Deborah Thomson v. Jane Doe , 189 Wash. App. 45 ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DEBORAH THOMSON, an individual,
No. 72321-9-1
Appellant,
DIVISION ONE
PUBLISHED OPINION
JANE DOE,
Respondent. FILED: July 6, 2015
Appelwick, J. — What showing must be made by a defamation plaintiff seeking
disclosure of an anonymous speaker's identity? This is an open question in Washington.
Thomson brought a defamation suit against Doe, an anonymous poster who wrote a
negative review of Thomson on Avvo.com. Thomson then subpoenaed Avvo seeking
Doe's identity. When Avvo refused to provide the information, Thomson moved to compel
Avvo's compliance with the subpoena. The trial court denied Thomson's motion, finding
that Thomson had not made a prima facie claim of defamation. We affirm.
FACTS
Deborah Thomson is a Florida attorney. Avvo Inc. operates an online lawyer
review and rating system. On May 21, 2014, Thomson filed a pro se lawsuit in Florida
No. 72321-9-1/2
against Jane Doe, an anonymous individual who posted a review on Thomson's Avvo
profile. The review, posted by "Divorce client," stated:
I am still in court five years after Ms. Thomson represented me during my
divorce proceedings. Her lack of basic business skills and detachment from
her fiduciary responsibilities has cost me everything. She failed to show up
for a nine hour mediation because she had vacation days. She failed to
subpoena documents that are critical to the division of assets in any divorce
proceeding. In fact, she did not subpoena any documents at all. My
interests were simply not protected in any meaningful way.
Thomson's complaint alleged that Doe was not a client and that the post was
designed to impugn Thomson's personal and professional reputation. Thomson alleged
four causes of action: defamation, defamation per se, defamation by implication, and
intentional infliction of emotional distress (MED).1
On June 25, 2014, Thomson filed a subpoena in King County Superior Court
requesting from Avvo the anonymous poster's identification.2 On July 3, Thomson
received an e-mail from Joshua King, Avvo's vice president of business development and
general counsel. King told Thomson,
I've received your subpoena seeking records on an anonymous review. Our
policy on handling such subpoenas is to let the reviewer know, so that they
can move to quash if they want. They may also provide me with more
information about the representation, in which case we may ask you to
withdraw the subpoena.
Thomson replied, "Thank you for letting me know. ... I am pretty certain I am aware who
wrote it, so I am eager to obtain the records."
1 Thomson's MED claim cannot survive if her defamation claim is not
constitutionally sufficient. See Hustler Magazine, Inc. v. Falwell. 485 U.S. 46, 56, 108 S.
Ct. 876, 99 L. Ed. 2d 41 (1988). Therefore, we address only Thomson's defamation
claims.
2 Avvo's principal place of business is in Washington.
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On July 8, King e-mailed Thomson,
I have received a response. While I can't give you the specifics, it
included information sufficient for me to believe the reviewer was a client of
yours.
Given this information, I ask that you withdraw the subpoena.
Thomson responded, "Please be advised that I will not be withdrawing my subpoena.
Please provide the documents requested therein."
On July 16, Thomson moved to compel Avvo to comply with the subpoena. She
asserted that Doe's speech was libel and defamation. Specifically, she alleged that each
of the sentences in the Doe post was either a false statement of fact or a combination of
fact and opinion that was provably false. She did not submit a declaration, affidavit, or
any other evidence in support of her motion.
Avvo opposed the motion, arguing that Thomson failed to show that the post was
defamatory and failed to provide evidence of damages.
On July 28, the trial court denied Thomson's motion to compel. It stated that
Thomson "failed to make a prima facie showing regarding her] defamation claim."
Thomson appeals.3 Avvo and Doe each filed a response.
3This case was filed as a direct appeal. Because the denial of Thomson's motion
was not a final order, we believe it is more appropriately a matter for discretionary review.
See RAP 2.2(a). However, neither responding party challenged the order's appealability,
and the parties agree that this case poses an issue involving a significant public interest.
