“John Doe” Fights Back: An Analysis of the Techniques
Used by Defendants Fighting Corporate Cybersmear Lawsuits
by Blake A. Bell[1]
January 3, 2000
Corporate cybersmears! For many corporate executives, the phrase evokes images of furtive Internet message board postings coldly calculated to manipulate the price of a company’s stock or to defame the company’s management.
That image could not be further from the truth, at least according to many of the message board participants who have been sued by companies in so-called “corporate cybersmear” lawsuits. Increasingly, cybersmear defendants have fought back with a vengeance. This article will examine some of the tactics such defendants have used against companies that have sued them.
Cybersmear Suits Are Piling Up
A “corporate cybersmear” is a rumor about a company, its management or its stock that is posted anonymously on an Internet message board or in a live “chat room.” Companies that believe such postings to be false and defamatory increasingly resort to lawsuits against unknown “John Doe” defendants responsible for the postings Once such a suit has been filed, the corporate plaintiff typically uses the subpoena process to gain information from the message board or chat room host to permit identification of the anonymous or pseudonymous author(s) of the postings.
Few would deny that such suits are becoming commonplace. One recent news report states that Silicon Investor — only one of the four principal financial message board sites -- “receives about one subpoena a day” seeking the identities of authors of message board postings.[ii]
In the last few months, corporate cybersmear suits reportedly have been filed against unknown “John Doe” defendants by such companies as Fonix Corp., Owens Corning, Bioshield Technologies, Inc., Total Renal Care Holdings Inc., ZiaSun Technologies, Inc., and Lily Industries Inc.[iii] These suits join the nearly fifty such suits that already have come to light, with many more likely winding their way quietly through the nation’s judicial system.[iv]
“John Doe” Fights Back
“John Doe” has begun to fight back. One cybersmear defendant recently filed large counterclaims and third-party claims against the corporate plaintiff and its management in a cybersmear case. Others are using the discovery process to bolster their positions and to embarrass the companies that sued them.
Some “John Doe” defendants are putting up Web sites devoted to their plight and are creating message boards and chat rooms to exchange information with other “John Doe” defendants about their respective lawsuits. Some “John Does” are fighting the subpoenas intended to unmask their identities. Others are seeking the assistance of national organizations such as the American Civil Liberties Union and the Electronic Privacy Information Center and are urging them to get involved on behalf of “John Doe” defendants. Finally, most are continuing to state their critical opinions on the various message boards where they originally ran into difficulty.
One “John Doe” Swings a Mean Counterclaim
Holding true to the old saw that “the best defense is a good offense,” substantive counterclaims have begun to appear against companies that file cybersmear suits. Perhaps the most notable and widely-reported such instance involves a cybersmear suit filed by ITEX Corporation in August 1998.
ITEX is a Nevada corporation based in Oregon that operates, among other things, the ITEX Retail Trade Exchange (the “Exchange”). The Exchange has been described as an association of business owners and professionals that form a marketplace to barter goods and services. The Exchange reportedly was intended as a barter clearinghouse for its members.
During 1998, anonymous messages critical of ITEX and its management began to appear on a Yahoo! Finance message board devoted to the company’s stock. The messages reportedly claimed, for example, that “current management is blind, stupid and incompetent” and were signed by people using screen names such as “colojopa,” “Investor 727" and “Orangemuscat.”
ITEX filed suit in state court in Oregon against “John Does 1-100". Its complaint alleged that the authors of the postings had engaged in unlawful trade practices, civil conspiracy and defamation.
On August 26, 1999, one of the defendants struck back. Defendant Leslie L. French filed an answer with affirmative defenses that also included counterclaims and third-party claims against ITEX and certain of its executives.[v]
In his amended pleading, filed on September 7, the defendant alleged, in effect, that the creation and issuance of bartering trade dollars in circumstances that the defendant contends were in a deficit condition constitutes an offering and sale of unregistered securities in supposed violation of Oregon’s blue sky laws.[vi] The defendant sought damages on the various counterclaims and third-party claims totaling more than $1.5 million. The defendant also requested a receivership for the Exchange as well as injunctive relief against ITEX, certain ITEX directors, the Exchange and certain members of the Board of Governors of the Exchange.
