MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2017	ME	78	
Docket:	   Cum-15-558	
Argued:	   October	26,	2016	
Decided:	  May	4,	2017	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
Majority:	 SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	HJELM,	and	HUMPHREY,	JJ.	
Dissent:	  JABAR,	J.	
	
	
	
                                         MARIE	GUNNING	
                                                	
                                               v.	
                                                	
                                           JOHN	DOE	
	
	
MEAD,	J.	

        [¶1] In	August	2013,	Marie	Gunning	brought	suit	in	the	Superior	Court	

(Cumberland	 County)	 against	 the	 anonymous	 publisher	 and	 writer(s)	

(collectively	 John	 Doe)	 of	 News	 as	 Viewed	 From	 a	 Crow’s	 Nest	 (Crow’s	 Nest),	

a	 publication	 distributed	 locally	 in	 Freeport,	 Maine,	 and	 accessible	 on	 the	

Internet,1	which	Gunning	claimed	had	published	defamatory	statements	about	

her	in	several	of	its	issues.		After	a	California	court	quashed	a	subpoena	that	

Gunning	served	on	the	Crow’s	Nest’s	website	host	seeking	to	identify	Doe,	the	

Superior	 Court	 (Warren,	 J.)	 dismissed	 her	 complaint	 without	 prejudice	 for	




    1
    		Doe’s	brief	states	that	the	Crow’s	Nest	is	no	longer	available	on	the	Internet.	
2	

failure	 to	 effect	 service	 on	 the	 defendants.	 	 Gunning	 appeals	 from	 that	

judgment.		The	publisher	of	the	Crow’s	Nest	(Doe	#1)	cross-appeals,	agreeing	

with	 the	 court	 that	 Gunning	 is	 estopped	 by	 the	 California	 judgment	 from	

continuing	 to	 seek	 the	 Does’	 identities,	 and	 additionally	 contending	 that	

Gunning	 cannot	 force	 the	 Does	 to	 reveal	 their	 identities	 because	 the	 Crow’s	

Nest	 is	 both	 nonactionable	 constitutionally	 protected	 parody	 and	 protected	

anonymous	 speech.	 	 We	 conclude	 that	 Gunning	 is	 estopped	 by	 the	 prior	

California	judgment,	and	we	affirm	the	judgment	of	the	Superior	Court	without	

reaching	Doe’s	alternative	arguments.	

                             I.		FACTS	AND	PROCEDURE	

	      [¶2]	 	 In	 2011,	 Gunning	 ran	 for	 the	 Freeport	 Town	 Council	 and	 was	

defeated.		One	week	later,	the	Crow’s	Nest,	which	declares	under	its	masthead	

that	 it	 is	 “a	 parody	 look	 at	 the	 news,”	 published	 an	 “Election	 Special”	 issue,	

which	included	a	photograph	of	the	“Wicked	Witch	of	the	West”	character	from	

the	 classic	 movie	 The	 Wizard	 of	 Oz	 next	 to	 Gunning’s	 name,	 along	 with	 the	

caption	 “Aka:	 ‘Gunner	 Gunning’	 ‘Miss	 Prozac	 2003,’”	 and	 several	 purported	

quotes	from	Gunning.		Several	other	people	with	apparent	ties	to	Freeport	were	

treated	similarly.		Gunning’s	complaint	against	Doe	alleged	three	counts	of	libel	

and	one	count	each	of	false	light	and	intentional	infliction	of	emotional	distress	
                                                                                    3	

based	on	the	statements	concerning	her	in	the	“Election	Special”	issue,	as	well	

as	those	appearing	in	fifteen	subsequent	issues	of	the	Crow’s	Nest.	

