Plaintiffs seeking to unmask an anonymous defendant will often need the court’s assistance in the discovery process. Most ISPs or website owners will not turn over the name and contact information associated with a particular IP address without having received a subpoena or a court order requiring it to do so.
In federal litigation, the need to serve a subpoena so early on in the case puts a plaintiff in a Catch-22 situation: Rule 26(d) says that discovery cannot occur without the parties having first conferred as required by Rule 26(f). But how can the parties confer if the plaintiff cannot first conduct some discovery to find out who the defendants are? The process of asking the court for leave to serve subpoenas before the Rule 26(f) conference can set the stage for an interesting balancing act.
Courts have recognized the conflicting interests at stake. There is a well-established constitutional right to speak anonymously. McIntyre v. Ohio Elections Com’n., 514 U.S. 334 (1995). But that right is not absolute. An aggreived plaintiff has the right to seek redress from one who has done harm by, for example, defaming the plaintiff online. A court that indiscriminately allows an anonymous speaker to be identified without a sufficient showing that the complained-of speech is prohibited runs the risk of violating the anonymous poster’s First Amendment right.
In light of the conflicting interests at stake, courts have implemented varying approaches to ensure that those interests are properly balanced. The cases establish a certain threshold of a showing that a plaintiff has to make before discovery can occur. For example, in the case of Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573 (N.D. Cal. 1999), a trademark infringement plaintiff was required to support its claim with facts sufficient to defeat a motion to dismiss before it could obtain the identity of an anonymous defendant. A New Jersey state court in a case called Dendrite Int’l, Inc. v. Doe, 775 A.2d 756 (N.J. Super. Ct., App. Div. 2001), applied the same standard.
Other courts have set the bar higher. In Doe v. Cahill, 884 A.2d 451, (Del. 2005), the Delaware Supreme Court held that an anonymous blog commenter could not be identified in a defamation suit where the plaintiff had not come forth with evidence to support a motion for summary judgment. In the recent case of Best Western v. Doe, the U.S. District Court for the District of Arizona adopted the Cahill standard.
In the Best Western case, the plaintiff filed suit against several John Doe defendants alleging a number of causes of action, including breach of contract, unfair competition and defamation. The alleged offending content had been posted to a message board online. The plaintiff asked the court to allow it to serve subpoenas on the Internet service providers of the unknown anonymous posters before the required Rule 26(f) conference. The court denied the motion.
In its analysis, the court covered the number of First Amendment concerns at stake. It noted that although the constitution protects anonymous speech on the Internet, the prospect of a civil subpoena to destroy that anonymity places that right in jeopardy. Nonetheless, the court observed, the right to speak anonymously is not absolute, and such discovery will be permitted in the appropriate circumstances.
And the appropriate circumstances are when a plaintiff can produce sufficient evidence as it has to establish a prima facie case of the claims asserted in the complaint. The court held that it “must examine facts and evidence before concluding that a defendant’s constitutional rights must surrender to a plaintiff’s discovery needs. The summary judgment standard will ensure that the Court receives such facts and evidence.” The court went on to note that the plaintiff’s complaint – devoid of specific facts supporting its claims – provided an example of why the summary judgment standard is appropriate.
Best Western Int’l v. Doe, (Slip Op.) 2006 WL 2091695 (D.Ariz. July 25, 2006).