Not long after Defendant French filed his Amended Answer and Cross-Complaint, the U.S. Securities and Exchange Commission got into the act. On September 27, 1999, the Commission filed a civil fraud action against ITEX and various members of ITEX’s management. The complaint alleged securities fraud and asserted that the company had materially inflated its revenues and earnings in financial statements filed with the Commission and in other disclosures made to the investing public.[vii]
“John Does” Use the Discovery Process
Another tactic that should come as no surprise is the extent to which “John Doe” defendants are trying to use the discovery process to bolster their positions and to embarrass the plaintiff companies and their executives. One such example involves a suit filed last February by Varian Medical Systems, Inc.[viii]
The Varian suit is a virtual soap opera of charges and counter-charges. The company alleges that after Defendant Michelangelo Delfino was terminated from the company as a research scientist, he began posting defamatory messages to a Yahoo! Finance message board and impersonating company officials on that message board. Mr. Delfino reportedly denies the allegations and claims that the suit is an effort to “use the Internet to go after” his research and development startup company, MoBeta Inc., which he claims is the “real target of Varian’s suit.” As he puts it, “[w]hat we think they’re trying to do is go after our patents.”[ix]
The defendants’ attorneys in the Varian case already have deposed Varian’s Director of Human Resources, its Human Resources Senior Resources Representative, a supervising Manager, and a Manager. Efforts reportedly are underway to depose other even more senior executives. In some instances, defendants have posted to the Web excerpts of the transcripts that they believe either support their positions or, they believe, cast the plaintiffs in a bad light.[x]
Trading Information Via the Internet
As “John Does” grow increasingly sophisticated in their defense of corporate cybersmear suits, they are likewise growing increasingly sophisticated in their use of the Internet to exchange information about the various lawsuits and the tactics being employed by the companies involved. Some defendants have put up Web sites where they make information about the lawsuits in which they are involved available.[xi] Others have founded Yahoo! message board “clubs” at clubs.yahoo.com.
The two most widely-followed “John Doe” clubs are “John Does - Anonymous Yahoo message posters who are being sued”[xii] and “ITEX Group - About ITEX CORP and the SEC/100 John Does Lawsuits”.[xiii]
The “John Does” club hosts a message board which, as of November 15, 1999 had more than 70 members who have posted nearly 500 messages. The messages address the lawsuits in which some of the board participants are involved and the companies that have brought cybersmear suits.
The home page of the “John Does” club states “Welcome to all of the John Does (and friends of “John Does”) who have been sued by PHV, PHYC, RTNB, VALU, Shoneys, ITEX, OWC, WADE, PHXX, XIRC, and other companies which desire to chill and obstruct the free-flow of information on the internet by pursuing anonymous Yahoo! Message board posters with expensive litigation.” Similarly, the “ITEX Group” club hosts a message board which, as of November 15, 1999, had nearly 90 members who have posted nearly 700 messages.
Both clubs offer periodic “Online Conferences” using chat rooms for members to exchange information about the companies and the lawsuits in which they are interested. For those who have registered as “members” of the ITEX Group club, the chat room is available at <http://chat.yahoo.com/?club=itexgroup>. Every week, members of the ITEX Group club gather online for a “weekly conference” typically held at 9:00 p.m. Eastern time.
Similarly, for those who have registered as “members” of the “John Does” club, the founder issues periodic e-mails inviting recipients to participate in online conferences that can be accessed at <http://lesfrench.com/cgi-local/chat/chat.cgi>. Recent topics addressed in that chat room have included “[j]udicial requirements for proper service of John Doe subpoenas” and “an upcoming article in California Lawyer magazine” about corporate cybersmear suits.
