Lead
This appeal concerns the complicated interplay between First Amendment protections of the freedom of speech and the Michigan Court Rules concerning discovery. Plaintiff, Thomas M. Cooley Law School (Cooley), filed a complaint in the Ingham Circuit Court against defendant John Doe 1 (Doe 1) and others, alleging, in part, defamation arising from statements that Doe 1 made, under a pseudonym, on a website that criticized Cooley. Doe 1 moved in the tried court to (1) quash a subpoena that Cooley obtained in California seeking his identity, and (2) issue a protective order. Doe 1 now appeals by leave granted an order of the trial court denying his motion to quash the California subpoena. He argues that the First Amendment’s protections for anonymous free speech shield his identity. We reverse and remand.
I. FACTS
A. BACKGROUND FACTS
Doe 1 created an Internet website at Weebly.com, owned by California-based Weebly, Inc. (Weebly), using the pseudonym “RockstarOS.”
Describing himself as a former student of Cooley, Doe 1 stated that “Cooley is without a doubt one of the three worst law schools in the United States . . . and [is] considered THE BIGGEST JOKE of all law schools amongst other law students.” In the body of the post, Doe 1 listed “multiple reasons for this,” including: (1) Cooley’s “open door” policy, (2) Cooley’s attrition rate and administrative policies, (3) “the ‘Cooley Rankings’ ” (4) that Cooley “IS A DIPLOMA MILL,” and (5) that Cooley’s graduates are unemployed. Doe 1 claimed that he would “elaborate and address each of these [claims] in order, backed by statistics and facts, painting a real picture of what Cooley is really like[.]”
Doe 1 arranged the body of his blog in an outline format, comprised of headings followed by external website links and Doe l’s commentary. Doe l’s commentary frequently included capital letters, multiple instances of incorrect punctuation, expletives, advice, misspellings, and references to pop culture. Doe 1 permitted visitors to post their own comments on the website, and frequently responded to the commentators. After April 1, 2011, however, he began to “filter” comments, noting that he would delete “any stupid or irrelevant comments or personal attacks[.]”
B. PROCEDURAL HISTORY BELOW
Cooley filed the complaint in the Ingham Circuit Court on July 14, 2011, against several John Doe defendants. Cooley’s complaint against Doe 1 alleged that he made defamatory accusations that Cooley and its representatives “are ‘criminals’ and
On August 9, 2011, Weebly’s chief of customer satisfaction promised Doe l’s attorney that he would not disclose Doe l’s identifying information until August 22, to allow him to obtain a ruling on his motion to quash. But on August 17, 2011, another Weebly employee released Doe l’s identifying information to Cooley. On August 18, 2011, Cooley requested that Doe 1 withdraw his motion to quash on the basis that the motion was now moot; Doe 1 declined.
On August 29, 2011, Cooley filed an amended complaint that identified Doe 1 by his legal name. Doe 1 supplemented his motion to quash and moved in the trial court to strike the identifying information, arguing that Cooley violated Michigan discovery rules by using information that Doe 1 claimed was protected.
C. THE TRIAL COURT’S DECISION
In September 2011, the trial court heard arguments on Doe l’s motion to quash. Doe l’s counsel agreed that the motion to quash was moot because Weebly had disclosed the information, but clarified that he was “seeking this motion as an alternative, a protective order.” The trial court provisionally ruled that Weebly might have inadvertently disclosed the information for the purposes of MCR 2.302(B)(7). It struck Cooley’s amended complaint and ordered Cooley not to initiate further discovery or disclose the information pending its final decision on the motion. On October 3, 2011, the trial court ruled that the motion to quash was not moot, reasoning that its ruling on Doe l’s motion to strike placed the parties back in the positions they occupied before Weebly disclosed the information.
On October 24, 2011, the trial court heard continued arguments on Doe l’s motion to quash. After extensive reasoning, the trial court determined that there was no Michigan law on point and examined decisions from other jurisdictions, including Dendrite Int’l, Inc v Doe, No 3
The trial court adopted and applied the Dendrite analysis. Under that analysis, it ruled that Doe 1 had been notified and that Cooley had sufficiently alleged slander per se. It ruled that statements that are slanderous per se are not entitled to First Amendment protection, and thus Cooley would not have to prove actual malice. The trial court’s order denied Doe l’s motion to quash, declined to grant him a protective order for “the reasons stated on the record,” and allowed Cooley to use
On November 29, 2011, Doe 1 filed an application for leave to appeal the trial court’s order, which this Court granted in an unpublished order, entered May 25, 2012 (Docket No. 307426). On July 11, 2012, Cooley moved to dismiss this appeal as moot. This Court denied Cooley’s motion to dismiss in an unpublished order, entered July 20, 2012 (Docket No. 307426).
