On Ellora's Cave's Request to Out Anonymous Commenters

02 October 2014

tl;dr: The request to out anonymous commenters in the Ellora’s Cave lawsuit isn’t a part of the complaint or any motion; it’s in a memorandum of law, tacked on without any supporting legal citations, and not phrased as a request for the judge to do anything.
Much has been made about the request in the Ellora’s Cave lawsuit against Dear Author about the request to out the anonymous commenters on the Dear Author post at the heart of the lawsuit. The complaint is embedded in this post at The Passive Voice if you wish to follow along.
I’m not a lawyer (and this post is not legal advice), but I am something of a legal ruling groupie. I’m fascinated by the law, sometimes finding myself reading judicial opinions for the sheer joy of judicial language use. Back in the dot bomb era, when I wondered if programming would ever snap back to the pre-bubble normal, I took paralegal classes, including legal research, anticipating a potential career change. That said, my education was general, California-specific, and I didn’t finish the program. So, not only am I not a lawyer, I’m not a paralegal, and I’m not familiar with Ohio law at all, case law especially.
Here’s how my understanding of a judge’s role changed during that time. Essentially, a judge’s purpose is to make rulings within their legal ability to do so about questions properly raised before them. As a general rule, they can do nothing unless something is asked (“moved” or relief prayed for), nor can they do something unless they have the legal authority. Well, they can, but it’ll likely get overturned, and no judge likes that.
At the very end of the PDF (p. 21 of 22) appears this zinger:

Additionally, Plaintiff request that Defendants disclose the name of the anonymous commenters on the blog so that the spreading of the defamatory statement can be stopped.

Let’s look at that in the scope of the document as a whole, sticking to general legal principles.

Structure Is Important

First, legal filings have a structure. The structure differs somewhat jurisdiction to jurisdiction. Here are the sections in the filing in DA’s case:

pp 1-8: Complaint and claims for for relief.
pp 9-14: DA post that EC was complaining about. Note that this does not include the anonymous (or pseudonymous) comments.
p 15: Motion for temporary restraining order.
pp 16-22: Memorandum in support of the motion. The anonymous commenter request appears here.

Essentially, a motion asks a judge to do something, and the memorandum in support tells the judge why they have the authority, based on legislation and prior case law, to act in mover’s favor. So: this is what we want you to do and this is why you should do it.
Before we get into all that, let’s get into controlling vs. persuasive case law for a minute, but be aware this is a gross oversimplification. Essentially, case law is controlling if it’s in the “chain of command” of courts from the court hearing the case, and is considered mandatory for the court to consider. However, the details of the case may mean that ruling isn’t directly relevant.
Persuasive case law, well, maybe someone in Hawaii wrote a great ruling that happens to address the issue very succinctly, but there’s nothing in Ohio law that’s quite as close. So an attorney might cite the Hawaii case in an attempt to persuade the judge. The judge, however, is not required to use the Hawaii court’s reasoning in their ruling.
With all that in mind, let’s look at the case citations in the memorandum.

TRO Memorandum Case Citations

There are seven cases cited (excluding references to other cases) in the TRO’s memorandum, and I’ll discuss each briefly.
Perhaps of note is that all cases cited for defamation are cases where the parties were ruled against in the citations. Sometimes, cases where the plaintiff loses make for the most interesting (and valuable) rulings, so I’m not sure that’s indicative of anything. I just found it amusing.

1. Mike McGarry & Sons, Inc. v. Robert Gross, et al

This ruling lays out what’s necessary in Ohio to get a TRO. You can read the ruling here.
This case is in the Eighth district, and Akron’s in the 9th, so my understanding is that this is persuasive, not controlling. Given that there’s a controlling case with similar wording, why bother with this one?
There are four criteria that have to be met:

A party requesting a preliminary injunction must show that: (1) there is a substantial likelihood that the plaintiff will prevail on the merits, (2) the plaintiff will suffer irreparable injury if the injunction is not granted, (3) no third parties will be unjustifiably harmed if the injunction is granted, and (4) the public interest will be served by the injunction. Procter & Gamble Co. v. Stoneham (2000), 140 Ohio App.3d 260, 267.

In the case cited, here’s the example of irreparable harm. One guy ran a painting company, then re-joined his former employer, then left to found a competing firm. It was found that he was soliciting his former employer’s clients to come with his new, competing firm. That was determined to be irreparable harm.

Brendan McGarry testified that all of the clients that Gross admitted to conducting business with were McGarry & Sons’ clients. (Tr. 67). Attempting to start one’s own business by taking away customers that were serviced by a former employer is precisely the type of irreparable harm that a covenant not to compete is designed to prevent.

So, not particularly relevant as a whole.

