Warren Hospital v. John Does, 430 N.J. Super. 225 (App. Div. 2013). In Dendrite Int’l, Inc. v. Doe No. 3, 342 N.J. Super. 134 (App. Div. 2001), the Appellate Division laid out a four-part test for determining when a plaintiff who is allegedly defamed on a public message board can obtain discovery that would reveal the identity of the poster of the allegedly defamatory content. In today’s case, the Law Division applied that four-part test to John Doe defendants who allegedly hacked into the plaintiff hospital’s intranet and posted defamatory statements, quashing a subpoena to Verizon Communications. Plaintiffs sought leave to appeal, which the Appellate Division granted. With Judge Fisher writing the opinion, the Appellate Division reversed.
Judge Fisher observed that there is a tension between protecting the free speech of anonymous persons in electronic realms and protecting victims of defamation. The Dendrite criteria were designed to balance those interests. But Dendrite involved a public message board, while this case involved persons who hacked into a private intranet. “Plaintiffs have presented sufficient facts from which we may assume that what John Does One and Two did electronically was no different than if they had broken into the hospital and spray painted their messages on the hospital’s walls. We reject the argument that those who engage in this type of conduct are entitled to cling to their anonymity through a strict or overly-formulaic application of the Dendrite test.” Judge Fisher took note of cases from other jurisdictions that had criticized the Dendrite test, but ruled that it was not necessary to consider whether Dendrite is too protective of anonymous speakers, given that defendants’ conduct here took them out of the Dendrite framework anyway.
Since the panel found that at least one of the alleged statements would survive a motion to dismiss the Complaint, the subpoena to Verizon Communications should not have been quashed. Plaintiffs had not sought discovery as to all of the alleged statements, and Judge Fisher stated that “[t]o the extent plaintiffs have sought relief beyond what we have permitted, our order granting leave to appeal was, in those other respects, improvidently granted. We hold only that plaintiffs are entitled to pursue the Verizon subpoena in question.”