We will therefore address the issue.
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DISCUSSION
The First Amendment protects the right to speak anonymously. Mclntvre v. Ohio
Elections Comm'n, 514 U.S. 334, 342, 115 S. Ct. 1511, 131 L. Ed. 2d 426 (1995). This
right applies equally to online speech. In re Anonymous Online Speakers. 661 F.3d1168,
1173 (9th Cir. 2011). However, defamatory speech does not enjoy the protections of the
First Amendment. Chaplinksv v. New Hampshire, 315 U.S. 568, 571-72, 62 S. Ct. 766,
86 L. Ed. 1031 (1942). Accordingly, when faced with a defamation claim, courts aim to
strike a balance between the right to protect one's reputation and the constitutional right
to free speech. See, e.g., Dun & Bradstreet. Inc. v. Greenmoss Builders, Inc., 472 U.S.
749, 759-60, 105 S. Ct. 2939, 86 L. Ed. 2d 593 (1985); Gertz v. Robert Welch. Inc.. 418
U.S. 323, 346-48, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974); New York Times Co. v.
Sullivan, 376 U.S 254, 279-80, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964).
To that end, the United States Supreme Court has considered the type of speech
at issue when determining the appropriate standards to apply in defamation cases. For
example, when a defamed plaintiff is a public figure, the standard offault is more stringent;
such a claim requires a showing of actual malice. See New York Times, 376 U.S at 279-
80; Curtis Publ'g Co. v. Butts, 388 U.S. 130, 155, 162-63, 87 S. Ct. 1975, 18 L Ed. 2d
1094 (1967). This heightened standard reflects the constitutionally protected
"'interchange of ideas for the bringing about of political and social changes desired by the
people.'" New York Times, 376 U.S. at 269 (quoting Roth v. United States, 354 U.S. 476,
484, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957)). By contrast, when the challenged speech
involves a purely private concern, "'[tjhere is no threat to the free and robust debate of
No. 72321-9-1/5
public issues'" and thus the First Amendment provides less stringent protection. Dun &
Bradstreet, 472 U.S. at 759-60 (alteration in original) (quoting Harlev-Davidson
Motorsports, Inc. v. Marklev. 279 Or. 361, 366, 568 P.2d 1359 (1977)).
Here, we are asked to determine whether the trial court struck the proper balance
in reviewing Thomson's motion to disclose Doe's identity. To answer this question, we
must address two issues: first, whether the trial court applied the correct standard in
reviewing a motion to reveal an anonymous speaker's identity, and second, whether
Thomson met that standard.
Whether the trial court applied the correct legal standard is a question of law that
we review de novo. Hundtofte v. Encarnacion, 181 Wn.2d 1,13, 330 P.3d 168 (2014)
(Madsen, J. concurring). If the correct legal standard was applied, we generally review a
trial court's denial of a motion to compel for an abuse of discretion. Lake Chelan Shores
Homeowners Ass'n v. St. Paul Fire & Marine Ins. Co.. 176 Wn. App. 168, 183, 313 P.3d
408 (2013). This is because the trial court is "'better positioned than another'" to decide
discovery issues. Wash. State Physicians Ins. Exch. &Ass'n v. Fisons Corp., 122 Wn.2d
299, 339, 858 P.2d 1054 (1993) (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384,
403, 110 S. Ct. 2447, 110 L. Ed. 2d 359 (1990)): see also Amy v. Kmart of Wash. LLC,
153 Wn. App. 846, 855-56, 223 P.3d 1247 (2009).
However, when the trial court's ruling involves libelous speech, the United States
Supreme Court has indicated that independent appellate review is proper. Bose Corp. v.
