The Google blogger case; CPLR § 3102(c) pre-suit discovery

This case has been in the headlines in the past few weeks.  For those that don't know, an anonymous blogger posted some less than nice things on her blog.  Petitioner found those posts, was hurt and angry, and wanted to find out who said those things.  And of course she wanted to sue for defamation.  But to sue, she would need to know the anonymous blogger's identity.  So she used New York's procedural device to receive pre-suit discovery: CPLR §
3102(c).  She requested that the Court order Google to give up information as to the blogger's identity.  Prior to the action, Google refused to divulge any information without a court order.  And, it objected to petitioner's request as being overbroad, vague, etc. We'll get to the decision in a minute.

While all of us (me) here at the CPLR blog are interested in the procedural niceties of the decision, there is more at stake.  The decision and its implications have been discussed in detail all over the interweb.  Check out Simple Justice and Concurring Opinions for some discussion of this case as it relates to the big picture: the First Amendment. 

3102 Method of obtaining disclosure
(c) Before action commenced

Matter of Cohen v Google Inc., 2009 NY Slip Op 29369 (Sup. Ct., New York County, 2009)

In opposing petitioner's application, the Anonymous Blogger contends
that petitioner is not entitled to pre-action discovery because she
cannot demonstrate a meritorious claim for defamation. The Anonymous
Blogger asserts that the statements on the Blog, which appear as
captions to provocative photographs which the Blogger alleges were
posted by petitioner herself,[FN4] [*3]are
"non-actionable opinion and/or hyperbole," and that no reasonable
viewer of the Blog would conclude that the statements referring to
petitioner purport to convey verifiable statements of fact. The Blogger
argues that the words "skank" and "ho" are not statements of objective
fact which can be proven true or false; rather, the words are used in a
"loose hyperbolic" manner, and "have become a popular form of trash
talk' ubiquitous across the Internet as well as network television and
should be treated no differently than jerk' or any other form of loose
and vague insults that the Constitution protects." The Blogger further
argues that even if the words are capable of a defamatory meaning, "the
context here negates any impression that a verifiable factual assertion
was intended," since blogs "have evolved as the modern day soapbox for
one's personal opinions," by "providing an excessively popular medium
not only for conveying ideas, but also for mere venting purposes,
affording the less outspoken, a protected forum for voicing gripes,
leveling invective, and ranting about anything at all."

The law in New York governing pre-action discovery is well
settled. CPLR 3102(c) requires a court order for pre-action disclosure
to aid in bringing an action or to preserve information.
See Matter of Uddin v. New York City Transit Authority,
27 AD3d 265, 266 (1st Dept 2006). When a party seeks pre-action
disclosure to secure additional information necessary to frame a
complaint or to identify the proper defendant with respect to a known
cause of action, "courts traditionally require a strong showing that a
cause of action exists."
Siegel, Supplementary Practice Commentaries,
McKinney's Cons Laws of NY, Book 7B, CPLR 3102:5 at 92. " A petition
for pre-action discovery should only be granted when the petitioner
demonstrates that he or she has a meritorious cause of action and that
the information sought is material and necessary to the actionable
Matter of Uddin v. New York City Transit Authority, supra at 266 (quoting Holzman v. Manhattan & Bronx Surface Transit Operating Authority, 271 AD2d 346, 347 [1st Dept 2000]); accord Matter of Peters v. Southeby's Inc., 34 AD3d 29, 34 (1st Dept 2006), lv app den 8 NY3d 809 (2007); Matter of Bliss v. Jaffin, 176 AD2d 106, 108 (1st Dept 1991); Matter of Stewart v. New York City Transit Authority, 112 AD2d 939 (2nd Dept 1985). "As a general rule, the adequacy of merit rests within the sound discretion of the court.'" Matter of Peters v. Southeby's Inc., supra (quoting Mediavilla v. Gurman, 272 AD2d 146, 148 [1st Dept 2000]).[FN5]

Here, petitioner is entitled to pre-action disclosure of information as
to the identity of the Anonymous Blogger, as she has sufficiently
established the merits of her proposed cause of action for defamation
against that person or persons, and that the information sought is
material and necessary to identify the potential defendant or
defendants. See Matter of Uddin v. New York City Transit Authority, supra ; Matter of Stewart v. New York City Transit Authority, supra .
The elements of a cause of action for defamation "are a false
statement, published without privilege or authorization to a
third-party, constituting fault as judged by, at a minimum, a
negligence standard, and, it must either cause special harm or
constitute defamation per se." Dillon v. City of New York , 261 AD2d 34, 38 (1st Dept 1999); accord Salvatore v. Kumar, 45 AD3d 560, 563 (2nd Dept 2007), lv app den 10 NY3d 703 (2008). The Anonymous Blogger's contention that the statements about petitioner
on the Blog are protected opinion or hyperbole which is not actionable,
raises an issue as to the first element which requires a statement of
fact as opposed to opinion.

The Court found that the the words used "can be understood to describe the petitioner as sexually promiscuous; that the statements are facts that can be proven true or false; and that the words used can be "reasonably susceptible to a defamatory connotation, as opposed to a word like "jerk."

The Court continues:

The court also rejects the Anonymous Blogger's argument that this
court should find as a matter of law that Internet blogs serve as a
modern day forum for conveying personal opinions, including invective
and ranting, and that the statements in this action when considered in
that context, cannot be reasonably understood as factual assertions. To
the contrary, as one court in Virginia has articulated: "In that the
Internet provides a virtually unlimited, inexpensive, and almost
immediate means of communication with tens, if not hundreds, of
millions of people, the dangers of its misuse cannot be ignored. The
protection of the right to communicate anonymously must be balanced
against the need to assure that those persons who choose to abuse the
opportunities presented by this medium can be made to answer for such
transgressions. Those who suffer damages as a result of tortious or
other actionable communications on the Internet should be able to seek
appropriate redress by preventing the wrongdoers from hiding behind an
illusory shield of purported First Amendment rights." In re Subpoena Duces Tecum to America Online, Inc., 2000 WL 1210372 (Va Cir Ct), revd on other gds, 261 Va 350, 542 SE2d 377 (Va Sup Ct 2001) (quoted in Public Relations Society of America, Inc. v. Road Runner High Speed Online, supra ).

Thus, in light of the merits of petitioner's proposed cause of
action for defamation, and the materiality and necessity of the
requested information, petitioner is entitled to an order pursuant to
CPLR 3102(c) directing respondent Google to disclose the information as
to the identity of the Anonymous Blogger.
See Matter of Uddin v. New York City Transit Authority, supra ; Matter of Stewart v. New York City Transit Authority, supra .

Accordingly, it is hereby

ORDERED AND ADJUDGED that the petition is granted and respondent
Google, Inc. and/or its subsidiary Blogger.Com, shall forthwith provide
petitioner with information as to the identity of the Anonymous
Blogger(s), specifically that person's or persons' name(s),
address(es), email address(es), IP address(es), telephone number(s),
and all other information that would assist in ascertaining the
identity of that person or persons.

Footnote No. 5 offers an interesting comparison between New York and New Jersey law as to when the "identity of an anonymous Internet speaker should be disclosed to a potential plaintiff."

The blogger was outed soon after the decision.  There was no appeal.

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