by Paul Alan Levy
Two decisions were issued late yesterday in cases involving the procedures for adjudicating subpoenas seeking to identify anonymous Internet speakers who are accused of actionable speech. An appeals court in California embraced most elements of the Dendrite / Cahill test for deciding whether the plaintiff in such a case should be able to enforce a subpoena for the speaker’s identity. A federal district judge in the District of Columbia, meanwhile, held that state law claims cannot be filed in federal court against anonymous defendants simply because the plaintiff believes that the defendants have diverse citizenship and hopes to be able to confirm that belief through discovery.
ZL Technologies v. Doe
The California case involved seven reviews on Glassdoor.com posted by former employees of ZL Technologies, praising the company in some respects but also advancing serious criticisms. ZL Technologies filed suit in the Superior Court for Marin County, claiming defamation; because the reviewers did not provide their real names, ZL sued them as Doe defendants and issued a subpoena to Glassdoor. After Glassdoor objected to the subpoena on First Amendment grounds, ZL moved to compel; relying on the decision of the California Court of Appeal for the Sixth Appellate District in Krinsky v. Doe No. 6, Glassdoor argued in opposition that the posts were largely constitutionally protected opinion but also that ZL Technologies had to make out a prima facie evidentiary case that the negative statements about it were false and damaging. The trial court denied enforcement of the subpoena but only on the ground that, in the context of Glassdoor’s web site, the reviews were non-actionable opinion rather than fact. When, a year later, ZL had still not served the Doe defendants, the trial court dismissed the action for failure to prosecute.
ZL Technologies appealed to the Court of Appeal for the First District, purporting to rely on Krinsky but arguing that its identification of the allegedly defamatory reviews, and provision of evidence that those statements had been made about it, was sufficient to comply with Krinsky's requirement of a prima facie case. Standing on this view, ZL had refused in the trial court to submit any evidence purporting to show that the reviews contained false statements. Glassdoor also relied on Krinsky, but argued first that the statements are all opinion and second that, in any event, ZL’s failure to present evidence establishing the elements of its defamation claims on a prima facie basis required affirmance. The case was potentially significant because the First Circuit was not required to follow Krinsky, a decision from the Sixth District. Our amicus brief on behalf of Public Citizen and Twitter urged the Court to embrace all five parts of the Dendrite test, including the final, equitable balancing step.
The good news about the decision is that the Court of Appeal not only fully embraced the requirements that Krinsky established, following the national consensus approach on this issue, but also paid more careful attention to parts of the test that Krinsky lightly skipped over. For example, the court held that notice must be given to the Does so that they have a fair chance to file their own motions to quash (even when the review host is asserting their First Amendment rights; a recent decision from the Court of Appeal for the Sixth District squarely upheld Glassdoor’s standing to assert its users’ First Amendment rights in opposing discovery seeking their identifying information; a separate post will address that decision) but included a thoughtful discussion of the various ways in which notice can be given in various circumstances, leaving it to the well-informed decision of the trial court to decide how to implement the requirement in the particular circumstances. The court of appeals squarely rejected the proposition that submitting the statements themselves is sufficient “evidence” to meet the Krinsky standard – the plaintiff has to submit evidence in support of its claims such as falsity and damages in many defamation cases; the plaintiff must also persuade the court that it is suing over actionable statements of fact. Moreover, the court held that regardless of the plaintiff seeking to identify its critics bears this burden whether or not the plaintiff has the burden of showing falsity in the underlying action. For example, it said, the burden is in the defendant to show truth of statements about a private-figure plaintiff that are not about a matter of public concern. But when seeking discovery, the requirement of supplying prima facie evidence of falsity is what is needed to overcome the defendant’s First Amendment right to speak anonymously. The court disagreed, however, with Glassdoor’s argument that the reviews in question represented no more than hyperbolic and figurative expressions of opinion; all reviews save one, the court held, contained potentially actionable statements of fact. Much of the opinion (pages 15 to 31) was devoted analysis of this issue.
The court of appeals was unwilling, however, to take the step for which we argued, of embracing the equitable balance stage adopted by Dendrite and now followed by appellate courts in a majority of the states that have addressed the issue. The court explained that once the plaintiff has presented evidence sufficient to defeat a summary judgment motion by establishing a prima facie case on the elements of a defamation claim, there is sufficient reason to believe that the statement may lack constitutional protection that the plaintiff should not be deprived of the opportunity to pursue litigation to establish the defendant’s liability (pages 13-14 of the opinion).
