Unmasking The Masked Man: Pulling The Mask Off Your Email Intruder

Wednesday, March 1, 2006 - 01:00

Imagine the following scenario: the president of your company receives an
email from a person with whom she isn't familiar. The writer claims to be a
reporter who has written a profile of the president for a business publication,
but when the president opens the attachment, the email contains statements about
the president that suggest that the president is not competent to lead the
company and dishonest. To make matters worse, the president receives a call from
a member of the board of directors that same day who confirms that she and her
fellow board members received copies of the same disparaging email. Eager for
justice, the president calls you - her attorney - and asks you to find out the
identity of the sender and bring her to justice.

Piece of cake, right? After all, the media is full of stories about the
electronic footprints left by people who send email, and how easy it is to
follow those footprints and track them down. The fact is that state and federal
rules of civil procedure provide litigants with the tools they need, but those
tools need to be used in the right way at the right time or you can wind up with
little to show for your work and a very disappointed client.

Consider the case of Bolton v. Road Runner High Speed Online, 799
N.Y.S.2d 847 (NY Sup. Ct. New York County 2005). In the Bolton case, an
anonymous person sent an email to the Board of Directors of The Public Relations
Society of America, Inc. (the "PRSA"), which allegedly defamed PRSA's President,
Catherine Bolton. The PRSA and Ms. Bolton commenced a special proceeding in New
York Supreme Court, and moved by order to show cause under section 3102 of New
York's CPLR to obtain pre-action disclosure in aid of commencing a lawsuit from
respondent Road Runner High Speed Online ("Road Runner").

Section 3102 of New York's CPLR provides New York litigants with an
alternative to commencing a "John Doe" action and seeking expedited discovery.
Under CPLR § 3102 a party may petition the Supreme Court for an order requiring
a party to disclose information that will aid the petitioner in commencing a
separate action. In the Bolton case, the information sought by the
petitioners related to the identity of the Road Runner customer who sent the
email in question to PRSA's Board.

To obtain an order under CPLR § 3102, a petitioner must demonstrate that
it has a meritorious cause of action, and that the information sought is
material and necessary. Petitioners met that standard by alleging that the
content of the email to PRSA's Board was defamatory, and that the information
concerning the identity of the sender was necessary to enable the petitioners to
identify the sender. More specifically, the email suggested that Bolton was
unable to manage the organization she headed up, and was dishonest in her
dealings with the staff and the Board. When the respondent Road Runner failed to
oppose petitioners' motion, the application was granted on default and a
judgment was entered.

At that stage, the sender of the email moved for leave to intervene in
the proceeding as a "John Doe" for the purpose of filing a motion to dismiss the
petition for preaction disclosure on the grounds that petitioners had not
demonstrated a prima facie cause of action sounding in defamation, and
that they were not entitled to pre-action disclosure.

The Court found that the email was actionable because it disparaged
Bolton before her employers and asserted her general incompetency in her job
performance. As the Court noted, a plaintiff may state a cause of action for
libel per se where a defendant attributes acts to the plaintiff that
suggest that the plaintiff is unfit for her professional role. The Court
reviewed the content of the email, and found that Bolton had a cause of action
for defamation that withstood "John Doe's" motion to dismiss, and rejected "John
Doe's" challenge that the anonymous statements were constitutionally protected
under the freedom of speech protections of the First Amendment on the grounds
that libelous statements are excluded from the realm of constitutionally
protected speech. As a result, the Court denied "John Doe's" motion to vacate
the judgment directing Road Runner to produce documents identifying the Internet
user of a particular IP address.

Step 1: Identify The Source Of The Email

The Bolton case is instructive on a number of levels. Although it
was not discussed in detail in the Court's decision, it is worth noting how the
petitioners identified Road Runner as the party to sue. This step is critical to
preserving records which are needed to identify the sender.

When consumers log on to the Internet through their computers, they are
assigned a unique numerical address called an Internet Protocol (IP) address.
The Internet Assigned Numbers Authority manages the allocation of IP addresses
to different organizations in blocks. ISPs are among the entities that are
assigned address blocks, and they in turn assign them to individual computers.
When a person connects to the Internet over a phone line, that person's address
may be assigned dynamically from an available pool of addresses each time that
person logs on. If a user's computer is connected to the Internet via a high
speed home connection, then that person's IP address could be assigned each time
they reboot their computer.

The IP address will lead to the ISP that controls the IP address, and the
ISP can then identify the user by knowing the exact date and time the offending
email was sent. What makes this investigation a race against time is the fact
that different ISPs have different policies regarding record retention. There
are no laws that govern how long ISPs must maintain records of their customers'
computer use. An ISP can purge its records every 15 days, every 30 days, or on
any timetable the ISP elects.