II. MOOTNESS
A. STANDARD OF REVIEW
This Court reviews de novo questions of law.
B. LEGAL STANDARDS
Michigan courts exist to decide actual cases and controversies, and thus will not decide moot issues.
C. APPLYING THE STANDARDS
Cooley argues that the issues presented in this appeal are moot because Weebly disclosed Doe l’s identity to Cooley. Therefore, because Cooley cannot “unlearn” his name, Doe l’s anonymity is destroyed. We conclude that the issues presented in this appeal are not moot because Cooley’s knowledge does not prevent this Court from granting relief that will have a practical legal effect on the controversy.
Doe 1 filed his motion to quash the subpoena and issue a protective order before Cooley learned his identity. Although Cooley filed an amended complaint with Doe l’s true name on it, the trial court acted within 10 days to sequester all documents in the lower-court record that contain Doe l’s name. The trial court also ruled that Doe l’s identifying information was inadvertently disclosed for the purposes of MCR 2.302(B)(7). Cooley argues that members of the public may have accessed the trial court documents in that period, but there is no indication that this actually occurred.
Finally, Cooley contended at oral arguments that, because Doe 1 applied for membership in the State Bar of California, his anonymity was destroyed because the State Bar of California is aware of his involvement in this suit. But it was also stated at oral arguments that applications to the State Bar of California are confidential. Thus, Doe’s application alone would not reveal his identity to the public. There are simply no indications that Doe l’s anonymity was destroyed or that this Court is unable to fashion the relief Doe 1 seeks.
Further, whether and in what fashion the identity of an anonymous Internet speaker can be discovered or protected under Michigan law is a publically significant issue concerning the First Amendment. In this age of Internet blogging,
III. THE FIRST AMENDMENT AND ANONYMOUS SPEECH
A. FREEDOM OF SPEECH
The First Amendment of the United States Constitution provides that “Congress shall make no law. . . abridging the freedom of speech ... .”
The United States Supreme Court has held that the federal constitution protects speech over the Internet to the same extent as speech over other media.
B. DEFAMATORY SPEECH
But a defendant’s right to speak freely is not absolute.
C. STANDARDS PROTECTING ANONYMOUS SPEECH IN OTHER JURISDICTIONS: DENDRITE, CAHILL, AND OTHER STANDARDS
To very different extents, courts in other jurisdictions have attempted to balance a defendant’s right to speak anonymously against a plaintiffs interest in discovering
In Dendrite, a New Jersey intermediate appellate court determined that, in order to adequately protect a defendant’s interests in anonymous commercial speech, it must adopt a four-part approach to limit discovery.
Examining the New Jersey court’s decision in Dendrite, in Cahill, the Delaware Supreme Court also described and adopted this standard to protect political speech.
The United States Court of Appeals for the Ninth Circuit, the only federal circuit court to consider this issue, held only that the adoption and application of the Dendrite or Cahill standards to deny a party’s writ for mandamus is not clearly erroneous.
Finally, an Illinois court has decided that it was not necessary to adopt additional standards in light of the procedural protections in place under Illinois court rules. In Maxon v Ottawa Publishing Co, the Illinois Appellate Court determined whether the plaintiff could discover
re OVERVIEW OF MICHIGAN PROCEDURAL RULES
In Michigan, discovery is available as soon as a party commences an action.
A. SUBPOENAS
A party may acquire information from another party by subpoenaing them to provide a deposition, other documents, or tangible things.
B. PROTECTIVE ORDERS
Despite Michigan’s broad discovery policy, a trial court should protect parties from excessive, abusive, or irrelevant discovery requests.
On motion by a party or by the person from whom discovery is sought, and on reasonable notice and for good cause shown, the court in which the action is pending may issue any order that justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense,including one or more of the following orders:
(1) that the discovery not be had;
(2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place;
(4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters;
(5) that discovery be conducted with no one present except persons designated by the court[.][40 ]
A trial court may also seal court records on a motion of a party if it finds good cause to do so and there are no less restrictive means to protect the party’s interests.
C. MOTIONS FOR SUMMARY DISPOSITION
Under MCR 2.116(C)(8), a party may move for summary disposition when the opposing party has failed to state a claim on which relief can be granted. This tests the legal basis of the complaint on the pleadings alone.
