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Somerset Development, LLC, and Ralph Zucker v. "Cleaner Lakewood

September 26, 2012

SOMERSET DEVELOPMENT, LLC, AND RALPH ZUCKER, PLAINTIFFS-APPELLANTS,
v.
"CLEANER LAKEWOOD,"*FN1 JOHN DOE, AND JOHN DOE NOS. 1-10, FICTITIOUS PERSONS AND ENTITIES, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Chancery Division, General Equity, Ocean County, Docket No. C-119-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 13, 2011

Before Judges Axelrad, Sapp-Peterson and Ostrer.

Plaintiffs appeal from the trial court order quashing a subpoena served upon Google, Inc., an internet service provider (ISP). Plaintiffs also appeal from the denial of their cross-motion seeking to compel defense counsel to disclose the identity of the anonymous defendants counsel represents. We affirm.

Plaintiff, Ralph Zucker, is a real estate developer and the president of plaintiff, Somerset Development, LLC (Somerset), which has purchased and developed real estate in the Township of Lakewood. In June 2010, plaintiffs learned, through discussions with members of the Lakewood community, that defendants, Cleaner Lakewood, John Doe, and John Doe Nos. 1-10, posted statements on a website blog*fn2 hosted by Google. Defendants moderated a blog through Google's blogspot service.*fn3

Plaintiffs filed a complaint against Cleaner Lakewood and the anonymous individuals who posted blogs as well as comments (collectively referred to as "posters") on Cleaner Lakewood's website (posters), seeking both damages and injunctive relief, but they could not serve the complaint on any defendants because their identities were unknown. Plaintiffs served a subpoena on Google, seeking the production of data leading to the identification of defendants. The blog operators and an unknown number of anonymous posters filed a motion to quash the Google subpoena, and plaintiffs filed opposition to the motion as well as a cross-motion to compel defense counsel to identify the anonymous defendants whom counsel represented. Relying upon Dendrite International, Inc. v. John Doe No.3, 342 N.J. Super. 134 (App. Div. 2001), Judge Buczynski found the subpoena was overbroad, and the offending postings were "more or less opinion[.]" He "did not find there was any suggestion that a crime had been committed. There was some objection as to what may have been done or may not have been done." The court stated further:

So when one looks at those statements and looks at the facts[,] . . . there's a great deal of cultural slang being used here and arguments that are being made in the community, when the [c]court is balancing the First Amendment versus whether or not these comments are actually actionable, I find that most of them are actually not actionable at all.

The motion judge also denied plaintiffs' cross-motion seeking to compel defense counsel to identify the anonymous persons he represented, finding that it was premature to compel such disclosure.

On appeal, plaintiffs raise the following points for our consideration.

POINT I

THE TRIAL COURT ERRED IN DENYING PLAINTIFFS' CROSS-MOTION TO COMPEL COUNSEL FOR DEFENDANTS TO IDENTIFY WHICH ANONYMOUS POSTERS WERE REPRESENTED AND IN DENYING [THE] CROSS-MOTION TO COMPEL GOOGLE TO COMPLY WITH THE GOOGLE SUBPOENA AS TO THOSE DEFENDANTS WHO WERE NOT REPRESENTED AND HAD NOT JOINED IN THE MOTION TO QUASH.

POINT II

THE TRIAL COURT ERRED IN FINDING THAT PLAINTIFFS HAD NOT PRESENTED PRIMA FACIE CLAIMS OF DEFAMATION AS ...


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