Defendant Appearing in Action As a ‘Doe’ Need Not Reveal Identity

Wednesday, August 3, 2016

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Defendant Appearing in Action As a ‘Doe’ Need Not Reveal Identity—C.A.

By a MetNews Staff Writer

A man, sued as a “John Doe” for libel in emails he sent anonymously need not reveal his identity in discovery, the Court of Appeal for this district declared yesterday, countermanding the trial court.

Acting Justice Amy D. Hogue, on loan from the Los Angeles Superior Court, wrote the opinion for Div. Three.

A writ of mandate was issued directing Los Angeles Superior Court Judge Terry A. Green to vacate his discovery order, which came after the defendant filed an anti-SLAPP motion. Although the filing of such a motion creates an automatic stay of discovery, a court may life the stay upon a showing of good cause—which Green found.

“John Doe 2,” using a pseudonym, allegedly sent messages via his Google Gmail account to two persons in the film industry asserting “bad business practices” on the part of a company, Hydraulx, that provided visual effects. The parent of the company sued him, and he learned of the action from Google after its records relating to the Gmail account were subpoenaed.

“Under Krinsky v. Doe 6 (2008) 159 Cal.App.4th 1154…, First Amendment protection for anonymous speech requires a libel plaintiff seeking to discover an anonymous libel defendant’s identity to make a prima facie showing of all elements of defamation,” Hogue wrote, noting that the holding in that Sixth District decision was echoed later that year in a Fourth District, Div. Three opinion.

One email began: “I hoped I might whistle-blow on…Hydraulx.” That opening influenced Green’s ruling, with him declaring:

“People don’t whistle-blow fun, nice things that are meaningless. People whistle-blow wrongdoing.... And the word whistle-blow...causes me to read it in a different light.”

As Hogue saw it, all of the facts alleged in the emails were matters that were already public so that the term “whistle-blow” was used “hyperbolically.”

The plaintiff argued that it needs to know the identity of Doe because he might be a person with whom it has an arbitration agreement. Hogue responded:

“Krinsky’s requirement that a libel plaintiff make a prima facie showing before invading a speaker’s constitutional right to remain anonymous makes no exception for discovery pertaining to forum selection issues. Evidence that Hydraulx might have an arbitration agreement with Doe 2 that may or may not be enforceable is not evidence of a due process or contractual right sufficient to outweigh Doe 2’s right to free expression and to protection under the First Amendment. Mindful that Hydraulx initiated this action and that Doe 2 has invoked the protection of the anti-SLAPP statute in an effort to avoid the expense of defending that lawsuit, we decline to make any exception to Krinsky’s requirement, which was specifically calibrated to balance the libel plaintiff’s right to due process in prosecuting his claim with the defendant’s First Amendment right to speak anonymously.”

The case is Doe 2 v. Superior Court (Avongard Products), B269087.

Morgan E. Pietz of Gerard Fox Law is the lawyer for John Doe 2. Bonnie E. Eskenazi, Jonathan B. Sokol and Elizabeth Sbardellati of Greenberg Glusker Fields Claman & Machtinger represented the plaintiff.