This post examines an opinion the Superior Court of New Jersey – Appellate Division recently issued in a civil case: Warren
Hospital, et al. v. John Does 1-10,
__ A.3d __, 2013 WL 1349323 (2013). The
plaintiffs include Warren Hospital, six individuals, the Warren Hospital
Foundation, Inc. and Warren Healthcare, Inc.
Warren Hospital, et al. v. John
Does 1-10, supra.
As to the defendants, this is how the
opinion explains the nature of the suit and the facts that gave rise to it:
Plaintiffs allege
that, on August 17, 2008, John Doe One, an anonymous hacker using IP address
75.126.xx.yyy, accessed Warren Hospital's website and
unlawfully and without permission logged onto the hospital's secure mailbox.
John Doe One then composed and sent to all hospital employees an email with a
link to a youtube video; both the emailed message and the linked video compared
one of the individual plaintiffs to Adolf Hitler and other dictators.
The same day, the
hospital intranet was invaded by someone using a different IP address,
70.21.xxx.yy. Plaintiffs allege that, on October 19, 2009, John Doe Two, an
anonymous hacker using the IP address 72.94.xxx.yyy, accessed the hospital's
website and unlawfully and without permission logged onto an employee's
mailbox.
John Doe Two composed and sent an email to all hospital employees
accusing more than one of the individual plaintiffs of sexual misconduct and
other wrongdoing.
Warren Hospital, et al. v. John Does 1-10, supra.
(In a footnote, the appellate court notes that it has “concealed” the IP
addresses mentioned in the opinion.)
As to the legal claims the plaintiffs are pursuing they alleged
the statements noted above were “defamatory or otherwise tortious.” Warren Hospital, et al. v. John Does 1-10, supra. The legal viability of their claims are not, however, what
is at issue in this opinion.
As it notes, after they filed their
complaint the plaintiffs had to serve it on the defendants for the
court to have personal jurisdiction over them.
This is usually not a problem, since plaintiffs normally know the
identities, and location, of those they are suing. Here, of course, these plaintiffs do not know
who was responsible for the emails and video noted above, which obviously is a
problem for them.
As Wikipedia notes, to deal with situations
like this, courts have allowed plaintiffs to name fictitious – or “John Doe” –
defendants in their initial complaints, on the premise that they will file
amended complaints that correctly identify the defendants, once they have that
information.
That is clearly what the plaintiffs in this
suit did in filing their initial complaint.
As this opinion explains, in order to “obtain information about the true
identity of the fictitious defendants,” the plaintiffs then “served subpoenas
on four ISPs.” Warren Hospital, et al. v. John Does 1-10, supra.
That effort was frustrated when “[c]urrent Current
counsel for one or more anonymous but unidentified respondents was given notice of the subpoenas and moved
to quash.” Warren Hospital, et al. v. John Does 1-10, supra. (As
this site explains, a motion to quash a subpoena asks the court that issues it
to void, or nullify, the subpoena because there are good reasons why it should
not be enforced.)
The opinion notes that
[b]y the time the
motion was heard, only the subpoena served on one of the ISPs, Verizon
Communications, remained active. On February 27, 2012, the trial judge granted
the motion to quash for reasons expressed in a written opinion.
Warren Hospital, et al. v. John Does 1-10, supra. I do not know if the first
comment means the other ISPs had already complied with the subpoenas that were
served on them or that those subpoenas had somehow lapsed or been quashed. The opinion simply says the appellate court
then granted the plaintiffs’ “motion for leave to appeal” that order. Warren
Hospital, et al. v. John Does 1-10,
supra.
The Superior Court of New Jersey –
Appellate Division began its analysis of the parties’ respective arguments by
explaining that the Internet’s
rapid, expansive
and inexpensive means of communication permit anyone to `become a modern-day
muckraker, exposing scandal and speaking out against fraud from the safety of
[a] computer.’ Nathaniel Gleicher, Note, John Doe Subpoenas: Toward a
Consistent Legal Standard, 118 Yale L.J. 320 (2008). .
. . But a click of the mouse may
also instantaneously send defamatory messages to a wide audience, causing great
harm to the reputation of others.
To the extent these
speakers choose to remain hidden behind their computers, difficulties are posed
for injured individuals who seek redress. As a result, we have minimized ‘”the
traditional reluctance”’ for permitting filings against fictitious defendants
and held that “’the traditional enforcement of strict compliance with service
requirements should be tempered by the need to provide injured parties with a
forum in which they may seek redress for grievances.”’ Dendrite Int’l, Inc.
v. Doe No. 3, 342 N.J.Super. 134,
775 A.2d 756 (2001) (quoting Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 573 (U.S. District Court for the Northern District of Illinois 1999).
Warren Hospital, et al. v. John Does 1-10, supra.
The court also, though, noted that this
salutary
flexibility . . . must be weighed against competing constitutional interests.
The 1st Amendment extends its protection to speech that is uttered
anonymously, Talley v. California, 362 U.S. 60 (1960) . . . and disseminated through the
Internet, Reno v. American Civil Liberties Union, 521 U.S. 844 (1997).
And Article I, paragraph 6 of our state constitution is understood as providing an even broader right of free
speech than recognized by the 1st Amendment by protecting speech `”not only
from abridgment by government, but also from unreasonably restrictive and
oppressive conduct by private entities.”’ N.J. Coalition Against War in
the Middle East v. J.M.B. Realty Corp., 138 N.J. 326, 650 A.2d 757 (New Jersey Supreme Court 1994). . . .
[I]n offering a
forum for those aggrieved by anonymous defamatory statements, particular care
must be taken to prevent the suppression of criticism or the flow of legitimate
speech. See New York Times Co. v.