The availability and application of summary disposition is important in this case because summary disposition is an essential tool to protect First Amendment rights.
(1) a false and defamatory statément concerning the plaintiff, (2) an unprivileged communication to a third party, (3) fault amounting to at least negligence on the part of the publisher, and (4) either actionability of the statement irrespective of special harm or the existence of special harm caused by publication.[46 ]
A plaintiff must also comply with constitutional requirements that depend on “ ‘the public- or private-figure status of the plaintiff, the media or nonmedia status of the defendant, and the public or private character of the speech.’ ”
A plaintiff claiming defamation must plead a defamation claim with specificity by identifying the exact language that the plaintiff alleges to be defamatory.
V MICHIGAN DISCOVERY RULES ADEQUATELY PROTECT FIRST AMENDMENT INTERESTS IN ANONYMOUS SPEECH
A. STANDARD OF REVIEW
This Court reviews de novo issues of constitutional law.
Because this case raises First Amendment issues, we are also “obligated to independently review the entire record to ensure that the lower court’s judgment ‘does not constitute a forbidden intrusion of the field of free expression.’ ”
B. APPLICATION OF MICHIGAN DISCOVERY RULES TO THIS CASE
In a lengthy ruling from the bench, the trial court ruled that Michigan law does not address the situation in this case. It therefore adopted the Dendrite standards. Applying those standards, it determined not to quash the subpoena.
We disagree with the trial court’s conclusion that Michigan law does not adequately address this situation. We conclude that Michigan’s procedures for a protective order, when combined with Michigan’s procedures for summary disposition, adequately protect a defendant’s First Amendment interests in anonymity.
Under a properly filed motion for a protective order, a trial court may order, among other things, “that the discovery not be had” or that it “may be had only on specified terms and conditions[.]”
Trial courts may use protective orders to protect witnesses’ First Amendment interests. For instance, in Bloomfield Charter Twp v Oakland Co Clerk, the township sought to depose persons who had signed petitions, and the trial court granted a protective order that prevented the township from deposing the signatories.
We recognize that the Michigan Supreme Court subsequently overruled Bloomfield Charter Twp, though on different grounds, and thus it is not binding precedent.
Protective orders are very flexible. A trial court may tailor the scope of its protective order to protect a defendant’s First Amendment interests until summary disposition is granted. For instance, a trial court may order (1) that a plaintiff not discover a defendant’s identity, or (2) that as a condition of discovering a defendant’s identity, a plaintiff not disclose that identity until after the legal sufficiency of the complaint itself is tested.
Comparing the foreign law that the trial court adopted to existing Michigan law, we disagree with the trial court’s determination that Michigan law cannot adequately protect a defendant’s interests in anonymous speech. Under Cahill, which the Ninth Circuit recognized as providing the “strictest test,”
But under Michigan law, the plaintiff must allege the exact defamatory statements. The plaintiff will have to survive an actual motion for summary disposition on its claims under MCR 2.116(C)(8). And the trial court may consider the weight of the defendant’s First Amendment rights against the plaintiffs discovery request when determining whether to issue a protective order. Thus, the Dendrite and Cahill standards largely overlap with Michigan’s combined safeguards of a protective order under MCR 2.302 and the summary
To the extent that Doe 1 urges us to adopt Dendrite because it more adequately protects other interests or is better public policy, we decline to do so. Doe 1 argues that any less stringent standards may chill Internet criticisms because of a defendant’s fear of being required to defend against a lawsuit for long enough to have the trial court dismiss it. Doe 1 also argues that the plaintiff in a defamation case may sue the defendant solely to subpoena the defendant’s Internet provider for identifying information in order to acquire leverage for extra-judicial retaliation. We have already concluded that Michigan rules of civil procedure adequately protect Doe l’s constitutional interests. We decline to reach beyond what is constitutionally necessary in order to judicially create anti-cyber-SLAPP legislation.
C. THE TRIAL COURT DID NOT PROPERLY APPLY MICHIGAN LAW
We conclude that the trial court abused its discretion, which requires reversal. A trial court by definition abuses its discretion when it inappropriately interprets and applies the law.
After adopting the Dendrite and Cahill standards as Michigan law, the trial court appears to have considered only two alternatives: (1) that the subpoena should be quashed and Cooley’s case dismissed, or (2) that the subpoena should not be quashed and the case should proceed with Doe l’s name on the complaint. But Michigan law does not address only these polar opposites. Doe 1 also asked for a protective order under MCR 2.302(C). The trial court’s order indicates that it denied Doe l’s requests for a protective order “for the reasons stated on the record.” But the trial court did not state any reasons on the record to deny the protective order. The trial court appears not to have considered whether or to what extent to protect Doe l’s identity after it determined not to quash the subpoena. On remand, the trial court should consider whether good cause exists to support Doe l’s request for a protective order.
