On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. MRS-L-3085-00.
Before Judges Stern, A. A. Rodríguez and Fall.
The opinion of the court was delivered by: Fall, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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").*fn1 The complaint alleged that Moonshine had "posted a message on Yahoo! Finance." Immunomedics claimed that message contained information confidential and proprietary to Immunomedics. As a result, Immunomedics asserted it had sustained injury and that Moonshine should be held liable under theories of breach of contract, breach of duty of loyalty and negligently revealing confidential and proprietary information.*fn2
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, admitted that the statements were true, but that, as an employee, Moonshine had violated the company's confidentiality agreement and "several provisions" of the company's Employee Handbook.
On or about October 20, 2000, Immunomedics served a subpoena on Yahoo!, seeking discovery of Moonshine's true identity.*fn3 Yahoo!, in turn, contacted Moonshine. In response, Moonshine filed a motion to quash the subpoena on or about November 15, 2000.
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:
[W]e have two issues here. We have an issue, she's an employee, she signed a confidential document saying that she was not going to speak freely about information she learned at the company. So she contracted away her right of free speech if she's an employee. Number two, free speech, anonymous, but if it harms another individual, that is another way that we have a little bit of a dent in our rights for free speech.
So . . . in essence, it would be if she signed a document indicating that she was going to keep this information confidential and she breached that, and she breached her loyalty, they would be entitled at ...