Defendant, Jean Doe, a/k/a "moonshine_fr," on leave granted, appeals from an order entered on December 20, 2000, denying her motion to quash a subpoena duces tecum issued to Yahoo! by plaintiff, Immunomedics, Inc., seeking all personally identifiable information relating to the person or identity who posted messages on the Yahoo! Finance Message Board under the identifier "moonshine_fr" which may identify or lead to the identification of that person or entity. A consent order entered on February 5, 2001 stayed the December 20, 2000 order, pending resolution of this appeal.
Immunomedics, is a publicly-held biopharmaceutical Delaware corporation, with its principal place of business located at 300 American Road in Morris Plains, New Jersey. Immunomedics is focused on the development, manufacture and commercialization of diagnostic imaging and therapeutic products for the detection and treatment of cancer and infectious diseases.
Yahoo! is an Internet Service Provider (ISP) that maintains a Web Site that includes a section called Yahoo! Finance. Yahoo! Finance maintains a Message Board for every publicly-traded company, including Immunomedics. Visitors to the Immunomedics site can obtain up-to-date information on the company, and can post and exchange messages about issues related to the operation or performance of the company.
On October 12, 2000, Immunomedics filed a complaint against Jean Doe, also known by the computer screen name "moonshine_fr" ("Moonshine").
Thereafter, on October 19, 2000, Immunomedics filed a first amended verified complaint. The amended complaint named a new defendant, "John Foe a/k/a `bioledger,'" and added claims for tortious interference with economic gain and defamation. The amended complaint alleged that Moonshine "continue[d] to post messages... that are or may be actionable."
Of the two messages in question, the first, with Moonshine describing herself as "[a] worried employee," stated that Immunomedics was "out of stock for diagnostic products in Europe" and claimed that there would be "no more sales if [the] situation [did] not change." The second message, allegedly posted by Moonshine after the initial complaint was filed, reported that Chairman of the Company, Dr. Goldenberg, was going to fire the Immunomedics "european manager." In her certification to the trial court, Immunomedics's Executive Vice President and Chief Operations Officer, Cynthia L. Sullivan,
On or about October 20, 2000, Immunomedics served a subpoena on Yahoo!, seeking discovery of Moonshine's true identity.
The motion to quash was argued before Judge Zucker-Zarett on December 15, 2000. After considering the arguments, the judge denied Moonshine's motion, stating, in pertinent part:
An order memorializing this decision was executed on December 20, 2000. However, the judge agreed to stay her decision for five (5) days to allow the parties to negotiate a protective order or for Moonshine to seek leave to appeal the denial of her motion.
By order entered on February 2, 2001, we granted Moonshine leave to appeal. The parties consented to the entry of an order, extending the stay during pendency of this appeal.
On appeal, Moonshine presents the following arguments for our consideration:
A. Anonymous Internet Speech is Constitutionally Protected Speech.
B. Breach of Anonymity Is An Extraordinary Remedy.
C. Plaintiff's Complaint Is Insufficient To Warrant Extraordinary Remedy.
D. Defendant Would Be Irreversibly Harmed If Anonymity Is Unfairly Breached.
E. Public Interest Favors Protection of Anonymous Speech Absent A Substantial Showing That The Complaint Is Likely To Succeed On The Merits.
DEFENDANT'S TRUE IDENTITY SHOULD NOT BE DISCLOSED BEFORE
Moonshine contends the motion judge erred in denying her motion to quash the subpoena, as anonymous speech is constitutionally protected and Immunomedics' complaint is insufficient to warrant a breach of that anonymity. Immunomedics argues that, while anonymous speech is constitutionally protected, that protection can be overcome if a defendant uses that freedom in an unlawful manner. Immunomedics contends that there is sufficient evidence that Moonshine is, or was, an employee of Immunomedics and that she breached the company's confidentiality agreement, as well as her common law duty of loyalty. Furthermore, Immunomedics asserts that any vagueness in its complaint is because the identity of Moonshine is unknown and because the claims deal with confidential information which, if placed into a court pleading, would become publicly known.
In Dendrite International, Inc. v. John Doe No. 3, 342 N.J.Super. 134, 775 A.2d 756 (App.Div.2001), another case involving an application for expedited discovery to disclose the identity of an anonymous user of an ISP message board, we concluded that courts must decide such applications by striking a balance between the First Amendment right of an individual to speak anonymously and the right of a company to protect its proprietary interest in the pursuit of claims based on actionable conduct by the ISP message board user. Id. at 760. We established the following procedures and test to be utilized as an aid in striking that balance:
The complaint and all information provided to the court should be carefully reviewed to determine whether plaintiff has set forth a prima facie cause of action against the fictitiously-named anonymous defendants. In addition to establishing that its action can withstand a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to R. 4:6-2(f), the plaintiff must produce sufficient evidence supporting each element of its cause of action, on a prima facie basis, prior to a
[Id. at 761.]
In Dendrite, the plaintiff based its action on claims of breach of contract, breach of fiduciary duty, defamation, misappropriation of trade secrets, and other causes of action; however, on appeal, Dendrite's claim was evaluated as a cause of action based on defamation. Id. at 759. Here, Immunomedics' cause of action is based on Moonshine's status as an employee and her alleged violation of a confidentiality agreement, and Moonshine's alleged breach of her common law duty of loyalty. In Dendrite, we concluded that the plaintiff had failed to adequately demonstrate a cause of action based on defamation because of the failure to demonstrate it suffered damages attributable to the messages posted on the ISP message board by the anonymous defendant. Id. at 760.
Applying the procedure and test outlined in Dendrite, we conclude Judge Zucker-Zarett properly analyzed the disclosure issue, and we affirm substantially for the reasons articulated by the judge in her oral opinion delivered on December 15, 2000. We add the following. Immunomedics presented sufficient evidence that Moonshine is, or was, an employee of Immunomedics. Ms. Sullivan indicated in her certification that "all employees are bound by several Company policies and a confidentiality agreement."
Accordingly, Immunomedics clearly established a prima facie cause of action for breach of the confidentiality agreement founded on the content of Moonshine's posted messages.
In balancing Moonshine's right of anonymous free speech against the strength of the prima facie case presented and the necessity for disclosure, it is clear that the motion judge struck the proper balance in favor of identity disclosure. With evidence demonstrating Moonshine is an employee of Immunomedics, that employees execute confidentiality agreements, and the content of Moonshine's posted messages providing evidence of the breach thereof, the disclosure of Moonshine's identity, which can be reasonably calculated to be achieved by information obtained from the subpoena, was fully warranted. Although anonymous speech on the Internet is protected, there must be an avenue for redress for those who are wronged. Individuals choosing to harm another or violate an agreement through
Moonshine further argues that she should have the opportunity to disprove Immunomedics' claims prior to her identity being disclosed. This argument lacks merit. To allow a potential tortfeasor to disprove a plaintiff's case before the plaintiff is even provided the opportunity to learn the defendant's identity, let alone gather any discovery, has no foundation in New Jersey law. Immunomedics presented the court with a valid claim for breach of contract, and should be given the opportunity to pursue that claim. Having done so, Moonshine should not be afforded an advantageous position based on the media in which she chose to commit the breach of contract or because she committed that alleged breach anonymously.