2. University of Texas v. Camenisch

This is a US Supreme Court case.
It’s a case about a deaf student and who should pay for interpreter accommodations.
“The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held,” then I must be missing something because I don’t understand how that applies in this case. It’s cited in the next ruling, and that one line’s cited in the memorandum, but I don’t get it.

3. Midwest Retailers Association, Ltd. v. City of Toledo

This case cites the quoted sentence in the previous ruling. The case was about a new law requiring certain retailers to have 24/7 surveillance cameras, and they wanted a preliminary injunction to prevent the law from taking effect while the case was heard. The judge converted this to a temporary restraining order against the new law and granted it. A good chunk of the ruling is about the fourth, fifth, and thirteenth amendment consequences of the law.
It’s cited here because of the way it weighs the relative factors in granting a TRO, and it’s controlling for the Akron area. Unlike the first ruling, it uses this wording as the criteria:

To grant either form of injunctive relief, a court must consider: “(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury absent a stay; (3) whether granting the stay would cause substantial harm to others; and (4) whether the public interest would be served by granting the stay.” Northeast Ohio, supra, 467 F.3d at 1009; see also Rios, supra, 345 F. Supp. 2d at 835.

So if that’s the controlling opinion, why the first two? I don’t get it.
It initially jarred me that this ruling was written in first person. It hadn’t stuck out to me how rare that was, though it seems more common in dissenting and concurring opinions.

4. Hersch v. E. W. Scripps Co

Here’s the ruling.

In the case at bar this court must determine whether a “stupid act” is substantially synonymous with an exercise of “poor judgment” and “impropriety,” or whether it connotes a greater opprobrium.

I have to admit, this sentence made me laugh. Irony?
Also:

[T]his court is persuaded by the evidence before the trial court that the characterization of the conduct of attorney Hersch as “stupid” is either true or is an exceedingly charitable assessment of his behavior.

And, in the end, the publication was ruled to be not defamatory.

It is the considered opinion of this court in view of the posture of the evidence in this case, that to be charged with having “acted stupidly” carries no greater opprobrium than to be charged with having committed an impropriety and with having exercised poor judgment. Under the authority of Williams v. P. W Publishing Co., supra, this court is persuaded that, as a matter of law, the summary of Judge Zingale’s remarks contained in the Cleveland Press article was not so false and defamatory as to serve as the basis for an action for libel.

If anything, this may be the most relevant citation of all, but not for the reason esteemed counsel might expect. 😉
Either “true” or “exceedingly charitable,” huh?

5. Am. Chem. Soc’y v. Leadscope, Inc.

You can read the ruling here. From the case summary:

In determining whether a statement is defamatory as a matter of law, a court must review the totality of the circumstances and read the statement in the context of the entire publication to determine whether a reasonable reader would interpret it as defamatory.

One of the propositions of law discussed in the ruling is this:

Damages for defamation must be based upon harm caused by the defamatory statements, as distinct from harm caused by a public lawsuit or other proceeding.

So the interesting thing here is that the defamation claim? Lost in this case.

We reverse the appellate court’s decision finding that the trial court did not err in overruling ACS’s motion for judgment notwithstanding the verdict on Leadscope’s counterclaim for defamation. We hold that when reviewed under the totality of the circumstances and in the context of the entire publications, ACS’s statements in the internal memorandum and its attorney’s statements in Business First are not defamatory as a matter of law. […]
The cause is remanded to the trial court with orders to vacate its judgment for Leadscope on the issue of defamation.

The short version is that ACS essentially claimed that Leadscope stole their invention and Leadscope countersued with defamation claims. The ruling (and dissent and concurring opinions) is all about the nuances of qualified privilege, and that doesn’t seem to be applicable to the way it’s cited in the EC TRO memorandum.
I particularly recommend J. Pfeifer’s dissenting part about the defamation case on pp. 40-49.

ACS, “one of the world’s leading sources of authoritative scientific information,” announced to an audience that included the scientific world and the financial world that virtually everything that Leadscope was built upon was stolen. A few words to the right audience can be ruinous. And the jury determined that those words were ruinous to Leadscope, Blower, Johnson, and Myatt. The majority has not demonstrated why those jury verdicts should not stand. […]
In both instances—the employee memorandum and the Business First article—the statements made by ACS were false, were made with the knowledge that they were false, injured the reputations of Leadscope and the individual defendants, and adversely affected them in their business.

But still ruled not defamatory. Interesting case to cite from that perspective.

6. Bluemile, Inc. v. YourColo, LLC

You can read the injunction ruling here. From the EC lawsuit:

The facts are strikingly similar to Bluemile, Inc. v. YourColo, LLC. In Bluemile, the plaintiff, an Ohio corporation, sought a temporary injunction against the defendant, who owned a business claiming the same business name.

