Thomas M. Cooley Law Sch. v. Doe

• Decision Date: 04 April 2013
• Docket Number: Docket No. 307426.
• Citation: 833 N.W.2d 331,300 Mich.App. 245
• Parties: THOMAS M. COOLEY LAW SCHOOL v. DOE 1.
• Court: Court of Appeal of Michigan — District of US

300 Mich.App. 245

833 N.W.2d 331

THOMAS M. COOLEY LAW SCHOOL

v.DOE 1.

Docket No. 307426.

Court of Appeals of Michigan.

Submitted Dec. 12, 2012, at Lansing.

Decided April 4, 2013 at 9:00 a.m.

Miller, Canfield, Paddock and Stone, PLC (by Michael P. Coakley, Detroit and Paul D. Hudson, Kalamazoo), for Thomas M. Cooley Law School.

Barbara Harvey, John T. Hermann, Berkley, and Paul Alan Levy for John Doe 1.

Boyle Burdett, Grosse Pointe Park (by H. William Burdett, Jr.) and Daniel S. Korobkin, Michael J. Steinberg, and Kary L. Moss, Detroit for Amici Curiae American

Civil Liberties Union Fund of Michigan.

Butzel Long (by Robin Luce Herrmann, Bloomfield Hills, Joseph E. Richotte, Detroit, Jonathan F. Jorissen, Bloomfield Hills, and Jennifer A. Dukarski, Ann Arbor) for Amici Curiae Michigan Press Association, Gannett Co., Inc., Scripps Media, Inc., The Detroit News, The Macomb Daily, and The Rail.

Before: WHITBECK, P.J., and METER and BECKERING, JJ.

Opinion of the Court

WHITBECK, P.J.

This appeal concerns the complicated interplay between First Amendment protections of the freedom of speech and the Michigan Court Rules concerning discovery. Plaintiff, Thomas M. Cooley Law School (Cooley), filed a complaint in the Ingham Circuit Court against defendant John Doe 1 (Doe 1) and others, alleging, in part, defamation arising from statements that Doe 1 made, under a pseudonym, on a website that criticized Cooley. Doe 1 moved in the trial court to (1) quash a subpoena that Cooley obtained in California seeking his identity, and (2) issue a protective order. Doe 1 now appeals by leave granted an order of the trial court denying his motion to quash the California subpoena. He argues that the First Amendment's protections for anonymous free speech shield his identity. We reverse and remand.

I. FACTS

A. BACKGROUND FACTS

Doe 1 created an Internet website at Weebly.com, owned by California-based Weebly, Inc. (Weebly), using the pseudonym “Rockstar05.” ¹ Doe 1 titled the website “THOMAS M. COOLEY LAW SCHOOL SCAM.”

Describing himself as a former student of Cooley, Doe 1 stated that “ Cooley is without a doubt one of the three worst law schools in the United States ... and [is] considered THE BIGGEST JOKE of all law schools amongst other law students.” In the body of the post, Doe 1 listed “multiple reasons for this,” including: (1) Cooley's “open door” policy, (2) Cooley's attrition rate and administrative policies, (3) “the ‘Cooley Rankings' ” (4) that Cooley “IS A DIPLOMA MILL,” and (5) that Cooley's graduates are unemployed. Doe 1 claimed that he would “elaborate and address each of these [claims] in order, backed by statistics and facts, painting a real picture of what Cooley is really like[.]”

Doe 1 arranged the body of his blog in an outline format, comprised of headings followed by external website links and Doe 1's commentary. Doe 1's commentary frequently included capital letters, multiple instances of incorrect punctuation, expletives, advice, misspellings, and references to pop culture. Doe 1 permitted visitors to post their own comments on the website, and frequently responded to the commentators. After April 1, 2011, however, he began to “filter” comments, noting that he would delete “any stupid or irrelevant comments or personal attacks[.]”

B. PROCEDURAL HISTORY BELOW

Cooley filed the complaint in the Ingham Circuit Court on July 14, 2011, against several John Doe defendants. Cooley's complaint against Doe 1 alleged that he made defamatory accusations that Cooley and its representatives “are ‘criminals' and have committed ‘fraud,’ ” that Cooley deceived and provided false information to attain business, and that Cooley “uses its clout to ‘prey’ on current and prospective students, stealing their tuition money to ‘become more rich.’ ” On July 25, 2011, Cooley petitioned the Superior Court of California, County of San Francisco, to issue a subpoena to Weebly. On August 3, 2011, the California court issued a subpoena to Weebly, ordering it to produce documents that included Doe 1's user account information. On August 5, 2011, Doe 1 filed a motion in the Ingham Circuit Court, requesting that it quash any outstanding subpoenas to Weebly or, alternatively, issue a protective order limiting or restricting Cooley's use or disclosure of his identifying information.