In the Bolton case, the petitioners' IT department was able to
determine the IP address of the sender, which led the petitioners to Road
Runner. When petitioners' counsel spoke to a representative of Road Runner,
counsel realized that she had a limited amount of time in which to obtain
discovery or Road Runner would purge its records relating to the email in the
ordinary course of its business. The possibility of losing the data created the
exigent circumstances needed to move by order to show cause for emergency

Step 2: Choose Your Forum Wisely

Once you have identified the party that is likely to possess the
information that will identify the sender of the email, the next important
decision is where to sue. Your choice of forum will dictate what procedures are
available, and more importantly, the standard that must be met in order to
obtain discovery.

Under New York law a litigant has a choice of commencing a special
proceeding under CPLR § 3102 or commencing a John Doe action and moving for
expedited discovery, while in other jurisdictions a litigant is limited to a
John Doe action. Where a litigant chooses to proceed under CPLR § 3102, the New
York Supreme Court requires only a showing of a meritorious cause of action
where a motion is made under CPLR § 3102, and that standard applies uniformly to
any petition that is filed under § 3102. Other jurisdictions, such as New
Jersey, have established tougher standards where expedited discovery is sought
of the identity of an Internet user which could be problematic. See e.g.
Dendrite International, Inc. v. John Doe
, 775 A.2d. 756 (N.J. App. 2001);
Immunomedics, Inc. v. Jean Doe
, 775 A.2d 773 (N.J. App. Div. 2001).

In the Dendrite case, plaintiff corporation objected to certain
statements that appeared on a corporate Yahoo! message board relating to the
company's officers and their actions. Plaintiff commenced a "John Doe" action in
New Jersey to learn the identity of one of the anonymous posters, alleging
causes of action for breach of contract defamation, and misappropriation of
trade secrets. Following the commencement of the action, plaintiff sought
expedited discovery of the identity of the poster, and the motion was denied on
the grounds that plaintiff had failed to demonstrate a prima facie case
of defamation and failed to prove that it suffered any damages.

Plaintiff appealed the trial court's decision on the grounds that the
trial judge imposed an excessively demanding burden of proof of the plaintiff
that was beyond the standard required on a motion to dismiss. On appeal, the New
Jersey Superior Court Appellate Division not only affirmed the trial court's
denial of plaintiff's motion for expedited discovery even though plaintiff's
defamation claims would have survived a motion to dismiss for failure to state a
cause of action, but went further and articulated a strict set of guidelines for
trial courts faced with applications for expedited discovery seeking an order
compelling an Internet service provider to honor a subpoena and disclose the
identity of anonymous users of Internet message boards who are sued for
violating the rights of individuals, corporations or businesses.

The Appellate Division indicated that the trial court should require the
plaintiff to notify the anonymous posters that they are the subject of a
subpoena or application for an order of disclosure, and withhold action to
afford the fictitiously-named defendants a reasonable opportunity to file and
serve opposition to the application. These notification efforts should include
posting a message of notification of the identity discovery request to the
anonymous user on the ISP's pertinent message board.

The trial court is then required to review the complaint and all other
relevant information to determine whether plaintiff has set forth a prima
cause of action against the fictitiously-named anonymous defendant.
Plaintiff must establish that its action can withstand a motion to dismiss for
failure to state a claim upon which relief can be granted pursuant to R. 4:6-
2(f) of the New Jersey Court Rules, and plaintiff must produce sufficient
evidence to support each element of its cause of action, on a prima facie
basis, prior to the court ordering the disclosure of the identity of the
unnamed defendant. Where the court concludes that the plaintiff has presented
a prima facie cause of action, the court must then balance the
defendant's First Amendment right of anonymous free speech against the strength
of the prima facie case presented and the necessity for the disclosure of
the anonymous defendant's identity to allow the plaintiff to properly proceed.

The Appellate Division's guidelines for determining whether to allow
discovery of the identity of an anonymous person accused of wrongdoing as a
result of Internet activity presents a significant hurdle for obtaining
discovery in contrast to the standard that applies in New York. While the
decision related to a person posting his or her opinions on a
bulletin board under an assumed name, the same standard could arguably apply to
a person sending an email expressing her opinion about the performance of a
corporate officer. Given a choice of forums, New York would be a safer choice
for initiating a proceeding based upon such conduct.

Marc S. Friedman is a Member of the Firm and Chair of
the Intellectual Property Group. He is resident in the Firm's New York
office. John Carlson is Of Counsel to the Firm's Creditors'
Rights/Bankruptcy Reorganization Practice

Please email the authors at mfriedman@sillscummis.com or jcarlson@sillscummis.com
with questions about this article.