Next, the trial court ruled that defamatory statements per se were not entitled to First Amendment protections. The trial court was incorrect. Not all accusations of criminal activity are automatically defamatory.
More importantly, this erroneous determination was central to the considerations the trial court may balance when determining whether to issue a protective order. As noted above, a trial court may consider that a party seeking a protective order has alleged that the interests he or she is asking the trial court to protect are constitutionally shielded.
Doe 1 urges this Court to rule that Cooley has not pleaded legally sufficient claims for defamation and tortious interference with a business relationship. We conclude that Doe l’s motion for a protective order did not present the appropriate time or place to do this. These rulings are best made in the context of a motion for summary disposition, when the trial court is testing the legal sufficiency of the complaint. The trial court’s only concerns during a motion under MCR 2.302(C) should be whether the plaintiff has stated good cause for a protective order and to what extent to issue a protective order if it determines that one is warranted.
D. THE EXTREME CASE
We recognize that this opinion does not address the extreme case, a case that Doe 1 would like us to consider. The extreme case is one in which a plaintiff in a defamation case sues the defendant solely to subpoena the defendant’s Internet provider for identifying information in order to retaliate against the defendant in some fashion outside a court action.
A simple hypothetical illustrates this situation. Assume that plaintiff XYZ company sues defendant Richard Moe who writes an anonymous blog on the Internet that is often critical of XYZ. Assume further that XYZ does not have any real expectation of damages, but suspects that Moe is employed or paid by a competitor and is suing simply to learn Moe’s name in order to silence him through legal (we hasten to add) but extrajudicial means.
Under the Michigan rules, as we outlined above, XYZ could sue Moe and then immediately pursue discovery against the Internet provider (the counterpart to Weebly in this action), during the 91-day service-of-summons period provided in the court rules, to obtain Moe’s real name. But XYZ does not — and indeed could not, because it does not at that point know Moe’s name — serve Moe with process. Thus, Moe would be totally unaware of the suit against him and could not protect his name in court. He will only know of the suit and XYZ’s actions when he is “outed” through discovery, and his employer may discharge him if XYZ retaliates with an
It is this extreme case that both Dendrite and Cahill, through their notice provisions, address by providing some protection to persons in Moe’s situation. But, we emphasize, this is not the case before us. Here, Doe 1 knew relatively early on that Cooley had filed suit against him and was attempting to ascertain his real name through its subpoena to Weebly. And Doe 1 has been successful, at least to date, in preventing a public disclosure of his name. We therefore decline, under the well-recognized concept of judicial restraint,
E. COOLEY’S ALTERNATIVE GROUND FOR AFFIRMANCE
Cooley argues as alternative grounds for affirmance that a Michigan court cannot quash a subpoena issued by a California court. Cooley argues that the trial court must look to the law of the state in which the subpoena is pending to determine whether it can quash the subpoena. Under California law, Cooley therefore argues, Doe 1 should have filed his motion to quash and motion for a protective order in “the county in which discovery is to be conducted .. . .”
However, Cooley’s argument appears to confuse MCR 2.305(D), under which Michigan allows a party to a Michigan action to petition a foreign court to issue a subpoena to require a person to give a deposition, with MCR 2.302(C). Doe 1 petitioned in the trial court for a protective order under MCR 2.302(C), which provides that “the court in which the action is pending may issue any order that justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expensed]”
Thus, even if the trial court did not have the power to quash the California subpoena, the trial court had the power to issue a protective order under Michigan court rules, because the action is pending in the Ingham Circuit Court. Therefore, even if we determined that the trial court did not have the power to quash the California subpoena issued under MCR 2.305(D), it would still be necessary for this Court to reverse and remand for the trial court to determine whether justice requires it to issue a protective order. Finally, a decision of the trial court would aid our analysis on this issue. We decline to affirm on the ground that the trial court could not quash a California subpoena.
VI. CONCLUSION
We conclude that the trial court abused its discretion when it denied Doe l’s motion for a protective order after it adopted and applied foreign law. Michigan law adequately protects Doe l’s free speech
Reversed and remanded. We do not retain jurisdiction.
Notes
Though this pseudonym is gender neutral and “John Doe 1” may refer to an unknown man or woman, the parties referred to Doe 1 by the masculine gender in their briefs and oral arguments. We will also use the masculine gender.
