Arizona Court of Appeals Division One Holds That Compelling Discovery of an Anonymous Internet Speaker’s Identity Requires Showing that (1) the Speaker Has Been Given Notice and a Reasonable Opportunity to Respond, (2) the Cause of Action Could Survive a Motion for Summary Judgment on Elements Unrelated to the Speaker’s Identity, and (3) the Balance of Interests Favors Disclosure.

Nelson Ludlow, Mobilisa, Inc.’s founder, and CEO, used his Mobilisa email account to send an intimate message to a woman with whom he was having a relationship. Six days later, Mobilisa’s management team and others received an email containing the content of Ludlow’s email from an anonymous sender with an address from theanonymousemail.com, which is owned by The Suggestion Box, Inc. (“TSB”), an Arizona corporation. The subject line stated, “Is this a company you want to work for?”

Mobilisa filed suit against John Does 1-10, claiming that defendants had accessed Mobilisa’s protected computer systems and email accounts without authorization, and subpoenaed TSB to disclose the identity of the person who sent the anonymous email. After objecting to the subpoena, TSB contacted Doe, who agreed to be represented by TSB’s counsel. The superior court ultimately granted Mobilisa’s request to proceed with the subpoena after applying the two-part test set forth in Doe v. Cahill, 884 A.2d 451 (Del. 2005). Doe/TSB appealed.

In a split decision, the Arizona Appeals Court remanded. The Court first set forth the standard to apply in balancing an anonymous internet speaker’s First Amendment right to engage in free speech against the need for discovery. After discussing different tests various courts have adopted, the Court adopted the first two prongs of the test set forth in Cahill, which requires the party requesting disclosure to (1) make efforts to notify the anonymous speaker of the discovery request and provide the speaker a reasonable opportunity to respond and (2) show its cause of action can withstand a motion for summary judgment on elements within its control. 884 A.2d at 460-61, 464. In addition, the Court added a third prong: the requesting party must also show that the balance of the parties’ interests favors disclosure. After setting forth the standard, the Court determined that the superior court had correctly resolved the first two prongs in favor of Mobilisa, but remanded so the superior court could apply the third prong.

Judge Barker dissented, arguing that the adoption of a balancing test was inappropriate when the requesting party has already established that a genuine issue of material fact other than identity exists, and the anonymous speaker is the party-defendant.

Judge Timmer, joined by Judge Ehrlich, authored the majority opinion. Judge Barker dissented.