Consumers Union of U.S., Inc., 466 U.S. 485, 499, 104 S. Ct. 1949, 80 L. Ed. 2d 502No. 72321-9-1/6
(1984). This is because the constitutional values at issue warrant review by judges—
including appellate judges—rather than the trier of fact:
In such cases, the Court has regularly conducted an independent review of
the record both to be sure that the speech in question actually falls within
the unprotected category and to confine the perimeters of any unprotected
category within acceptably narrow limits in an effort to ensure that protected
expression will not be inhibited. Providing triers of fact with a general
description of the type of communication whose content is unworthy of
protection has not, in and of itself, served sufficiently to narrow the category,
nor served to eliminate the danger that decisions by triers of fact may inhibit
the expression of protected ideas.
id at 502, 504-05.
Bose thus suggests that when a discovery motion—typically a matter of
discretion—implicates the First Amendment, the trial court is no longer better positioned
to decide the issue in question. See Fisons. 122 Wn.2d at 339. We acknowledge a
distinction between Bose and the present case. There, the Court reviewed the finding of
actual malice, one of the elements of the plaintiff's defamation claim. Bose, 466 U.S. at
489-90. Here, we review the denial of the plaintiff's motion to unmask the defendant, a
threshold question. Thus, unlike in Bose, the decision before us does not involve the
ultimate determination of whether the speech was libelous and therefore unprotected.
Nonetheless, a motion to reveal a speaker's identity has First Amendment consequences.
See Mclntvre, 514 U.S. at 342 (acknowledging the constitutional right to anonymous
speech). Accordingly, we hold that de novo review is the proper standard of review when
considering the trial court's decision on a motion to reveal an anonymous speaker's
identity.
No. 72321-9-1/7
We now turn to the requisite showing a defamation plaintiff must make on a motion
to unmask an anonymous defendant. This is an open question in Washington. However,
many other courts, both federal and state, have considered this issue. See discussion
infra. The two leading cases are Dendrite Int'l, Inc. v. Doe No. 3, 342 N.J. Super. 134,
140, 775 A.2d 756 (2001) and Doe No. 1 v. Cahill. 884 A.2d 451, 456 (Del. 2005).
In Dendrite, an anonymous speaker posted messages on an online bulletin board
criticizing Dendrite's stock performance. 342 N.J. Super, at 145. Dendrite sued the
anonymous speaker and sought disclosure of the speaker's identity, jd. at 146. The New
Jersey intermediate appellate court set out a four-step process for determining whether
to compel disclosure of the speaker's identity:
[T]he trial court should first require the plaintiff to undertake efforts 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 court shall also require the plaintiff to identify and set forth the
exact statements purportedly made by each anonymous poster that plaintiff
alleges constitutes actionable speech.
The complaint and all information provided to the court should be
carefully reviewed to determine whether plaintiff has set forth a prima facie
cause of action against the fictitiously-named anonymous defendants. In
addition to establishing that its action can withstand a motion to dismiss for
failure to state a claim upon which relief can be granted . . . , the plaintiff
must produce sufficient evidence supporting each element of its cause of
action, on a prima facie basis, prior to a court ordering the disclosure of the
identity of the unnamed defendant.
Finally, assuming the court concludes that the plaintiff has presented
a prima facie cause of action, the court must balance the defendant's First
Amendment right of anonymous free speech against the strength of the
No. 72321-9-1/8
prima facie case presented and the necessity for the disclosure of the
anonymous defendant's identity to allow the plaintiff to properly proceed.
Id. at 141-42. The Dendrite court stated that the test "must be undertaken and analyzed
on a case-by-case basis. The guiding principle is a result based on a meaningful analysis
and a proper balancing of the equities and rights at issue." id. at 142.
In Cahill, the Delaware Supreme Court considered the proper standard to apply
when faced with a public figure plaintiff's request to unmask an anonymous defendant.