Dendrite Int’l, Inc v Doe, No 3, 342 NJ Super 134;
Doe No 1 v Cahill,
People v Sierb,
Federated Publications, Inc v City of Lansing,
Gen Motors Corp v Dep’t of Treasury,
Federated Publications, Inc,
US Const, Am I.
Const 1963, art 1, § 5.
Woodland v Mich Citizens Lobby,
In re Contempt of Dudzinski,
Reno v American Civil Liberties Union,
McIntyre v Ohio Elections Comm,
Chaplinsky v New Hampshire,
Ashcroft v Free Speech Coalition,
Rouch v Enquirer & News of Battle Creek (After Remand),
Dendrite Int’l, Inc, 342 NJ Super at 156-157.
Id. at 151-152.
Id. at 156.
Cahill,
Id.
Id. at 461.
In re Anonymous Online Speakers,
Id. at 1175-1176.
Id. at 1177.
Maxon v Ottawa Publishing Co, 402 111 App 3d 704, 706;
Id. at 712.
Id. at 714-715.
MCR 2.302(A)(1).
MCR 2.101(B).
MCR 2.102(A).
MCR 2.102(D).
MCR 2.102(E)(1).
MCR 2.302(B)(1); see King v Reed, 278 Mieh App 504, 517;
Augustine v Místate Ins Co, 292 Mieh App 408, 419;
MCR 2.305(A)(1) and (2).
MCR 2.305(D).
MCR 2.302(C).
Cabrera v Ekema,
MCR 2.302(C).
MCR 8.1190(I)(1).
MCR 2.116(G)(5); Maiden v Rozwood,
Maiden,
Id.
Tomkiewicz v Detroit News, Inc,
Tomkiewicz,
Rouch,
Royal Palace Homes, Inc v Channel 7 of Detroit, Inc,
Id. at 53, quoting De Guvera v Sure Fit Prod,
See Ireland,
See New Franklin Enterprises v Sabo,
Ireland,
In re Contempt of Dudzinski,
Augustine,
People v Babcock,
People v Giovannini,
Maldonado,
MCR 2.302(C)(1) and (2).
People v Buie,
See id. at 319-320.
Bloomfield Charter Twp v Oakland Co Clerk,
Bloomfield Charter Twp,
Id.
Kidder v Ptacin,
In re Anonymous Online Speakers,
Cahill, 884 A2d at 460-461.
SLAPP is an acronym for “strategic lawsuit against public participation.” Black’s Law Dictionary (7th ed).
Johnson v Recca,
Giovannini,
See Kevorkian v American Med Ass’n,
Burden v Elias Bros Big Boy Restaurants,
See Bloomfield Charter Twp,
See Occam’s razor, a principle of parsimony, which may be paraphrased as providing that simpler explanations are, other things being equal, generally better than more complex ones.
Const 1963, art 3, § 8; see Citizens for Common Sense in Gov’t v Attorney General,
Cal Code Civ Proc 2029.600.
Concurrence in Part
(concurring in part and dissenting in part). With the advent of the Internet and the accompanying easy, rapid, and global exchange of information and opinions, new legal issues have come to the forefront. This case presents one of those new legal issues and involves a matter of first impression in Michigan. How do we balance a defendant’s First Amendment right to speak anonymously and a plaintiffs right to learn an anonymous defendant’s identity in order to seek redress for the defendant’s alleged defamatory statements? In this case, plaintiff, Thomas M. Cooley Law School (Cooley), alleges that defendant John Doe 1 (Doe 1), a former Cooley student, defamed it in his weblog post titled “Thomas M. Cooley Law School Scam.” Cooley sued Doe 1 and others for defamation and tortious interference. It then obtained a subpoena from a California court that ordered Weebly, Inc. (Weebly), the website host for Doe l’s weblog, to produce documents that included Doe l’s user account information. Doe 1 learned that he had been sued after reading about Cooley’s lawsuit in the media. He moved in the trial court to quash the subpoena or, in the alternative, for a protective order limiting or restricting Cooley’s use of any information obtained pursuant to the subpoena. Unfortunately, before the trial court resolved the motion to quash, and through no apparent fault of either party, Weebly disclosed Doe l’s user account information to Cooley. Cooley now knows Doe l’s identity.
I agree with my colleagues in the majority that the only remedy available to Doe 1, because his identity is known by Cooley, is a protective order and that the trial court, on remand, must evaluate the necessity of a protective order. As noted by the majority, and contrary to Cooley’s argument, Cooley’s knowledge of Doe l’s identity does not render Doe l’s appeal moot. It is possible to fashion a remedy, a protective order, if merited, that will have a practical legal effect on the controversy.
