Friday, May 5, 2017

Silicon Valley Boss Overreach

Glassdoor, Inc. v. Superior Court, No. H042824 (D6 Mar. 10, 2017).

A former employee of TechCo posted a scathing anonymous review on Glassdoor, a website that lets people review past and current employers. TechCo sued the employee as a John Doe for violating an NDA that all TechCo employees supposedly must sign. It then subpoenaed Glassdoor for the review and the poster’s info. Glassdoor objected, TechCo moved to compel, and the trial court granted the motion. Glassdoor took a writ.

The first issue is whether Glassdoor has standing to stand up for Doe’s First Amendment interest in his anonymity. It does. Although it’s a relatively recent development in the law, it has become clear that a publisher can stand up for the right of an anonymous contributor to maintain his anonymity. 

That is particularly true with sites like Glassdoor, which have a substantial business interest in protecting their posters’ anonymity. (Although Glassdoor doesn’t raise it, the court notes in a footnote that the situation is not too far from the interest of a newspaper reporter in refusing to reveal her sources.)

As to the merits of the motion to compel, the court adopts the standard applicable to efforts to subpoena the identities of anonymous Internet “speakers sued as “Does” for libel or slander: (1) the plaintiff must have made reasonable effort to provide notice of the suit to the Doe; (2) the plaintiff must make a prima facie showing of the validity of its claim. The showing is akin to that needed to defeat summary judgment or an anti-SLAPP motion—evidence that, if believed, would be enough to prove a claim.

The Court of Appeal further notes that, to make a prima facie case for an NDA breach, TechCo needed to specifically identify the actionable statements and explain to Glassdoor why they are actionable. It never did that. Although TechCo claimed it couldn’t be more specific without disclosing trade secrets, the court calls BS: “The vagueness with which [TechCo] framed its claims in the face of Glassdoor’s repeated demands for specificity is redolent with the possibility that greater specificity might disclose not valuable secrets but a lack of merit in the claims themselves.”

At the end of the day, TechCo failed to show that any of the statements in Doe’s review were actionable violations of the NDA.

Writ granted.

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