In my opinion (though, again, IANAL and TINLA), there is no similarity, and the “strikingly similar” made me wonder what quality pharmaceuticals the esteemed esquire had access to. In Bluemile, there was a clear intent to confuse the trademark held by the plaintiff and siphon off their potential customers by the defendant with a confusing domain name (bluemile.net). The defendant’s site was intended to be confusing.

According to Plaintiff, Defendant uses the website to misdirect traffic through malicious use of Plaintiff’s registered trademark and post false and misleading information about Plaintiff’s products to Defendant’s benefit and Plaintiff’s detriment. Thus, in the Court’s view, Plaintiff is likely to succeed on the merits of some or all of its claims.

None of the above is true—or claimed to be true—in the Dear Author case.
In the Bluemile kind of egregious behavior, it strikes me that a temporary/preliminary injunction is the only possible answer.

7. Guion v. Terra Marketing

This is a Nevada Supreme Court case from 1974, and I’m unaware of it being controlling case law for Ohio. Besides, Nevada. Odd state. (Says the Californian.) Here’s the ruling in question.
So the case here is that the defendant put up signs visible to the plaintiff’s potential and actual customers, that said:

A Terracor representative threatened to kill me! What next, Rick Johnson. I regret having done business with a Terracor representative. Doing business with a Terracor representative introduced me to a new low in ethics.

The case hinged partly upon whether or not the party making said threat was a Terracor representative, and hence on the truth or falsity of the statement. But—the order of magnitude of the statement here is way different than the Dear Author case and claims.
Which reminds me. Nowhere in the DA post, The Curious Case of Ellora’s Cave did DA claim that anyone having issues with payment was currently/recently an employee. My take, which may be incorrect, was that it was about issues freelancers and authors were having.
And yet, one of the false statements claimed in the lawsuit (p. 3) is:

a. That employees of Ellora’s are going unpaid when in fact they are being paid.

Surely there’s a case somewhere in the last forty years that’s controlling that’s more relevant. Surely.

Some Humor Because You’ve Stuck With Me This Far

One of my favorite legal writers of all time is retired (forcibly) US District Court Judge Samuel B. Kent, especially Bradshaw v. Unity Marine.

Defendant begins the descent into Alice’s Wonderland by submitting a Motion that relies upon only one legal authority. The Motion cites a Fifth Circuit case which stands for the whopping proposition that a federal court sitting in Texas applies the Texas statutes of limitations to certain state and federal law claims. See Gonzales v. Wyatt, 157 F.3d 1016, 1021 n.1 (5th Cir. 1998), cert. denied, 528 U.S. 1118 (2000). That is all well and good–the Court is quite fond of the Erie doctrine; indeed there is talk of little else around both the Canal and this Court’s water cooler. Defendant, however, does not even cite to Erie, but to a mere successor case, and further fails to even begin to analyze why the Court should approach the shores of Erie.

(So, persuasive, not controlling.)

Plaintiff responds to this deft, yet minimalist analytical wizardry with an equally gossamer wisp of an argument, although Plaintiff does at least cite the federal limitations provision applicable to maritime tort claims. See 46 U.S.C. § 763a. Naturally, Plaintiff also neglects to provide any analysis whatsoever of why his claim versus Defendant Phillips is a maritime action. Instead, Plaintiff “cites” to a single case from the Fourth Circuit. Plaintiff’s citation, however, points to a nonexistent Volume “1886” of the Federal Reporter *671 Third Edition and neglects to provide a pinpoint citation for what, after being located, turned out to be a forty-page decision. Ultimately, to the Court’s dismay after reviewing the opinion, it stands simply for the bombshell proposition that torts committed on navigable waters (in this case an alleged defamation committed by the controversial G. Gordon Liddy aboard a cruise ship at sea) require the application of general maritime rather than state tort law. See Wells v. Liddy, 186 F.3d 505, 524 (4th Cir.1999) (What the …)?! The Court cannot even begin to comprehend why this case was selected for reference. It is almost as if Plaintiff’s counsel chose the opinion by throwing long range darts at the Federal Reporter (remarkably enough hitting a nonexistent volume!). And though the Court often gives great heed to dicta from courts as far flung as those of Manitoba, it finds this case unpersuasive.

Again, persuasive not controlling, and unpersuasive in the end.
And, my favorite part:

After this remarkably long walk on a short legal pier, having received no useful guidance whatever from either party, the Court has endeavored, primarily based upon its affection for both counsel, but also out of its own sense of morbid curiosity, to resolve what it perceived to be the legal issue presented. Despite the waste of perfectly good crayon seen in both parties’ briefing (and the inexplicable odor of wet dog emanating from such) the Court believes it has satisfactorily resolved this matter.

Getting Back to the Request to Out Anonymous Commenters

It’s been a long post, so here’s anonymous commenter request again: