by Paul Alan Levy
I reported last spring that Mordechai Tendler, having lost his effort to identify four anonymous bloggers so that he could sue for defamation over their comments on reports that he had abused his religious authority to have sexual relations with congregants, had issued new subpoenas seeking to identify them. The new subpoenas were for the purported purpose of supporting his claim for damages from the congregation for having fired him. The appellate courts in New York had previously held that his discharge did not follow the procedures required by his employment contract, and the case had gone back to the trial court to decide the amount of damages.
Justice Victor Alfieri of New York’s Supreme Court has now quashed the subpoena, and the ground for his ruling is particularly significant. Our motion to quash had raised a number of procedural grounds as well as arguing that the nexus between Tendler’s damages claims and the bloggers’ identities was too tenuous to justify taking away their right to speak anonymously. But Justice Alfieri chose a broader ground for his ruling.
Unlike subpoenas sought to identify defendants so that an action can proceed against them, which only require the plaintiff to show that he has a legal and factual basis for his claims against the Does so that that need can be weighed against the right to speak anonymously (the so-called Dendrite test), when a litigant seeks to identify non-party anonymous speakers to develop evidence for use against his litigation adversary, a greater showing is needed. Under the 2theMart test, the evidence has to relate to a core claim or defense in the case, or, as the cases sometimes say, the discovery has to “go to the heart of the case.” When the evidence is needed only to affect the amount of damages obtainable from the defendants, we had argued, that is not a sufficiently compelling reason for depriving a blogger of the right to criticize anonymously. Justice Alfieri accepted this argument, thus providing broad protection of anonymous speech.