The Test We Have Is Fine, Thanks...

ZL Techs. v. Does 1–7, No. A143680 (D1d4 Jul. 19, 2017)

Some anonymous but allegedly former employees of Company put up negative reviews about Company on Glassdoor.com, a website that posts reviews of workplaces. Company sued employees as Does and then subpoenaed Glassdoor for their identifying info. Glassdoor objected on numerous grounds and the trial court denied Company’s motion to compel. Company was unsuccessful in identifying the Does by other means, and thus unable to serve them. The case was dismissed without prejudice under Code of Civil Procedure § 583.420, for failure to timely serve the Defendants.

The right to publish anonymously has First Amendment implications. But the right to anonymously defame people does not. To balance those interests, prior to ordering discovery of the identities of anonymous authors, California courts generally require a plaintiff to state a legally cognizable claim and come forward with evidence sufficient to make out a prima facie case of the elements of defamation. See Krinsky v. Doe 6, 159 Cal. App. 4th 1154 (2008).

Some amici in this case urge the court to apply an even more stringent test that has been applied by courts in Delaware and New Jersey. In addition to the prima facie showing, these courts require (1) an effort to notify the anonymous defendant; (2) an identification of the specific statements alleged to be actionable; and (3) the application of a balancing test that measures the First Amendment interests against the prima facie showing.

The court finds that there isn’t really any need to graft a new test onto existing California practice. The attempt at notice element has already been imposed by some California courts. And the court here agrees that reasonable efforts must be made to give the Doe defendants notice and a chance to be heard before their identities are revealed. How that notice should occur is up to the sound discretion of the trial court. 

The specific statements requirement is, however, redundant of the prima facie test. After all, one can hardly make out a prima facie case of defamation without identifying the defamatory statements. And as to the balancing, the court finds it unnecessary. If plaintiff makes a prima facie case and shows that discovery of identity is needed to pursue the claim, plaintiff has already made a clear showing that would defeat the interests in anonymous, non-defamatory speech.

As applied to the facts here, the court begins by, at significant length, quoting the seven reviews Company says were defamatory. It finds that six of seven of them made actionable statements of fact (as opposed to non-actionable opinions), that, if untrue, could be defamatory. The trial court’s ruling otherwise was wrong.

Company, however, didn’t come forward any evidence that the statements were, in fact, false. Ordinarily, the burden for proof of falsity in a defamation case depends on whether the case falls within the public figure/public concern framework (in which the plaintiff bears the burden) or outside of it (in which truth is an affirmative defense). Whether this case entails an issue of public concern is debatable. But under the prima facie framework the burden always rests on the plaintiff to make at least an initial showing, because that’s needed to ensure that the First Amendment implications of anonymous speech have been overcome.

Reversed and remanded for application of the articulated standard.