Where I diverge from the majority is in its conclusion that Michigan law adequately protects a defendant’s right to anonymous free speech except for the “extreme” case. Because an anonymous defendant cannot undertake any efforts to protect against disclosure of his or her identity until the defendant learns about the lawsuit — which may well be too late given that discovery is available to a plaintiff as soon as the action is commenced — we, like numerous appeal courts in other jurisdictions,
I. THE FIRST AMENDMENT AND DEFAMATION
A. THE RIGHT TO FREE SPEECH
The First Amendment of the United States Constitution provides: “Congress shall make no law. . . abridging the freedom of speech... .”* *
The right to free speech includes the right to speak anonymously.
B. DEFAMATION
However, “the right of free speech is not absolute at all times and under all circumstances.”
The elements of a defamation claim are the following:
(1) a false and defamatory statement concerning the plaintiff, (2) an unprivileged communication to a third party, (3) fault amounting at least to negligence on the part of the publisher, and (4) either actionability of the statement irrespective of special harm (defamation per se) or the existence of special harm caused by publication.[15 ]
In addition, if the plaintiff is a public official or a public figure, the plaintiff must prove that the alleged defamatory statement was made with actual malice, i.e., that the statement was made with knowledge of its falsity or with reckless disregard of whether the statement was false.
C. BALANCING THE EQUITIES AND RIGHTS OF THE PARTIES:
THE CAHILL AND DENDRITE STANDARDS
Although this Court has never addressed the relationship between a defendant’s right to speak anonymously and a plaintiffs right to learn an anonymous defendant’s identity, numerous courts in other jurisdictions have addressed this issue. As mentioned, Doe 1 requests that this Court adopt the standard articulated in either Dendrite or Cahill.
In Dendrite, a New Jersey intermediate appellate court was called on to determine the standard trial courts were to use in evaluating applications to discover the identity of anonymous users of Internet message boards.
In Cahill, the Delaware Supreme Court was called on to adopt a standard for trial courts to apply when a plaintiff alleging defamation seeks to discover the identity of an anonymous defendant.
The possibility of losing anonymity in a future lawsuit could intimidate anonymous posters into self-censoring then-comments or simply not commenting at all. A defamation plaintiff, particularly a public figure, obtains a very important form of relief by unmasking the identity of his anonymous critics. The revelation of identity of an anonymous speaker “may subject [that speaker] to ostracism for expressing unpopular ideas, invite retaliation from those who oppose her ideas or from those whom she criticizes, or simply give unwanted exposure to her mental processes.” Plaintiffs can often initially plead sufficient facts to meet the good faith test applied by the [trial c]ourt, even if the defamation claim is not very strong, or worse, if they do not intend to pursue the defamation action to a final decision. After obtaining the identity of an anonymous critic through the compulsory discovery process, a defamation plaintiff who either loses on the merits or fails to pursue a lawsuit is still free to engage in extra-judicial self-help remedies; more bluntly, the plaintiff can simply seek revenge or retribution.
Indeed, there is reason to believe that many defamation plaintiffs bring suit merely to unmask the identities of anonymous critics. As one commentator has noted, “the sudden surge in John Doe suits stems from the fact that many defamation actions are not really about money.” “The goals of this new breed of libel action are largely symbolic, the primary goal being to silence John Doe and others like him.” This “sue first, ask questions later” approach, coupled with a standard only minimally protective of the anonymity of defendants, will discourage debate on important issues of public concern as more and more anonymous posters censor their online statements in response to the likelihood of being unmasked.[26 ]
The Delaware Supreme Court concluded that application of a summary judgment standard, which requires a plaintiff to present evidence sufficient to create a genuine issue of material fact, sufficiently balanced a defendant’s right to speak anonymously with a plaintiffs right to protect its reputation.
Numerous appellate courts have adopted either the Dendrite or Cahill standard or some form of one of the two standards.
II. THE NEED FOR ADOPTION OF A STANDARD IN MICHIGAN
The majority concludes that the procedures for a protective order, when combined with the procedures for summary disposition, will be sufficient in nearly every case to adequately protect a defendant’s right to speak anonymously. I respectfully disagree.
When presented with a “motion by a party or by the person from whom discovery is sought” a trial court may issue a protective order.
