Online Dating, Tweets & Early Discovery

The online dating service Zoosk sued 25 Doe Defendants for libel per se, trade libel, and intentional interference with prospective economic advantage for an alleged defamatory campaign against the Plaintiff.  Zoosk Inc. v. Doe, 2010 U.S. Dist. LEXIS 134292 (N.D. Cal. Dec. 9, 2010).

This date gone wrong begins with a profile created on the Plaintiff’s website that contained adult content.  The Plaintiff blocked the user’s account, because it violated the Plaintiff’s terms of use.  Zoosk Inc.at *2.

Shortly thereafter, one or more individuals created a Twitter account and posted allegedly defamatory statements about the Plaintiff. Zoosk Inc.at *2.

Direct messages, emails and cease and desist notices were exchanged.  Zoosk Inc.at *2-3.  However, the alleged conduct continued. 

The Plaintiff was able to identify 8 IP addresses that accessed the relevant Twitter account from the publically available information on Twitter.  Zoosk Inc.at *3. 

The Plaintiff sought early discovery from third-party Internet Service Providers to provide information to identify the Defendants.  Zoosk Inc.at *3.  The third-parties [rightly] wanted a court order to produce the information to the Plaintiffs, because of the Cable Communications Policy Act. 

In order to conduct early discovery, a party must show good cause.  Zoosk Inc.at *4.  Good cause is shown by the following: 

(1) The Doe defendant is identified with sufficient specificity that the court can determine that the defendant is a real person who can be sued in federal court;

(2) The Plaintiff recounts the steps taken to locate and identify the defendant;

(3) The Plaintiff demonstrates that the action can withstand a motion to dismiss; and

(4) The Plaintiff proves that the discovery is likely to lead to identifying information that will permit service of process.

Zoosk Inc. at *5. 

The Court found the Plaintiff had shown good cause for early discovery, because the information would reveal the identities of the unknown Defendants.  Zoosk Inc.at *6.

The Court explained the Plaintiff had identified the Doe Defendants with “sufficient specificity” with the eight IP addresses from the Twitter account.  Zoosk Inc.at *6.  Additionally, the Plaintiff attempted to identify the Defendants with publically available information.  Id. Furthermore, the Plaintiff communicated via Direct Message and Email, plus sent a cease and desist notice.  Id.

The Court also stated the Plaintiff’s complaint was pleaded with sufficient particularity to survive a motion to dismiss.  Id.

Finally, the Internet Service Providers stated they had the identifying subscriber information that the Plaintiff was seeking.  Id.

Accordingly, the ISP’s were ordered to provider the identifying information to the Plaintiff. 

Bow Tie Thoughts

In the early days of the Internet, individuals could bravely hide behind a keyboard and make defamatory, or just hurtful, comments about others. 

The anonymity of the Internet is fading away.  Individuals can be identified by their IP addresses or other information that an Internet Service Provider can be compelled to disclose.  While there are various Federal laws that must be met before such disclosure,  they are not a barrier for Plaintiffs to find those who have defamed them.

Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016 and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.