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An Internet service provider must hand over documents that disclose the identity of a person who sent an allegedly libelous e-mail about his or her company’s executive director to the company’s board, a Manhattan judge has ruled. The e-mail stated, among other things, that the Public Relations Society of America’s director Catherine A. Bolton “is a fast-talking nonstrategic PR person. She cannot manage or lead an organization. Her quarterly reports to staff are garbage, often met with rolling eyes,” according to Justice Kibbie F. Payne’s decision, Public Relations Society of America v. Road Runner High Speed Online, 116210/04. After the board received the e-mail, Bolton and the Public Relations Society of America initiated an action against Road Runner High Speed Online, seeking to learn the e-mailer’s name. They filed a motion for preaction disclosure in anticipation of a defamation suit. Specifically, the plaintiffs asked for all documents concerning either the e-mail at issue or the user of the originating Internet address at the time the e-mail was sent. Road Runner, an Internet services company owned by Time Warner, failed to appear at the November 2004 hearing for the motion, and Justice Payne granted the plaintiffs’ motion for disclosure. The company did, however, notify the mystery e-mailer, known in the decision as “John Doe,” that his e-mail was the subject of a potential tort action. Doe moved to intervene in the proceeding, seeking to vacate the default judgment and block the disclosure of the identifying documents. “To override Doe’s constitutionally protected rights and require disclosure of Doe’s identity on Petitioners’ wholly specious claims will deprive Doe of Doe’s First Amendment rights and will also have a chilling effect on the public’s willingness to engage in anonymous internet communications, Doe’s attorneys, Carol A. Dunning and J. Cullen Howe of Quarto Dunning, argued in a brief in support of the motion. In Payne’s decision on that motion, he addressed two questions, whether either of the plaintiffs had established a prima facie case for defamation and, if so, whether the court should compel Road Runner to disclose the identifying documents. Payne answered yes on both accounts. First, he determined that Bolton presented an actionable case for libel per se. “The writer of the e-mail implies that his opinion, as a whole, is shared by other persons in the organization who are not named. Thus, there is a basis on which the reader can evaluate the opinion of others alleged to share the same views as the writer of the e-mail.” Payne wrote. “Such statements of mixed opinion [and fact] are actionable.” Payne ruled that the PRSA, however, had not established its own prima facie case, as any allegedly defamatory statement about the company had not been published to anyone outside of the PRSA’s board. Having determined that Bolton had established her case, Payne then ruled that the documents she sought were discoverable. Applying a five-factor test set forth in a decision from the U.S. District Court for the Southern District of New York, Payne held that the First Amendment does not in this instance preclude the discovery of identifying Internet user information. ‘SONY’ TEST The test, laid out in Sony Music Entertainment v. Does 1-40, 326 F. Supp 2d 556, had never been followed by a reported New York state court decision, according to a New York Law Journal search. In Sony, a group of record companies brought suit against 40 “John Does” who had allegedly downloaded music illegally from the Internet. Judge Denny Chin listed five factors for courts to consider when balancing First Amendment protections with the need for disclosure of anonymous Internet-users’ identity. Specifically, according to Sony, courts should weigh whether a prima facie case for the underlying action has been set forth; the specificity of the request; the absence of alternative means to obtain the information; the need for the information; and the defendant’s expectation of privacy. “When all the foregoing factors are applied in this proceeding, they weigh in favor of the disclosure sought,” Payne ruled. “Furthermore, apart from the perfunctory claim of a need for anonymity, ‘John Doe’ fails to set forth any basis for a legitimate expectation of privacy for his Internet account information.” Dunning and her partner Roslyn Quarto said they would consider an appeal. In the meantime, they would have to request an automatic stay before any of the revealing documents were produced. “It’s a beat-the-clock-kind of thing,” Dunning said. The plaintiff’s attorney, Julie Stark of Moses & Singer, said she expected to receive the documents. Thomas F. Gleason, an expert in electronic filing and discovery who is not involved in the case, said he was not surprised by either Payne’s reliance on a federal decision nor his ruling. “There are not a lot of state decisions out there,” said Gleason, a partner at Albany-based in Gleason, Dunn, Walsh & O’Shea. Under state law, pretrial discovery can be expansive, Gleason added. A party can compel the production of any document, so long as it might lead to the discovery of admissible evidence. The lack of state precedent for the present case is a product of this expansiveness.

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