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Superior Court of New Jersey, Appellate Division.

DIANE TRAWINSKI, Plaintiff–Respondent, v. JOHN DOE a/k/a EPLIFER2, Defendant.

DOCKET NO. A–3348–12T3

    Decided: March 21, 2014

Before Judges Fasciale and Haas. Robinson, Wettre & Miller, LLC, attorneys for appellant New Jersey On–Line LLC, publisher of NJ.com (Keith J. Miller and Michael J. Gesualdo, on the briefs).   Steven C. Schechter, attorney for respondent.

By leave granted, appellant New Jersey On–Line LLC, publisher of NJ.com, appeals from a trial court order requiring it to comply with a subpoena seeking disclosure of the identity of an individual who had posted comments about plaintiff Diane Trawinski on appellant's internet website.   We remand and direct the judge to make the requisite findings of fact and conclusions of law.

We glean the following factual background from the documentary record.   Plaintiff resides in the Borough of Elmwood Park, where her husband was a borough council member.   In February 2012, plaintiff alleges that an individual, using the screen name “EPLifer2” began posting “false and defamatory statements” about her and her husband “on the NJ.com Elmwood Park forum blog” 1 maintained by appellant on its website.   On October 15, 2012, plaintiff filed a complaint against EPLifer2 and John Does 2–5, alleging defamation on the basis of the comments directed at her.   Appellant was not named as a party in the complaint.

On November 9, 2012, the trial judge granted plaintiff's ex parte request for an order allowing her “to conduct limited expedited discovery to obtain identity of defendant” EPLifer2.   The order permitted plaintiff to issue a subpoena to appellant requiring it to provide any documents within its possession “identifying and/or describing the name, address and/or e-mail address of the Defendant John Doe a/k/a EPLIFER2․”  On November 29, 2012, plaintiff issued a subpoena to appellant, requesting

[a] true and complete copy of all instruments and documents identifying, containing and/or describing the name, address and/or e-mail address of the person or persons registered to use the [screen name] “EPLIFER2” on the NJ.com forums, specifically the Elmwood Park forum, on the NJ.com internet website.

On January 10, 2013, appellant's attorney sent a letter to plaintiff's counsel objecting to the subpoena.   The next day, plaintiff filed a motion seeking to enforce the subpoena and to hold appellant in contempt.

Following oral argument on February 8, 2013, the judge entered an order enforcing plaintiff's subpoena and ordering appellant to pay sanctions of $1000 per day if it did not provide information identifying EPLifer2 within fourteen days.   The judge found that the subpoena

sought non-privileged information and was not burdensome or overbroad and, more importantly, despite having notice and an opportunity to be heard, [appellant] did not see[k] a protective order or move to quash the subpoena based upon any purported privilege, overbreadth, or alleged vagueness or for any other reason, as it had a right to do.

The judge denied appellant's application for a stay of the February 8, 2013 order.   On February 27, 2013, we granted appellant's motion for leave to appeal and for a stay.

Because the trial judge's conclusion was one of law, our review is de novo and we owe no deference to the judge's legal conclusion.  Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).   Relying on Dendrite International, Inc. v. Doe, 342 N.J.Super.   134 (App.Div.2001), appellant argues that the trial judge erred in enforcing the subpoena because he failed to conduct the analysis required by our decision in that case.   We agree.

In Dendrite, we recognized that protecting the anonymity of online posters helps prevent embarrassment and harassment.   We relied upon a federal court case from California, which reasoned that “ ‘[p]eople who have committed no wrong should be able to participate online without fear that someone who wishes to harass or embarrass them can file a frivolous lawsuit and thereby gain the power of the court's order to discover their identity.’ ”  Id. at 151 (quoting Columbia Ins. Co. v. Seescandy.Com, 185 F.R.D. 573, 578 (N.D.Cal.1999)).

Based on the conflicting needs to prevent defamation while concurrently protecting internet users' free speech rights, we set forth a four-prong test that a plaintiff must satisfy when internet service providers or other entities are subpoenaed for the purpose of identifying anonymous posters on the websites they maintain.  Id. at 141–42.   First, a plaintiff must “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.”  Id. at 141.   The “notification efforts should include posting a message of notification of the identity discovery request to anonymous user on the [internet service provider's] pertinent message board.”  Ibid. Second, a plaintiff must “identify and set forth the exact statements purportedly made by each anonymous poster that plaintiff alleges constitutes actionable speech.”  Ibid.

The third prong directs the court to determine whether or not the plaintiff has established a prima facie cause of action that forms the basis for the relief sought against the anonymous defendants.  Ibid. Here, plaintiff alleged that she was defamed by EPLifer2.   A prima facie case of defamation requires a plaintiff to establish the following:  “[I]n addition to damages, the elements of a defamation claim are:  (1) the assertion of a false and defamatory statement concerning another;  (2) the unprivileged publication of that statement to a third party;  and (3) fault amounting at least to negligence by the publisher.”  DeAngelis v. Hill, 180 N.J. 1, 12–13 (2004).

Finally, “the court must balance the defendant's First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant's identity to allow the plaintiff to properly proceed.”  Dendrite, supra, 342 N.J.Super. at 142.   We further held that “[t]he application of these procedures and standards 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.”  Ibid.

Here, the trial judge did not perform the detailed analysis required by Dendrite.   He merely stated:

Plaintiff had already demonstrated to this Court in her petition for leave to serve the subpoena that she had a meritorious case, which would survive summary judgment and that she had satisfied all of the legal requirements set forth in [Dendrite, supra ], and that plaintiff was entitled to the information sought as a matter of law.

These findings are insufficient to permit appellate review.   Critically, the judge made no findings concerning the specific statements allegedly made by EPLifer2 that plaintiff alleges constituted defamatory speech.   While the judge stated that he had concluded that plaintiff “had a meritorious case,” he did not explain the basis for this conclusion.   Finally, the judge made no finding that EPLifer's First Amendment right of free speech was outweighed by plaintiff's need to obtain information concerning the poster's identity.

As a result, we have no way of knowing why the judge determined that enforcement of the subpoena was consistent with the principles we established in Dendrite.2  We therefore reverse and remand to the trial court with the direction that it provide the parties with a full explanation of its findings of fact and conclusions of law.

Reversed and remanded for further proceedings consistent with this opinion.   We do not retain jurisdiction.


1.  FN1. A “blog” is “ ‘a type of personal column posted on the Internet․  Some blogs are like an individual's diary while others have a focused topic, such as recipes or political news.’ ”  Too Much Media, LLC v. Hale, 206 N.J. 209, 219 n.1 (2011) (quoting Douglas Downing, Dictionary of Computer and Internet Terms 58–59 (10th ed.2009).

2.  FN2. The judge also did not make any findings of fact or conclusions of law on, and did not specifically decide, the issue of whether appellant had standing to assert the rights of EPLifer2 in opposition to the subpoena.   This issue must also be addressed on the remand.


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