	     [¶3]		Gunning	served	a	California	subpoena	on	the	Crow’s	Nest’s	website	

host,	 seeking	 the	 names,	 email	 addresses,	 and	 IP	 addresses	 of	 anyone	

associated	with	the	publication’s	website.		Does	#1	and	#2,	who	filed	written	

declarations	in	the	California	Superior	Court	stating	that	they	were	the	owner	

and	 writer,	 respectively,	 of	 the	 Crow’s	 Nest	 website,	 moved	 to	 quash	 the	

subpoena	 in	 that	 court,	 asserting	 that	 the	 Crow’s	 Nest	 was	 constitutionally	

protected	 parody	 and	 that	 they	 had	 a	 constitutional	 right	 to	 speak	

anonymously.		In	a	decision	issued	on	January	24,	2014,	the	court	granted	the	

motion	to	quash,	ruling	that		

      [Gunning]	must	make	a	prima	facie	showing	of	libel.	.	.	.	[She]	failed	
      to	make	this	prima	facie	showing.		The	Court	finds	that	while	the	
      content	of	the	Crow’s	Nest	could	be	seen	as	rude	and	distasteful,	
      taking	 into	 consideration	 the	 context	 and	 contents	 of	 the	
      statements	at	issue,	it	is	a	parody.		The	speech	at	issue	in	the	Crow’s	
      Nest	 is	 protected	 under	 the	 First	 Amendment	 of	 the	
      U.S.	Constitution.		The	statements	are	not	actionable	speech	such	
      that	the	identities	of	the	website	owner	and	persons	who	comment	
      or	 otherwise	 publish	 material	 printed	 in	 or	 posted	 online	 at	 the	
      Crow’s	Nest	must	be	revealed	pursuant	to	the	subpoena.	
      	
Doe	v.	Gunning,	No.	CPF-13-513271	(Cal.	Super.	Ct.	S.F.	County	Jan.	24,	2014).	

	     [¶4]		Gunning	did	not	appeal	the	California	judgment.		Three	months	after	

that	judgment	issued,	Gunning	served	a	Maine	subpoena	on	a	Town	of	Freeport	
4	

employee	in	order	to	depose	him	to	learn	whether	he	was	the	writer	for	the	

Crow’s	Nest.		The	employee	objected	to	the	subpoena	and	provided	an	affidavit	

averring	that	he	had	never	had	anything	to	do	with	the	Crow’s	Nest	and	had	no	

knowledge	of	anyone	who	did.		Fourteen	months	later,	the	employee,	stating	

that	Gunning	again	sought	to	depose	him,	moved	to	quash	the	subpoena	on	the	

grounds	 that	 Gunning	 was	 collaterally	 estopped	 by	 the	 California	 judgment	

from	further	discovery	seeking	to	learn	the	identities	of	Does	#1	and	#2,	and	

that	her	complaint	failed	to	state	a	claim	that	could	survive	First	Amendment	

scrutiny.2		Doe	#1	separately	moved	to	quash	the	employee’s	subpoena	and	“to	

bar	 Gunning	 from	 issuing	 any	 other	 process	 to	 compel	 the	 disclosure	 of	 the	

anonymous	speakers	named	in	her	Complaint,	and	to	enter	an	order	dismissing	

the	Complaint.”	

	        [¶5]		On	October	22,	2015,	the	Superior	Court	issued	an	order	granting	

the	motion	to	quash	and	dismissing	Gunning’s	complaint	without	prejudice	for	

failure	to	effectuate	service	pursuant	to	M.R.	Civ.	P.	3.3		The	court	said	that	“[l]eft	

to	its	own	devices”	it	would	“conclude	that	[G]unning	has	set	forth	a	prima	facie	


     2
     		The	court	ruled	that	the	employee’s	standing	to	make	those	arguments	was	not	at	issue	because	
Doe	#1	also	moved	to	quash	the	subpoena.	
   	
