Re: 8/1/00 - [DRTE] NJ Law Journal: In Cybersmear or CyberSLAPP Suits, Discovery Means Finding a Defendant
In Cybersmear or CyberSLAPP Suits, Discovery Means Finding a Defendant
Mary P. Gallagher
New Jersey Law Journal
August 1, 2000
How does one litigate a libel case against phantom menaces who freely romp through cyberspace with no identities save "ajcazz," "xxplrr," "gacbar" and "implementor_extrordinaire"?
A case argued Friday before a Morris County, N.J. judge appears to be only the second time a New Jersey court has grappled with the issue of whether to allow discovery against online John Does by those allegedly harmed by their words.
After two hours of argument, Judge Kenneth MacKenzie said wearily, "You'll be hearing from me."
It's a tough call, and it's just the tip of the iceberg.
Similar efforts to rein in what the companies and their lawyers call "cybersmear" have proliferated across the country during the past two years, says Ann Beeson, an attorney with the national office of the American Civil Liberties Union. She is aware of at least 50 such cases nationwide filed in the past year and believes there are probably many more.
It is hard to know how many of these suits occur, says Megan Gray, an attorney with the Los Angeles firm of Baker & Hofstedtler who has represented clients on both sides of the issue.
That is because the real purpose of the suits is often to uncover identifying information so that the company can take nonjudicial action -- such as firing a poster who turns out to be an employee, she says. And once the discovery into identity is completed, the suits are quietly dropped.
Beeson and other free speech advocates refer to these actions as cyberSLAPP suits, the online version of strategic lawsuits against public participation. Such actions, they charge, are intended not to vindicate valid legal claims but to chill protected speech that is critical of a company or an individual.
Opponents of the suits also argue that privacy is violated and due process denied when online identities are disclosed and the rights of the Does are adjudicated without their even necessarily knowing a proceeding has been filed against them.
In the words of David Sobel, general counsel for the Washington, D.C.-based Electronic Privacy Information Center, "sometimes the whole ballgame is over before the person learns they have been sued."
In the case argued Friday, Dendrite International Inc. v. John Does Nos. 1 through 4, a Morristown company seeks limited, expedited discovery to identify four John Does whom the company has sued for messages they posted on a Yahoo! bulletin board.
In a complaint filed on May 25, the plaintiff is suing for libel, misappropriation of trade secrets, breach of contract, breach of fiduciary duty and civil conspiracy against the Does.
Dendrite's attorney, Michael Vogel of Princeton's Allegaert Berger & Vogel, argued that a denial of the requested discovery would be like throwing his client out of court.
The complaint identifies John Does 1 through 4 by their screen names -- "implementor_extrordinaire," "ajcazz," "xxplrr" and "gacbar," respectively.
The complaint also alleges that Does 1 and 2 are a former and present employee whose comments have also violated their employment agreements. The suit also refers to another 10 Does, whose screen names it asserts are still unknown.
The remarks at issue were posted on a Dendrite-specific message board on which Yahoo! invites users to "discuss the future prospects of the company and share information about it with others." Yahoo! claims to maintain similar bulletin boards for every publicly traded company.
Even before last week's hearing, the case already had broken new ground.
On June 20, MacKenzie ordered that notice of Dendrite's application be posted on the same message board used by the defendants, as "the most effective and appropriate means of providing actual notice" to defendants.
The notice of order to show cause (message no. 867) was posted on June 23.
And Eugene Reynolds, of Wacks, Mullen & Kartzman in Morris Plains, who represents John Doe 3, or "xxplrr," and Randy Pearce, a partner in Hackensack's Pearce and Fleisig, who represents John Doe 4, or "gacbar," say their clients saw the posting.
Sobel, with the Electronic Privacy Information Center, calls MacKenzie's decision to post the order "a very good innovation."
Gray, who has represented defendants and plaintiffs in this type of case, says "the judge has done an admirable job of trying to give notice."
Though the other two specified Does -- 1 and 2 -- did not appear or contest the relief, the arguments also addressed whether their postings caused actionable harm to Dendrite.
The most frequent poster of the four was Doe 1, "implementor_extrordinaire," with 37 messages between March 20 and June 22.
Doe 1 identifies herself as a 38-year-old woman and former employee who had induced other employees to leave Dendrite and was continuing to do so. Her last posting was on June 22, the day before MacKenzie's order was posted.
Doe 2, or "ajcazz," at the other extreme, was sued on the basis of only two postings (nos. 724, 725) made on a single day. He describes himself as a disgruntled Dendrite employee in a demoralizing workplace and accuses the company of a lack of innovation.
The fact that "ajcazz" is the only Doe to return to the message board since the judicial notice appeared -- and his messages were a reaction to the suit -- would seem to indicate that all four Does are aware of the proceeding.
On June 26 and 27 (nos. 871 and 876), "ajcazz" taunted Dendrite, referring to the First Amendment, claiming he was posting from a cybercafe and threatening to disclose "all the dirt" if Dendrite identifies him.
After these messages, he too went silent.
Traffic on the message board, which reached a high of 94 postings in March, seems to have declined generally in the wake of the suit. Only 57 messages were posted in July as of Friday, and the heated and often vituperative tone of many messages apparently toned down.
"Assuming their goal was to chill negative commentary about the company, they've already succeeded," says Doe 3's attorney, Reynolds.
Pearce, Doe 4's attorney, describes the suit as "just smoke and mirrors designed to get out people's names."
Judge Kenneth MacKenzie
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