media, LLC ("Plaintiff") filed a complaint against John Doe ("Defendant") on July 24, 2016, alleging infringement claims pursuant to the United States Copyright Act of 1976. (Doc. 1.) Plaintiff claims Defendant is a persistent online infringer of Plaintiff's copyrighted films. On September 28, 2016, Plaintiff filed a motion for leave to serve a third-party subpoena prior to a Rule 26(f) conference. (Doc. 8.) As Defendant has not yet been identified by name, no opposition was filed. Pursuant to Local Rule 230(g), the Court finds Plaintiff's motion suitable for decision without oral argument, and no hearing on this matter shall
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be set. For the reasons discussed below, Plaintiff's motion is GRANTED subject to the noted restrictions herein.
       Plaintiff is a limited liability company that produces copyrighted adult films. Defendant is alleged to have used the BitTorrent file distribution network to download adult pornographic films subject to copyrights held by Plaintiff. Defendant has been identified in this lawsuit only by an Internet Protocol address ("IP Address") assigned to a customer on a specific date by an Internet Service Provider ("ISP") and through which the copyrighted works were allegedly downloaded.
       BitTorrent technology has been described by several courts, including the district court in Malibu Media, LLC v. Doe, No. 15-cv-4369 (AKH), 2015 WL 4092417, *1-2 (S.D.N.Y. July 6, 2015):
BitTorrent is a peer-to-peer file-sharing protocol that allows users to transfer large files over the internet by breaking the complete file (the "Seed") into small pieces to be downloaded in parts. Other users ("Peers") downloaded a small "torrent" file that contains an index of the pieces and directions for connecting to the Seed. When Peers connect to the Seed, they download pieces of the file at random, and begin sharing each piece once it has completed downloading. After all the pieces are downloaded, the BitTorrent software reassembles the pieces into a complete file for the Peer to view.

BitTorrent is distinguishable from other file sharing protocols by its users' ability to upload and download files simultaneously. This non-sequential download structure reduces the bottleneck of traffic, which allows for faster download speeds. The Peers that are uploading and downloading the same Seed file from each other at a given point in time are collectively called a "Swarm." Members of a Swarm are able to see the IP addresses of other Peers to whom they are connected. In addition, BitTorrent "tracks" the pieces of a file as it is shared, so Peers can identify the IP addresses from which the file was downloaded.
Id. (citing Patrick Collins, Inc. v. Doe 1, 288 F.R.D. 233 (E.D.N.Y. 2012), Next Phase Distribution, Inc. v. John Does 1-27, 284 F.R.D. 165 (S.D.N.Y 2012), In re BitTorrent Adult Film Copyright Infringement Cases, 296 F.R.D. 80 (E.D.N.Y. 2012)).
       Plaintiff has filed a motion for leave to serve a third-party subpoena prior to a Federal Rule of Civil Procedure 26(f) discovery conference, requesting permission to initiate discovery to identify the account subscriber associated with the IP Address used to download Plaintiff's
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copyrighted films, notwithstanding the provision of Rule 26(d)(1) that precludes a party from seeking discovery from any source before the parties have conferred as required by Rule 26(f). Plaintiff contends a Rule 45 subpoena to the ISP must be permitted to obtain the identity of the customer assigned the IP Address on the dates1 in question to ascertain the identity of the person responsible for unauthorized downloading of the copyrighted works produced by Plaintiff. Plaintiff maintains there is no other way for it to obtain this information.
A. Legal Standard
       Generally, a party may not conduct discovery before the parties have met and conferred pursuant to Federal Rule of Civil Procedure 26(f) "except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized by these rules, by stipulation, or by court order." Fed. R. Civ. P. 26(d)(1). The Ninth Circuit has held that when a defendant's identity is unknown at the time the complaint is filed, a court may grant the plaintiff leave to take early discovery to determine the defendant's identity "unless it is clear that discovery would not uncover the identit[y], or that the complaint would be dismissed on other grounds." Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). District courts in the Ninth Circuit have permitted expedited discovery prior to the Rule 26(f) conference upon a showing of "good cause." See, e.g., In re Countrywide Fin. Corp. Derivative Litig., 542 F. Supp. 2d 1160, 1179 (C.D. Cal. 2008) (citing Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273 (N.D. Cal. 2002)). "Good cause exists where the need for expedited discovery, in consideration of the administration of justice, outweighs the prejudice to the responding party." In re Countrywide Fin. Corp. Derivative Litig., 542 F. Supp. 2d at 1179 (citation and quotation marks omitted).
B. Plaintiff Has Established Good Cause to Serve a Third-Party Subpoena
       District courts within the Ninth Circuit have typically found good cause supporting early or expedited discovery in cases where the plaintiff alleged copyright infringement accomplished through distribution of the work over a peer-to-peer network, and where the plaintiff sought early
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discovery to obtain the identities and contact information of the alleged infringers from associated ISPs. See, e.g., Berlin Media Art E.K. v. Does 1 through 146, No. S-11-2039 KJM GGH, 2011 WL 4056167, at *2 (E.D. Cal. Sept. 12, 2011) (unpublished) (granting leave to serve Rule 45 subpoena to identify doe defendant); Malibu Media, LLC v. John Does 1-10, No. 2:12-cv-3623-ODW (PJWx), 2012 WL 5382304 (C.D. Cal. June 27, 2012).
       1. Balancing Interests in the Context of Copyright Infringement
       In applying the good cause standard in cases where the unknown defendant is an anonymous internet user, courts give careful consideration to the diverging interests of both the party seeking the discovery and the unknown Doe defendant:
With the rise of the Internet has come the ability to commit certain tortious acts, such as defamation, copyright infringement, and trademark infringement, entirely on-line. The tortfeasor can act pseudonymously or anonymously and may give fictitious or incomplete identifying information. Parties who have been injured by these acts are likely to find themselves chasing the tortfeasor from Internet Service Provider (ISP) to ISP, with little or no hope of actually discovering the identity of the tortfeasor.

