The fraud allegations were brought to the Audit Committee's attention after Jos. A. Bank received a letter from the Massachusetts law firm of Foley & Lardner detailing multiple allegations of accounting and reporting improprieties. Foley & Lardner purportedly sent the letter on behalf of its unidentified client, a Jos. A. Bank shareholder. Jos. A. Bank received the letter two weeks before the scheduled release of its earnings report. The investigation delayed the release of the earnings report and ultimately concluded that the allegations were without merit. Jos. A. Bank believed that the unidentified client purposely sent the unmeritorious letter to affect the stock prices so that the class action lawsuit could be filed and, more importantly, so that the unidentified client could profit from the drop in Jos. A. Bank's stock prices.

With the class action lawsuit well underway, Jos. A. Bank attempted to obtain the identity of the Foley & Lardner client whose letter caused the delayed release of the earnings report. Jos. A. Bank served a notice to depose Foley & Lardner to obtain its client's identity and caused a subpoena to be issued from the United States District Court for Massachusetts. Foley & Lardner filed a motion to quash the subpoena, arguing that its client was not a party to the lawsuit and that the subpoena violated its client's "right of anonymity as protected by the First Amendment." Nevertheless, the Massachusetts district court allowed the deposition to be taken; during the deposition the unidentified client was presented as a witness. Following the deposition, the Massachusetts district court ordered that the deposition be sealed and entered a protective order directing counsel not to disclose the identity of Foley & Laudner's client to anyone including their clients.

Jos. A. Bank filed a motion in the United States District Court for the District of Maryland to unseal the Massachusetts deposition of the unidentified client and to permit further discovery. Jos. A. Bank asserted that discovery from the unidentified client would be relevant to its various defenses. The Maryland district court modified the protective order by making the identity of the unidentified client accessible to Jos. A. Bank's in-house counsel.

Foley & Lardner appealed to the Fourth Circuit arguing that the Maryland district court lacked statutory authority to unseal the deposition that had been ordered sealed by the Massachusetts district court. Foley & Lardner further argued that unsealing the deposition would violate the unidentified client's First Amendment right to anonymity.

The Fourth Circuit held that both the Massachusetts district court and the Maryland district court acted within the authority granted to each by the Federal Rules of Civil Procedure. Specifically, the Massachusetts district court did not issue the protective order or seal the deposition to control Maryland district court's authority to manage discovery and the class action litigation. The Fourth Circuit further stated that the Maryland district court had authority to control the use of the deposition without overruling any order entered by the Massachusetts district court.

As to the issue of the right to anonymity, the Fourth Circuit held that the First Amendment appears "to include some aspect of anonymity in protecting free speech," however, the letter involved was commercial speech and did not enjoy the First Amendment protections to which political or literary speech are entitled.

The Fourth Circuit further held the unidentified client's First Amendment right to anonymity was subject to a substantial governmental interest in disclosure. The court also stated that once the Maryland district court recognized that the deposition of the unidentified client and information that the client could present could be relevant and useful to Jos. A. Bank's defense of the litigation, the substantial governmental interest in providing Jos. A. Bank a fair opportunity to defend itself in court is served by requiring the unidentified client to reveal its identity and provide the relevant information.