On August 9, 2011, Weebly's chief of customer satisfaction promised Doe 1's attorney that he would not disclose Doe 1's identifying information until August 22, to allow him to obtain a ruling on his motion to quash. But on August 17, 2011, another Weebly employee released Doe 1's identifying information to Cooley. On August 18, 2011, Cooley requested that Doe 1 withdraw his motion to quash on the basis that the motion was now moot; Doe 1 declined.

On August 29, 2011, Cooley filed an amended complaint that identified Doe 1 by his legal name. Doe 1 supplemented his motion to quash and moved in the trial court to strike the identifying information, arguing that Cooley violated Michigan discovery rules by using information that Doe 1 claimed was protected.

C. THE TRIAL COURT'S DECISION

In September 2011, the trial court heard arguments on Doe 1's motion to quash. Doe 1's counsel agreed that the motion to quash was moot because Weebly had disclosed the information, but clarified that he was “seeking this motion as an alternative, a protective order.” The trial court provisionally ruled that Weebly might have inadvertently disclosed the information for the purposes of MCR 2.302(B)(7). It struck Cooley's amended complaint and ordered Cooley not to initiate further discovery or disclose the information pending its final decision on the motion. On October 3, 2011, the trial court ruled that the motion to quash was not moot, reasoning that its ruling on Doe 1's motion to strike placed the parties back in the positions they occupied before Weebly disclosed the information.

On October 24, 2011, the trial court heard continued arguments on Doe 1's motion to quash. After extensive reasoning, the trial court determined that there was no Michigan law on point and examined decisions from other jurisdictions, including Dendrite Int'l, Inc. v. Doe, No. 3² and Doe No. 1 v. Cahill.³ The trial court determined that, in order to adequately protect Doe 1's interests in remaining anonymous, it must balance those interests against Cooley's interests in holding Doe 1 accountable for alleged defamation.

The trial court adopted and applied the Dendrite analysis. Under that analysis, it ruled that Doe 1 had been notified and that Cooley had sufficiently alleged slander per se. It ruled that statements that are slanderous per se are not entitled to First Amendment protection, and thus Cooley would not have to prove actual malice. The trial court's order denied Doe 1's motion to quash, declined to grant him a protective order for “the reasons stated on the record,” and allowed Cooley to use the information that it discovered from Weebly. However, the trial court stayed its ruling pending Doe 1's appeal to this Court.

On November 29, 2011, Doe 1 filed an application for leave to appeal the trial court's order, which this Court granted in an unpublished order, entered May 25, 2012 (Docket No. 307426). On July 11, 2012, Cooley moved to dismiss this appeal as moot. This Court denied Cooley's motion to dismiss in an unpublished order, entered July 20, 2012 (Docket No. 307426).

II. MOOTNESS

A. STANDARD OF REVIEW

This Court reviews de novo questions of law.⁴

B. LEGAL STANDARDS

Michigan courts exist to decide actual cases and controversies, and thus will not decide moot issues.⁵ A matter is moot if this Court's ruling “cannot for any reason have a practical legal effect on the existing controversy.” ⁶ Even if moot, this Court may consider a legal issue that “is one of public significance that is likely to recur, yet evade judicial review.” ⁷

C. APPLYING THE STANDARDS

Cooley argues that the issues presented in this appeal are moot because Weebly disclosed Doe 1's identity to Cooley. Therefore, because Cooley cannot “unlearn” his name, Doe 1's anonymity is destroyed. We conclude that the issues presented in this appeal are not moot because Cooley's knowledge does not prevent this Court from granting relief that will have a practical legal effect on the controversy.

Doe 1 filed his motion to quash the subpoena and issue a protective order before Cooley learned his identity. Although Cooley filed an amended complaint with Doe 1's true name on it, the trial court acted within 10 days to sequester all documents in the lower-court record that contain Doe 1's name. The trial court also ruled that Doe 1's identifying information was inadvertently disclosed for the purposes of MCR 2.302(B)(7). Cooley argues that members of the public may have accessed the trial court documents in that period, but there is no indication that this actually occurred.

Finally, Cooley contended at oral arguments that, because Doe 1 applied for membership in the State Bar of California, his anonymity was destroyed because the State Bar of California is aware of his involvement in this suit. But it was also stated at oral arguments that applications to the State Bar of California are confidential. Thus, Doe's application alone would not reveal his identity to the public. There are simply no indications that Doe 1's anonymity was destroyed or that this Court is unable to fashion the relief Doe 1 seeks.

Further, whether and in what fashion the identity of an anonymous Internet speaker can be discovered or protected under Michigan law is a publically significant issue concerning the First Amendment. In this age of Internet blogging, this issue is likely to reoccur. And if the disclosure of a John Doe's name to a handful of attorneys and court officers is sufficient to render this issue moot, the issue would also be likely to evade judicial review. We conclude that we may, and should, reach the merits of the issues on appeal.

III. THE ...