Monday, August 24, 2015

The Lawyer, Avvo and the Anonymous Review

As the title indicates, this post is about Deborah Thomson, “a Florida attorney” who “brought a defamation suit against Doe, an anonymous poster who wrote a negative review of Thomson on”  Thomson v. Doe, 2015 WL 4086923 (Court of Appeals of Washington 2015).  As usual, the Court of Appeals begins its opinion by explaining exactly how and why the suit arose:
Deborah Thomson is a Florida attorney. Avvo Inc. operates an online lawyer review and rating system. On May 21, 2014, Thomson filed a pro se lawsuit in Florida against Jane Doe, an anonymous individual who posted a review on Thomson's Avvo profile. The review, posted by `Divorce client,’ stated:

`I am still in court five years after Ms. Thomson represented me during my divorce proceedings. Her lack of basic business skills and detachment from her fiduciary responsibilities has cost me everything. She failed to show up for a nine hour mediation because she had vacation days. She failed to subpoena documents that are critical to the division of assets in any divorce proceeding. In fact, she did not subpoena any documents at all. My interests were simply not protected in any meaningful way.’
Thomson v. Doe, supra.
The court goes on to explain that the Complaint Thomson filed to initiate the civil suit
alleged that Doe was not a client and that the post was designed to impugn Thomson's personal and professional reputation. Thomson alleged four causes of action: defamation, defamation per se, defamation by implication, and intentional infliction of emotional distress (MED).
Thomson v. Doe, supra.  Rule 3 of the Washington Rules of Civil Procedure, which you can find here, states that someone initiates a civil suit by filing a Complaint with the Court. And Rule 7, which you can find here, says that the pleadings in a civil suit consist of the Complaint (filed by the person who brings the suit) and the Answer (filed by the defendant(s) in the suit). Thomson v. Doe, supra. 
Getting back to the facts in the case, the court explains that on
June 25, 2014, Thomson filed a subpoena in King County Superior Court requesting from Avvo the anonymous poster's identification. On July 3, Thomson received an e-mail from Joshua King, Avvo's vice president of business development and general counsel.
Thomson v. Doe, supra.  King told Thomson
`I've received your subpoena seeking records on an anonymous review. Our policy on handling such subpoenas is to let the reviewer know, so that they can move to quash if they want. They may also provide me with more information about the representation, in which case we may ask you to withdraw the subpoena.’

Thomson replied, `Thank you for letting me know. . . . I am pretty certain I am aware who wrote it, so I am eager to obtain the records.’
Thomson v. Doe, supra. 
On July 8, King e-mailed Thomson,
`I have received a response. While I can't give you the specifics, it included information sufficient for me to believe the reviewer was a client of yours.’

`Given this information, I ask that you withdraw the subpoena.’
Thomson v. Doe, supra.  According to the opinion, Thomson then
“’responded, `Please be advised that I will not be withdrawing my subpoena. Please provide the documents requested therein.’”
Thomson v. Doe, supra. 
The court goes on to explain that, on July 16,
Thomson moved to compel Avvo to comply with the subpoena. She asserted that Doe's speech was libel and defamation. Specifically, she alleged that each of the sentences in the Doe post was either a false statement of fact or a combination of fact and opinion that was provably false. She did not submit a declaration, affidavit, or any other evidence in support of her motion.

Avvo opposed the motion, arguing that Thomson failed to show that the post was defamatory and failed to provide evidence of damages.

