The Texas Supreme Court limited a powerful tool in the libel litigator’s toolbox on Friday. In a 5-4 decision, the Court held that a Texas court cannot order a pre-lawsuit deposition to identify an anonymous online defamer if the individual does not have sufficient contacts with Texas for personal jurisdiction. In re Doe a/k/a Trooper, No. 13–0073, 2014 Tex. LEXIS 762 (Tex. August 29, 2014).
The Reynolds & Reynolds Co. and its CEO, Brockman, sought to depose Google, Inc. under Rule 202 of the Texas Rules of Civil Procedure to obtain the identity of a Google blogger using the nom de plume “Trooper.” Trooper’s blog posts allegedly discussed inside information at Reynolds and referred to Brockman as a “crook,” comparing him to Bernie Madoff, Satan, and Bobo the Clown.
Reynolds gave Trooper notice by emailing a copy of the petition to his email address. Google, Inc. did not oppose the petition, but Trooper, appearing through counsel as “John Doe,” did, asserting that the district court, by ordering discovery against Google, Inc., was adjudicating whether he had the right under the First Amendment to maintain his anonymity. Trooper filed a special appearance, asserting that his only contact with Texas was the availability of his blog online in Texas, which was insufficient contact for the exercise of personal jurisdiction. Accordingly, he argued, the Texas court was not a “proper court” under Rule 202 or, alternatively, that Rule 202 violated his procedural due process.
The Court agreed that the district court was not a “proper court” under the Rule. A “proper court,” it held, must have personal jurisdiction over the potential defendant. It is plaintiff’s burden to plead allegations showing the necessary jurisdiction. The Court “recognize[d] that this burden may be heavier in a case like this, in which the potential defendant’s identity is unknown and may even be impossible to ascertain,” but cautioned that “Rule 202 does not guarantee access to information for every petitioner who claims to need it.”
The dissent warned that the decision will, at best, increase the costs of litigation and, at worst, deprive defamation victims from reparation, as anonymous online statements “are impossible to track without the help of the Internet service provider.”
As the decision curtails use of Rule 202, victims of defamers will need to rely on an initial cyber investigation to determine the location of their defamers before commencing a lawsuit. A skilled cyber investigator can gather information available from the offending website, social media, or blog that can help pinpoint the defamer’s geo-location. Doing so requires specialized detective work, including examining the content and timing of the defamatory material for clues as to the origin. A skilled cyber sleuth can also employ “troll traps” to bring the defamer to an online location that is able to capture his or her IP address. Once an IP address is obtained, online tools can drill down to the user’s fairly exact location.
While the Trooper decision doesn’t make obtaining information “impossible,” it will require libel litigators to be more technologically savvy in obtaining the evidence they need.