Re: 7/31/01 - Borough of Emerson, NJ takes on "Eye on Emerson" web site and 70 John Does; challenges Dendrite ruling
The Eye on Emerson
Public Records
JACK C. DARAKJY
ATTORNEY AT LAW 466
Kinderkamack Road
Oradell, New Jersey 07649-1536
TELEPHONE (201) 261-4450
FACSIMILE (201) 261-7978
July 31, 2001
Hon. Mark Russello, J.S.C.
Superior Court of New Jersey
Bergen County Justice Center
10 Main Street
Hackensack, NJ 07601
Re: Donato et al vs. Moldow et al
Docket No. BER-L-pending
Dear Judge Russello:
Please accept this letter brief on behalf of the plaintiffs in the above matter in support of their motion to serve an expedited subpoena duces tecum and for a preliminary injunction directing the defendant(s) to preserve evidence.
Introduction and Procedural History
This is a complaint for defamation and harassment against Stephen Moldow, who is the designer, operator and owner of a private website known as "Eye on Emerson" and against approximately 70 anonymous users of the website who posted defamatory and harassing and threatening messages to and/or about the plaintiffs. The website is not authorized or condoned by the municipal government of the borough of Emerson but the borough does provide Moldow copies of minutes of meetings of the governing body and its board and commissions in accordance with the Freedom of Information Act.
Plaintiffs seek leave to issue an expedited subpoena duces tecum on VantageNet Inc., trading as Freetools.com, prior to service of the summons and complaint on the defendant(s). VantageNet is a company that hosts websites including the Eye on Emerson. The application also seeks to compel the production of records by defendant Moldow, together with an injunction preventing Moldow from deleting, altering, destroying or otherwise disposing of any record regarding the content of the messages on his website and/or the identity of users. After an application ex parte was denied without prejudice, and at the Court's direction, plaintiffs are simultaneously serving Moldow with the summons, complaint, motion papers and document request.
Plaintiffs allege they will suffer irreparable harm if data are lost before the appropriate time expires in which to serve a subpoena on a third party.
Statement of Facts
As the complaint alleges, webmaster Stephen Moldow and various anonymous individuals have published defamatory, harassing and damaging messages about the plaintiffs on the discussion forum section of Eye on Emerson, an unofficial website that professes to provide information for residents of the Borough of Emerson.
The messages, many of which are anonymous, contain personal attacks against the plaintiffs and their associates, including many private citizens, with language that is not only course but occasionally obscene, vulgar, defamatory, harassing and threatening. Since the time the complaint was filed, additional harassing and defamatory messages were posted. On information and belief, a criminal investigation is pending regarding terroristic threats against a citizen who is not one of the plaintiffs.
For example, one anonymous message posted the name and address of plaintiff Vincent Donato's employer and exhorted readers to send defamatory letters informing the employer of illegal and unethical conduct by the councilman in his former job. The allegations of improper conduct were not true and should have been known by the Webmaster to be untrue, as Donato had previously revealed the truth in a flyer he sent throughout the borough at his expense. Another infamous message listed individuals who support the current administratior4 called them "loosers" (sic) and stated that the author of the message knows "where you live" and warned that he would come to their homes and "see how strong you are." This is clearly a threat of physical harm. A similar message posted at about 10 p.m. on July 28, 2001 warned the Chairman of Emerson's Environmental Commission that he would receive a private and unexpected visit from the individual, and that Mr. Hoffman should "kiss your -ss goodbye."
VantageNet has technology available for the webmaster to obtain the "IP addresses" that identify the users of the website. See policies and rules of VantageNet/Frectools.com, attached as Exhibit B to the Calogero Certification; see also Exhibit C, messages from and to Moldow admitting he can obtain this information.
Plaintiffs have evidence that Moldow knows the identities or at least the IP addresses of the users of the website. For example, on or about July 15, 2001, Moldow stated that he had removed four anonymous messages by "Ouch," "Amazed," "spiderman," and "web master" and claimed that "All of these messages appear to be from the same person." See Complaint, Paragraph 28, emphasis added. Moldow has often banned certain users for "disrupting" the website. He has admitted that he has access to the "IP" address of the users and that the technology exists to require users of the discussion board to register with their real names and addresses. See Exhibit C to Calogero certification. Moldow also has, upon information and belief, saved electronic copies and "hard" copies of the offending messages because he has re-posted messages that were deleted over time and because he appears to be able to cross reference new messages to old ones.
VantageNet does not save anything more than the most recent messages on an active bulletin board. As more messages are posted, the old ones are deleted. There were, on average, between 10 and 50 new messages posted every day on the website. On or about July 29, 2001, the discussion forum was temporarily shut down "due to circumstances beyond the control of the Eye on Emerson." It is unknown how long VantageNet will save data from an inactive website. If plaintiffs are required to wait until 30 days after the complaint is served on the defendants, that could lead to the deletion of evidence critical to plaintiff's case. It'is imperative that the plaintiffs be permitted to serve a subpoena on VantageNet at this time. Plaintiffs also seek to enjoin and restrain Moldow from destroying or deleting any records pending the litigation, except in the ordinary course of business.
Legal Argument:
Point One: Leave should be Granted to serve a subpoena ex parte, due to the exigency that records will be purged if they are not requested immediately.
Rule 1:9-2 permits the issuance of a subpoena for the "production of books, papers, documents or other objects" and directs that "except for pretrial production directed by the court pursuant to this rule, subpoenas for pretrial production shall comply with the requirements of R. 4:14-7(c)." The latter rule requires the subpoena to be served on 10 days notice to all parties to the litigation. It incorporates by implication the rest of Rule 4:14 regarding depositions, and particularly R. 4:14-1, which dictates that "leave of court, granted with or without notice, must be obtained ...if the plaintiff seeks to take a deposition prior to the expiration of 30 days after service of the summons and complaint upon the defendant."