In the present case, Doe 1 did not receive notice from Cooley of the defamation lawsuit or of the subpoena that it obtained directing Weebly to produce his user account information. According to Doe 1, he learned of the defamation lawsuit because Cooley issued a press release after it filed suit. Had Doe 1 not learned of the defamation lawsuit through the media, which caused him to hire an attorney who moved to quash Cooley’s subpoena, Cooley could have discovered and publicized Doe l’s identity before Doe 1 even learned that he had been sued for defamation. In my view, the court rules do not preclude such an outcome in a future case.
In my opinion, because the court rules do not guarantee that an anonymous defendant will have an opportunity to protect his or her identity before a plaintiff alleging defamation engages in discovery to learn the defendant’s identity, this Court must adopt a standard that will protect a defendant’s right to speak anonymously. I acknowledge the majority’s concern that it is the province of the Legislature to enact an anti-SLAPP statute
III. A MODIFIED DENDRITE STANDARD
I agree with the courts in Dendrite and Cahill that a standard requiring a plaintiff to present prima facie evidence to create a genuine issue of material fact on the elements of its defamation claim is one that strikes an appropriate balance between a plaintiff’s right to sue for defamation and a
The first requirement of the Dendrite standard, which is also part of the Cahill standard, is that the plaintiff must undertake reasonable efforts to notify the anonymous defendant that his or her identity is, or will be, the subject of a discovery request.
The second requirement of the Dendrite standard is that the plaintiff set forth the exact statements by the defendant that it claims were defamatory.
The third requirement of the Dendrite standard, which is also part of the Cahill standard, is that the plaintiff must present to the trial court prima facie evidence sufficient to support each element of its cause of action.
I agree with the courts in Dendrite and Cahill that requiring the plaintiff to produce prima facie evidence sufficient to support each element of its cause of action more appropriately protects an anonymous defendant’s First Amendment rights. “Requiring the [plaintiff] to satisfy this step furthers the goal of compelling identification of anonymous internet speakers only as a means to redress legitimate misuses of speech rather than as a means to retaliate against or chill legitimate uses of speech.”
The fourth requirement of the Dendrite standard is that the court must balance the defendant’s First Amendment rights against the strength of the plaintiffs case and the necessity for disclosure of the defendant’s identity to allow the plaintiff to proceed.
I clarify that a plaintiff, by satisfying this modified Dendrite standard, would only be entitled to discover the anonymous defendant’s identity. After the plaintiff has learned the defendant’s identity, the case must proceed along the normal channels of civil procedure, including discovery, case evaluation, summary disposition motions, and, possibly, trial. A plaintiffs satisfaction of the modified Dendrite standard does not necessarily mean that the real purpose of the plaintiffs lawsuit was not to unmask the defendant and then engage in extrajudicial self-help remedies. Neither does a plaintiffs satisfaction of the modified Dendrite standard establish that the plaintiff will ultimately prevail on its defamation claim. Accordingly, even after a trial court permits a plaintiff to engage in discovery to learn an anonymous defendant’s identity, the court retains discretion to enter any protective orders that it deems necessary to protect the defendant’s First Amendment rights.
I do not believe that this Court has to create any new proceedings in order for a trial court to apply the modified Dendrite standard to a discovery request of a plaintiff alleging defamation who seeks to learn the identity of an anonymous defendant. Michigan follows an open, broad discovery policy,
On motion by a party or by the person from whom discovery is sought, and on reasonable notice and for good cause shown, the court in which the action is pending may issue any order that justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following orders:
(1) that the discovery not be had;
(2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place;
(3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;
(4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters;
(5) that discovery be conducted with no one present except persons designated by the courtf]
“Good cause simply means a satisfactory, sound or valid reason[.]”
The court rules provide two methods by which a party can obtain discovery from a nonparty: (1) deposition and (2) request for production. A party may depose “a person, including a party,” either on oral examination or on written questions,
After an action has been commenced, a party generally does not need to obtain leave of the court to depose a person.
(a) the defendant has filed an answer;
(b) the defendant’s attorney has filed an appearance;
(c) the defendant has served notice of the taking of a deposition or has taken other action seeking discovery;
(d) the defendant has filed a motion under MCR 2.116; or
(e) 28 days have expired after service of the summons and complaint on a defendant or after service made under MCR 2.106.[82 ]
The term “must” indicates a mandatory requirement.