In such cases the traditional reluctance for permitting filings against John Doe defendants or fictitious names and the traditional enforcement of strict compliance with service requirements should be tempered by the need to provide injured parties with a[] forum in which they may seek redress for grievances. However, this need must be balanced against the legitimate and valuable right to participate in online forums anonymously or pseudonymously. People are permitted to interact pseudonymously and anonymously with each other so long as those acts are not in violation of the law. This ability to speak one's mind without the burden of the other party knowing all the facts about one's identity can foster open communication and robust debate. Furthermore, it permits persons to obtain information relevant to a sensitive or intimate condition without fear of embarrassment. People who have committed no wrong should be able to participate online without fear that someone who wishes to harass or embarrass them can file a frivolous lawsuit and thereby gain the power of the court's order to discover their identity.
Columbia Ins. Co. v., 185 F.R.D. 573, 578 (N.D. Cal. 1999). As it pertains to copyright infringement cases involving the internet, many courts have documented growing concerns about "copyright trolls," "roughly defined as plaintiffs who are 'more focused on the business of litigation than on selling a product or service or licensing their [copyrights] to third
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parties to sell a product or service.'" Malibu Media, LLC, 2015 WL 4092417, at * 2 (quoting Matthew Sag, Copyright Trolling, An Empirical Study, 100 Iowa L. Rev. 1105, 1108 (2015)).
"The paradigmatic troll plays a numbers game in which it targets hundreds or thousands of defendants, seeking quick settlements priced just low enough that it is less expensive for the defendant to pay the troll rather than defend the claim." [Matthew Sag, Copyright Trolling, An Empirical Study, 100 Iowa L. Rev. 1105, 1108 (2015)]. The lawsuits most frequently target anonymous John Does for alleged infringement related to the use of BitTorrent. Indeed, of "the 3,817 copyright law suits filed in 2013, over 43% were against John Does and more than three-quarters of those related to pornography." Id. at 1108-09. But almost none ever reaches a hearing. Rather, the "lawsuits are filed to take advantage of court ordered discovery [under Fed. R. Civ. P. 26(d)] to break the veil of anonymity that separates IP addresses from the account information of actual human beings." Id. at 1109; see also Digital Sin, Inc. v. Does 1-176, 279 F.R.D. 239, 241 (S.D.N.Y.2012). They then use this information to quickly negotiate settlements on mass scale without any intention of taking the case to trial. [footnote omitted] See, e.g., Media Prods., Inc., DBA Devil's Film v. John Does 1-26, No. 12-cv-3719, at 4 (S.D.N.Y. June 18, 2012) (explaining that the settlements in these BitTorrent cases are "are for notoriously low amounts relative to the possible statutory damages, but high relative to the low value of the work and minimal costs of mass litigation. Cases are almost never prosecuted beyond sending demand letters and threatening phone calls.").
Malibu Media, LLC, 2015 WL 4092417, at * 2.
       The danger of copyright trolls is particularly acute in the context of pornography. In these cases, "there is a risk not only of public embarrassment for the misidentified defendant, but also that the innocent defendant may be coerced into an unjust settlement with the plaintiff to prevent the dissemination of publicity surrounding unfounded allegations." Media Prods., Inc., No. 12-cv-3719, at 4; see also Malibu Media, LLC v. Does 1-5, No. 12-cv-2950 (JPO), 2012 WL 2001968, at *1 (S.D.N.Y. June 1, 2012) ("This Court shares the growing concern about unscrupulous tactics used by certain plaintiffs, especially in the adult film industry, to shake down the owners of specific IP addresses from which copyrighted adult films were allegedly downloaded.").
       The abuses of Malibu Media in particular have been discussed by a court in the Southern District of New York:
However, Malibu's corporate strategy relies on aggressively suing for infringement and obtaining accelerated discovery of the IP address holder's identity from the ISP. It then seeks quick, out-of-court settlements which, because they are
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hidden, raise serious questions about misuse of court procedure. Judges regularly complain about Malibu. For example, in May, Judge Timothy Black of the Southern District of Ohio surveyed some of Malibu's questionable conduct in litigations across the country. See Order to Show Cause, ECF Doc. No. 15, Malibu Media, LLC v. Ryan Ramsey, No. 14-cv-718 (S.D. Ohio May 26, 2015). He found that, while "Malibu Media asserts that it is necessary to invoke the Court's subpoena power to 'propound discovery in advance of a Rule 26(f) conference' . . . [,] not a single one of these 60 cases [filed in this district over the previous 12 months] has even progressed to a Rule 26(f) conference." Id. at 5. Indeed, most are dismissed even without the issuance of a summons. Id. Malibu's motive is to use the federal courts only to obtain identifying information in order to coerce fast settlements. Id. at 8 (citing Malibu Media, LLC v. Does 1-54, No. 12-cv-1407, 2012 WL 303[03]02, at *5 (D. Colo. July 25, 2012); Malibu Media, LLC v. Does, 923 F. Supp. 2d 1339, 1345-46 (M.D.Fla.2013)).