“John Does” Fight Subpoenas
Some “John Does” have begun to fight the subpoenas intended to unmask their identities. Perhaps the most widely reported such incident involves Xircom, Inc. One pseudonymous author of a message board posting, known only as “John Doe aka ‘A_View_From_Within’” filed a motion in a cybersmear case brought by Xircom in California seeking to quash a subpoena issued by Xircom’s attorneys and to obtain a protective order against the issuance of further subpoenas.[xiv]
Last April, “A_View_From_Within” posted at least two messages to a Yahoo! Finance message board devoted to Xircom. The author claimed to be “one who has worked at Xircom for a number of years” in its “Engineering Dept.” and criticized the company and its management. One of the messages claimed that management had “run Xircom’s sales into the ground”. Another alleged that “there is a known problem on the inside that is being kept from the outside[.] [T]he connectors on the RealPort are extremely fragile and break very easily.”
A few weeks later, in May, Xircom commenced its defamation suit and issued a subpoena to Yahoo! The subpoena was later amended. The amended subpoena sought, among other things, documents concerning the identity of the person who posted the messages, documents concerning that person’s registration for, access to or use of the message board and documents concerning the methods, means, gateways, or other processes by or through which the person accessed, visited, retrieved information from, or posted information to the message board.
On May 25, lawyers representing the “John Doe” defendant filed a motion to quash the subpoena and to obtain a protective order against future similar subpoenas. They argued that the subpoena was “untimely under Civ. Proc. 2025(b)(2), is an unconstitutional abridgement of his constitutional rights to privacy and anonymous speech, and has been issued as part of a bogus lawsuit in an effort to chill speech.”[xv]
On June 16, the Court quashed the subpoena for failure to comply with a procedural statute, but authorized Xircom to redraft and reserve the subpoena. Within a month, the suit was settled. The “John Doe’s” lawyer reportedly revealed the author’s identity to a few senior executives at Xircom. The “John Doe” also affirmed that he has never been employed by Xircom and expressly stated that his postings were expressions of opinion.[xvi]
The efforts by the author who used the alias “A_View_From_Within” to fight Xircom’s attempt to identify him apparently are not unique. ProMedCo Management Co. recently filed a cybersmear suit and issued a series of subpoenas to unmask the identities of anonymous authors including one who used the pseudonym “Voiceonthewind”.[xvii] “Voiceonthewind” reportedly hired a lawyer and “the case was over in a matter of days.” It seems that “Voiceonthewind’s” lawyer “noticed a glaring defect in the subpoena” and told the company “that we were going to fight back and that there would be substantial publicity”.[xviii]
“John Does” Seek Help from National Organizations
Increasingly, “John Doe” defendants are also soliciting assistance from national organizations such as the American Civil Liberties Union (ACLU) and the Electronic Privacy Information Center (EPIC). The national office of the ACLU is rumored to be studying the free speech implications of corporate cybersmear cases, although efforts to confirm that rumor so far have been unavailing. At a minimum, such organizations reportedly are beginning to refer inquiries from “John Doe” defendants to attorneys experienced in dealing with such matters.[xix]
Additionally, “John Doe” defendants are beginning to attract the attention of such organizations which are quick to criticize the chilling effect on speech that some say such suits can have. Thus, for example, Fruit of the Loom Ltd. recently filed papers with the Cook County Circuit Court in Chicago, Illinois seeking an order permitting pre-litigation discovery from Yahoo! Fruit of the Loom reportedly intends to identify the authors of anonymous messages posted to a Yahoo! Finance message board devoted to the company.[xx]
David Sobel, EPIC’s General Counsel, responded to the Fruit of the Loom actions by criticizing companies that use the subpoena process to identify the authors of pseudonymous postings and message board hosts that turn the information over to the companies. According to Mr. Sobel:
The word is clearly out among in-house corporate counsel that this is the way to deal with the problem of online criticism . . . . There are no legal protections available to John Doe when the message-board operator like Yahoo or the service provider doesn’t notify individuals that their identities are being sought. The individual has no opportunity to object.[xxi]
“John Does” Continue To Post After Suit Is Filed
For all the talk about the chilling effect of cybersmear suits on free speech, even the most cursory review of message boards devoted to companies that have filed such suits suggests one thing — many authors of pseudonymous messages apparently continue to post messages critical of the companies after suit is filed. And, in many instances, other message board participants step forward with their own critical postings occasionally daring the companies to sue them as well. Additionally, some “John Doe” defendants have essentially expanded the fora that are available for such postings by opening message board “clubs” to which people continue to post messages critical of the companies involved in such suits.
