Jeffrey M. Miller and Cynthia S. Miller v. Federal Express Corporation and 500 Festival, Inc.
6 N.E.3d 1006
Ind. Ct. App.2014Background
- Miller and Cynthia Miller sued FedEx and 500 Festival for defamation and intentional infliction of emotional distress arising from online comments about a culinary school project.
- Comments were posted on IBJ website; two early comments appeared under the names JA Fan and Really? with allegations about misused funds.
- A third comment, from an unknown user, was posted via a FedEx proxy server; the IP traced to FedEx could not identify a user.
- During discovery, Millers learned Wilson, a 500 Festival employee, posted the first two comments using 500 Festival infrastructure; the IP pointed to 500 Festival’s network.
- The proxy server logs for the 2010 comment were purged in 2011 after FedEx was served; the Millers had not sought preservation or supplementation at that time.
- 500 Festival replaced Wilson’s computer and did not preserve the drive contents; FedEx preserved proxy logs per its data-retention policy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred in sanctions for spoliation of evidence | Millers claim loss of records warrants sanctions. | No duty to preserve since no specific preservation request; logs already produced. | Spoliation issue not fatal; summary judgment affirmed on other grounds |
| Whether CDA section 230 immunity applies to 500 Festival and FedEx | Defendants are liable publishers for third-party posts. | Defendants are providers of an interactive computer service and immune as publishers. | Affirmed immunity under CDA; defendants are providers and the posts were from third parties |
Key Cases Cited
- Gribben v. Wal-Mart Stores, Inc., 824 N.E.2d 349 (Ind. 2005) (spoliation discretion and remedies under Trial Rule 37(B))
- Zeran v. Am. Online, Inc., 129 F.3d 327 (4th Cir. 1997) (Section 230 immunity for publishers of third-party content)
- Chicago Lawyers’ Comm’n for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666 (7th Cir. 2008) (broad CDA Section 230 immunity for providers)
- Doe v. MySpace, Inc., 528 F.3d 413 (5th Cir. 2008) (broad CDA immunity for online service providers)
- Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th Cir. 2003) (immunity when content is user-generated)
- Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003) (Section 230 immunizes interactive-service providers from certain claims)
- Green v. Am. Online (AOL), 318 F.3d 465 (3d Cir. 2003) (online service provider immunity from user-generated content claims)
- Ben Ezra, Weinstein, & Co. v. Am. Online Inc., 206 F.3d 980 (10th Cir. 2000) (immunity where defendant is an information intermediary)
- Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003) (duty to preserve relevant electronic evidence)