884 A.2d at 457. The Cahill court adopted a "modified Dendrite standard consisting only
of Dendrite requirements one and three: the plaintiff must make reasonable efforts to
notify the defendant and must satisfy the summary judgment standard."4 id. at 461. In
concluding that summary judgment was the appropriate evidentiary standard, the Cahill
court expressed concern "that setting the standard too low will chill potential posters from
exercising their First Amendment right to speak anonymously." kL at 457. The court
recognized that there was an "entire spectrum" of evidentiary standards that could be
applied, with varying levels of severity.5 kL It rejected the least stringent standard, the
good faith test:
4 In rejecting the other two requirements, the Cahill court noted that the second
step—requiring the plaintiff to set forth the exact defamatory statements—was subsumed
in the summary judgment inquiry. 884 A.2d at 461. It further reasoned that the fourth
step—the balancing prong—was unnecessary, because the "summary judgment test is
itself the balance." id. The Cahill court evidently considered its summary judgment
standard as equivalent to Dendrite's required prima facie showing. We discuss this
further below.
5 Although the lines between standards are sometimes blurred, cases and
commentators generally discuss four levels of evidentiary showings, listed here from least
to most stringent: (1) requiring a good faith basis that the plaintiff was the victim of
actionable conduct, (2) requiring a party to show that its claim can survive a motion to
dismiss, (3) requiring a prima facie showing that actionable conduct occurred, and
(4) requiring a plaintiff to survive a hypothetical motion for summary judgment. See, e.g.,
Cahill, 884 A.2d at 457 (grouping together prima facie and summary judgment standards);
No. 72321-9-1/9
Plaintiffs can often initially plead sufficient facts to meet the good faith test
applied by the Superior Court, even if the defamation claim is not very
strong, or worse, if they do not intend to pursue the defamation action to a
final decision. After obtaining the identity of an anonymous critic through
the compulsory discovery process, a defamation plaintiff who either loses
on the merits or fails to pursue a lawsuit is still free to engage in extra-judicial
self-help remedies; more bluntly, the plaintiff can simply seek revenge or
retribution.
Id. It also rejected the next level of evidentiary showing, the motion to dismiss
standard:
[EJven silly or trivial libel claims can easily survive a motion to dismiss where
the plaintiff pleads facts that put the defendant on notice of his claim,
however vague or lacking in detail these allegations may be. Clearly then,
if the stricter motion to dismiss standard is incapable of screening silly or
trivial defamation suits, then the even less stringent good faith standard is
less capable of doing so.
id at 459. By contrast, the court noted, the summary judgment standard would "more
appropriately protect against the chilling effect on anonymous First Amendment internet
speech that can arise when plaintiffs bring trivial defamation lawsuits primarily to harass
or to unmask their critics."6 Jd
As a threshold matter, we agree with Dendrite and Cahill that notice is a crucial
element of the standard. See 342 N.J. Super.at 141; 884 A.2d at 460-61. In the interest
of due process—or, at the very least, in the interests of fairness and judicial economy—
a plaintiff should attempt to notify a Doe defendant that his or her identity might be
unmasked. Here, although Thomson did not attempt to provide notice to Doe, Doe
acknowledges that Avvo cured this problem by notifying her.
Mallory Allen, Ninth Circuit Unmasks Anonymous Internet Users and Lowers the Bar For
Disclosure of Online Speakers, 7 Wash. J. L. Tech. & Arts 75, 82-85 (2011) (grouping
together motion to dismiss and prima facie standards).
6 It is worth noting that, under the Cahill standard, the plaintiff is required to
introduce only such evidence that is within his or her control. 884 A.2d at 463.
