Can You Use Pre-Suit Discovery To Unmask An Anonymous Blogger In Texas?

by Gray Reed & McGraw
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Last week, the Supreme Court of Texas heard oral arguments on whether a party can use a pre-suit deposition to identify an anonymous blogger.  The petitioner tried to use a pre-suit subpoena to force Google to identify a blogger that constantly railed on how bad the company and its owner was.   The trial court allowed the discovery, the court of appeals affirmed the trial court’s decision and now the highest court in Texas will have to answer the question.

The case is In re John Doe a/k/a Trooper.  You can read the case summary here and the listen to the oral arguments here.  We have talked about how to unmask the anonymous online tormentor before, but this case will shed some light on some of the more practical applications.

Jurisdiction

While the issue of anonymity is complex enough, the case also asks “whether Texas court rules governing discovery before a lawsuit is filed means that the trial court must have ‘personal jurisdiction’ over the ‘John Doe’ defendant–that is, the authority to hear a case against a person only after he has been served with papers notifying him of a suit–before his identity may be discovered.”  Much of the argument focused on jurisdiction which is  less sexy, but an equally important issue.

In Texas, under Rule 202, you can ask for discovery without filing suit to investigate the possibility of a claim.  The company’s chairman lived here in Houston so the company sought to use Rule 202 to force Google to provide all information about the blogger.

The blogger filed documents that not only challenged the ability to unmask his identity, but challenged whether the Texas courts had any jurisdiction over him.  If you do not have sufficient contacts with a state, usually you cannot be sued in that state.   The anonymous blogger provided an affidavit claiming he did not live in Texas and did not have any contacts with Texas.  When there is an actual lawsuit with an identified target, normally you are allowed to use discovery to challenge the assertions.  If the person is not identified, challenging the assertion is next to impossible.

Then again, the purpose of pre-suit discovery is to determine whether you have a claim before you file suit.  If you cannot file suit against someone with no contacts with Texas, then you should not be able to use the Texas courts to get information you may not be able to obtain in other jurisdictions.  Other than the chairman of the company being in Houston, there was no other connection with the state.  Plus, the blogger suggested the court should order the disclosure of only the IP address which could be tracked to a physical location.

Anonymous Speech

There is little to no dispute that before a court requires the disclosure of an anonymous blogger, the person seeking the identity has to provide some basis to seek the identity.  If the speech is purely political and protected by the First Amendment, it would be difficult to unmask the blogger.  If it is commercial speech advertising a product, then there is little to no protections.

If the court gets over the jurisdictional hurdle, it will then have to decide what level of proof or pleadings does someone need to present before a court will order the identity to be disclosed.  There are three standards: (1) a good faith basis for a claim; (2) sufficient pleadings to survive a motion to dismiss that assumes every allegation is true; or (3) a prima fascie case that would survive a motion for summary judgment that requires the right allegations and some proof.

The blogger wants the court to require pleadings and proof.  The party seeking the information says the standard should be lower, but then says it can satisfy any one of the three levels.

It’s possible, the court could rule on the jurisdictional basis in a way that would allow it to punt on the anonymity issue.  As often as it comes up and is likely to come up again, it would be nice to have some guidance.  We’ll be keeping an eye on this case and report on it when the decision comes down.  A lot of times, it is obvious — like when the sheriff seeks to unmask someone critical of the sheriff’s actions.  That blogger will almost always be entitled to protection.  The person that criticizes the company down the street based on a financial transactions and accuses the owner of accounting fraud deserves a little closer scrutiny.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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