A Tennessee trial court adopted a version of the “heavy” Dendrite standard for permitting discovery of the identity of the anonymous poster of an allegedly defamatory blog. However, as interpreted by the trial court, this standard was not insuperable, and resulted in an order that the plaintiffs were entitled to discovery of the identity and personal information of the blogger.
The plaintiffs in the case (Swartz v. Doe, Sixth Circuit Court for Davidson County, Tenn., No. 08C-431), Donald and Terry Swartz, are residents of Old Hickory, Tennessee, and are involved in widely varied businesses, including rehabilitation and sale of real estate and operation of recovery facilities for substance abusers. (It seems likely that the businesses are related. Perhaps the Swartzs convert the buildings they rehabilitate into recovery centers)
The main defendant in the case, John Doe #1, is the author of a blog entitled “Stop Schwartz”, located a https://stopschwartz.blogspot.com. The blog allegedly accused the Swartzs of arson, improper management of rehabilitation facilities, exploitation of recovering substance abusers, inferior construction work, etc. Perhaps Doe #1 is a neighbor of some of the Swartz properties and doesn’t like addicts being moved into buildings on his block. (Note: the blog was still up as of October 30, 2009, but the allegedly offensive posts had long been removed and no entries had been posted for several months).
The Swartzs filed suit in 2008 against Doe #1. They then issued subpoenas to Google seeking to discover his name and address. Google sent a notice to the blogger stating that it would comply with the subpoena unless he filed a motion to quash the subpoena within 3 weeks. Doe #1 then hired a lawyer who filed the motion to quash. A year later, Judge Thomas Brothers of Davidson County issued his final ruling on this motion to quash, as well as on a related motion to dismiss.
Judge Brothers began by noting the important role that anonymous speech has had throughout history. However, he stated that “internet anonymous speech is not entitled to absolute protection.” Rather, “the free speech interest of the Defendant must be balanced with the reputation and privacy interests of the Plaintiffs.”
He then reviewed the variety of standards applied by courts today for revealing the identity of anonymous bloggers. Finding that “a growing number of courts have begun to follow the standard” in Dendrite International, Inc. v. John Doe, 775 A.2d 456, 760-61 (N.J. Super. Ct. App. Div. 2001), Judge Brothers stated his intention to follow this test. Under the Dendritetest, a plaintiff must: (i) attempt to notify the anonymous blogger that he is the subject of a discovery procedure, (ii) give the blogger a reasonable time to oppose this discovery, (iii) identify the exact statements by the blogger that give rise to his claim, (iv) make a prima facia or substantial showing for each element of each cause of action, and (v) if the plaintiff establishes these elements, the court must the balance the First Amendment interests of the defendant against the strength of the plaintiff’s case and the plaintiff’s need for the disclosure to proceed on his claims.