No. 72321-9-1/10
The choice of whether to apply the standard of either Dendrite or Cahill is less
clear. Most federal and state courts to consider this question have adopted some form
of the Dendrite and Cahill tests.7 In addition, two state courts have determined that
adopting Dendrite or Cahill would be unnecessary, because their state procedural rules
provided equivalent protection.8 Only one court has significantly strayed from Dendrite
and Cahill. The Virginia Court of Appeals declined to adopt either test, instead applying
a state statute that required a lower standard of proof. Yelp, Inc. v. Hadeed Carpet
7 See SaleHoo Grp.. Ltd. v. ABC Co.. 722 F. Supp. 2d 1210, 1215 (W.D. Wash.
2010) (adopting a Dendrite-stvle test); Doe I v. Individuals, 561 F. Supp. 2d 249, 255-56
(D. Conn. 2008) (adopting the Dendrite prima facie showing, because Cahill's test is
"potentially confusing and also difficult for a plaintiff to satisfy"); Hiohfields Capital Mgrnt.,
LP v. Doe, 385 F. Supp. 2d 969, 974 n.6, 975 (N.D. Cal. 2005) (relying on Dendrite and
Cahill in holding that it "is not enough for a plaintiff simply to plead and pray"); Mobilisa,
Inc. v. Doe, 217Ariz. 103,111,170 P.3d 712 (2007) (adopting Cahjii's summary judgment
standard and Dendrite's balancing test); Krinskv v. Doe 6, 159 Cal. App. 4th 1154, 1172,
72 Cal. Rptr. 3d 231 (2008) ("agreeing] with those courts that have compelled the plaintiff
to make a prima facie showing of the elements of libel"); Solers, Inc. v. Doe, 977 A.2d
941, 954 (D.C. 2009) (adopting a test that "closely resembles the 'summary judgment'
standard articulated in Cahill"); In re Indiana Newspapers, 963 N.E.2d 534, 552 (Ind. Ct.
App. 2012) (finding that "the test that draws the most appropriate balance between
protecting anonymous speech and preventing defamatory speech is the Dendrite test");
Doe No. 1 v. Coleman, 436 S.W.3d 207, 211 (Ky. Ct. App. 2014) (adopting the Dendrite
test "as modified by" Cahill); Indep. Newspapers, Inc. v. Brodie, 407 Md. 415, 454-55,
966 A.2d 432 (2009) (adopting the Dendrite test); Mortg. Specialists, Inc. v. Implode-
Explode Heavy Indus., Inc., 160 N.H. 227, 239, 999 A.2d 184 (2010) ("join[ing] those
courts which endorse the Dendrite test"); Pilcheskv v. Gatelli, 2011 Pa. Super 3, 12 A.3d
430, 442-46 (2011) (adopting a "modified version of the Dendrite/Cahill test"); In re Does
1-10, 242 S.W.3d 805, 821 (Tex. Ct. App. 2007) (finding itself "in alignment with the
formulations set out in Cahill").
8 See Maxon v. Ottawa Publ'g Co., 402 III. App. 3d 704, 711, 929 N.E.2d 666(2010) (Illinois Supreme Court Rule 224 requires notice, specification of defamatory
statements, determination that valid claim was stated, and verified complaint); Thomas
M. Coolev Law Sch. v. John Doe 1. 300 Mich. App. 245, 266, 833 N.W.2d 331 (2013)
(court rules require plaintiff to survive motion for summary disposition and allow Doe to
obtain protective order); see also Ghanam v. Does, 300 Mich. App. 522, 539-40, 845
N.W.2d 128 (2014) (endorsing Dendrite/Cahill as a preferable standard, but following
Coolev as precedent).
10
No. 72321-9-1/11
Cleaning, Inc.. 62 Va. App. 678, 695-97, 752 S.E.2d 554, 562 (2014), rev'd on other
grounds, 770 S.E.2d 440 (2015). Under the Virginia statute, a defamation plaintiff seeking
an anonymous speaker's identity must establish a good faith basis to contend that the
speaker committed defamation, id. at 699. In rejecting Dendrite and Cahill, the Hadeed
court stated that the legislature had "considered persuasive authority from other states
and made the policy decision to include or exclude factors that other states use in their
unmasking standards." id at 703.
Thomson argues that we should follow Virginia's lead and apply the good faith test,
while Doe and Avvo advocate the heightened standard under Dendrite and Cahill. In this
way, the parties frame the issue before us as an either/or decision. But, in doing so, the
parties bypass an important threshold question: what is the nature of the speech at issue?
