Review Boost v. Doe - Response To Motion To Compel

Michael K Jeanes, Clerk of Court *** Electronically Filed *** Kelle Dyer 3/8/2013 4:32:00 PM Filing ID 5150273
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GINGRAS LAW OFFICE, PLLC 4025 E. CHANDLER BLVD., #70-A26 PHOENIX, AZ 85048
David S. Gingras, #021097 Gingras Law Office, PLLC 4025 E. Chandler Blvd., #70-A26 Phoenix, AZ 85048 Tel.: (480) 264-1400 Fax: (480) 248-3196 David@Gingraslaw.com Attorney for non-party Xcentric Ventures, LLC ARIZONA SUPERIOR COURT COUNTY OF MARICOPA INTRAVAS, INC, a California corporation, d.b.a. REVIEW BOOST, Plaintiff, vs. JOHN DOES 1-10; JANE DOES 1-10; ABC PARTNERSHIPS I-X; DEF LIMITED LIABILITY COMPANIES I-X; and XYZ CORPORATIONS I-X, Defendants. Non-party XCENTRIC VENTURES, LLC (Xcentric) respectfully submits the following response to Plaintiff INTRAVAS, INC.s (Intravas or Plaintiff) Motion to Compel. As explained herein, Plaintiff has not met the applicable standards for obtaining the information it is seeking. As such, the motion should be denied. I. INTRODUCTION The question before the court is simpleshould Xcentric be ordered to disclose the identity of a third party who posted a complaint about Plaintiffs business on Xcentrics website? The facts relevant to that question are as follows. Xcentric owns and operates a website called the Ripoff Report located at www.ripoffreport.com. As the name suggests, the site allows consumers to post complaints and comments about businesses or individuals who they feel have wronged them in some manner.
RESPONSE TO MOTION TO COMPEL CASE NO.: CV2012-013872
Case No: CV2012-013872 NON-PARTY XCENTRIC VENTURES, LLCS RESPONSE TO PLAINTIFFS MOTION TO COMPEL (Assigned to Hon. Arthur Anderson)
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GINGRAS LAW OFFICE, PLLC 4025 E. CHANDLER BLVD., #70-A26 PHOENIX, ARIZONA 85048
Although the instant motion is virtually devoid of any discussion or explanation of Plaintiffs business, it appears that Plaintiff is in the business of, among other things, helping companies to boost their online reputation. According to its website (www.reviewboost.com) Plaintiffs services appear to include interviewing or surveying a clients customers and collecting their feedback, presumably for the purpose of inducing or encouraging those customers to post favorable online reviews about the clients business, thus helping to improve the clients online reputation. On October 17, 2012, a third party posted an extremely short complaint on www.ripoffreport.com describing the authors dissatisfaction with Plaintiffs services. In its entirety, the complaint (a complete copy of which is included within Exhibit A to Plaintiffs motion) reads as follows: Complaint Review: reviewboost.com Lots of promises about being able to post positive reviews to Google. $500 got me 1 review. Afterwards, lots of excuses that you did not hear when they are accepting your money. Beware! Plaintiff claims this review is defamatory and is causing irreparable harm to its business. The review is semi-anonymous (the complaint states that it was submitted by Jimt from Amarillo, Texas). Because Jimt is presumably a pseudonym, Plaintiff has served Xcentric with a subpoena asking it to produce information that would reveal the true identity of Jimt. As noted in Plaintiffs motion, subpoenas of this type raise substantial First Amendment concerns. For that reason and because Xcentric has received hundreds of similar subpoenas, it has adopted a subpoena-processing protocol which is explained on its website here: http://www.ripoffreport.com/ConsumersSayThankYou/FalseReport.aspx. In short, Xcentrics protocol requests that parties seeking information about an anonymous author follow the steps described in the controlling Arizona Court of Appeals case on this issue, Mobilisa v. Doe, 217 Ariz. 103, 170 P.3d 712 (Ariz.App. 2007).
