A trial judge in Cleveland has rejected a motion for discovery to identify the authors of various comments criticizing the police chief in Beachwood, a Cleveland suburb. (With the help of Cleveland lawyer Tom Haren, we filed an amicus brief in the case) The court adopted what it described as a modified version of the Dendrite standard that has emerged as a national model for assessing whether a claimed need to identify anonymous speakers claimed to have violated the plaintiff’s right – requiring notice to each anonymous speaker, enumeration of the specific statements claimed to be actionable, and provision of evidence sufficient to make out a prima facie case on each of the elements of the cause of action against each anonymous speaker.
The court rejected, however, the final balancing stage of the Dendrite approach, agreeing with decisions such as Doe v. Cahill in Delaware and Krinsky v. Doe 6 in California. Its reasoning was a bit different from those cases – that balancing invites “judicial activism” because a judge would be deciding what defamatory speech ought to go without remedy (not correct: as in any equitable balancing situation, if the balance runs against the plaintiff, the plaintiff needs to put forth stronger evidence for a valid claim), and that once the first three parts of the test is satisfied, there can be no First Amendment protection for the speech (not quite correct, because after all it is only prima facie evidence, not a finding of falsity and actual malice).
Applying this standard, the trial judge denied discovery altogether, concluding that each of the statements on which the plaintiffs were suing was protected opinion.
Plaintiffs’ counsel, which “is dedicated solely to Internet defamation matters,” and was touted for hiring in this case because of its specialty in identifying anonymous detractors, repeatedly pressed for a prompt ruling on its motion, even objecting to a briefing schedule that would have given one of the Does a few extra days to file a brief by claiming that he was worried about possible destruction of the data needed to identify the anonymous speakers. If this was a real problem, there is no possibility that the data will remain by the time plaintiffs could prevail on appeal. The sincerity of his representation to the Court about why he objected to giving the Doe’s lawyers a few extra days will be tested when we see whether he will, therefore, forego any appeal.
If there is an appeal, we will look forward to explaining why the trial court was wrong to reject a balancing stage.