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Slava Lerner, the President of the Galaxy Towers Condominium Association, sought pre-action discovery from Michael Deluca, publisher of GalaxyFacts, a website forum used by Galaxy Towers condo owners to discuss a variety of issues, including the Association’s governance and leadership. Lerner sought the identities of anonymous commenters who "accused [him] of improprieties with Galaxy funds, and 'nasty personal attacks,'" Deluca told the Hudson Reporter.
Initially, a New Jersey trial judge granted Lerner's request to depose Deluca and to obtain information from the website. Subsequently, with the help of Public Citizen, Deluca filed a motion for reconsideration, which the court granted in March 2010.
In an oral ruling, Judge Hector Velazquez held that Rule 4:11-1, the New Jersey rule of civil procedure governing pre-suit discovery, does not authorize pre-suit discovery in order to learn the identities of potential defendants. Citing the Dendrite case, the court explained that “[New Jersey] courts have set forth a procedure whereby a party seeking to file a complaint for defamation can sue anonymous speakers even before he or she knows who they are,” adding that “in those circumstances, pre-complaint discovery would not be appropriate.” Tr. at 22. Because Lerner had not filed a John Doe complaint before seeking discovery, the court denied the requested discovery.