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Once a subpoena has been issued, step #1 in this process requires the plaintiff to give notice to the author informing him/her of the attempt to discovery their identity. In this case, Plaintiff has complied with the notice requirement, so only the second and third steps are relevant. The second and third steps of the process are much more substantive than the first. In sum, the second step requires the plaintiff to demonstrate that it could survive a hypothetical Motion for Summary Judgment filed by the anonymous defendant. See Mobilisa, 217 Ariz. at 111 (holding, We therefore adopt the second step from [Doe v. Cahill, 884 A.2d 451 (Del. 2005)] that requires the requesting party to demonstrate it would survive a motion for summary judgment filed by Doe on all of the elements within the requesting partys controlin other words, all elements not dependent upon knowing the identity of the anonymous speaker. Requiring the requesting party to satisfy this step furthers the goal of compelling identification of anonymous internet speakers only as a means to redress legitimate misuses of speech rather than as a means to retaliate against or chill legitimate uses of speech.) If the plaintiff cannot make this showing, then the inquiry ends and the request to reveal the authors identity must be denied. On the other hand, if the plaintiff can show that it would survive summary judgment, then the court must proceed to the third step which is essentially an equitable balancing test. See Mobilisa, 217 Ariz. at 11112. This flexible test focuses on various questions such as: Does the plaintiff really need to know the anonymous speakers identity or are there other known witnesses with the same information? Has the plaintiff exhausted other means of learning the authors identity? Are there any other equitable considerations for denying the plaintiffs request? As to the last point, Mobilisa directs courts to consider the type of speech involved, the speakers expectation of privacy, the potential consequence of a discovery order to the speaker and others similarly situated, the need for the identity of the speaker 3
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to advance the requesting partys position, and the availability of alternative discovery methods. Id. at 111. With these points in mind, Xcentrics position is simplePlaintiff has failed to show that it could survive a hypothetical Motion for Summary Judgment because it has failed to offer evidence showing the post is actually false. For that reason, the inquiry ends and the motion should be denied without any need to consider Mobilisas third step. II. ARGUMENT a. Preliminary Remarks Before discussing the merits of the instant motion, Xcentric notes that Plaintiffs motion does not contain the certificate of good faith required by Ariz. R. Civ. P. 37(a)(2)(C). This point is not surprising because Plaintiffs counsel did not, in fact, meet and confer with Xcentrics counsel before filing the instant motion. Ordinarily, this would represent sufficient grounds to summarily deny the motion. However, after the motion was filed (albeit before undersigned counsel was aware the motion was filed) the issues were discussed extensively between counsel. Because this discussion may offer some helpful context which is not otherwise mentioned in Plaintiffs motion, Xcentric offers the following additional information. Immediately after receiving Plaintiffs original subpoena, Xcentric contacted the author of the disputed post to inform the author of the subpoena and to ask if the author had any evidence showing that the report was true. The author immediately responded and provided documentation showing that the author was, in fact, an actual customer of Plaintiff. Furthermore, the author produced information showing that he/she had complained to Plaintiff about the poor results obtained and that Plaintiff apparently offered various excuses for these poor results. Despite producing this information, the author asked Xcentric to attempt to preserve the authors anonymity if possible. Of course, as a practical matter Xcentric could not disclose the information provided by the author to Plaintiff since this would necessarily require it to disclose the authors identity. Faced with that conundrum, undersigned counsel proposed a solution 4
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if Plaintiff truly insisted that the post was false and actionable, then Plaintiff would need to provide an affidavit which unequivocally avowed that the post was entirely false and not substantially true. During this discussion, it was made clear that the affidavit needed to be clear and unequivocal, the point being to leave no wiggle room for Plaintiff to deny the literal accuracy of the post without directly denying its substance. This situation has been described by other courts as a negative pregnant, i.e., a denial of the literal truth of the total statement, but not of its substance. Vogel v. Felice, 127 Cal.App.4th 1006, 1021, 26 Cal.Rptr.3d 350, 362 (Cal.App.6th Dist. 2005) (discussing plaintiffs perfunctory denial of allegation that he owed thousands to his wife and kids and noting, By denying a debt in a specified amount, it leaves open the possibility of a debt in some other, perhaps substantially equivalent, amount. Thus if thousands means $2,000 or more, Vogels simple negation leaves open the possibility