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Sarkar v. Doe - The University of Mississippi Case

This case involves a claim by a professor of pathology involving Internet defamation, which he claims cost him his employment at the University of Mississippi.  The University cited some anonymous posts in an online forum as a reason for terminating Dr. Sarkar employment resulting in a lawsuit and a quest to uncover the identity of the anonymous posters.  The case made its way to the Court of Appeals of Michigan.  The Court's opinion follows. - Domingo J. Rivera

The professor lost his job at the U?niversity of Mississippi as result of anonymous online comments in a forum.

318 Mich.App. 156
897 N.W.2d 207
Docket Nos. 326667
Court of Appeals of Michigan.
Submitted Oct. 4, 2016, at Detroit.
Decided Dec. 6, 2016, at 9:00 a.m.
[897 N.W.2d 210]

Before: FORT HOOD, P.J., and GLEICHER and O'BRIEN, JJ.
The issues presented in these appeals boil down to one simple question: Are the identities of anonymous scientists who comment on other scientists' research online protected by the First Amendment?
According to his complaint, plaintiff, "Fazlul H. Sarkar, PhD, is a distinguished professor of pathology at Karmanos Cancer Center, Wayne State University with a track record of cancer research over 35 years."1 Sarkar began his research at Wayne State University in 1989, and "his work has led to the discovery of the role of chemopreventive agents in sensitization of cancer cells (reversal of drug resistance) to conventional therapeutics (chemo-radio-therapy)." Dr. Sarkar alleges that "[h]e is a perfect example of a true translational researcher bringing his laboratory research findings into clinical practice," that he "is involved in several collaborative projects including breast, lung, and pancreatic cancer," that " [h]e has published over 430 original scientific articles in peer-reviewed journals," that he has written or reviewed hundreds of articles and book chapters, that he has edited several books, that he has received numerous publicly funded grants, and that he has trained a variety of pre- and post-doctoral students. In short, it appears undisputed that he is well-accomplished in the cancer-research community.
It is presumably these accomplishments that led to Sarkar pursuing employment with the University of Mississippi in 2013. According to Sarkar, the University of Mississippi presented him with the "anticipated terms of an offer of a position" in September 2013, which set forth several terms of employment, including, most notably, tenure, a $350,000 salary, $15,000 in relocation expenses, "[a] start up package of $750,000," and a variety of other benefits. In March 2014, the University of Mississippi formally offered him this position, Sarkar accepted, and he resigned from Wayne State University approximately two months later. Sarkar relocated to Oxford, Mississippi, shortly thereafter and was set to begin his employment with the University of Mississippi in July 2014. At some point, however, "his start date was adjusted to August 1, 2014 per later agreement and approval...."
On June 19, 2014, however, the University of Mississippi rescinded Sarkar's offer of employment. According to Sarkar, the University of Mississippi was unwilling to "go forward with an employment relationship with [him] and [his] group" because of "allegations lodged in a public space and presented directly to colleagues [there]...." In pertinent part, the University of Mississippi cited public comments made on, which were apparently made known to the University of
[897 N.W.2d 212]
Mississippi by an anonymous individual.2 After losing this employment opportunity with the University of Mississippi, Sarkar attempted to rescind his resignation with Wayne State University the following day, and Wayne State University allowed him to return, albeit in a nontenured position. After Sarkar learned he would be returning to Wayne State University, however, either the same or a different anonymous individual also distributed a flyer containing a screenshot from to Wayne State University personnel.3
Obviously unhappy with the outcome of his employment offer with the University of Mississippi, the comments on, and the distribution of the flyer to Wayne State University personnel, Sarkar pursued a variety of legal remedies, including this lawsuit. On October 9, 2014, Sarkar filed this five-count lawsuit against defendants, "John and/or Jane Doe(s)." Sarkar alleged, in pertinent part, that the comments made on were defamatory, that the comments made on and forwarded to the University of Mississippi intentionally interfered with a business expectancy, that the comments made on and forwarded to Wayne State University intentionally interfered with a business relationship, that the posting of an e-mail from Wayne State University personnel on and in public constituted an invasion of privacy, and that the circulation of the flyer was intended to inflict emotional distress.