The Ninth Circuit has suggested that this question is crucial when reviewing a
motion to disclose an anonymous speaker's identity. See Anonymous, 661 F.3d at 1177.
In Anonymous, the plaintiff sought to unmask anonymous online posters who disparaged
the plaintiff and its business practices, jd at 1171. Applying Cahill, the district court
granted the plaintiffs motion. Id at 1172, 1176. The posters filed a writ of mandamus
challenging the decision, id at 1172. The Ninth Circuit denied the writ, finding that the
posters had not demonstrated a need for the extraordinary remedy of mandamus, id at
1177-78. In doing so, the Anonymous court also discussed the link between the type of
speech at issue and the appropriate evidentiary standard:
Because Cahill involved political speech, that court's imposition of a
heightened standard is understandable. In the context of the speech at
issue here balanced against a discretionary discovery order under [Federal
Rule of Civil Procedure] 26, however, Cahill's bar extends too far. . . . [Wle
suggest that the nature of the speech should be a driving force in choosing
11
No. 72321-9-1/12
a standard by which to balance the rights of anonymous speakers in
discovery disputes. For example, in discovery disputes involving the
identity of anonymous speakers, the notion that commercial speech should
be afforded less protection than political, religious, or literary speech is
hardly a novel principle. The specific circumstances surrounding the
speech serve to give context to the balancing exercise.
id at 1176-77 (emphasis added) (citations omitted).
We agree with Anonymous: the evidentiary standard should match the First
Amendment interest at play. This aligns with the United States Supreme Court's
treatment of the standard of fault in defamation cases. See, e.g., New York Times, 376
U.S at 279-80 (requiring plaintiffs to meet a higher bar in cases of protected speech); Dun
& Bradstreet, 472 U.S. at 758-60 (recognizing that commercial speech warrants lesser
protection). We therefore hold that, when addressing a defamation plaintiff's motion to
unmask an anonymous defendant, the court must consider the nature of the speech at
issue when determining the evidentiary standard to apply.
Here, the parties treat the type of speech as a peripheral question, only cursorily
disputing whether Doe's statements constituted commercial speech. If Doe's speech was
commercial, it would warrant a lower evidentiary bar. See Cent. Hudson Gas & Elec.
Corp. v. Pub. Serv. Comm'n of New York, 447 U.S. 557, 562-63, 100 S. Ct. 2343, 65 L.
Ed. 2d 341 (1980) ("The Constitution therefore accords lesser protection to commercial
speech than other constitutionally guaranteed expression."). Commercial speech is
"expression related solely to the economic interests of the speaker and its audience" or
"speech proposing a commercial transaction." k± at 561-62. Doe's speech does not
meet this standard: although her economic interests might have been affected by the
behavior her review describes, her act of speech impacts more than her economic
12
No. 72321-9-1/13
interests. While Doe's speech is not commercial, warranting the lowest protection, it is
also not political, warranting the highest. Thus, Doe's speech is entitled to an intermediate
level of protection.
As such, we reject Thomson's assertion that a good faith showing—the least
stringent standard—would be appropriate here. We likewise reject the next level of
evidentiary showing, the motion to dismiss standard. As Dendrite and Cahill persuasively
argue, this standard would be inadequate to protect this level of speech. See 342 N.J.
Super, at 156; 884 A.2d at 458-60. Specifically, Cahill points out that in a notice pleading
state like Delaware, a complaint "need only give 'general notice of the claim asserted.'"