On July 28, the trial court denied Thomson's motion to compel. It stated that Thomson `failed to make a prima facie showing re[garding her] defamation claim.’ Thomson appeals.  Avvo and Doe each filed a response.
Thomson v. Doe, supra (alternation in the original).
The Court of Appeals began its analysis of the issues in the case by noting that
[t]he First Amendment protects the right to speak anonymously. McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995). This right applies equally to online speech. In re Anonymous Online Speakers, 661 F.3d 1168 (U.S. Court of Appeals for the 9th Circuit 2011). However, defamatory speech does not enjoy the protections of the First Amendment. Chaplinksy v. New Hampshire,  315 U.S. 568 (1942). Accordingly, when faced with a defamation claim, courts aim to strike a balance between the right to protect one's reputation and the constitutional right to free speech. See, e.g., Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985)Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)New York Times Co. v.Sullivan, 376 U.S. 254 (1964).
Thomson v. Doe, supra. 
And it went on to explain that
[t]o that end, the United States Supreme Court has considered the type of speech at issue when determining the appropriate standards to apply in defamation cases. For example, when a defamed plaintiff is a public figure, the standard of fault is more stringent; such a claim requires a showing of actual malice. See New York Times v. Sullivan, supra; Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967). This heightened standard reflects the constitutionally protected `”interchange of ideas for the bringing about of political and social changes desired by the people.’” New York Times v. Sullivan, supra (quoting Roth v. U.S., 354 U.S. 476 (1957)). By contrast, when the challenged speech involves a purely private concern, `”[t]here is no threat to the free and robust debate of public issues”’ and thus the First Amendment provides less stringent protection. Dun & Bradstreet v. Greenmoss, supra (alteration in original) (quoting Harley–Davidson Motorsports, Inc. v. Markley, 279 Or. 361, 568 P.2d 1359 (Oregon Supreme Court 1977)).
Thomson v. Doe, supra. 
Next, the court identified the precise issue it was required to resolve:  
we are asked to determine whether the trial court struck the proper balance in reviewing Thomson's motion to disclose Doe's identity. To answer this question, we must address two issues: first, whether the trial court applied the correct standard in reviewing a motion to reveal an anonymous speaker's identity, and second, whether Thomson met that standard.
Thomson v. Doe, supra. 
It went on to outline the legal standard it should apply in that analysis:
Whether the trial court applied the correct legal standard is a question of law that we review de novoHundtofte v. Encarnacioń, 181 Wash.2d 1, 330 P.3d 168 (Washington Supreme Court (2014) (Madsen, J. concurring). If the correct legal standard was applied, we generally review a trial court's denial of a motion to compel for an abuse of discretionLake Chelan Shores Homeowners Ass'n v. St. Paul Fire & Marine Ins. Co., 176 Wash.App. 168, 313 P.3d 408 (Washington Court of Appeals 2013).  

This is because the trial court is `”better positioned than another”’ to decide discovery issues. Wash. State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wash.2d 299, 858 P.2d 1054 (Washington Supreme Court 1993) (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990)); see also Amy v. Kmart of Wash., LLC, 153 Wash.App. 846, 223 P.3d 1247 (Washington Court of Appeals 2009).

However, when the trial court's ruling involves libelous speech, the United States Supreme Court has indicated that independent appellate review is proper. Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485 (1984). This is because the constitutional values at issue warrant review by judges—including appellate judges—rather than the trier of fact:

`In such cases, the Court has regularly conducted an independent review of the record both to be sure that the speech in question actually falls within the unprotected category and to confine the perimeters of any unprotected category within acceptably narrow limits in an effort to ensure that protected expression will not be inhibited. Providing triers of fact with a general description of the type of communication whose content is unworthy of protection has not, in and of itself, served sufficiently to narrow the category, nor served to eliminate the danger that decisions by triers of fact may inhibit the expression of protected ideas.’

Bose Corp. v. Consumers Union, supra.
Thomson v. Doe, supra. 
The Court of Appeals then pointed out that
Bose thus suggests that when a discovery motion—typically a matter of discretion—implicates the First Amendment, the trial court is no longer better positioned to decide the issue in question. See State Physicians Ins. Exch. & Ass'n v. Fisons Corp., supra.

We acknowledge a distinction between Bose and the present case. There, the Court reviewed the finding of actual malice, one of the elements of the plaintiff's defamation claim. Bose Corp. v. Consumers Union of U.S., Inc., supra. Here, we review the denial of the plaintiff's motion to unmask the defendant, a threshold question. Thus, unlike in Bose, the decision before us does not involve the ultimate determination of whether the speech was libelous and therefore unprotected. Nonetheless, a motion to reveal a speaker's identity has First Amendment consequences. See McIntyre v. Ohio Elections Comm'n, supra (acknowledging the constitutional right to anonymous speech).

Accordingly, we hold that de novo review is the proper standard of review when considering the trial court's decision on a motion to reveal an anonymous speaker's identity.
Thomson v. Doe, supra. 
The court then took up the issue as to
the requisite showing a defamation plaintiff must make on a motion to unmask an anonymous defendant. This is an open question in Washington. However, many other courts, both federal and state, have considered this issue. . . . The two leading cases are Dendrite Int'l, Inc. v. Doe No. 3, 342 N.J.Super. 134, 775 A.2d 756 (New Jersey Superior Court 2001) and Doe No. 1 v. Cahill, 884 A.2d 451 (Delaware Supreme Court 2005).