When one reporter recently asked one of the defendants in the cybersmear suit filed by Varian Medical Systems, Inc. when he and a co-defendant will stop posting disparaging remarks about their former employer on Yahoo! Message boards, the defendant’s reply was succinct: “We’ll post until we’re dead”.[xxii]
Lessons To Be Drawn So Far
What lessons can a company draw from the tactics used by John Doe defendants so far? Quite a few, actually.
First, in assessing whether to bring such a suit, companies and their counsel must maintain realistic expectations. Do not assume that just because the prospective defendant is likely to be an individual with limited resources that the individual is likely to capitulate quickly.
Prepare the company for the possibility that a “John Doe” defendant may attempt to assert substantive counterclaims or third-party claims. Be prepared to respond to extensive discovery requests and to devote time, resources and money to the task of fighting discovery disputes in court. Be prepared to offer executives, including some senior executives, for depositions in the event the matter is fully litigated. Do not be surprised to see experienced counsel (including counsel from one of the major civil liberty organizations such as the ACLU) appear for the defendant.
Second, never assume that subpoenas directed at message board hosts and Internet Service Providers will be met with no resistance. Such subpoenas should be issued with careful attention to detail and to the procedures that apply in both the jurisdiction in which the suit has been filed and the jurisdiction in which the defendant resides or can be found.
In addition, although it would seem to go without saying, consider applicable case law concerning the preparation and issuance of subpoenas designed to obtain the identity of an anonymous “John Doe” defendant. For example, in one recent case[xxiii], the United States District Court for the Northern District of California laid out “limiting” principles that should apply in the Northern District of California to the determination of whether to permit discovery to uncover the identity of someone who has participated in an online forum anonymously or pseudonymously.
First, the plaintiff must identify the “John Doe” to the Court with sufficient specificity “such that the Court can determine that defendant is a real person or entity who could be sued in federal court” — that is, with sufficient specificity to establish jurisdictional facts. 185 F.R.D. at 578.
Second, the plaintiff must “identify all previous steps taken to locate the elusive defendant” to satisfy the Court that a good faith effort has been made to comply with the requirements of service of process and specifically identifying defendants. Id. at 579.
Third, the plaintiff must “establish to the Court’s satisfaction that plaintiff’s suit against defendant could withstand a motion to dismiss . . . to prevent abuse of this extraordinary application of the discovery process and to ensure that plaintiff has standing to pursue an action against defendant.” Id. at 579-80.
Lastly, the plaintiff must “file a request for discovery with the Court, along with a statement of reasons justifying the specific discovery requested as well as identification of a limited number of persons or entities on whom discovery process might be served and for which there is a reasonable likelihood that the discovery process will lead to identifying information about defendant that would make service of process possible.” Id. at 580.
Third, companies should never assume that the commencement of such an action will bring an end to venomous postings about the company, its stock or its management team. To the contrary, experience now shows that the authors of such postings may resort to the creation of new Web pages, message boards and chat rooms to air their allegations — all in addition to the message board on which their critical postings originally appeared.
Fourth, companies should assume that the commencement of a cybersmear lawsuit will be picked up by the press. The media has shown an insatiable appetite for stories about such proceedings.
Indeed, with the recent reporting about the Fruit of the Loom cybersmear proceeding, the media seems to have caught on to one technique that companies have been using to keep cybersmear proceedings quiet. Many states have civil procedure statutes that give parties the ability to obtain limited discovery to aid in commencing an action.[xxiv] Companies have been using such statutes to obtain issuance of subpoenas and then have been quietly approaching parties that they have identified to “settle” the matter -- all without formally commencing a lawsuit against any “John Doe” defendants.[xxv]
Finally, companies and their counsel must always be alert to what is being said about the company, its stock and its management on the Internet. Then and only then can the company consider itself even remotely prepared for dealing with the inevitable cybersmears that the exciting and fast-paced medium known as the Internet now permits.
