Thomson v. Doe

• Decision Date: 06 July 2015
• Docket Number: No. 72321–9–I.,72321–9–I.
• Citation: 189 Wash.App. 45,356 P.3d 727
• Parties: Deborah THOMSON, an individual, Appellant, v. Jane DOE, Respondent.
• Court: Washington Court of Appeals

189 Wash.App. 45

356 P.3d 727

Deborah THOMSON, an individual, Appellant

v.Jane DOE, Respondent.

No. 72321–9–I.

Court of Appeals of Washington, Division 1.

July 6, 2015.

Deborah Thomson, Tampa, FL, for Appellant.

Bruce Edward Humble Johnson, Ambika Kumar Doran, Davis Wright Tremaine LLP, Fortis Davis Woods–Morse, Consumer Justice Group, Judith A. Endejan, Garvey Schubert Barer, Seattle, WA, Paul Alan Levy, Public Citizen Law Group, Washington, DC, for Respondent.

Opinion

APPELWICK, J.

¶ 1 What showing must be made by a defamation plaintiff seeking disclosure of an anonymous speaker's identity? This is an open question in Washington. Thomson brought a defamation suit against Doe, an anonymous poster who wrote a negative review of Thomson on Avvo.com. Thomson then subpoenaed Avvo seeking Doe's identity. When Avvo refused to provide the information, Thomson moved to compel Avvo's compliance with the subpoena. The trial court denied Thomson's motion, finding that Thomson had not made a prima facie claim of defamation. We affirm.

FACTS

¶ 2 Deborah Thomson is a Florida attorney. Avvo Inc. operates an online lawyer review and rating system. On May 21, 2014, Thomson filed a pro se lawsuit in Florida against Jane Doe, an anonymous individual who posted a review on Thomson's Avvo profile. The review, posted by “Divorce client,” stated:

I am still in court five years after Ms. Thomson represented me during my divorce proceedings. Her lack of basic business skills and detachment from her fiduciary responsibilities has cost me everything. She failed to show up for a nine hour mediation because she had vacation days. She failed to subpoena documents that are critical to the division of assets in any divorce proceeding. In fact, she did not subpoena any documents at all. My interests were simply not protected in any meaningful way.

¶ 3 Thomson's complaint alleged that Doe was not a client and that the post was designed to impugn Thomson's personal and professional reputation. Thomson alleged four causes of action: defamation, defamation per se, defamation by implication, and intentional infliction of emotional distress (IIED).¹

¶ 4 On June 25, 2014, Thomson filed a subpoena in King County Superior Court requesting from Avvo the anonymous poster's identification.² On July 3, Thomson received an e-mail from Joshua King, Avvo's vice president of business development and general counsel. King told Thomson,

I've received your subpoena seeking records on an anonymous review. Our policy on handling such subpoenas is to let the reviewer know, so that they can move to quash if they want. They may also provide me with more information about the representation, in which case we may ask you to withdraw the subpoena.

Thomson replied, “Thank you for letting me know.... I am pretty certain I am aware who wrote it, so I am eager to obtain the records.”

¶ 5 On July 8, King e-mailed Thomson,

I have received a response. While I can't give you the specifics, it included information sufficient for me to believe the reviewer was a client of yours.

¶ 6 Given this information, I ask that you withdraw the subpoena.

Thomson responded, “Please be advised that I will not be withdrawing my subpoena. Please provide the documents requested therein.”

¶ 7 On July 16, Thomson moved to compel Avvo to comply with the subpoena. She asserted that Doe's speech was libel and defamation. Specifically, she alleged that each of the sentences in the Doe post was either a false statement of fact or a combination of fact and opinion that was provably false. She did not submit a declaration, affidavit, or any other evidence in support of her motion.

¶ 8 Avvo opposed the motion, arguing that Thomson failed to show that the post was defamatory and failed to provide evidence of damages.

¶ 9 On July 28, the trial court denied Thomson's motion to compel. It stated that Thomson “failed to make a prima facie showing re[garding her] defamation claim.”

¶ 10 Thomson appeals.³ Avvo and Doe each filed a response.

DISCUSSION

¶ 11 The First Amendment protects the right to speak anonymously. McIntyre v. Ohio Elections Comm'n,

514 U.S. 334, 342, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995). This right applies equally to online speech. In re Anonymous Online Speakers, 661 F.3d 1168, 1173 (9th Cir.2011). However, defamatory speech does not enjoy the protections of the First Amendment. Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). Accordingly, when faced with a defamation claim, courts aim to strike a balance between the right to protect one's reputation and the constitutional right to free speech. See, e.g., Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 759–60, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985) ; Gertz v. Robert Welch, Inc., 418 U.S. 323, 346–48, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) ; New York Times Co. v. Sullivan, 376 U.S. 254, 279–80, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).

