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A.Z. v. Doe

March 8, 2010

A.Z. (A MINOR) AND B.Z. (ON BEHALF OF A.Z. AS PARENT), PLAINTIFFS-APPELLANTS,
v.
JOHN DOE AND JANE DOE, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-6469-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 9, 2009

Before Judges Lisa, Baxter & Alvarez.

Plaintiff A.Z. appeals from a Law Division order that quashed a subpoena she issued to an Internet Service Provider to learn the identity of the person who sent an anonymous email that allegedly defamed her. Relying on Dendrite International, Inc. v. John Doe, No. 3, 342 N.J. Super. 134 (App. Div. 2001), which imposes a considerable barrier to discovering the identity of a person who anonymously posts defamatory material on the Internet, the trial judge quashed the subpoena.

In Dendrite, we held that where an anonymous person posted defamatory speech on broadly-available Internet message boards, a plaintiff would be entitled to an order divulging the identity of the anonymous author only if the plaintiff: provides sufficient information to demonstrate that his or her cause of action could withstand a motion to dismiss for failure to state a claim, supported by prima facie evidence to support each element of such cause of action (third prong); and establishes, through a balancing test, that the necessity for the disclosure of the anonymous defendant's identity outweighs the defendant's First Amendment right of anonymous free speech (fourth prong). Id. at 141-42.

The judge concluded plaintiff had established that her cause of action for defamation could withstand a motion to dismiss for failure to state a claim upon which relief can be granted, Rule 4:6-2(e), and that plaintiff had produced prima facie evidence supporting each element of her cause of action, as required by Dendrite's third prong, Dendrite, supra, 342 N.J. Super. at 141. Nonetheless, the judge granted Doe's motion to quash the subpoena because, applying the balancing test set forth in Dendrite's fourth prong, id. at 142, he concluded that Doe's cause of action suffered from so many weaknesses that disclosure of Doe's identity was unwarranted when balanced against Doe's First Amendment right of anonymous free speech.

Plaintiff's principal claim on appeal is that the judge's application of the Dendrite fourth prong balancing test was flawed, thereby requiring reversal. We do not reach that claim because we are satisfied, based upon our de novo review of the record, that the judge erred when he concluded that plaintiff had established a prima facie cause of action for defamation. That failure of proof entitled Doe to an order quashing plaintiff's subpoena. We thus affirm the order that so provided, but do so upon different grounds from those expressed by the trial judge.

I.

Plaintiff A.Z.*fn1 was a high school student, and was a member of the school's "Heroes & Cool Kids" program. The club was comprised of students of high academic achievement, who pledged to maintain standards of exemplary personal conduct.

On May 29, 2008, Dominick Gliatta, the faculty adviser, received an anonymous email signed "A concerned parent."*fn2

Referencing the "Heroes & Cool Kids" club, the writer stated:

Dear Mr. Gliatta[,]

I am, well, a concerned parent. I wish not to have my or my child's identity known.

My child has informed me about a Heroes and Cool Kids program at school. I am aware of the prestige ...


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