September 16, 2011 |

Internet (John Doe)

Our client, a doctor, learned that a doctor rating website contained an anonymous review of him which was clearly defamatory. More importantly, he believed that the anonymous poster was not actually the child of an elderly patient (as claimed in the review), but was actually a competing physician. Knowing that we would probably need to serve subpoenas on entities in other jurisdictions, we wanted to file the suit in Federal Court, but we did not expect to have diversity jurisdiction. So, in order to obtain subject matter jurisdiction, we alleged Trade Libel under the Lanham Act. We first obtained an ex parte order authorizing early discovery (prior to the Rule 26 conference) and obtained the IP Address of the anonymous poster. The IP address belonged to a major cable company. We then obtained a second ex parte order specifically authorizing a subpoena for the subscriber information. Upon receiving notice from his internet service provider, John Doe retained counsel and filed a Motion to Quash and a Motion for Protective Order. The Magistrate Judge held a hearing, which lasted for more than an hour, and then requested supplemental in camera briefing to determine whether plaintiff could make a prima facia showing of defamation and to determine whether John Doe was, in fact, a competitor (because subject matter jurisdiction was dependent on trade libel, not just ordinary defamation). The Magistrate Judge then issued a 10 page order denying the motions, which allowed our client to learn the identity of the physician who had posted the untrue anonymous review. In a subsequent deposition the physician admitted that the posting was totally untrue.