Point Two. Service of the Subpoena Will Not Violate the First Xmendment Ritzhts of the Users of the Website.
On July 11, 2001, the Appellate Division handed down two landmark cases regarding internet use and which set guidelines for the release of the identity of anonymous users of discussion forums like the Eye on Emerson. See, generally, Dendrite International Inc. vs. Doe 3, N.J. Super. (App. Div. July 11, 2001). The Court opined that anonymous speech on a website is protected by the First Amendment; however, the Court held that in the event of defamation or breach of contract trial judges may compel an Internet Service Provider "ISP") to reveal the identities of the users. Guidelines for trial courts were based on the following fundamental principle:
The trial court must consider and decide those applications by striking a balance between the well-established First Amenchnent right to speak anonymously, and the right of the plaintiff to protect its proprietary interests and reputation through the assertion of recognizable claims based on the actionable conduct of the anonymous, fictitiously-named defendants.
Dendrite, N.J. Super. (App. Div. 2001). The holding set forth a series of recommended procedures to be followed as a prerequisite to the release of the identities of web users, including posting messages to them on the message board to inform them of the pending litigation and the request for their identifies and giving the users a reasonable opportunity to intervene in the pending case and defend their anonymity.
Plaintiffs in this matter are not requested the immediate release of the identities of the web users at this time, as the proposed subpoena would not be returnable until 30 days after service of the complaint. This application is narrowly tailored to meet the unusual exigency created Vantagenet's policy to automatically delete old messages and the plaintiffs have ensured there is adequate time to follow the precautions required and to give notice to the defendant and the requisite notice to the particularly identified users of the Eye on Emerson website. However, serving the subpoena now is the only way to ensure the preservation of the information that will be requested in the future.
In short, the balancing test required by Dendrite need not be performed by the Court at this time as the point of this application is to require VantageNet to preserve the information that would otherwise be lost if we are first required to follow the painstaking steps required to protect the users. The users will still be protected after the subpoena is filed but there is no time to do this in the tradition order required by the rules and the case law of this State.
Point Three. The Injunction is Necessary to Prevent Irreparable Harm.
Restraints against the destruction of the evidence is necessary for obvious reasons as set forth in the Calogero Certification. Moldow keeps records of messages and apparently records the IP addresses of the users, as can be inferred from his behavior regarding messages that violate his terms of use. Moldow has banned users, deleted messages that are critical of him or his website (whether or not the messages violate the terms of use) and he has re-published some messages on the website after they were deleted. Regardless of the fact that the data are available from a third party, VantageNet, Moldow should not be permitted to conceal, destroy, alter or delete any data that might be relevant to this case.
Rule 4:52-1 allows an application for temporary restraints on a showing of irreparable harm. The standards for issuing a temporary injunction are set forth in Crowe v. DeGioia 90 N.J. 126, 132-33 (1982), which permits a preliminary injunction upon a showing of (1) irreparable harm to the movant, (2) the likelihood of success on the merits; (3) that the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party and (4) if issued, the injunction would not be adverse to the public interest.
Clearly, the destruction of data that is discoverable and relevant would cause immediate and irreparable damage to the plaintiffs, as they could be foreclosed from determining the identities of those who damaged them. The harm to defendant Moldow from the injunction is minimal if any. Plaintiffs are only seeking to prevent him from destroying electronic data. The storage of data is neither burdensome nor unnatural, especially for the administrator and owner of a website whose occupation is to monitor the activity on the site.
Clearly, the intention of Rule 4:14-7 is to foreclose the practice of unilateral discovery and to afford parties the right to move to quash a subpoena due to privilege or other proper objection. In this matter, the rights of the parties will not be violated. First, the webmaster is the only person using the website whose identity is known to the plaintiffs. Although some messages purport to have been written by identified persons, there is no way for plaintiffs to be certain that the authors of these messages are indeed who they say they are. The "rights" of the fictitious defendants cannot be determined without identifying who posted the message, and their identities cannot be determined without subpoena to VantageNet. Moreover, the Court can protect the rights of third parties by an in camera review of the documents produced by VantageNet before any of the records are released to the plaintiffs. See Trump's Castle Assoc. v. Tallone, 275 N.J. Super. 159 (App. Div. 1994). Even where parties have violated the letter and spirit of the rule and served subpoenas to obtain police records of juveniles, the court has held that dismissal of the action was too severe a sanction. Rizzo v. Prudential Securities Inc., 287 N.J. Super. 523 (App. Div. 1996).
It is respectfully argued that defendant Moldow - the only non-fictitious party who would have standing to move to quash the subpoena - has more of an interest in the preservation of these records than even the plaintiffs. Ultimately, Moldow may be held to pay a judgment for publishing defamatory comments made by others on his website. Although the plaintiffs have ample legal argument for holding him directly accountable because of his active role in selectively editing the messages and deciding which messages he publishes, Moldow may seek to engage in third-party practice against the individuals who actually authored the messages. Moldow himself would be foreclosed from the right to file a third party complaint seeking indemnification or contribution from the responsible individuals if plaintiffs wait too long to serve the subpoena on VantageNet.
For the foregoing reasons, it is respectfully argued that the plaintiffs are entitled to an order on an emergent basis, permitting the issuance of an expedited subpoena duces tecum to VantageNet Inc permitting the issuance of a deposition notice and document request on defendant Moldow, and an Order enjoining and restraining Moldow from destroying, deleting or disposing of any record that is relevant to the within claims.
Oral argument is not requested unless required by the Court or in the event the motion is opposed.
Respectfully submitted,
Jack C. Darakjy, Esq.
Attorney for Plaintiffs
JCD/dr
cc: Stephen Moldow
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