In an attempt to learn the identities of the individual or individuals who were responsible for the actions at issue, Sarkar subpoenaed the records of appellant, PubPeer Foundation (PubPeer), the entity that operates, seeking the following: "All identifying information, including but not limited to user names, IP addresses, email addresses, profile information, and any other identifying characteristics of all users who have posted any of the comments that were posted on your web site that are described in the attached complaint that was filed in Wayne county, MI." Although somewhat unclear from his complaint and subpoena, it appears that Sarkar sought all identifying information for approximately 30 comments made on about his research. PubPeer objected, moving to quash the subpoena on First Amendment grounds.
Specifically, PubPeer argued that, in order to unmask the identity of the anonymous commenter or commenters, Sarkar was required to prove that his claims could survive a motion for summary disposition. Asserting that Sarkar had failed to do so, PubPeer argued that the trial court should quash the subpoena.4
[897 N.W.2d 213]
Analyzing each comment at issue, PubPeer also argued that Sarkar failed to adequately plead the allegedly defamatory comments, that the allegedly defamatory comments were not capable of defamatory meaning, that the communications sent to or distributed at the universities were insufficiently connected to PubPeer, and that the balance of interests in this case favored preserving scientists' ability to anonymously comment on other scientists' research.
Sarkar responded, arguing that "[t]his case is not about free speech." Rather, he asserted, "[i]t is about tortious conduct that is destroying a man's life and career." Sarkar described the anonymous commenter or commenters as "an enemy [or enemies] hiding behind the anonymity afforded by the internet" who is or are "sabotaging" his career. Sarkar, relying on the fact that one John Doe had already filed an appearance, argued that no preliminary showing was required and that, at best, the appearing John Doe could seek a protective order on behalf of himself. Sarkar also argued that his complaint was adequate, that he had alleged torts beyond defamation, that the confidential nature of misconduct proceedings had been breached, that the comments at issue were defamatory, and, ultimately, that disclosure of the commenters' identities was necessary to seek the legal remedy to which he was entitled.
A hearing on PubPeer's motion to quash was held on March 5, 2015. After hearing arguments similar to those already discussed, the trial court granted, in part, PubPeer's motion to quash.5 Specifically, the trial court granted the motion in full with the exception of one subparagraph in Sarkar's complaint: Paragraph 40(c). The trial court reserved its ruling on Paragraph 40(c) for a later date after the parties were afforded additional time for supplemental briefing. A second hearing on PubPeer's motion to quash was held two weeks later on March 19, 2015. After reviewing the parties' supplemental briefs and hearing additional argument, the trial court denied PubPeer's motion to quash with respect to Paragraph 40(c).6 These appeals followed. On April 20, 2015, the trial court granted PubPeer's motion to stay proceedings pending the outcome of these appeals.
Generally, we review for an abuse of discretion a trial court's decision on whether to compel discovery. Cabrera v. Ekema, 265 Mich.App. 402, 406, 695 N.W.2d 78 (2005). We review de novo however a trial court's decision to grant summary disposition. Maiden v. Rozwood, 461 Mich. 109, 118, 597 N.W.2d 817 (1999). Similarly, constitutional issues, including the application of the First Amendment, are also reviewed de novo. Smith v. Anonymous Joint Enterprise, 487 Mich. 102, 111–112, 793 N.W.2d 533 (2010).
[897 N.W.2d 214]
Sarkar first argues that the trial court's March 9, 2015 order must be reversed because the court erred by allowing PubPeer, a nonparty, to argue standards for summary disposition. Relatedly, Sarkar also argues that the trial court erroneously heightened the pleading standard for defamation as well as erroneously refused to consider a protective order pursuant to MCR 2.302. Ultimately, these arguments are each part of Sarkar's ultimate position before the trial court and before this Court on appeal: Sarkar argues that Thomas M. Cooley Law Sch. v. Doe 1, 300 Mich.App. 245, 833 N.W.2d 331 (2013), not Ghanam v. John Does, 303 Mich.App. 522, 845 N.W.2d 128 (2014), controls the outcome of this case. We will address each case in turn, as well as their application to this matter.