In Dendrite, an anonymous speaker posted messages on an online bulletin board criticizing Dendrite's stock performance. Dendrite Int’l, Inc. v. Doe No. 3, supra.  Dendrite sued the anonymous speaker and sought disclosure of the speaker's identity. Dendrite Int’l, Inc. v. Doe No. 3, supra. The New Jersey intermediate appellate court set out a four-step process for determining whether to compel disclosure of the speaker's identity:

`[T]he trial court should first require the plaintiff to undertake efforts to notify the anonymous posters that they are the subject of a subpoena or application for an order of disclosure, and withhold action to afford the fictitiously-named defendants a reasonable opportunity to file and serve opposition to the application. These notification efforts should include posting a message of notification of the identity discovery request to the anonymous user on the ISP's pertinent message board.’

`The court shall also require the plaintiff to identify and set forth the exact statements purportedly made by each anonymous poster that plaintiff alleges constitutes actionable speech.’

`The complaint and all information provided to the court should be carefully reviewed to determine whether plaintiff has set forth a prima facie cause of action against the fictitiously-named anonymous defendants. In addition to establishing that its action can withstand a motion to dismiss for failure to state a claim upon which relief can be granted . . ., the plaintiff must produce sufficient evidence supporting each element of its cause of action, on a prima facie basis, prior to a court ordering the disclosure of the identity of the unnamed defendant.’

Finally, assuming the court concludes that the plaintiff has presented a prima facie cause of action, the court must balance the defendant's First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant's identity to allow the plaintiff to properly proceed.
Dendrite Int’l, Inc. v. Doe No. 3, supra.  The Dendrite court stated that the test
`must be undertaken and analyzed on a case-by-case basis. The guiding principle is a result based on a meaningful analysis and a proper balancing of the equities and rights at issue.’
Dendrite Int’l, Inc. v. Doe No. 3, supra.  
The Court of Appeals then noted that Doe No. 1 v. Cahill, supra,
the Delaware Supreme Court considered the proper standard to apply when faced with a public figure plaintiff's request to unmask an anonymous defendant. . . . The Cahill court adopted a `modified Dendrite standard consisting only of Dendrite requirements one and three: the plaintiff must make reasonable efforts to notify the defendant and must satisfy the summary judgment standard.’ Doe No. 1 v. Cahill, supra. In concluding that summary judgment was the appropriate evidentiary standard, the Cahill court expressed concern `that setting the standard too low will chill potential posters from exercising their First Amendment right to speak anonymously.’  Doe No. 1 v. Cahill, supra.
Dendrite Int’l, Inc. v. Doe No. 3, supra.  The Cahill court also found that “the summary judgment standard would “more appropriately protect against the chilling effect on anonymous First Amendment internet speech that can arise when plaintiffs bring trivial defamation lawsuits primarily to harass or to unmask their critics.” Dendrite Int’l, Inc. v. Doe No. 3, supra.  
The Court of Appeals also found that, pursuant to the U.S. Court of Appeals for the 9th Circuit’s decision in In re Anonymous Online Speakers, supra.  Thomson v. Doe, supra. 
The Anonymous Online Speakers court held that the question “what is the nature of the speech at issue?” is “crucial” when a court is “reviewing a motion to reveal an anonymous speaker’s identity.”  Thomson v. Doe, supra.  It therefore held that when a court  is engaged in this analysis, it “must consider the nature of the speech when determining the evidentiary standard to apply.”  Thomson v. Doe, supra. 
It then pointed out that commercial speech is entitled to less protection, political speech requires that
[w]hile Doe's speech is not commercial, warranting the lowest protection, it is also not political, warranting the highest. Thus, Doe's speech is entitled to an intermediate level of protection.
Thomson v. Doe, supra. 
The court then held that, in anonymous speech cases like this, the plaintiff (Thomson) should be required to produce “supporting evidence . . . before the speaker is unmasked.”  Thomson v. Doe, supra.  It also held that
[u]nder that standard, Thomson's motion must fail. As Thomson freely admits, she presented no evidence to support her motion.  Therefore, the trial court properly denied Thomson's motion for failure to make a prima facie showing of defamation.
Thomson v. Doe, supra. 
You can, if you are interested, read more about the facts in the case in the news story you can find here

No comments: