Ghanam v. Does

• Decision Date: 02 January 2014
• Docket Number: Docket No. 312201.
• Parties: GHANAM v. John DOES.
• Court: Court of Appeal of Michigan — District of US

303 Mich.App. 522
845 N.W.2d 128

GHANAM
v.
John DOES.

Docket No. 312201.

Court of Appeals of Michigan.

Submitted Jan. 8, 2013, at Detroit.
Decided Jan. 2, 2014, at 9:05 a.m.

[845 N.W.2d 132]

Boyle Burdett, Grosse Pointe Park (by Eugene H. Boyle, Jr., and H. William Burdett, Jr.), for Joseph Munem.

York, Dolan & Tomlinson, PC, Clinton Township (by John A. Dolan), for Gus Ghanam.

Before: TALBOT, P.J., and WILDER and STEPHENS, JJ.

WILDER, J.

Appellant, Joseph Munem, appeals by leave granted from the circuit court's order denying his motion for a protective order barring discovery. Plaintiff seeks to depose Munem to discover the identities of persons who allegedly made defamatory statements about him on an Internet message board. Munem seeks to keep the identities of those people anonymous. We reverse and remand for the trial court to enter judgment in favor of defendants.

I

Plaintiff is the deputy superintendent of the department of public works for the city of Warren. He filed a complaint alleging a single count of defamation per se against several unknown “John Doe” defendants. According to the complaint, defendants posted false and malicious statements about plaintiff on an Internet message board called The Warren Forum. Defendants posted these statements anonymously under fictitious user names. Plaintiff's complaint did not provide the specific text of those statements but alleged that they “prejudiced and caused harm to the Plaintiff in his reputation and office and held Plaintiff up to disgrace, ridicule, and contempt.” Plaintiff alleged that the statements

[845 N.W.2d 133]

were false, not privileged, and “were made with the knowledge that they were false, or with reckless disregard for their falsity.” Plaintiff maintains that the anonymous statements accused him of being involved in the disappearance and theft of approximately 3,647 tons of road salt from city storage facilities and of stealing tires from city garbage trucks and selling them. Plaintiff finally presented a verbatim text of the alleged defamatory statements in his response to Munem's motion for a protective order. The statements at issue were posted to The Warren Forum message board in January and February 2012 by people using the pseudonyms “northend,” “yogi,” “hatersrlosers,” and “pstigerfan.”

The first set of statements at issue concerned reports that 3,647 tons of rock salt was missing from the city's storage dome and that nobody could account for how it had disappeared. The local news media reported on the missing road salt after an audit revealed a discrepancy between the city's inventory and records. ¹ The statements were replies posted to a topic thread titled, “Where did our road salt go?” Northend commented as follows ² on the road salt thread:

I wouldn't be surprised if the salt is close to city hall and the storage area for the city. IMO ³ the salt is somewhere around the sports complex on Van Dyke, just south of 14 mile, where Gus hangs out and drinks most days, or at least the days I am in there hitting golf balls. Hmm maybe I need to call the investigators?

Yogi commented on the road salt thread that “the pizza box maker sold it! him an Gus probably split the money.”

The second set of statements at issue were replies to an initial posting titled “MORE sanitation trucks? Yep,” which concerned the city's decision to buy additional new garbage trucks. The city's decision to buy additional new garbage trucks was controversial and reported in the local news media because it came after the city had denied other city departments' requests for new equipment. Haterslosers commented that the city was “only getting more garbage trucks because Gus needs more tires to sell to get more money for his pockets: P” ⁴ And pstigerfan stated, in relevant part, as follows:

Since Warren is the only community in Macomb County to have city employees pick up trash, then [Mayor James] Fouts must have a better idea of what is going on compared to the other communities. Oh wait, his buddies Gus and Dick ⁵ run the department, and in turn

[845 N.W.2d 134]

make money off of it (selling tires, selling road salt, etc). If we didn't have a Sanitation Department with new trucks (and old tires), then Gus would have to take tires off of other vehicles in other departments in order to make his money.

Plaintiff filed a petition for an ex parte order to depose Munem, a former city employee, to determine the identity of the anonymous John Does who left the allegedly defamatory statements on The Warren Forum. In light of past conversations with Munem, plaintiff believed that Munem was affiliated with the website. The circuit court granted plaintiff's petition and issued an order permitting plaintiff to depose Munem “for the purpose of identifying ownership of the Warren Forum and bloggers on the Warren Forum website who have made entries relating to Plaintiff, Gus Ghanam.”

Munem then moved for a protective order against his deposition, arguing that the First Amendment protects a critic's right to anonymously comment about the actions of a public official and that the identities of the anonymous writers were subject to a qualified privilege. Munem argued that before plaintiff could seek to compel the identification of the anonymous posters, he must produce sufficient evidence supporting each element of a cause of action for defamation against a public figure. The circuit court did not consider or acknowledge the First Amendment aspects involved and, instead, merely relied on the open and liberal discovery rules of Michigan. The trial court provided the following explanation from the bench:

Well, I'm of the opinion that this lawsuit alleges certain things that, if proven, are compensable. If proven. They have to be proven.

The second step is in litigation we have a whole process that involves discovery and many aspects of it and, indeed, liberal discovery in Michigan. I believe also, from looking at the cases that you both cited, that the trend on this, as well as in any of the other areas of law, is more towards transparency, not hiding things in this country. The more we hide, the less we have democracy, the less we have freedom, the less we have opportunity for people to succeed and to move forward. It would be a terrible thing on both sides to stop speech, but it would also say to people don't ever take a public job because on anonymous forums they can lie about whether you are a thief or not and accuse you of crimes and things of outrageous behavior. So both those things have to be weighed, one against the other.

We are at the discovery phase in this matter and, as I said, I believe the trend is to open things up. The ownership with forums, the knowledge of the ownership of the forum and the names of the posters doesn't subject them to any liability whatsoever of any sort. Simply, they are a part of the process for the courts to determine whether there is an appropriate cause of action involved in the matter. And so, I believe that the factors that have to be shown are laid out, as you both stated in the Michigan Supreme Court case of [Smith v. Anonymous Joint Enterprise, 487 Mich. 102, 793 N.W.2d 533 (2010) ]. Discovery here is clearly intended to lead to admissible evidence or the ability to obtain admissible evidence and is, therefore, acceptable at this stage of the process. So Mr. Munem will be subject to plaintiff's discovery methods. Thank you.

II

Munem raises three main arguments on appeal. First, he argues that Michigan

[845 N.W.2d 135]

courts must require some showing of merit to the defamation action before the court will allow a plaintiff to conduct discovery regarding the identity of an anonymous critic. Munem urges this Court to adopt the standards articulated in Dendrite Int'l, Inc. v. Doe No. 3, 342 N.J.Super. 134, 775 A.2d 756 (App.Div., 2001). Second, Munem argues that since plaintiff made no showing that complied with Dendrite, he should be barred from using discovery methods to obtain the identity of the anonymous defendants. Third, Munem argues that the statements at issue that were posted on The Warren Forum are nothing more than rhetorical hyperbole that cannot provide the basis for a defamation action.

We agree with Munem that the use of the discovery process by public officials seeking to identify anonymous Internet critics raises First Amendment concerns about the use of defamation actions to identify current critics and discourage others from exercising their rights to free speech. In Thomas M. Cooley Law Sch. v. Doe 1, 300 Mich.App. 245, 266–267, 833 N.W.2d 331 (2013), another panel of this Court held that the Michigan rules of civil procedure adequately protect a defendant's interests in anonymous speech when that defendant is aware of and involved in a pending defamation lawsuit. The Cooley Court declined, however, to address what it described as the extreme case—one in which the plaintiff in a defamation case sues an anonymous defendant solely to subpoena the defendant's Internet provider for identifying information in order to retaliate against the defendant in some fashion outside the court action. Id. at 269–271, 833 N.W.2d 331. While acknowledging that Dendrite and Doe v. Cahill, 884 A.2d 451, 457 (Del., 2005), offer protection to anonymous defendants in this category that the Michigan rules of civil procedure do not, the Cooley Court declined to adopt the Dendrite standard or any other similar standard because it was not necessary under the facts of that case. See Cooley, 300 Mich.App. at 270, 833 N.W.2d 331 (declining to extend its holding “beyond the facts” that were before the Court, which included the facts that the anonymous defendant knew “relatively early on” that there was a pending defamation lawsuit and that, through his actions, he had been successful in preventing a public disclosure of his name).

In the instant case, however, there is no evidence that any of the anonymous defendants were aware of the pending matter...