In Cooley, an anonymous speaker created a website titled "THOMAS M. COOLEY LAW SCHOOL SCAM" on Cooley, 300 Mich.App. at 250, 833 N.W.2d 331. The speaker, who identified himself as a graduate of
Thomas M. Cooley Law School (Cooley or the school), described the school as " 'THE BIGGEST JOKE of all law schools,' " characterized the school as having an " 'open door' policy" for admission, criticized the school's attrition rate and administrative policies, cited rankings, described the school as " 'A DIPLOMA MILL,' " and called the school's graduates "unemployed." Id. at 251, 833 N.W.2d 331. The speaker "permitted visitors to post their own comments on the website, and frequently responded to the commentators," but he eventually " began to 'filter' comments, noting that he would delete 'any stupid or irrelevant comments or personal attacks[.]' " Id. (alteration in original).
Cooley eventually filed a lawsuit in the Ingham Circuit Court against multiple anonymous defendants, alleging defamation against the anonymous speaker who created the website as well as the other anonymous commenters. A California Court subsequently granted Cooley's petition for a subpoena to compel California-based Weebly, Inc. (Weebly), the entity that operated, "to produce documents that included [the speaker]'s user account information." Id. at 251–252, 833 N.W.2d 331. The anonymous speaker then moved in the Ingham Circuit Court to quash the subpoena or for a protective order, but, in the meantime, an employee of Weebly disclosed the speaker's identity to the school. Id. at 252, 833 N.W.2d 331. After learning the speaker's identity, the school filed an amended complaint that identified the speaker by his legal name. Id. In addressing the speaker's motion to quash or for a protective order, the trial court first struck the school's amended complaint and ordered that the school not continue discovery or disclose the speaker's identity further. Id. at 252–253, 833 N.W.2d 331. Ultimately, however, the trial court denied the speaker's motion to quash, reasoning that the speaker's statements at issue were slanderous per se and, therefore, not entitled to First Amendment protection under Dendrite Int'l, Inc. v. Doe, No. 3, 342 N.J.Super. 134, 775 A.2d 756 (N.J.Super.Ct.2001), and Doe No. 1 v. Cahill, 884 A.2d 451 (Del.2005). Cooley, 300 Mich.App. at 253, 833 N.W.2d 331.
The speaker appealed, and this Court reversed and remanded the case. Id. at 272, 833 N.W.2d 331. Specifically, this Court held that the trial court abused its discretion by applying Dendrite and Cahill rather than Michigan law and also erred in other conclusions. Id. at 267–269, 833 N.W.2d 331. This Court explained, in pertinent part, as follows:
[897 N.W.2d 215]
We conclude that the trial court abused its discretion, which requires reversal. A trial court by definition abuses its discretion when it inappropriately interprets and applies the law. First, the trial court erroneously concluded that Michigan law does not adequately protect [the speaker's] interests, and then it erroneously adopted and applied foreign law. Second, the trial court's findings and conclusions in support of its position were erroneous. Third, the trial court did not state any reason supporting its decision to deny [the speaker's] alternative request for a protective order.

