Submitted: April 8, 2013
Upon Consideration of Plaintiff's Motion to Compel DENIED
Neil Wallace, Pro Se.
Donald L. Gouge, Jr., Esq., Wilmington, Delaware. Attorney for Defendants.
James T. Vaughn, Jr, President Judge
The plaintiff has asserted a defamation claim against the defendants. The pro se plaintiff is Neil Wallace ("Wallace"), an attorney licensed in New York and Florida but not Delaware. The defendants are Geckosystems International Corp. ("Geckosystems") and R. Martin Spencer ("Spencer") (together, "defendants"), the President and CEO of Geckosystems. Wallace has filed a motion to compel Spencer to disclose any anonymous internet aliases used by him. The motion arises out of messages posted to an internet message board.
Wallace worked for Geckosystems from October 2006 until February 2007 when his employment ended. The parties dispute whether Wallace left voluntarily or was fired. In any event, it was not an amicable parting of ways. It appears that the hostility generated by the separation manifested itself on the internet through messages posted by anonymous users of investorshub.com ("iHub"). In addition to other services, iHub maintains message boards that are devoted to the discussion of publicly traded companies. The company message boards on iHub were intended to be used as "forum[s] for serious investors to gather and share market insights in a dynamic environment using an advanced discussion platform." Unfortunately, the dialogue on the message board dedicated to Geckosystems (the "Geckosystems Board") did little to advance iHub's asserted purpose. Instead, anonymous posters such as the ones discussed in this opinion, inter alia, used the forum to pursue personal vendettas. Because of this, in March 2013, iHub administrators decided to close the forum indefinitely.
Wallace alleges that during 2011 and 2012, Spencer, through multiple internet pseudonyms, engaged in a malicious and knowingly false libelous attack on Wallace, using the Geckosystems Board. The allegedly defamatory statements consist of suggestions by AI_Guru that Wallace sought to extort monies from public utility companies in Virginia; suggestions by AI_Guru and WhisperingBomb that Wallace poisoned hundreds of families' drinking water in Virginia; suggestions by mech66 that Wallace cheated on the New York and Florida bar exams; and private messages from 50Chevy to someone named Kezzek that accuse Kezzek of "seducing" underage males for sex and of being raped repeatedly at boarding school.
The defendants deny the allegations in Wallace 's complaint. Additionally, they have asserted two counterclaims against the plaintiff, one for defamation and one for tortious interference with business. The counterclaims allege that the plaintiff has anonymously posted over 2, 500 defamatory posts on the internet about Geckosystems, and that his postings have interfered with the business of the company, inflicting millions of dollars in damages.
In this motion, Wallace seeks to compel Spencer to disclose under oath whether any of the four anonymous internet aliases that made the allegedly defamatory statements on iHub's web forums were, in fact, Spencer.
Wallace contends that the statements by AI_Guru and WhisperingBomb suggesting he intentionally poisoned drinking water are clearly statements of fact and not opinion. He contends that they accuse Wallace of an act of moral turpitude that studies have proved to be false. The plaintiff claims that the private messages sent by 50Chevy were intended for Wallace, but were unintentionally sent to another poster named Kezzek. Wallace denies being Kezzek. He contends that 50Chevy's statements accuse him of two crimes: statutory rape and sodomy. Wallace contends that the statements made by mech66 accuse him of defrauding two "Bar Associations" and committing two felonies. He contends that all of the above statements are either expressions of fact, or are actionable opinions because they "impl[y] the allegation of undisclosed defamatory facts as the basis for the opinion[s]." The plaintiff further contends that the statements were made with the knowledge and consent of the corporate defendant.
Defendants contend that Wallace cannot establish that his reputation has been damaged in the community as he is the only witness, and, therefore, he cannot prove injury or damages. As to AI_Guru, defendants contend that the statements are merely the opinions of the poster that the residents believe Wallace poisoned their water. They argue that this is evidenced by a link provided in the post that sends the reader to a newspaper article discussing a lawsuit about a golf course that Wallace's company allegedly developed using toxic substances. As to WhisperingBomb, defendants contend that the defamatory statement is actually a quote from an earlier post by AI_Guru. As to 50Chevy, defendants contend that the messages are private, from one user to another, and therefore, they are not published. Defendants indicate that no affidavit has been produced by the person behind Kezzek to demonstrate that it is not Wallace. As to mech66, defendants contend that a post wondering if someone took the bar exam for Wallace is simply an opinion.
STANDARD OF REVIEW
In Doe v. Cahill, the Delaware Supreme Court held that "before a defamation plaintiff can obtain the identity of an anonymous defendant through the compulsory discovery process he must support his defamation claim with facts sufficient to defeat a summary judgment motion." Under this standard, "a defamation plaintiff 'must submit sufficient evidence to establish a prima facie case for each essential element of the claim in question.' In other words, the defamation plaintiff . . . must introduce evidence creating a genuine issue of material fact for all elements of a defamation claim within the plaintiff's control." I conclude that that standard applies here because Wallace is seeking to discover aliases allegedly used by Spencer on the theory that Spencer used the above-mentioned aliases. Because Cahill requires Wallace to show that his defamation allegations can survive a motion for summary judgment, he should be treated as the non-moving party to a summary judgment motion.
Summary judgment should be granted when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. "[T]he moving party bears the burden of establishing the non-existence of material issues of fact." If a motion is properly supported, the burden shifts to the non-moving party to establish the existence of material issues of fact. In considering the motion, the facts must be viewed in the light most favorable to the non-moving party. Thus, the court must accept all undisputed factual assertions and accept the non-movant's version of any disputed facts. Summary judgment is inappropriate "when the record reasonably indicates that a material fact is in dispute or if it seems desirable to inquire more thoroughly into the facts in order to clarify the application of law to the circumstances."
The typical Doe v. Cahill case involves a lawsuit where the plaintiff only knows the defendant by his or her internet alias and the true identity of the defendant is unknown. In such a case, Cahill requires a plaintiff who seeks to discover the identify of an anonymous poster "to the extent reasonably practicable under the circumstances [to] undertake efforts to notify the anonymous poster that he is the subject of a subpoena or application for order of disclosure." The court in Cahill noted that, when dealing with a message board, "the plaintiff must post a message notifying the anonymous defendant of the plaintiff's discovery request on the same message board where the allegedly defamatory statement was originally posted."This scenario requires the plaintiff to subpoena a third party (usually the internet service provider) in order to acquire the information necessary to link the known internet alias to an actual person.
In this case, Wallace has not followed the procedure described in Cahill. Instead, he has proceeded directly to an allegation that Spencer is the person using the above-mentioned aliases, and seeks to discover any internet aliases being used by Spencer. Spencer does not admit that he is the anonymous poster, but has elected to defend the motion on the merits. Therefore, although the procedure discussed in Cahill has not been followed in this case, I am satisfied that the issue of discovery of the ...