Another court adopts the Cahill standard for unmasking anonymous online defendants

A trial court in Arizona has quashed a subpoena served on Godaddy, issued by a plaintiff in a defamation suit against an anonymous website owner. Applying the standard articulated in the Delaware Supreme Court decision of Doe v. Cahill, 884 A.2d 451 (2005), the court held that the plaintiff had failed to present a strong enough case to overcome the defendant’s First Amendment right to speak anonymously. Under the Cahill standard, a plaintiff seeking to unmask an anonymous Internet defendant must put forth evidence sufficient to withstand a motion for summary judgment before the court will order the identity to be revealed. [Read more here.]

Public Citizen represented the anonymous defendant, and issued this press release which explains the case in more detail, and provides a link to the court’s opinion.

See also Techdirt’s commentary on the case.

McMann v. Doe, Case No. CV 2006-092226, Maricopa County Superior Court, January 18, 2007.

Federal court adopts Cahill standard for unmasking anonymous defendants

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., 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).

Company had no standing to challenge discovery on behalf of anonymous defamers

After seeing what it believed to be defamatory statements about it on Yahoo! Finance and Silicon Investor message boards, plaintiff Matrixx Initiatives, Inc. (“Matrixx”) filed a lawsuit against several “John Doe” defendants. Through information obtained from Yahoo!, Matrixx determined that certain of the alleged defamatory statements were posted with computers owned by Barbary Coast Capital Management. Matrixx took the deposition of one Mr. Worthington, the manager of Barbary Coast, asking him to identify the anonymous Internet users who posted the alleged defamatory statements. Worthington refused.

Matrixx filed a motion to compel Worthington to answer the questions, and the trial court granted the motion. Worthington and Barbary Coast sought review, arguing that the posters’ First Amendment right to speak anonymously should prohibit the disclosure of their identities. On appeal, the court affirmed the decision of the lower court, holding that Worthington and Barbary Coast did not have standing to invoke the anonymous posters’ First Amendment rights.

In reaching its decision, the court distinguished two other cases in which the recipient of a subpoena did have standing to challenge the unmasking of another person. In the cases of In re Subpoena Duces Tecum to America Online, Inc., 2000 WL 1210372 (Va. App. 2000), and In re Verizon Internet Services, 257 F.Supp.2d 244 (D.D.C. 2003)(both cases reversed on other grounds), Internet service providers did not have to identify anonymous customers pursuant to subpoenas served on the ISPs. In each of these cases, the courts held that the ISPs had standing to assert the customers’ rights to remain anonymous, because the customer relationships were sufficiently close. In this case, however, the court held that “by contrast, we are presented with no ‘close relationship’ — or, indeed, any relationship — between appellants and the individuals for whom they are seeking First Amendment protection.”

Matrixx Initiatives, Inc. v. Doe, — Cal.Rptr.3d —, 2006 WL 999933 (Cal.App. 6 Dist, April 18, 2006).