Who You Givin’ Only One Star?

Yelp Inc. v. Superior Court, No. G054358 (D4d3 Nov. 13, 2017)

Discovery of anonymous poster information from Internet companies has been a hot topic in Court of Appeal lately. In the past year or so, there’s been a case about Google, and a pair of cases involving Glassdoor. This time it’s Yelp.

Following the first Glassdoor case—the court finds that Yelp had standing to raise its customer’s interest in remaining anonymous, because Yelp’s ability to maintain its reviewers anonymity is part and parcel of its very business. But then following the test from the second Glassdoor case, the court finds that the plaintiff has nonetheless made a sufficient prima facie showing of defamation to get at the information. So the court affirms the trial court’s order to produce the info. It reverses, however, on discovery sanctions. Given that the Glassdoor cases were decided after the trial court’s order, the issues presented in the dispute were novel enough that Yelp’s arguments in resisting the discovery were substantially justified.

Writ denied, sanctions order reversed.

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.

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.

So Much for Your Privacy . . .

Doe v. Superior Court, No. B271508 (D2d1 Sept. 29, 2016)

Last year, California enacted a “revenge porn” law, which provides for a private right of action against someone who without consent distributes naked or sexual images that were obtained under conditions where the subject of the images had a reasonable expectation that they would remain private. See Civ. Code § 1708.85. The statue permits the plaintiff to file anonymously, and requires the court to “keep the plaintiff’s name and excluded or redacted characteristics confidential.” Id. § 1708.85(f). Plaintiff availed himself of that process, filing along with his complaint a judicial council form that included his real name and info for the court’s use. That form too is supposed to be kept confidential by the court.

But it wasn’t. Somehow, LA Superior Court posted it, unredacted, to its online docket. The trial court—deciding that the cat was out of the bag—then proceeded to rule that from that point on, Plaintiff needed to litigate under his true name. Plaintiff took a writ, which the Court of Appeal grants.

Code of Civil Procedure § 367 requires the prosecution of an action in the name of the real party in interest, unless a statute provides otherwise. Section 1708.85(f) does, in fact, provide otherwise. The court’s posting of the form was not the fault of plaintiff, and thus it would be inequitable to find that the court’s own mistake somehow waived Plaintiff’s right to proceed anonymously. Indeed, the Court’s order—requiring public filing—would just compound the harm to the Plaintiff.

Writ granted.