A recent case from Texas highlights the difficulty of identifying the correct legal standard for determining when a court should order disclosure of the identity of an anonymous person engaging in speech on the Internet. In June 2007, a subsidiary of Essent Healthcare, Inc. filed suit in Texas state court against an anonymous blogger and an undefined number of anonymous posters to his blog. Essent's petition contains claims for defamation, trade disparagement, breach of contract, and breach of the duty of loyalty.

The case revolves around a blog called "The-Paris-site," which focuses on Essent's Paris Regional Medical Center (the "Hospital") in Paris, Texas. The operator of the blog goes by the pseudonyms "Frank Pasquale" (no relation to the law professor) and "fac_p". He posted critical remarks about the Hospital on the blog, including statements that, according to Essent, assert or imply that the Hospital is engaged in Medicare fraud. He also posted statements that allegedly accuse the Hospital of having a high incidences of bacterial infections and of post-surgical complications.

Anonymous users also posted comments on the blog. Some of the comments included information that Essent claims is confidential patient health information. Essent maintains that these anonymous posters (and possibly the blog operator himself) are current or former Hospital employees, and that these disclosures of patient information violate the Health Insurance Portability and Accountability Act ("HIPAA"). Essent's petition contains no claim for violations of HIPAA as such, but asserts that anonymous employee posters breached their employment contracts with the Hospital, and their duties of loyalty to it, by disclosing confidential information in violation of HIPAA.

Essent filed an ex parte request for an order compelling SuddenLink Communications, the anonymous blogger's internet service provider, to disclose his identity. On June 19, 2007, the court issued an order directing SuddenLink to do so, and SuddenLink subsequently sent notice to the blogger pursuant to the Cable Communications Act, which contains an interesting requirement that a cable operator may not disclose "personally identifiable information concerning any subscriber" unless the cable operator first notifies the subscriber. 47 U.S.C. 551(c).

On August 3, 2007, a lawyer representing the anonymous blogger wrote a letter to the court, opposing disclosure of his client's identity. On September 14, 2007, Scott McDowell, the district judge, issued a letter ruling, rejecting the blogger's objection, stating that he would sign an order requiring SuddenLink to disclose the blogger's name and address, and requesting that Essent prepare the order. It does not appear that this new order has issued yet, but the anonymous blogger is preparing to file a petition for a writ of mandamus in order to challenge the September 14 letter ruling.

As explained in our post last week, the primary question in cases seeking to uncover the identity of an anonymous defendant is how to balance that defendant's First Amendment-protected interest in engaging in anonymous speech against the plaintiff's interest in pursuing a valid cause of action for the effects of nonprotected speech. If a court chooses too permissive of a standard, then anyone can unmask an anonymous critic by simply stating that he has been defamed or claiming that his copyright has been infringed. If a court chooses too demanding of a standard, then a plaintiff will find herself forced to litigate her claim before knowing the identity of the defendant and without the benefit of ordinary discovery.

Unfortunately, courts have been all over the map on this question, and a number of competing standards have emerged.

The standard that is most protective of anonymous speech is found in Doe v. Cahill, 884 A.2d 451 (Del. 2005), in which the Supreme Court of Delaware held that a court should apply a "summary judgment" standard before ordering disclosure of an anonymous poster's identity. "Summary judgment" is a legal term of art, and applying this standard means that the plaintiff must show that it has sufficient evidence for each of the elements of its claim. The Delaware Supreme Court court loosened the standard somewhat, however, holding that a plaintiff in a defamation suit need not produce evidence showing actual malice at this initial stage of the litigation.

Another court that required the plaintiff to produce some evidence to support its claim, rather than just allegations, was the New Jersey Superior Court, Appellate Division, in Dendrite v. Doe, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001). The Dendrite court (confusingly) affirmed application of a "motion to dismiss" standard (which ordinarily requires only allegations viewed favorably to the plaintiff), while simultaneously approving the trial court's "more probing review" of the factual bases of the plaintiff's claim. The trial court had refused to order disclosure of the defendant's identity because the plaintiff brought forth no evidence of harm resulting from the alleged defamatory statements. See id. at 769-72.

Other courts have applied different, less protective standards -- some calling it a "prima facie" standard and others calling it a "good faith" standard. See, e.g., Doe v. 2TheMart.com, 140 F. Supp.2d 1088 (W.D. Wash. 2001); Alvis Coatings, Inc. v. Does, 2004 WL 2904405 (W.D.N.C. Dec. 2, 2004); In re Subpoena Duces Tecum to America Online, 2000 WL 1210372, at *6 (Vir. Cir. Ct. Jan. 31, 2000), rev'd in part on other grounds, 542 S.E.2d 377 (Va. 2001). The standards applied in these cases vary in formulation, but all require facially sufficient allegations of wrongdoing, and some apper to require a minimal evidentiary showing.

Not surprisingly, Judge McDowell's September 14 letter ruling in the Essent case makes a muddle of all this. First of all, it is bizarrely formatted -- the legal analysis is contained in two paragraphs that are italicized and indented from the rest of the letter, giving the impression that these paragraphs are quoted material, but without any indication of their source. Some independent researched turned up the following observations:

The first paragraph comes almost verbatim from Polito v. AOL Time Warner, Inc., 2004 WL 3768897, at *5 (Pa. Ct. Com. Pl. Jan. 28, 2004), a case involving a subpoena to uncover the identities of anonymous AOL subscribers who allegedly sent the plaintiff harassing e-mail messages. The language that Judge McDowell quotes from Polito, however, relates exclusively to another case, In re Subpoena Duces Tecum to America Online, Inc. (noted above). Specifically, Judge McDowell appears to be invoking the standard applied by that court -- namely, that "the pleadings or evidence" satisfy the court "that the party requesting the subpoena has a legitimate, good faith basis to contend that it may be the victim of conduct actionable in the jurisdiction where suit was filed." In re Subpoena Duces Tecum to America Online, 2000 WL 1210372, at *8. In that case, the court considered evidence outside the plaintiff's complaint, but it did not make clear whether that was required by its standard.

The second paragraph comes verbatim from Alvis Coatings, Inc. v. Does, 2004 WL 2904405, at *3 (W.D.N.C. Dec. 2, 2004), a case which applied an especially weak version of the "prima facie" standard. There, the court was content that the plaintiff had "averred that the statements are both false and damaging to the Plaintiff's trademark and to its business generally." Id. at 4.

McDowell's letter never explains which standard he is choosing to apply -- Polito, In re Subpoena Duces Tecum, Alvis -- they're all different standards, especially if you look at them closely. Worse, McDowell never even tries to apply the (as yet unknown) standard to the facts of the case. The letter ruling says only:

After considering the above [i.e., the two paragraphs taken nearly verbatim from different decisions], the Court hereby concludes that good cause has been shown and the burden by the plaintiff has been met to meet the requirements of the exceptions to the [Cable] Communication[s] Act to grant the request by Plaintiff for the Internet service provider to furnish the name and address of the subscriber.

Apparently, Judge McDowell believes that no evidence to support Essent's claim is required. That is bad enough, but it is a debatable proposition under the case law. He apparently also believes that no analysis of the allegations in the complaint for facial sufficiency is required. Whatever the standard, this is surely wrong.