On appeal from Superior Court of New Jersey, Law Division, Mercer County, No. L-2132-09.
The opinion of the court was delivered by: Wefing, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Grall and LeWinn.
Defendant John Doe appeals, pursuant to leave granted, from a trial court order denying his motion to quash a subpoena served upon his Internet service provider. After reviewing the record in light of the contentions advanced on appeal, we reverse.
The record before us is sparse. It consists of plaintiff's complaint and the record created in connection with defendant's motion to quash. From that record, we glean the following factual background. Plaintiff was employed as a teacher by Hightstown High School. The record does not indicate how long he had served in that position, but he had achieved tenure. On July 23, 2009, he received an e-mail simply signed "Josh." It listed the sender as "'Josh Hartnett' >[.]". The subject line of the e-mail stated "Hopefully you will be gone permanently[.]" The body of the e-mail read, "We are all praying for that. Josh"
A second e-mail was sent on August 11, 2009. It also indicated it was sent by "'Josh Hartnett'
A third e-mail was sent two days later, on August 13, 2009; it bore the same sending address; its subject line was "Mr. Juzwiak in the Hightstown/East Windsor School System." The text of this e-mail read:
It has been brought to my attention and I am sure many of you know that Mr. J is reapplying for his position as a teacher in this town. It has further been pointed out that certain people are soliciting supporters for him. This is tantamount to supporting the devil himself. I am not asking anyone to speak out against Mr. J but I urge you to then be silent as we can not continue to allow the children of this school system nor the parents to be subjected to his evil ways. Thank you.
Josh The context of this third e-mail makes clear that it was sent to individuals in the area served by the school district, but the record does not disclose the number of people to whom it was directed. The record before us is entirely silent as to the nature of the controversy surrounding plaintiff's position in the Hightstown school system and what led to these e-mails being sent.
A week later, on August 20, 2009, plaintiff filed a two-count complaint, seeking damages for intentional infliction of emotional distress and harassment. Because he did not know the identity of the author of these e-mails, plaintiff named the defendant as "John/Jane Doe" and served a subpoena on Yahoo! Inc. ("Yahoo!"), the Internet service provider listed on the e- mails, to provide him with the author's identity.*fn1 Yahoo! notified its subscriber that it had received the subpoena and the subscriber, proceeding as "John/Jane Doe" moved to quash that subpoena.
In opposition to defendant's motion to quash, plaintiff certified that the threatening e-mails "severely disrupted [his] life . . . [causing] deep anger and depression . . . [and] insomnia [that] impaired [his] ability to concentrate and function effectively." Plaintiff also certified that the emotional stress manifested itself physically, exacerbating his back problems and causing him to lose twenty pounds. Prior to the receipt of the e-mails, plaintiff had been taking Paxil, but after, his depression worsened and he was referred to a psychiatrist and prescribed Abilify, an anti-depressant and Klonopin, an anti-anxiety medication. Additionally, plaintiff was prescribed two sleep aids, Ambien and Sonata. Despite the medications, plaintiff certified that he still suffered from "depression, anxiety, and insomnia." Plaintiff also stated that he had thoughts of hurting himself and the "entire episode has consumed [his] life for several months."
Defendant argued that plaintiff had not established a prima facie case for each element of his cause of action and thus the subpoena should ...