Presumably, because the plaintiff has sued an anonymous defendant and because the plaintiff wants to learn the defendant’s identity, the defendant has not yet been served with process. Accordingly, unless the defendant learned of the plaintiffs lawsuit and took one of the actions listed in MCR 2.306(A)(1)(a) to (d), the plaintiff must obtain leave of the court to engage in discovery with a nonparty to learn the defendant’s identity. At this point, presented with a motion for leave to conduct discovery, the trial court can apply the modified Dendrite standard. The trial
IV CONCLUSION
I do not believe that Michigan law adequately protects a defendant’s First Amendment right to speak anonymously when his or her identity is sought in a defamation action. Consequently, I would adopt a modified Dendrite standard to strike the appropriate balance between an anonymous defendant’s First Amendment rights and a plaintiffs right to learn the defendant’s identity in order to seek redress for alleged defamatory statements. Under this standard, a plaintiff alleging defamation may engage in discovery to learn an anonymous defendant’s identity only after (1) the plaintiff has made reasonable attempts to notify the defendant and then has given the defendant a reasonable opportunity to defend against the discovery request, (2) the plaintiff has presented the trial court with prima facie evidence sufficient to support each element of its cause of action, other than the elements dependent on the defendant’s identity, and (3) the strength of the plaintiffs prima facie case and the necessity of disclosure of the defendant’s identity outweigh the defendant’s right to speak anonymously. However, because Cooley has already learned Doe l’s identity, I concur with the majority that it is necessary to remand this case to the trial court for it to determine whether Doe 1 is entitled to a protective order to prevent further destruction of his anonymity.
Gen Motors Corp v Dep’t of Treasury,
Id.
Dendrite Int’l, Inc v Doe, No 3,342 NJ Super 134;
Doe No 1 v Cahill,
US Const, Am 1. The First Amendment is applicable to the states under the Fourteenth Amendment. Schneider v State,
Const 1963, art 1, § 5.
In re Contempt of Dudzinski,
McIntyre v Ohio Elections Comm,
Id. at 341-342.
Id. at 342.
Reno v American Civil Liberties Union,
Chaplinsky v New Hampshire,
Ashcroft v Free Speech Coalition,
Smith v Anonymous Joint Enterprise,
Mitan v Campbell,
Garvelink v Detroit News,
Dendrite, 342 NJ Super at 140.
Id. at 141-142.
Id. at 141.
Id.
Id.
Id.
Id.
Id. at 142.
Cahill,
Id., at 457 (first alteration in original; citations omitted).
Id. at 460, 463.
Id. at 457, 460, 463.
Id. at 460-461.
Id. at 461.
Id. at 457, 461.
Id. at 464.
Id.
Id. at 461.
Id.
Id.
See Mobilisa, Inc v Doe 1, 217 Ariz 103, 111-112;
MCR 2.302(C).
MCR 2.302(A)(1).
MCR 2.101(B).
MCR 2.306(A)(1); MCR 2.307(A)(1); MCR 2.310(D)(1).
SLAPP is an acronym for “strategic lawsuit against public participation.” Black’s Law Dictionary (7th ed).
Chaplinsky,
In re Does 1-10,
See Cahill,
Const 1963, art 1, § 5.
Cahill,
Mobilisa, Inc, 217 Ariz at 110.
Id. at 110-111; Cahill,
Cahill,
Dendrite, 342 NJ Super at 141.
See Royal Palace Homes, Inc v Channel 7 of Detroit, Inc,
Dendrite, 342 NJ Super at 141; Cahill,
Johnson v QFD, Inc,
Id., quoting MCR 2.111(B)(1).
Dailey v Dykema Gossett PLLC,
Johnson v Pastoriza,
Id.
Gonyea,
Mobilisa, Inc, 217 Ariz at 111.
Alpha Capital Mgt, Inc v Rentenbach,
Cahill,
Dendrite, 342 NJ Super at 142.
Cahill,
MCR 2.302(C).
Augustine v Allstate Ins Co,
MCR 2.302(B)(1).
Alberto v Toyota Motor Corp,
People v Buie,
SBloomfield Charter Twp v Oakland Co Clerk,
MCR 2.302(A)(1).
MCR 2.101(B).
MCR 2.306(A)(1).
MCR 2.306; MCR 2.307.
MCR 2.305(A)(3).
MCR 2.306(B)(1); MCR 2.307(A)(2).
MCR 2.306(B)(1); MCR 2.307(A)(2).
MCR 2.310(B)(2).
MCR 2.310(D)(2).
MCR 2.306(A)(1); MCR 2.307(A)(1).
MCR 2.306(A)(1) (emphasis added).
Id.
Vyletel-Rivard v Rivard,
MCR 2.310(D)(1).
MCR 2.302(C)(1).