Sullivan, 376 U.S. 254 (1964). In crafting an appropriate
remedy, courts must sail between the Scylla of unmasking those who have said
nothing actionable, leaving them vulnerable to powerful and vindictive
plaintiffs with the ability to `seek revenge or retribution,’ Doe No. 1
v. Cahill, 884 A.2d 451
(Delaware Supreme Court 2005), and . . . the Charybdis of permitting anonymity
to become an impenetrable shield, leaving a defamed plaintiff without a remedy.
Warren Hospital, et al. v. John Does 1-10, supra.
The appellate court then explained that in Dendrite
Int’l, Inc. v. Doe No. 3, supra,
we adopted a
four-part test for determining whether and to what extent a plaintiff may
obtain discovery designed to ascertain the identity of persons posting messages
on an ISP message board. Dendrite Int’l, Inc. v. Doe No. 3, supra. [It]
. . . was designed to ensure that the authorization of discovery into an anonymous
speaker's identity `”will only be employed in cases where the plaintiff has in
good faith exhausted traditional avenues for identifying a civil defendant
pre-service and will prevent use of this method to harass or intimidate.’” Dendrite
Int’l, Inc. v. Doe No. 3, supra (quoting
Columbia Ins. Co. v. seescandy.com, supra ). . . .
Warren Hospital, et al. v. John Does 1-10, supra.
Under the Dendrite test, a plaintiff who claimed to have been injured by an
anonymous or
pseudonymous statement on an ISP message board, must: (1) identify the
fictitious defendant with `sufficient specificity’ to allow for a determination
as to whether the defendant `is a real person or entity’ who may be sued; (2)
demonstrate a `good-faith effort to comply with the requirements of service of
process’; (3) present sufficient facts from which it may be concluded that the
suit can withstand a motion to dismiss; and (4) provide `a request for
discovery with the [c]ourt, along with a statement of reasons justifying the
specific discovery requested as well as identification of a limited number of
persons or entities on whom discovery process might be served and for which
there is a reasonable likelihood that the discovery process will lead to
identifying information about defendant that would make service of process
possible.’ Dendrite Int’l, Inc. v. Doe No. 3, supra (quoting Columbia Ins. Co. v.
seescandy.com, supra ).
Warren Hospital, et al. v. John Does 1-10, supra.
This court, though, found
the circumstances in this case “are quite different from those that generated
the” Dendrite test. Warren Hospital, et al. v. John Does 1-10, supra. It explained that, unlike
the facts at issue in Dendrite, in
this case it was not considering
the anonymity of
individuals posting statements on a public Internet message board.
Plaintiffs have presented sufficient facts from which we may assume that what
John Does One and Two did electronically was no different than if they had
broken into the hospital and spray painted their messages on the hospital's
walls.
We reject the argument that those who engage in this type of conduct are
entitled to cling to their anonymity through a strict or overly-formulaic
application of the Dendrite test.
Warren Hospital, et al. v. John Does 1-10, supra.
The court also noted that it was “satisfied”
that the plaintiffs were entitled to pursue
discovery
from Verizon or any other ISP to the extent the discovery might reasonably
reveal the identity of those who used IP addresses 75.126.xx.yyy, 70.21.xxx.yy,
or 72.94.xxx.yyy, or information reasonably designed to lead to other
discoverable information. It is enough that plaintiffs have demonstrated (1)
the speakers' unlawful or impermissible mode of communication, and (2) that the
allegedly defamatory statements would survive a motion to dismiss.
Warren Hospital, et al. v. John Does 1-10, supra.
It also noted that,
as to the third Dendrite factor, it
was “satisfied” that a defamation claim
based
on the August 17 and October 19, 2008 allegations would survive a motion to
dismiss. Plaintiffs assert the statements are false and harmful to their
reputations because [they] tend to `lower[ ] the defamed person in the estimation
of the community or deter third parties from dealing with that person.’ Salzano
v. N. Jersey Media Group Inc., 201 N.J. 500, 993 A.2d 778 (New Jersey Supreme Court 2010).
On a motion to
dismiss, the court would be required to give the words in question the `fair
and natural meaning which will be given [to them] by reasonable persons of
ordinary intelligence.’ Romaine v. Kallinger, 109 N.J. 282, 537 A.2d 284 (New Jersey Supreme Court
1988) (quoting Herrmann v. Newark Morning Ledger Co.,48 N.J.Super. 420, 138 A.2d 61 (Superior Court of New Jersey
– Appellate Division (1958)).
The statements, which we have not quoted in order
to avoid their further dissemination, would survive a motion to dismiss on the
record now before us.
Warren Hospital, et al. v. John Does 1-10, supra.
Finally, the court noted that the John Doe
defendants who had hired the attorney who moved to quash the subpoena were
“troubled” that the discovery it was authorizing
may
provide insight into the identities of some of those who made other anonymous
statements referred to in the amended complaint. We find that to be of little concern.
If the discovery we permit reveals John Does One and Two also uttered other
statements in less wrongful or even completely innocent ways -- or the
revelation of their true identities may lead to a discovery of the identities
of other anonymous speakers – then that is a consequence of John Doe One and
John Doe Two's alleged wrongdoing.
Having made a showing we find sufficient for
the discovery in question, plaintiffs should not be thwarted by the speculative
consequence that other identities may be revealed.
Warren Hospital, et al. v. John Does 1-10, supra.
It therefore
reversed the trial judge’s order quashing the subpoena and remanded the case
for further proceedings. Warren Hospital, et
al. v. John Does 1-10,
supra. For a little more about
the facts in the case, check out the news story you can find here.
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