Instead of affirming the dismissal of the action based on the plaintiff’s failure to present evidence sufficient to meet the Krinsky standard, the court reversed the denial of the motion to compel (and thus the dismissal of the action for failure to serve within a reasonable time) because the trial court had committed legal error by ruling that all seven reviews at issue contained only nonactionable opinion. The court remanded with instructions to conduct further proceedings in accordance with the opinion, presumably by allowing ZL Technologies to make an evidentiary showing in support of its claims against the authors of the six reviews held to be potentially actionable, and thus possibly to secure discovery identifying the authors of those six reviews.
Vogel v. GoDaddy
The other case that was decided late yesterday was filed in the last year in the United States District Court for the District of Columbia. Plaintiff Jason Vogel, a California real estate entrepreneur with properties in California, New Mexico and Washington DC, claimed that a series of harshly critical web sites, Facebook pages and Twitter accounts, as well as flyers distributed near his California home, accused him of being a greedy slumlord who subjected his tenants and neighborhoods to bad conditions. The defendants in the complaint were GoDaddy, sued because it hosted the web site “TheRealJasonVogel.com,” and four Doe defendants who were alleged to be a wealthy group of real estate interests who were part of a wide-ranging conspiracy to damage Vogel’s business in retaliation for Vogel’s alleged good-citizenship opposition to the critics’ own real estate projects in Los Angeles. The complaint alleged diversity jurisdiction based on GoDaddy’s Arizona citizenship of Arizona. So far as I can tell, the only reason why Vogel filed his lawsuit in the District of Columbia rather than California is that his brother Kenneth Vogel has a real estate law practice there.
Plaintiff filed an ex parte motion for early discovery seeking to identify his critics In filing these motions, plaintiff never mentioned section 230 of the Communications Decency Act to the federal judge or admitted that his lawsuit against GoDaddy — the basis for his assertion of diversity jurisdiction — was completely frivolous. GoDaddy, for its part, was content not to move to dismiss and seek sanctions for frivolous litigation (the DC anti-SLAPP law being unavailable because the DC Circuit has held that it does not apply in federal court) because Vogel told its counsel that he was not going to seek any relief against it and, indeed, that it was going to dismiss it after obtaining the discovery he needed. Vogel was that able to maintain the charade that he had a valid basis for subject matter jurisdiction in asking the judge for one extension after another while he pursued a campaign of discovery, issuing dozens of subpoenas to a variety of California individuals and companies whom he considered potentially responsible for the campaign of defamation that he had alleged in his complaint.
I was then retained by a California law firm that had received one of Vogel’s federal court subpoenas and that was representing some of the other subpoena recipients; we filed a motion for leave to appear as amicus curiae, along with a brief pointing out to the trial judge that the lawsuit pending before him lacked any jurisdictional clothes, and thus was not a proper basis for the issuance of federal court subpoenas. Our main point was that Doe defendants cannot be sued in diversity because plaintiff cannot allege their citizenship and hence cannot show that citizenship is diverse; we also pointed out that plaintiffs’ papers seeking an extension repeatedly characterized the lawsuit as being directed at defamers located in California, whose citizenship was certainly not diverse with Jason Vogel. We also argued that Vogel had not sufficiently alleged a basis for personal jurisdiction in D.C.
At this point, Vogel suddenly changed his tune. He claimed that he was not currently suing any of California residents that his earlier papers had accused of being involved in the campaign to defame him, although he reserved the possibility of suing them later based on discovery obtained through his federal discovery. He also sought leave to amend his complaint to allege that, based on discovery obtained thus far, some of the allegedly tortious conduct alleged in the complaint has been done using IP addresses in Virginia, Texas and Illinois; on that basis, Vogel alleged that he “believed” that the Doe defendant were citizens of those states.
In an opinion issued yesterday evening, the trial judge found insufficient evidence that the defendants in the case had citizenship diverse from Vogel. He agreed that, as a general matter, Doe defendants cannot be sued in discovery, and that in any event the complaint did not alleged sufficient facts to establish diversity because even assuming that there was a sufficient basis for believing that Doe defendants were located in certain states when they committed allegedly tortious acts, that was no basis for alleging their citizenship in those states. “Plaintiff cannot continue to use the tools of discovery otherwise available to a plaintiff properly in federal court to uncover the requisite jurisdictional facts.” Accordingly, the court refused to allow Vogel to amend his complaint, and he dismissed it for lack of subject matter jurisdiction.
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