In a precedent-setting ruling, the Washington Court of Appeals in Thomson v. Doe refused to grant a motion to compel brought by a defamation plaintiff who had subpoenaed the lawyer-review site Avvo.com seeking the identity of an anonymous online reviewer, holding that, for a defamation plaintiff to unmask an anonymous defendant, that “plaintiff must do more than simply plead his case.”
The plaintiff in the case, Florida divorce attorney Deborah Thomson, filed a defamation suit against an anonymous poster of Avvo reviews. Claiming to be a former client, the reviewer stated that Thomson, among other things, failed to live up to her fiduciary duties, failed to subpoena critical documents, and failed to adequately represent the reviewer’s interests.
After Avvo refused Thomson’s subpoena seeking the anonymous reviewer’s identity, Thomson moved to compel compliance with the subpoena. The Washington State trial court denied Thomson’s motion and she appealed, presenting the Washington State Court of Appeals with what the court acknowledged was an issue of first impression in the Evergreen state: What evidentiary standard should a court apply when deciding a defamation plaintiff’s motion to reveal an anonymous speaker’s identity?
The court began its analysis by describing the holdings of the two leading cases on the issue: New Jersey’s Dendrite Int’l, Inc. v. Doe No. 3, which held that, to unmask anonymous defendants in defamation cases, the plaintiff must “produce sufficient evidence supporting each element of its cause of action on a prima facie basis; and Delaware’s Doe v. Cahill, which established that plaintiffs seeking to uncover the identities of anonymous speakers/defendants must clear a slightly higher evidentiary threshold—proof that their claims would survive a summary judgment motion.
The court also discussed the one court that “has significantly strayed from Dendrite and Cahill”: the Virginia Court of Appeals. In Yelp, Inc. v. Hadeed Carpet, another case we recently covered at Socially Aware, the Virginia Court of Appeals “declined to adopt either test, instead applying a state statute that required a lower standard of proof.” Specifically, Hadeed held that, in the Thomson court’s words, “a defamation plaintiff seeking an anonymous speaker’s identity must establish a good faith basis to contend that the speaker committed defamation.”
The Thomson court then cited with approval the Ninth Circuit’s approach in In re Anonymous Online Speakers. In that case, the Ninth Circuit determined that, when deciding whether to require disclosure of an anonymous speaker’s identity, the nature of the speech at issue should inform the choice of evidentiary standard. Holding that an online review of an attorney’s services is not merely commercial speech—which, the court explained, would warrant the lowest level of protection—the court rejected the Hadeed (good faith) standard. Since the Avvo review did not qualify as political speech either, the court also discounted the highest level of protection. The court then determined that the “motion to dismiss standard” was “inadequate to protect this level of speech” because, in a notice pleading state like Washington, “a defamation plaintiff would need only to allege the elements of the claim, without supporting evidence.”
Finally, the Thomson court addressed the “two remaining standards”: prima facie (Dendrite) and summary judgment (Cahill). The court ultimately decided that the prima facie standard was appropriate because the anonymous reviewer had yet to appear in the case and the plaintiff, therefore, was not in a position to file a summary judgment motion.
The court nevertheless observed that “the important feature” of both the prima facie and the summary judgment standards “is to emphasize that the plaintiff must do more than simply plead his case.” In other words, both standards require “supporting evidence … before the speaker is unmasked.” Under that standard, the court held, “Thomson’s motion must fail. As Thomson freely admits, she presented no evidence to support her motion.”