884 A.2d at 458 (guoting Ramunno v. Cawlev, 705 A.2d 1029, 1034 (Del. Sup. Ct. 1998)).
Therefore, "even silly or trivial libel claims can easily survive a motion to dismiss where
the plaintiff pleads facts that put the defendant on notice of his claim, however vague or
lacking in detail these allegations may be." Cahill, 884 A.2d at 459. Washington is also
a notice pleading state, requiring only a simple concise statement of the claim and relief
sought. CR 8(a); Pac. Nw. Shooting Park Ass'n v. City of Seguim, 158 Wn.2d 342, 352,
144 P.3d 276 (2006). Thus, under the motion to dismiss standard, a defamation plaintiff
would need only to allege the elements of the claim, without supporting evidence. This
is insufficient to protect the speaker's First Amendment right to anonymous speech. As
Doe points out, disclosing a speaker's identity is a harm that cannot be reversed.
Imposing a higher standard ensures that a speaker's identity is not disclosed in a "silly or
trivial" case. Cahill, 884 A.2d at 459. And, it preserves judicial resources by ensuring
that a newly unmasked defendant could not immediately have the case dismissed.
13
No. 72321-9-1/14
This leaves the two remaining standards considered by other courts: prima facie
and summary judgment. The Cahill court's treatment of its summary judgment standard
as equivalent to Dendrite's prima facie standard has caused some confusion in
subsequent cases in other jurisdictions. See 884 A.2d at 460; see also Solers, Inc. v.
Doe, 977 A.2d 941, 954 (D.C. 2009) ("Procedural labels such as prima facie or 'summary
judgment' may prove misleading, but the test we now adopt closely resembles the
'summary judgment' standard articulated in Cahill."); Pilcheskvv. Gatelli, 2011 P.A. Super
3, 12 A.3d 430, 444 (2011) ("[l]n Pennsylvania, the prima facie test and the summary
judgment test are identical."); Indep. Newspapers, Inc. v. Brodie, 407 Md. 415, 455-56,
966 A.2d 432 (2009) (rejecting the summary judgment standard as too stringent, instead
adopting the prima facie standard). Despite this confusion, the "important feature of
Dendrite and Cahill is to emphasize that the plaintiff must do more than simply plead his
case." Solers, 977 A.2d at 954. Considering the speech at issue here, we agree that
supporting evidence should be required before the speaker is unmasked.9
An additional factor that informs this question is the point in time in the litigation at
which the question arises. Here, Doe had not appeared, answered Thomson's complaint,
or defended against the subpoena. In fact, Doe did not have notice of the lawsuit until
Avvo notified her. In our judgment, under these circumstances—where a plaintiff
9 In Washington, the two standards are not identical. A prima facie showing means
"'evidence of sufficient circumstances which would support a logical and reasonable
inference of the facts sought to be proved.'" State v. Baxter, 134 Wn. App. 587, 596, 141
P.3d 92 (2006) (internal quotation marks omitted) (quoting State v. Aten, 130 Wn.2d 640,
656, 927 P.2d 210 (1996)). Summary judgment is more stringent, requiring the moving
party to show that there are no genuine issues of material fact and that he or she is entitled
to judgment as a matter of law. CR 56(c); Wilson Court Ltd. P'ship v. Toni Maroni's, Inc.,
134 Wn.2d 692, 698, 952 P.2d 590 (1998).
14
No. 72321-9-1/15
subpoenas a third party without the defendant's involvement—the summary judgment
standard is too severe and a prima facie standard should be applied.10
Doe also urges this court to adopt the balancing prong of the Dendrite test, arguing
that it allows courts to weigh equitable considerations posed by individual cases. The
inclusion of a balancing test has thus far been a matter of debate nationally.11 Cahill and
its progeny have rejected the balancing test as unnecessary. See Cahill, 884 A.2d at461:Krinskvv.Doe6. 72 Cal. Rptr. 3d 231, 245-46 (2008); Solers, 977 A.2d at 956. As
the Krinskv court reasoned, "When there is a factual and legal basis for believing libel
may have occurred, the writer's message will not be protected by the First Amendment.
Accordingly, a further balancing of interests should not be necessary to overcome the
defendant's constitutional right to speak anonymously." 72 Cal. Rptr. 3d at 245-46(citations omitted). In support of the balancing test, the Pilcheskv court reasoned that
defamation law"nurture[s] the proper balance between an individual's right to speak freely
and an injured plaintiff's right to redress .... By imposing upon the trial court the task of
balancingthese interests, First Amendmentconsiderations are brought into properfocus."
