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If at First You Don’t Succeed, Try, Try Again—Court Protects Identities of Internet Users But Allows Re-filing of Expedited Discovery Request

Many individuals believe that matters pertaining to the United States Presidential Election are paramount to all other considerations. This, however, is not always the case and even those who create problems for campaign committees from behind the guise of internet anonymity are entitled to equal rights under the judicial system. Ex parte applications for expedited discovery are no exception according to the recent ruling in Ron Paul 2012 Pres. Campaign Comm., Inc. v. John Does, 1–10 because courts have a set list of criteria to consider when assessing the existence of “good cause” for expedited discovery to identify internet users.

Wrongful Conduct and Court Fashioning of Relief

The plaintiff brought suit against the defendants, who were anonymous internet users, alleging false designation of origin, false advertising, and defamation and libel claims against presidential candidate Ron Paul. These internet users, using the pseudonym “NHLiberty4Paul,” made and uploaded a video on YouTube and Twitter that viciously attacked rival candidate Jon Huntsman and strongly implied that it was made or endorsed by Ron Paul; this led to extremely negative press coverage of Paul and his campaign methods. Pursuant to Federal Rule of Civil Procedure 26(d)(1), plaintiff filed an ex parte application for expedited discovery from these websites in order to ascertain the identities of the anonymous users before the parties’ Rule 26(f) conference.

The court stated that such discovery would be permitted only when “good cause” is found, meaning the “administration of justice outweighs the prejudice to the responding party.” The specific factors considered by the court were the following:

  1. Whether the plaintiff has identified the missing party with enough specificity so that the court can determine whether the defendant is a party that could be sued in federal court,
  2. Whether the plaintiff has identified all steps already taken to locate the defendant,
  3. Whether the plaintiff’s claims could withstand a motion to dismiss, and
  4. Whether the plaintiff has demonstrated a reasonable likelihood that defendant could be identified through discovery so that service would be possible.

The court ultimately denied the ex parte application because it failed to sufficiently address the specified factors; however, the court clarified that the denial was without prejudice and that the plaintiff could file another request that sufficiently addressed the standards

with proper evidentiary support.

Suggestions to Learn from this Mistake

Plaintiffs should carefully ensure that all the aforementioned guidelines are met when filing an ex parte application for expedited discovery; however, if the application fails then this is merely “strike one” for the applicant. Counsel must nonetheless be diligent in attempting to characterize the type of defendant involved and in locating said party, and must document such efforts to present before the court. This is especially true when the application involves the discoverability of the identities of anonymous individuals expressing their political views on the internet because courts will protect the privacy of such persons. Anonymous internet users and Presidential Campaign Committees are on equal procedural footing when an ex parte expedited discovery request is filed, but courts will allow re-filing if the original request does not meet the legal standards and proper evidentiary support to show that the administration of justice outweighs the prejudice to the other party.

Mark Keddis has a B.A. in Psychology with a Certificate of Criminology from Rutgers University in New Brunswick, NJ. He will receive his J.D. from Seton Hall University School of Law in 2012, where he has served as a member of the Appellate Advocacy Moot Court Board and an Associate Editor for the Seton Hall Law Review.

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