that he owes $1,999.99, in which case the challenged statement remains substantially true.) In this situation, a plaintiffs use of a negative pregnant affidavit does not establish that the underlying post is false. See Vogel, 127 Cal.App.4th at 1022 (explaining, [plaintiffs] failure to plainly refute the defamatory imputation by stating the true facts may be understood to imply that he did in fact continue to owe substantial amounts of unpaid child support. Certainly it was insufficient to establish his ability to prove the substantial falsity of the imputations that he was a deadbeat dad who owed thousands.) Because Mobilisa requires the requesting party to demonstrate the ability to defeat a hypothetical Motion for Summary Judgment, Xcentrics position was (and still is) that without a clear, unequivocal affidavit denying the facts contained in Jimts Ripoff Report post, Plaintiff could not satisfy the burden imposed by Mobilisas second step. In an effort to resolve the issue, undersigned counsel took the extra step of preparing and forwarding a proposed affidavit to Plaintiffs counsel for Plaintiff to sign. A copy of the draft affidavit is attached hereto as Exhibit A. This one-page affidavit was extremely simpleit merely recited the facts contained in the report and then asked the witness to unequivocally avow that those facts 5
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were totally and completely false. In order to foreclose the problem of a negative pregnant, the affidavit also required the witness to affirmatively refute the factual allegations of the report directly. For instance, the Ripoff Report posting alleged: $500 got me 1 review. The proposed affidavit directly refuted that by avowing: Review Boost has never at any time received $500 from a customer who later complained about only having received 1 review. After discussing the matter, undersigned counsel made it clear that if Plaintiff was willing to execute the proposed affidavit, Xcentric would have no choice but to withdraw its objection and comply with the subpoena (assuming no Motion to Quash was filed by the author). Unfortunately, this did not occur. Instead, Plaintiff refused to sign Xcentrics proposed affidavit and instead provided a far less specific and for more equivocal statementas reflected in the affidavit attached to Plaintiffs motion as Exhibit B. Xcentric believes that this watered-down affidavit fails to show the statements in the Ripoff Report are false for exactly the same reasons descried in Vogel v. Felice; i.e., they attempt to deny the literaly accuracy of the complaint without in any way addressing its substance. For that reason, Xcentric maintained its original objection. b. Plaintiff Has Failed To Prove The Report Is False Against this backdrop, the court must answer just one simple questionhas Plaintiff offered admissible evidence sufficient to show that it has a valid, viable claim against the author? In other words, Plaintiff must supply evidence sufficient to create a triable issue of fact as to its defamation claim. See Mobilisa, 217 Ariz. at 111, 170 P.3d at 720; see also Best Western Intl, Inc. v. Doe, 2006 WL 2091695, *4 (D.Ariz. 2006) (holding, [T]o obtain discovery of an anonymous defendants identity under the summary judgment standard, a defamation plaintiff must submit sufficient evidence to establish a prima facie case for each essential element of the claim in question. In other words, the defamation plaintiff, as the party bearing the burden of proof at trial, must 6
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The current
motion followed.
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introduce evidence creating a genuine issue of material fact for all elements of a defamation claim within plaintiffs control.) Of course, the sine qua non of any defamation action is a false statement of fact; To be defamatory, a publication must be false and must bring the defamed person into disrepute, contempt, or ridicule, or must impeach plaintiff's honesty, integrity, virtue, or reputation. Godbehere v. Phoenix Newspapers, Inc., 162 Ariz. 335, 341, 783 P.2d 781, 787 (1989) (empahsis added). Furthermore, because Arizona recognizes the doctrine of substantial truth, mere technical errors are not sufficient. Even if a statement contains one or more factual inaccuracies, it remains non-actionable if it is otherwise substantially true; Slight inaccuracies will not prevent a statement from being true in substance, as long as the gist or sting of the publication is justified. Read v. Phoenix Newspapers, Inc., 169 Ariz. 353, 355, 819 P.2d 939, 941 (1991) (quoting Heuisler v. Phoenix Newspapers, Inc., 168 Ariz. 278, 285 n. 4, 812 P.2d 1096, 1103 n. 4 (App. 1991)). Thus, the real question here is whether Plaintiff has demonstrated the presence of at least one substantially false and defamatory statement of fact in the four-sentence, 33-word posting on www.ripoffreport.com. As low as this hurdle seems, Xcentrics position is that Plaintiff has failed to clear it because the only evidence it offers is an affidavit which fails to directly rebut the actual factual allegations contained in the anonymous post. Specifically, the post contains only three1 basic contentions: 1.) 2.) 3.) Lots of promises about being able to post positive reviews to Google; $500 got me 1 review. And: Afterwards, lots of excuses that you did not hear when they are accepting your money.
