Re: 7/11/00 - [DRTE] Memorandum (Part 2 of 2)
If the plaintiff cannot come forward with concrete evidence sufficient to prevail on all elements of its case on subjects that are based on information within its own control, for which it need not identify the defendants, there is no need to breach the anonymity of the defendants. Bruno v. Stillman, 633 F.2d 583, 597 (1st Ci.r. 1980); Southwell v. Southern Poverty Law Center, 949 F. Supp. 1303, 1311 (W.D. Mich. 1996). The requirement that there be sufficient evidence to prevail against the speaker to overcome the interest in anonymity is part and parcel of the requirement that disclosure be "necessary" to the prosecution of the case, and that identification "goes to the heart" of the plaintiff's case. If the case can be dismissed on factual grounds that do not require identification of the anonymous speaker, it can scarcely be said that such identification is "necessary."
Indeed, some courts have gone even further and required the party seeking discovery of information protected by the First Amendment that there is reason to believe that the information sought will, in fact, help its case. In re Petroleum Prod. Antitrust Litig., 680 F.2d 5, 6-9 (2d Cir. 1982); Richards of Rockford v. PGE, 71 F.R.D. 388, 390-391 (N.D. Cal. 1976). Cf. Schultz v. Reader's Digest, 468 F. Supp. 551, 566-567 (E.D. Mich. 1979). In effect, the plaintiff should be required to meet the summary judgment standard of creating genuine issues of fact on all issues in the case, including issues with respect to which it needs to identify the anonymous speakers, before it is given the opportunity to obtain their identities,. Cervantes v. Time, 464 F.2d 986, 993-994 (8th Cir./ 1972). "Mere speculation and conjecture about the fruits of such examination will not suffice." Id. at 994.
We have grave qualms about whether the plaintiff's evidence is strong enough to meet these tests, although we do believe that it should be given the opportunity to present affidavits or other evidence to bolster its claims before the Court rules. The only evidence submitted in support of disclosure in this case is the verified complaint, and although such verification may allow the complaint to be treated as an affidavit for evidentiary purposes, the verification is sworn by an individual Dendrite official, a Mr. Richard Savage, who could not possibly have personal knowledge of the falsity of many of the statements. For example, the complaint alleges the falsity of a statement that "management" is shopping the company, but the actual statement set forth in Exhibit G, from the poster known as "xxplrr," attributed this behavior to a management person named "John." Only an affidavit from "John" can provide testimony based on personal knowledge about his conduct. Similarly, the poster known as "ajcazz" alleges that he and his fellow workers were repeatedly threatened with discharge. Presumably Mr. Savage knows whether he himself engages in such behavior, but it is hard to believe that he has personal knowledge of whether other managers do it.
In other respects, the verified allegations in the complaint seem too conclusory to provide evidentiary support for the proposition that specific statements were false. For example, it is alleged that certain statements in several page-long messages "reveal . . . details of Dendrite's confidential contracts with third parties," or "reveal information concerning certain Dendrite accounts with hours of the company's learning of such information," allegedly in violation of Dendrite's trade secret rights. The complaint does not specify which parts of the lengthy statements allegedly reveal secrets, and which do not. Moreover, inspection of the statements in question tends to suggest that much of the information (for example, the fact that certain Dendrite customers were choosing to switch to Dendrite rivals) would have been available not only to Dendrite employees but also to customers and to industry rivals. In order to show that it is necessary to identify the posters in orders to pursue a lawsuit against them, Dendrite should be required to submit evidence that the information contained in these posts was available only or primarily to Dendrite employees, and not to others.
Even the allegations about alleged breach of the employment agreement have gaps that plaintiff should be required to close. The verified complaint alleges that, when they start working for Dendrite, employees "are" required to execute a standard employment agreement. However, plaintiff does not allege how long employees have been required to sign this contract, or whether all employees who might have been posting in the past several months have, in fact, signed such contracts. Nor does the complaint indicate whether the posters who indicated that they were former employees left Dendrite less than two years ago, a crucial fact because the duty of former employees to refrain from inducing current employees to leave a violation attributed to John Doe No. 1 applies for only two years after leaving Dendrite. We suggest that Dendrite be given an opportunity to cure these lacunae in its proofs before the Court rules on its motion for leave to take discovery to identify the posters who are current and former employees.
Obviously, to the extent that plaintiff has managed to provide notice to a particular defendant, and that defendant is represented by counsel in opposition to the request for leave to serve a subpoena, the Court may reasonably expect that defendant to present evidence that the information was available elsewhere (for example, it is surprising how often a company will sue over alleged breach of confidentiality obligations by employees who posted information that was available on the company's web site or in its press releases). For those posters who have not been reached, however, we would urge the Court to protect their interests by demanding at least a sworn statement, by an individual whose shows that he has a basis for knowing such facts, that the information would not have been available outside the company.
Finally, even if the Court decides that one or more of the defendants needs to be identified so that he or she can be served with the complaint and subjected to discovery, the Court should consider taking steps to prevent the plaintiff from making extra-judicial use of the information, outside the purview of this litigation. In several cases in which disclosures of identities has been ordered in the face of a qualified First Amendment privilege, the Court has confined access to the information to the plaintiff's counsel, and forbidden its use for purposes other than the litigation. Miller v. Transamerican Press, 621 F.2d 721, 727 (5th Cir. 1980); UAW v. National Right to Work Comm., 590 F.2d 1139, 1153 (D.C. Cir. 1978).
CONLUSION
The motion for leave to serve a subpoena on Yahoo seeking to identify the anonymous defendants should be denied, without prejudice to plaintiffs' refiling its motion after serving a more detailed complaint and more detailed affidavits, as urged in the foregoing memorandum.
Respectfully submitted,
Paul Alan Levy (DC Bar 946400)
Public Citizen Litigation Group
1600 - 20th Street, N.W.
Washington, D.C. 20009
(202) 588-1000
Attorney for Public Citizen
July 11, 2000
1. The time originally allowed by the Court for responses to its order to show cause may not have been sufficient. Even for posters who read the message board every day, it might well be difficult to obtain a lawyer within only a few days. Thus, for example, it is our understanding that Yahoo typically refuses to respond to a subpoena until 15 days after it has given notice to its members of the pendency of a subpoena for their account information. Moreover, a review of the Dendrite message board reveals that one of the posters, ajcazz, posted only two times, both about two months before the order to show cause was issued; it is thus quite possible that even fifteen days might not be enough time to get notice to such an individual; other posters were somewhat more frequent, and implementor-extraordinaire posted very often. In any event, the Court's later decision to extend the time for filing responses to its order to show cause until July 11, or three weeks after the posting of the order to show cause, was much more likely to give posters enough time to learn that an attempt was being made to deprive them of anonymity and to locate counsel to defend themselves.
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