12 A.3d at 445-46. Likewise, in Mobilisa. Inc. v. Doe, 217 Ariz. 103, 1111, 170P.3d712
10 By contrast, if an unmasked defendant could immediately prevail on summary
judgment, disclosing his or her identity would have no legal purpose. Where a defendant
has appeared and answered, he or she is in a position to file a summary judgment motion.
To avoid unnecessary disclosure, the trial court could defer the discovery motion pending
the summary judgment or apply the higher summary judgment standard to the discovery
motion in lieu of the prima facie standard.
11 Compare Cahill, 884 A.2d at 461 (rejecting Dendrite balancing test); Krinskv, 72
Cal. Rptr. 3d at 245-46 (same); Solers, 977 A.2d at 956 (same); Coleman, 436 S.W.3d at
211 (same); Does 1-10, 242 S.W.3d at 821-22 (same) with Mobilisa, 170 P.3d at 720-21(adopting Dendrite balancing test); Indiana Newspapers, 963 N.E.2d at 552 (same);
Brodie, 966 A.2d at 456 (same); Mortgage Specialists, 999 A.2d at 193 (same); Pilcheskv,
12 A.3d 445-46 (same).
15
No. 72321-9-1/16
(2007), the court asserted that the test is "necessary to achieve appropriate rulings in the
vast array of factually distinct cases likely to involve anonymous speech." The Mobilisa
court continued that
surviving a summary judgment on elements not dependent on the
anonymous party's identity does not necessarily account for factors
weighing against disclosure. For example, the anonymous speaker may be
a non-party witness along with a number of known witnesses with the same
information. The requesting party's ability to survive summary judgment
would not account for the fact that in such a case it may have only a slight
need for the anonymous party's identity. Additionally, without a balancing
step, the superior court would not be able to consider factors such as the
type of speech involved, the speaker's expectation of privacy, the potential
consequence of a discovery order to the speaker and others similarly
situated, the need for the identity of the speaker to advance the requesting
party's position, and the availability of alternative discovery methods.
Requiring the court to consider and weigh these factors, and a myriad of
other potential factors, would provide the court with the flexibility needed to
ensure a proper balance is reached between the parties' competing
interests on a case-by-case basis.
id at 720-21 (citation omitted).
As Mobilisa recognizes, certain cases present facts that could necessitate
application of the balancing prong. Here, neither party asserts—nor do we perceive—
any such facts. This is a straightforward libel claim against a speaker brought by the
subject of the speech. Thus, while Dendrite balancing might be appropriate in some
cases, it is not justified on the record before us.
The final issue we address is Avvo's attempt to serve as the arbiter of Doe's
identifying information. Obtaining information from the anonymous poster allowed Avvo
to make an informed response to Thomson. Once in that position, Avvo should have
afforded the trial court the opportunity for in camera review, so that it too could ground its
decision in fact rather than speculation.
16
No. 72321-9-1/17
The trial court applied the proper standard in reviewing Thomson's motion. Under
that standard, Thomson's motion must fail. As Thomson freely admits, she presented no
evidence to support her motion.12 Therefore, the trial court properly denied Thomson's
motion for failure to make a prima facie showing of defamation.13
We affirm.
WE CONCUR:
Cc^f^ .
CO
•JD
I
12 In fairness to Thomson, when she filed her motion, the requisite showing was
unclear. And, Avvo brought no motion challenging the adequacy of Thomson's pleadings.
But, because Thomson did not produce any supporting evidence, her claim fails whether
we review it as a direct appeal or discretionary review, de novo or for abuse of discretion.
13 Thomson brought a Florida claim against Doe. Therefore, Florida law would
provide the required elements of defamation unless it is established that another
jurisdiction's law is applicable.
17