by Paul Alan Levy
The Citizen Media Law Project carries word of a ruling by a Tennessee Circuit Court judge in Schwartz v. Doe (October 8, 2009), which ordered identification of Doe defendants but only after adopting a tough legal standard that follows New Jersey's Dendrite v. Doe ruling closely in requiring notice, an opportunity to respond, a showing of legal sufficient, as well as evidence of wrongdoing, and then applying an express balancing test once the other aspects of the test were met. Court declined to take a position on “summary judgment” versus “prima facie case” as a formula for applying this prong of the text, but says the point is to make sure that there is a “substantial legal and factual showing that the claims have merit before permitting discovery of an anonymous defendant’s identity.”
The Court notes that it gave the Doe permission to file an anonymous affidavit, but that the Doe then failed to take advantage of that permission. The plaintiffs established their factual basis by testifying at a hearing and being subjected to cross-examination. This procedure is reminiscent of the process used by Judge Wettick in Melvin v. Doe, which led to the Pennsylvania Supreme Court's decision on the appealability of such rulings -- Judge Wettick allowed plaintiff to present her evidence by affidavit, but allowed Doe's counsel to take her deposition.
There is one odd item in the balancing, discussion, however. The court mentions the fact that Google's Terms of Service refer to the possibility of disclosure pursuant to subpoena. The court does not acknowledge that most if not all ISP's have terms of service that reserve the possibility of disclosure of information pursuant to a valid subpoena. If that is so, it is hard to understand why the fact that Google is one such ISP should a a role in the balancing of interests that should help courts to distinguish cases especially meriting disclosure from those especially meriting protection of anonymity.
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