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[1] 1999 by Blake A. Bell. All rights reserved. Blake A. Bell, author of a Web site at www.CyberSecuritiesLaw.com, is Senior Knowledge Management Counsel with Simpson Thacher & Bartlett in New York City. He may be reached at b_bell@stblaw.com.
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See, generally, Blake A. Bell, Dealing with False Internet Rumors: A Corporate Primer, 2(7) wallstreetlawyer.com 1 (Glasser LegalWorks Dec. 1, 1998) (updated version available at <http://www.simpsonthacher.com/memos/art006.htm>); Lyrissa Barnett Lidsky, Silencing John Doe: Defamation and Discourse in Cyberspace, forthcoming in Duke L.J. (advance copy in author’s files).
[ii] Jason Anders, Sites Unmask Online Investors Before They Can Fight Back, Wall St. J. Interactive Ed., Oct. 1, 1999 <http://interactive.wsj.com/articles/SB938784918603530302.htm>.
[iii] See Steven Oberbeck, Online Remarks Are Out of Line, Salt Lake Tribune, Oct. 27, 1999 <http://www.sltrib.com/10271999/business/41744.htm> (Fonix Corp. suit against ten “John Doe” defendants); Benjamin Weiser, Lawsuit Over Web Posting, N.Y. Times on the Web, Oct. 28, 1999 <http://www.nytimes.com/library/tech/99/10/biztech/articles/28net.html> (Owens Corning suit against “John Doe” defendant); Bioshield Institutes Legal Action To Stop Defamatory and Fraudulent Statements on Internet Message Board [Press Release], Bus. Wire, Sept. 2, 1999 <http://www.businesswire.com/cgi-bin/f_headline.cgi?day0/192451260&ticker=bsti>; Bioshield Sues Over ‘Defamatory’ Chat Room Talk, Excite News, Sept. 3, 1999 <http://news.excite.com/news/r/990903/02/net-health-bioshield?printstory=1>; Total Renal Sues Internet User, Alleges Misleading Postings, Bloomberg.com, Aug. 24, 1999 <http://quote.bloomberg.com/analytics/bquote.cgi?story_num=796860841f5d57abb8e610367861f6b2&view=story&version=marketslong99.cfg>; ZiaSun Files Second Defamation Lawsuit [Press Release], July 2, 1999 <http://www.ziasun.com/pr-02jul1999.html>; Aaron Elstein, Heard on the Net: ZiaSun Sues Its Online Critics as Posts Get Nasty and Personal, Wall St. J. Interactive Ed., Aug. 13, 1999 (available at interactive.wsj.com; Mary Francis, Lilly Industries Sues Net Critics: 5 Unknown Antagonists Are Spreading Rumors, Confidential Corporate Info on the Web, Firm Says, StarNews.com, July 28, 1999 <http://www.starnews.com/news/business/99/July/0728st_net.html>; Emily Kaiser, Lilly Sues Anonymous Internet Critics, NandoTimes, July 28, 1999 <http://www.techserver.com/noframes/story/0,2294,75202-118804-842597-0,00.html>.
[iv] For an extensive list of corporate cybersmear cases, see Blake A. Bell, Corporate Cybersmear Cases, CyberSecuritiesLaw.com (visited Nov. 15, 1999) <http://www.cybersecuritieslaw.com/corporate_cybersmear_cases.htm>. For bibliographies of articles that address corporate cybersmears, see Blake A. Bell, Corporate Cybersmears Articles, CyberSecuritiesLaw.com (visited Nov. 15, 1999) <http://www.cybersecuritieslaw.com/cybersmear_articles.htm>; Bruce T. Carton, News Archive: Internet Message Boards, EnforceNet.com (visited Nov. 15, 1999) <http://www.enforcenet.com/EnforceNet/news_archive.htm#mb>.