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Taking the middle point first, Plaintiffs affidavit simply does not address the question of whether any customer has ever paid $500 to Plaintiff for services that resulted in only a single positive review (or an equivalently disappointing result). Plaintiffs The cautionary term beware is plainly a non-actionable expression of opinion that cannot support a defamation claim. 7
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RESPONSE TO MOTION TO COMPEL
CASE NO.: CV2012-013872
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affidavit is simply silent on that issue. As a result, Plaintiff has failed show that portion of the post is false, either completely or substantially. Likewise, as to the first contention about Plaintiff making lots of promises about being able to post positive reviews to Google, the only response offered to rebut this is: Review Boost has never at any time made any unqualified promises and/or guarantees to any customer about being able to post positive reviews to Google. The problem with this denial is that it simply does not correspond with the actual statement in the post. In other words, the report at issue does not say that Plaintiff guaranteed any results, so Plaintiffs denial on that point is meaningless. Further, the report does not say that Plaintiff made unqualified promises -- it simply says that Plaintiff offered lots of promises; hardly a shocking allegation to be leveled against any seller of intangible services such as Plaintiff. Ultimately, the fact remains that Plaintiff has failed to directly respond to that specific allegation (as it easily could have done). This should be interpreted as an admission that the claim is true or, at least, that Plaintiff has failed to prove the statement is not substantially true. See Vogel, 127 Cal.App.4th at 1022 (finding, [plaintiffs] failure to plainly refute the defamatory imputation by stating the true facts may be understood to imply that [the allegations were true]. This is exactly the negative pregnant scenario described above. This conclusion is, in fact, also supported by the odd wording of 8 of Plaintiffs affidavit which asserts The Postings [sic] seek to impeach Review Boosts credibility, honesty, and reputation because they imply that Review Boost knowingly made false promises to obtain money from the Defendant. Again, this simply misconstrues the actual language of the post which does NOT allege that Plaintiff knowingly made any false promises. Instead, the post simply says that the author/customer was presented with lots of promises about being able to post positive reviews to Google (a point Plaintiff does not directly deny, followed by a statement that the author/customer was disappointed in the results after only one review was obtained (which Plaintiff also does not deny). 8
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Plaintiff seems to concede that these facts are true, but it nevertheless strains to argue that they carry a defamatory implication because they suggest that at the time the promises were made regarding the future results, Plaintiff knew those results were unattainable but made the promises anyway in order to obtain money from the author. In plain English, Plaintiff interprets the report as falsely implying that it defrauded the author. This is simply not a valid argument because as a matter of law, even if Plaintiff did make false promises about future results, this would not be actionable as fraud absent a showing that the Plaintiff had no present intent of performing. See Staheli v. Kauffman, 122 Ariz. 380, 384, 595 P.2d 172, 175 (1979) (explaining, In order that a representation constitute actionable fraud, it must relate to either a past or existing fact. It cannot be predicated on unfulfilled promises, expressions of intention or statements concerning future events unless such were made with the present intention not to perform.); see also Arnold & Associates, Inc. v. Misys Healthcare, 275 F.Supp.2d 1013, 1027 (D.Ariz. 2003) (same). Here, no reasonable person viewing the report would agree that it accuses Plaintiff of actual fraud in the sense that Plaintiff took money from the author without any intent of performing. On the contrary, the report specifically states that the Plaintiff did perform -by obtaining one positive review for the author. Thus, the report does not accuse the Plaintiff of fraud; it merely accuses the Plaintiff of failing to accomplish the level of success that was initially promiseda point which Plaintiff does not deny. In light of these facts, Plaintiff has failed to demonstrate that the post contains any false statements of fact. Without that showing, Plaintiff cannot satisfy Mobilisas second prong and on that basis alone, the Motion to Compel should be denied. Furthermore, although the court need go no further, in determining whether Plaintiff has proven the original post to be actionable, it is worth nothing the facts of this matter are similar if not identical to those discussed in Global Telemedia, Inc. v. Doe, 132 F.Supp.2d 1261 (C.D.Cal. 2001). Like this case, Global Telemedia involved an attempt 9
