Ars Technica reported recently that Chief Judge Marsha Pechman of the Western District of Washington had ordered the identification ("unmasking") of hundreds of Amazon users who posted comments critical of the "nutritional supplements" sold by the company “Ubervita.” The article was completely accurate but the headline was somewhat overstated – Judge Pechman had only authorized early discovery through subpoenas to Amazon and Craigslist, which presumably could have been subject to motions to quash if the anonymous defendants were able to retain counsel. We were concerned, however, because the early discovery had been authorized even though the motion was exceptionally bareboned, without any showing of legal and evidentiary merit, as required by the Dendrite rule, and because Ubervita’s moving papers, and Judge Pechman’s early discovery order, had been maddeningly unspecific about which critical comments were the subject of Ubervita’s claims of product disparagement and unfair competition. The complaint itself cited a couple of adverse comments but went on to allege that there were many other criticisms, unspecified, whose authors were Doe defendants. This unspecificity violated the prong of the Dendrite test that requires the precise actionable words to be spelled out.
Even worse, Ubervita had started invoking Judge Pechman’s decision to post responses to critical comments, including comments made AFTER the lawsuit was filed which therefore could not have been alleged in the lawsuit to be false and defamatory, warning that Ubervita was suing its critics and inviting commenters to conduct a Google search to learn about the case – presumably, directing them to the Ars Technica article that warned of the supposed “unmasking” order. (I have linked above to PDF's of the threatening comments, not to the comments on Amazon's site, because Amazon has been removing them).
In response to a request for representation by one of Ubervita’s anonymous critics, we decided to ask Judge Pechman to reconsider her blanket grant of leave to take early discovery of the identity of every Ubervita critic. In response to my request to meet and confer about this discovery motion, Ubervita’s lawyer, Mike Atkins, explained that his client’s main objective was to identify the individuals, believed to be connected with a competitor, who had placed phony bulk orders of his client’s product on Amazon, causing the product to be shown as out of stock, and who had placed a phony ad on Craigslist, purporting to be from his client, offering to pay for positive Amazon reviews, and then posted a commentary on Amazon pointing to that ad immediately after it appeared. To avoid our motion for reconsideration, Atkins agreed to limit his subpoena to Amazon to those issues, thus protecting the larger group of Ubervita critics.
This offer appears to resolve the immediate problem, but Chief Judge Pechman should have known better than to grant such broad early discovery to identify unspecified critics. Indeed, she authorized discovery to obtain the credit card and bank account information of the anonymous critics; why on earth was that sort of private financial information justified by the need to obtain information permitting service? This part of the discovery request should have been a dead giveaway that something else was going on.
The Western District of Washington has consistently stood for strong protection for anonymous online speech without a showing of merit for requested discovery; one of the very earliest cases, 2TheMart v. Doe, was decided there in 2001. The Western District of Washington also warmly embraced the Dendrite approach in our Salehoo case. Dendrite, though, specifically required factual and legal showings as a condition of early discovery, not just for enforcement of a subpoena.
In the Ron Paul case, an effort by Ron Paul’s primary campaign to obtain an early discovery order without any showing of merit to identify the author of a nasty video parodying both the Ron Paul and other Republican primary candidates was rejected in favor of an order requiring the plaintiff to make the proper showing before early discovery was authorized. The Ron Paul campaign dropped its lawsuit rather than trying to make such a showing.
Here, Ubervita has a narrower claim that is not primarily focused on critical speech. I give credit to Atkins for promptly responding to my expression of concern by agreeing to limit his initial discovery efforts directed to Amazon; in my own mind I remain uncertain on whether he deliberately sought an overbroad order. It is apparent from his client's to use the early discovery order to bully its online critics, however, that Ubervita itself has the evil intent of suppressing all criticism.
Not only does it deserve condemnation for this conduct; you also have to wonder how good its products can be if success in the marketplace depends on suppression of criticism.