After adopting the Dendrite and Cahill standards as Michigan law, the trial court appears to have considered only two alternatives: (1) that the subpoena should be quashed and Cooley's case dismissed, or (2) that the subpoena should not be quashed and the case should proceed with [the speaker's] name on the complaint. But Michigan law does not address only these polar opposites. [The speaker] also asked for a protective order under MCR 2.302(C). The trial court's order indicates that it denied [the speaker's] requests for a protective order "for reasons stated on the record." But the trial court did not state any reasons on the record to deny the protective order. The trial court appears not to have considered whether or to what extent to protect [the speaker's] identity after it determined not to quash the subpoena. On remand, the trial court should consider whether good cause exists to support [the speaker's] request for a protective order.
Next, the trial court ruled that defamatory statements per se were not entitled to First Amendment protections. The trial court was incorrect. Not all accusations of criminal activity are automatically defamatory. To put it simply, defamation per se raises the presumption that a person's reputation has been damaged. In that instance, a plaintiff's failure to prove damages for certain charges of misconduct would not require dismissal of the suit. Whether a plaintiff has alleged fault—which may require the plaintiff to show actual malice or negligence, depending on the status of the speaker and the topic of the speech—concerns an element separate from whether the plaintiff has alleged defamation per se. Thus, the trial court erroneously concluded that Cooley would not have to prove fault or other elements because the statements were defamatory per se.

More importantly, this erroneous determination was central to the considerations the trial court may balance when determining whether to issue a protective order. As noted above, a trial court may consider that a party seeking a protective order has alleged that the interests he or she is asking the trial court to protect are constitutionally shielded. But the trial court need not, and should not, confuse the issues by making a premature ruling—as though on a motion for summary disposition—while considering whether to issue a protective order before the defendant has filed a motion for summary disposition. The trial court should only consider whether good cause exists to issue a protective order, and to what extent to grant relief under MCR 2.302(C).

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