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to pursue anonymous authors for negative complaints posted on the Internet. In general, the comments at issue accused the plaintiff of financial mismanagement and potential fraud, suggesting that the executives intended to fly the coop, taking their investors money with them. Like in this case, the plaintiff argued these comments were actionable because they impliedly accused it of unlawful conduct; Plaintiffs argue that fly the coop again is stating a fact that GTMI not only intends to steal investor money, but that such theft is or will be merely a repeat of a previous GTMI theft. This is not opinion, but an outright accusation of criminal intention coupled with proof based on alleged albeit unstated prior criminality. F.Supp.2d at 1269. The district court rejected plaintiffs arguments, finding that despite certain apparent factual allegations, the anonymous online posts were nothing more than the nonactionable opinions of the authors: Here, in the context of the full message, [the authors] comments are hyperbolic and figurative. The posting is also in response to another posting, making it less likely to be a statement of fact. Given the tone and context of the message, a reasonable reader would not take this to be anything more than a disappointed investor who is making sarcastic cracks about the company. Id. at 1268. The same is true here. The post at issue is extremely brief, and viewed as a whole, it suggests nothing more than the fact that the author hired Plaintiff to perform some sort of online reputation management services, the results were lackluster, and Plaintiff offered various excuses for the poor results. Given that Plaintiff does not deny any of these points, whatever implied meaning a reader may find in the post is ultimately nothing more than the authors reasonable expression of opinion and assumption based on the facts he/she describes. Thus, for a second reason Plaintiff cannot show it would survive summary judgment. This is so because opinions based on disclosed facts are non-actionable as a matter of law; although there is no categorical constitutional defense for statements of 10
Global Telemedia, 132
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opinion, the First Amendment will fully protect statements that cannot reasonably [be] interpreted as stating actual facts about an individual. Snyder v. Phelps, 580 F.3d 206, 218 (4th Cir. 2009) (emphasis added), affd, 131 S.Ct. 1207 (2011) (quoting Milkovich v. Lorain Journal Co., 497 U.S. 1, 22, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990)); see also Knievel v. ESPN, 393 F.3d 1068, 1074 (9th Cir. 2005) (holding, The First Amendment protects statements that cannot reasonably [be] interpreted as stating actual facts about an individual. Courts have extended First Amendment protection to such statements in recognition of the reality that exaggeration and non-literal commentary have become an integral part of social discourse.) (internal quotation marks omitted). III. CONCLUSION For the reasons stated, Plaintiffs Motion to Compel should be denied. RESPECTFULLY SUBMITTED: March 8, 2013. GINGRAS LAW OFFICE, PLLC /S/ David S. Gingras David S. Gingras Attorney for Xcentric Ventures, LLC
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GINGRAS LAW OFFICE, PLLC 4025 E. CHANDLER BLVD., #70-A26 PHOENIX, AZ 85048
ORIGINAL e-filed this 8th day of March 2013 and a COPY of the foregoing delivered to: Hon. Arthur Anderson ECB, Courtroom 511 101 W. Jefferson Phoenix, AZ. 85003-2243 And a COPY mailed to: Daniel R. Warner, Esq. Kelly / Warner, PLLC 404 S. Mill Ave., Suite C-201 Tempe, AZ 82581 Attorney for Plaintiff /s/ David S. Gingras
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Exhibit A
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GINGRAS LAW OFFICE, PLLC 3961 E. CHANDLER BLVD., #111-243 PHOENIX, ARIZONA 85048
AFFIDAVIT OF BRAD MERKEL I, BRAD MERKEL declare as follows: 1. My name is BRAD MERKEL. I am a resident of the State of California, am over the age of 18 years, and if called to testify in court I could and would truthfully testify to the following information based upon my own personal knowledge. 2. 3. I am employed by INTRAVAS, INC., d/b/a REVIEW BOOST (Review I am aware that on October 17, 2012, a complaint about Review Boost was Boost) and I am familiar with Review Boosts business practices and business records. posted on the website www.RipoffReport.com. The complaint #956097 is located here: http://www.ripoffreport.com/reviewboost-com/internet-services/internetinternet-internete507c.htm and it reads as follows: Lots of promises about being able to post positive reviews to Google. $500 got me 1 review. Afterwards, lots of excuses that you did not hear when they are accepting your money. Beware! 4. 5. 6. 7. Review Boost has never at any time made any promises to any customer Review Boost has never at any time received $500 from a customer who Review Boost has never at any time received any complaint from any Review Boost has never at any time offered any excuses to any customer about being able to post positive reviews to Google. later complained about only having received 1 review. customer who was unhappy about the results we obtained for them. who was unhappy about the results we obtained for them. Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. EXECUTED ON: January ____ 2013. ______________________________________ BRAD MERKEL
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Review Boost v. Doe - Response To Motion To Compel

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Michael K Jeanes, Clerk of Court * Electronically Filed * Kelle Dyer 3/8/2013 4:32:00 PM Filing ID 5150273

RESPONSE TO MOTION TO COMPEL

CASE NO.: CV2012-013872

Global Telemedia, 132

RESPONSE TO MOTION TO COMPEL CASE NO.: CV2012-013872

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