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Plaintiff Permitted to Serve Discovery on Google and Blogspot to Determine Identity of Anonymous BloggerA plaintiff suing a John Doe defendant known only as "Tazmanian353" was granted leave to serve discovery on Google and Blogspot.com to determine, among other things, registration information, assignment, billing and payment information, source IP addresses and log files for the user known as Tazmanian353. Fodor v. Doe, No. 3:10-CV-0798-RCJ, 2011 WL 1629572 (D. Nev. Apr. 27, 2011). The District Court for the District of Nevada granted plaintiff's request for third party discovery after finding that the plaintiff had established a prima facie case of defamation per se and had sufficiently shown that the balance of the equities weighed in his favor. Plaintiff, Thomas Fodor, an oil and gas exploration geologist brought suit after a blog entry posted on Blogspot.com accused Fodor of aiding and abetting in criminal conspiracies to defraud investors in the oil and gas industry. The anonymous post was signed by an individual known only as "Tazmanian353." Fodor brought suit alleging gross negligence, defamation per se, intentional interference with prospective advantage, and requested preliminary and injunctive relief. Because the post was anonymous, Fodor was unable to serve the blogger with the complaint and summons. Thus, he sought leave to take depositions and serve document requests on Blogspot.com and its owner, Google. Fodor also sought third party discovery from Yahoo!, Interactive Data Corporation ("IDC") and other unnamed ISP sources. Noting that although the Internet is the latest platform for anonymous speech," the Court affirmed that "online speech stands on the same footing as other speech." The Court concluded that the proper standard to apply in determining whether a plaintiff should be able to seek the identity of an anonymous Internet speaker was the "prima facie standard" set forth in Highfields Captial Mgmt., LP v. Doe, F. Supp. 2d 969 (N.D. Cal. 2005). The Highfields standard requires the Court to first "consider whether there is a real evidentiary basis to believe the defendant has engaged in wrongful conduct that has harmed the plaintiff." If so, the Court must then "weigh the parties' competing interests to decide whether the extent of the harm to defendant's First Amendment rights and privacy issues are justified by the plaintiff's request for third-party discovery to enable him to identify [the anonymous party] and proceed with the case." Having found that Fodor had "established a valid evidentiary basis" to sustain his claim of defamation per se, the Court considered the parties' competing interests. Contrasting blog postings which are "clearly sardonic opinion or parody" with the posting in this case, which implicated Fodor in "five serious crimes," the court concluded that Tazmanian's post was likely to be taken seriously and could have a significant effect on Fodor's ability to attract potential investors. Weighing these considerations, the Court held that the balance tipped in favor of the plaintiff and granted leave to conduct discovery. However, the Court did deny Fodor's request to conduct third party discovery on Yahoo!, IDT and other unnamed ISPs. In doing so, the Court stated that it was "unwilling to cast such a broad net of discovery over entities that have no connection to this proceeding, and are simply other sites on which Tazmanian appears."
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