¶ 12 To that end, the United States Supreme Court has considered the type of speech at issue when determining the appropriate standards to apply in defamation cases. For example, when a defamed plaintiff is a public figure, the standard of fault is more stringent; such a claim requires a showing of actual malice. See New York Times, 376 U.S at 279–80, 84 S.Ct. 710 ; Curtis Publ'g Co. v. Butts, 388 U.S. 130, 155, 162–63, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). This heightened standard reflects the constitutionally protected “ ‘interchange of ideas for the bringing about of political and social changes desired by the people.’ ” New York Times, 376 U.S. at 269, 84 S.Ct. 710 (quoting Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) ). By contrast, when the challenged speech involves a purely private concern, “ ‘[t]here is no threat to the free and robust debate of public issues' ” and thus the First Amendment provides less stringent protection. Dun & Bradstreet, 472 U.S. at 759–60, 105 S.Ct. 2939 (alteration in original) (quoting Harley–Davidson Motorsports, Inc. v. Markley, 279 Or. 361, 366, 568 P.2d 1359 (1977) ).

¶ 13 Here, we are asked to determine whether the trial court struck the proper balance in reviewing Thomson's motion to disclose Doe's identity. To answer this question, we must address two issues: first, whether the trial court applied the correct standard in reviewing a motion to reveal an anonymous speaker's identity, and second, whether Thomson met that standard.

¶ 14 Whether the trial court applied the correct legal standard is a question of law that we review de novo. Hundtofte v. Encarnación, 181 Wash.2d 1, 13, 330 P.3d 168 (2014) (Madsen, J. concurring). If the correct legal standard was applied, we generally review a trial court's denial of a motion to compel for an abuse of discretion. Lake Chelan Shores Homeowners Ass'n v. St. Paul Fire & Marine Ins. Co., 176 Wash.App. 168, 183, 313 P.3d 408 (2013). This is because the trial court is “ ‘better positioned than another’ ” to decide discovery issues. Wash. State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wash.2d 299, 339, 858 P.2d 1054 (1993) (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 403, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990) ); see also Amy v. Kmart of Wash., LLC, 153 Wash.App. 846, 855–56, 223 P.3d 1247 (2009).

¶ 15 However, when the trial court's ruling involves libelous speech, the United States Supreme Court has indicated that independent appellate review is proper. Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 499, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984). This is because the constitutional values at issue warrant review by judges—including appellate judges—rather than the trier of fact:

In such cases, the Court has regularly conducted an independent review of the record both to be sure that the speech in question actually falls within the unprotected category and to confine the perimeters of any unprotected category within acceptably narrow limits in an effort to ensure that protected expression will not be inhibited. Providing triers of fact with a general description of the type of communication whose content is unworthy of protection has not, in and of itself, served sufficiently to narrow the category, nor served to eliminate the danger that decisions by triers of fact may inhibit the expression of protected ideas.

Id. at 502, 504–05, 104 S.Ct. 1949.

¶ 16 Bose thus suggests that when a discovery motion—typically a matter of discretion—implicates the First Amendment, the trial court is no longer better positioned to decide the issue in question. See Fisons, 122 Wash.2d at 339, 858 P.2d 1054. We acknowledge a distinction between Bose and the present case. There, the Court reviewed the finding of actual malice, one of the elements of the plaintiff's defamation claim. Bose, 466 U.S. at 489–90, 104 S.Ct. 1949. Here, we review the denial of the plaintiff's motion to unmask the defendant, a threshold question. Thus, unlike in Bose, the decision before us does not involve the ultimate determination of whether the speech was libelous and therefore unprotected. Nonetheless, a motion to reveal a speaker's identity has First Amendment consequences. See McIntyre, 514 U.S. at 342, 115 S.Ct. 1511 (acknowledging the constitutional right to anonymous speech). Accordingly, we hold that de novo review is the proper standard of review when considering the trial court's decision on a motion to reveal an anonymous speaker's identity.

¶ 17 We now turn to the requisite showing a defamation plaintiff must make on a motion to unmask an anonymous defendant. This is an open question in Washington. However, many other courts, both federal and state, have considered this issue. See discussion infra. The two leading cases are Dendrite Int'l, Inc. v. Doe No. 3, 342 N.J.Super. 134, 140, 775 A.2d 756 (2001) and Doe No. 1 v. Cahill, 884 A.2d 451, 456 (Del.2005).

¶ 18 In Dendrite, an anonymous speaker posted messages on an online bulletin board criticizing Dendrite's stock...