[v] The Answer and Cross-Complaint was amended on September 7, 1999. See ITEX Corp. V. French, et al., Case No. 98-09-06393, Amended Answer and Affirmative Defenses of Defendant Leslie L. French to Plaintiffs’ Fourth Amended Complaint; Counterclaims and Third-Party Complaint (Cir. Ct. Ore., County of Multnomah, filed on Sept. 7, 1999) (copy available at lesfrench.com (the “Amended Answer and Cross-Complaint”). See also Matthew Broersma, Firm Files Suit Against Yahoo! Finance Users, ZDNet.com, Sept. 9, 1998 <http://www.zdnet.com/zdnn/stories/zdnn_smgraph_display/0,4436,2135922,00.html>; Company Sues Over Yahoo! Postings, Associated Press special to USA Today, Jan. 26, 1999 <http://www.usatoday.com/life/cyber/tech/ctd427.htm>; John Borland, Yahoo Tries To Rein In Stock Manipulators, TechWeb.com, Sept. 11, 1998 <http://www.techweb.com/wire/story/TWB19980911S0017>.
[vi] Amended Answer and Cross-Complaint 117-121.
[vii] See SEC Litig. Rel. No. 16305 (Sept. 28, 1999) <http://www.sec.gov/enforce/litigrel/lr16305.htm>; SEC Charges 68 Individuals, Entities With Fraud and/or Abuses of the Financial Reporting Process, SEC Press Release No. 99-124 (Sept. 28, 1999) <http://www.sec.gov/news/finfraud.htm>; Supplementary Material, Financial Reporting Fraud Sweep: Details of the 30 Enforcement Actions (Sept. 28, 1999) <http://www.sec.gov/news/extra/finfrds.htm>; SEC News Digest Issue 99-187 (Sept. 28, 1999) <http://www.sec.gov/news/digests/09-28.txt> (scroll down to “SEC Files Fraud Case Against ITEX Corporation”).
[viii] See Varian Medical Systems, Inc., Varian Semiconductor Equip. Assocs., Inc., Susan B. Felch, and George Zdasiuk v. Michelangelo Delfino, Mary E. Day, and Does 2-20, inclusive, Case No. C-99 20256 RMW ENE (N.D. Cal., complaint filed under seal Feb. 25, 1999).
[ix] See Erik Espe, Ex-Varian Employees Cry ‘SLAPP’, Bus. J. (San Jose and Silicon Valley), Nov. 1, 1999 <http://www.amcity.com/sanjose/stories/1999/11/01/story6.html>.
[x] See VARIAN SLAPP (visited Nov. 15, 1999) <http://www.geocities.com/mobeta_inc/slapp/slapp.html>.
[xi] See, e.g., VARIAN SLAPP (visited Nov. 15, 1999) <http://www.geocities.com/mobeta_inc/slapp/slapp.html> (certain defendants in Varian Medical Systems, Inc., Varian Semiconductor Equip. Assocs., Inc., Susan B. Felch, and George Zdasiuk v. Michelangelo Delfino, Mary E. Day and Does 2-20, Case No. C-99 20256 RMW ENE (N.D. Cal.) have posted excerpts of transcripts, court filings and other materials they believe to be favorable to their positions on a Web site); ITEX Corporation v. John Does 1-100 (visited Nov. 15, 1999) <http://www.lesfrench.com/legal/html/body_itexvjohndoes.html> (a defendant in ITEX Corp. V. Leslie L. French and John Does 5-100, Case No. 98-09-06393 (Circuit Court of State of Oregon for the County of Multnomah) has posted copies of message board postings, his pleadings and other materials relating to the suit).
[xii] Available at <http://clubs.yahoo.com/clubs/johndoes>.
[xiii] Available at <http://clubs.yahoo.com/clubs/itexgroup>.
