Dendrite International, Inc. sued John Doe No. 3 for making statements on a Yahoo! stock bulletin board that allegedly defamed the company and misappropriated trade secrets. The trial Court rejected Dendrite’s request to conduct the discovery necessary to learn the real identity of John Doe No. 3. Dendrite appealed, and the Court of Appeals rejected Dendrite’s request. In so doing, the Appeals Court clearly spelled out that the Plaintiff must first demonstrate that he has a reasonable likelihood of winning a case before the Court will help him pierce the defendant’s anonymity:

We offer the following guidelines to trial courts when faced with an application by a plaintiff for expedited discovery seeking an order compelling an ISP to honor a subpoena and disclose the identity of anonymous Internet posters who are sued for allegedly violating the rights of individuals, corporations or businesses. The trial court must consider and decide those applications by striking a balance between the well-established First Amendment right to speak anonymously, and the right of the plaintiff to protect its proprietary interests and reputation through the assertion of recognizable claims based on the actionable conduct of the anonymous, fictitiously-named defendants.

We hold that when such an application is made, the trial court should first require the plaintiff to undertake efforts to notify the anonymous posters that they are the subject of a subpoena or application for an order of disclosure, and withhold action to afford the fictitiously-named defendants a reasonable opportunity to file and serve opposition to the application. These notification efforts should include posting a message of notification of the identity discovery request to the anonymous user on the ISP's pertinent message board.

The court shall also require the plaintiff to identify and set forth the exact statements purportedly made by each anonymous poster that plaintiff alleges constitutes actionable speech.

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 court ordering the disclosure of the identity of the unnamed defendant.

Finally, assuming the court concludes that the plaintiff has presented a prima facie cause of action, the court must balance the defendant's First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant's identity to allow the plaintiff to properly proceed. …

The Court spent a lot of time discussing just how much evidence was necessary to grant the Plaintiff’s discovery request. Dendrite argued that if it could make a case strong enough to withstand a motion to dismiss, then the Court should grant it the right to discover Doe's identity. It would be fairly easy for Dendrite to show enough evidence to withstand a traditional motion to dismiss, because successful motions to dismiss are very rare. Courts bend over backwards to avoid dismissing complaints prematurely and a court will normally dismiss a complaint only if it concludes with reasonable certainty that the Plaintiff will be unable to present any set of facts that would entitle him to relief. So long as there is a reasonable possibility that the Plaintiff can present facts that will allow him to prevail, a Court will not grant a motion to dismiss.

The Dendrite Court ruled that the Plaintiff would have to do more than just be able to withstand a traditional motion to dismiss before it granted the Plaintiff the ability to discover the Defendant's identity. It followed the lead established in the Seescandy case.

However, application of our motion-to-dismiss standard in isolation fails to provide a basis for an analysis and balancing of Dendrite's request for disclosure in light of John Doe No. 3's competing right of anonymity in the exercise of his right of free speech.

 We first note that the motion judge was not presented with an actual motion to dismiss and, as such, was not necessarily bound to a dogmatic application of the associated rules.   Nonetheless, the third prong of the Seescandy.Com test requires a showing that plaintiff's claim would survive a motion to dismiss.   However, a closer analysis discloses that the District Court distinguished the actual application of the third prong of the test from the traditional application of a motion-to-dismiss standard, stating:

Pre-service discovery is akin to the process used during criminal investigations to obtain warrants.   The requirement that the government show probable cause is, in part, a protection against the misuse of ex parte procedures to invade the privacy of one who has done no wrong.   A similar requirement is necessary here to prevent abuse of this extraordinary application of the discovery process and to ensure that plaintiff has standing to pursue an action against defendant. ...

 

  Probable cause as it relates to obtaining warrants is a non-technical, flexible concept that does not require rigid, "technical demands for specificity and precision[.]"  State v. Boyd, 44 N.J. 390, 392-93, 209 A.2d 134 (1965);  Ornelas v. United States, 517 U.S. 690, 695-96  (1996).   The District Court added that by equating this prong to the probable cause requirement for warrants, "plaintiff must make some showing that an act giving rise to civil liability actually occurred and that the discovery is aimed at revealing specific identifying features of the person or entity who committed the act."  Id. at 580 (emphasis added).

In fact, the literal reading of the third prong of the Seescandy.Com test, as worded by the District Court, supports such a flexible, non-technical application of the motion to dismiss standard.   Specifically, the third prong provides "plaintiff should establish to the Court's satisfaction that plaintiff's suit against defendant could withstand a motion to dismiss." Seescandy.Com, supra, 185 F.R.D. at 579 (emphasis added).   The court characterized the four-prong test as "safeguards," necessary to "prevent [plaintiffs from] harrass[ing] or intimidat[ing]" anonymous persons on the Internet.  Ibid.

  Our review of Seescandy.Com discloses that a strict application of our rules surrounding motions to dismiss is not the appropriate litmus test to apply in evaluating the disclosure issue.   We conclude that the District Court envisioned this four-part test to act as a flexible, non-technical, fact-sensitive mechanism for courts to use as a means of ensuring that plaintiffs do not use discovery procedures to ascertain the identities of unknown defendants in order to harass, intimidate or silence critics in the public forum opportunities presented by the Internet. . . . .

The Court ended up denying Dendrite the ability to discover John Doe's identity because Dendrite did not have enough evidence to make a prima facie case that it had been harmed by anything that John Doe published.