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Abstract

Electronic Service Providers (ESPs) are increasingly facing pressures in trial discovery to disclose their clients’ information. But in what situations should ESPs provide this information? To whom do ESPs owe obligations – their customers, litigants or the government? What kinds of information should be disclosed? What standard of proof is required in order to compel disclosure? What kinds of penalties do ESPs risk for failing to disclose information? Judges, litigants, ESPs, and their subscribers have been asking these questions about today’s online world. However, over a hundred years ago, similar questions were asked and answered about the telegraph. By investigating the telegraph caselaw, it may be possible to shed some light on two issues that are of prime concern to an ESP: what are the disclosure obligations of an ESP in litigation? What is the potential liability of an ESP for their part in communicating infringing, libellous and defamatory information?


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