[xiv] See Xircom, Inc. v. John Doe, aka “A_View_From_Within”, Case No. Civ 188724, Memorandum of Points and Authorities in Support of Motion To Quash and Request for Protective Order with annexed declaration of Megan E. Gray and Exhibits (Superior Court of State of California for the County of Ventura, filed May 25, 1999) (“Memorandum”); Xircom, Inc. v. John Doe, aka “A_View_From_Within”, Case No. Civ 188724, Reply in Support of Motion To Quash with annexed declaration of Megan E. Gray and Exhibits (Superior Court of State of California for the County of Ventura, filed June 10, 1999); Xircom, Inc. v. John Doe, aka “A_View_From_Within”, Case No. Civ 188724, Order on Motion to Quash and Request for Protective Order (Superior Court of State of California for the County of Ventura, filed June 16, 1999).
[xv] Memorandum at 1, lines 11-14. See also Roger Harris, Mystery User Fights Xircom Demand for Name, StarOnline, June 8, 1999 <http://www.staronline.com/news/196121.htm>; ‘John Doe’ Files Motion for Privacy in Xircom Case, Mercury Center Silicon Valley News, May 28, 1999 <http://www.sjmercury.com/svtech/news/breaking/merc/docs/071378.htm>.
[xvi] See Carl S. Kaplan, Company Settles Suit Against Online Critic, N.Y. Times on the Web, July 16, 1999 <http://www.nytimes.com/library/tech/99/07/cyber/articles/16xircom.html>.
[xvii] ProMedCo Management Co. V. John Does 1 - 50, Civ. Action No. 806956, Complaint (California Superior Court for the County of Santa Clara, filed March 1999); Mark Thompson, On the Net, In the Dark, Cal. Law Week / CalLaw special to LawNewsNetwork.com, Nov. 8, 1999 <http://www.lawnewsnetwork.com/stories/A9068-1999Nov5.html>.
[xviii] Mark Thompson, On the Net, In the Dark, supra n.18.
[xix] See id. (noting that after ProMedCo issued subpoenas in its cybersmear suit calculated to identify the author who posted messages on a Yahoo! Finance message board using the pseudonym “Voiceonthewind”, the author “sought advice from the Electronic Privacy Information Center” which referred them to the lawyer who represented the “John Doe” defendant in the Xircom cybersmear suit).
[xx] See Nicole Ridgway, Fruit of the Loom Is Trying To Unmask Online Critics, Dow Jones Newswires special to Wall st. J. Interactive Ed., Nov. 8, 1999 <http://interactive.wsj.com/articles/SB942090668107112310.htm> (paid subscription required).
[xxi] See Elinor Abreu, EPIC Blasts Yahoo for Identifying Posters, Indus. Standard, Nov. 10, 1999 <http://www.thestandard.net/articles/article_print/0,1454,7564,00.html>.
[xxii] Erik Espe, Ex-Varian Employees Cry ‘SLAPP’, Bus. J. (serving San Jose and Silicon Valley), Nov. 1, 1999 <http://www.amcity.com/sanjose/stories/1999/11/01/story6.html>.
[xxiii] Columbia Ins. Co. v. SeesCandy.com, 185 F.R.D. 573 (N.D. Cal. 1999).
[xxiv] See, e.g., N.Y. Civ. Prac. L. Rules 3102(c) (“Before an action is commenced, disclosure to aid in bringing an action, to preserve information or to aid in arbitration, may be obtained, but only by court order. The court may appoint a referee to take testimony.”).
[xxv] At least, this has been claimed in a recent presentation by Stevens R. Miller, Director and Counsel of Online Forensics Group. During a recent presentation entitled “The Man With Two Names” that Mr. Miller gave on October 19, 1999 at the 4th Annual Legal Computing Summit sponsored by Glasser LegalWorks in New York City (attended by the author of this article), Mr. Miller indicated that in his experience investigating such cases, companies preferred the use of such statutes over the commencement of a more public, full-blown lawsuit. See generally Stevens Miller, Advanced Techniques for Investigations Using the Internet 2.1, in 4th Annual Legal Computing Summit at 41-74 (Glasser LegalWorks 1999). This appears to have been the technique employed in the filing of the Fruit of the Loom proceeding which apparently involved a discovery petition, although an alert reporter appears to have picked up on the tactic and to have obtained copies of the papers filed with the Court. Nicole Ridgway, Fruit of the Loom Is Trying To Unmask Online Critics, supra n.21.
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