   3
     		Although	the	Rule	ordinarily	requires	service	“within	90	days	after	the	filing	of	the	complaint,”	
M.R.	 Civ.	 P.	 3,	 the	 court	 explained	 that	 an	 extension	 of	 that	 deadline	 was	 implicit	 in	 its	 discovery	
orders	in	the	case.	
                                                                                          5	

case	and	that	she	has	submitted	evidence	sufficient	to	support	the	elements	of	

her	libel	claim.”		The	court	found,	however,	that	although	it	“would	be	inclined	

to	 find	 that	 there	 is	 at	 least	 a	 factual	 dispute	 as	 to	 whether	 [one	 specific]	

description	 of	 Gunning	 .	 .	 .	 would	 reasonably	 be	 understood	 to	 constitute	 a	

parody”	and	therefore	be	entitled	to	First	Amendment	protection,	

       the	court	is	not	writing	on	a	clean	slate	on	that	issue.	.	.	.	[W]hether	
       or	 not	 this	 court	 agrees	 with	 the	 California	 ruling,	 the	 issue	 of	
       whether	Gunning	has	made	the	necessary	prima	facie	showing	[of	
       an	 actionable	 claim]	 was	 actually	 litigated	 in	 California,	 was	
       decided	adversely	to	Gunning,	and	was	essential	to	the	outcome	of	
       the	California	action.	.	.	.	No	appeal	was	sought.		Accordingly,	the	
       California	 decision	 is	 entitled	 to	 collateral	 estoppel	 effect	 and	
       precludes	Gunning	from	relitigating	the	same	issue	here	in	Maine.	
       	
	      [¶6]	 	 Accordingly,	 the	 court	 quashed	 the	 subpoena	 and	 dismissed	 the	

complaint	 for	 lack	 of	 service	 on	 the	 Does.	 	 Gunning	 appealed	 and	 Doe	 #1	

cross-appealed.	

                                    II.		DISCUSSION	

	      [¶7]		We	first	address	the	question	of	whether	Gunning	is	precluded	from	

relitigating	in	Maine	the	issue	of	the	constitutional	protection	afforded	to	the	

statements	 made	 about	 her	 in	 the	 Crow’s	 Nest.	 	 If	 she	 is,	 then	 the	 California	

court’s	 determination	 that	 the	 statements	 are	 parody	 protected	 by	 the	

First	 Amendment	 controls,	 and	 Gunning’s	 libel	 complaint	 fails	 to	 state	 an	
6	

actionable	claim.4		In	that	event,	the	trial	court	did	not	abuse	its	discretion	in	

quashing	the	Freeport	employee’s	subpoena,	and	we	need	not	reach	the	Does’	

contention	 that	 the	 statements	 in	 the	 Crow’s	 Nest,	 if	 reviewed	 de	 novo,	 are	

entitled	 to	 protection	 either	 as	 constitutionally	 protected	 parody	 or	 as	

anonymous	 speech.	 	 See	 State	 v.	 Marroquin-Aldana,	 2014	 ME	 47,	 ¶	 33,	

89	A.3d	519	(“We	review	a	court’s	decision	on	a	motion	to	quash	for	an	abuse	

of	discretion.”).	

	        [¶8]		The	California	judgment	is	conclusive	to	the	extent	that	it	quashed	

the	subpoena	issued	to	the	Crow’s	Nest’s	website	host,	a	result	concerning	a	

discrete	collateral	issue	related	to	Gunning’s	suit	that	she	does	not	challenge.		

See	Baker	v.	Gen.	Motors	Corp.,	522	U.S.	222,	233	(1998)	(holding	that	pursuant	

to	the	Full	Faith	and	Credit	Clause,	“the	judgment	of	the	rendering	State	gains	


     4
     	 	 The	 elements	 of	 a	 libel	 claim	 are	 “a	 false	 and	 defamatory	 statement	 concerning	 another;	 an	
unprivileged	publication	to	a	third	party;	fault	amounting	at	least	to	negligence	on	the	part	of	the	
publisher;	and	either	actionability	of	the	statement	irrespective	of	special	harm	or	the	existence	of	
special	 harm	 caused	 by	 the	 publication.”	 	 Cole	 v.	 Chandler,	 2000	 ME	 104,	 ¶	 5,	 752	 A.2d	 1189	
(list	 headings	 omitted).	 Gunning’s	 false	 light	 claim	 is	 similar,	 except	 that	 it	 involves	 propagating	
defamatory	information	through	“publicity”	rather	than	by	“publication.”		Id.	¶	17.		If	the	statements	
in	 the	 Crow’s	 Nest	 are	 constitutionally	 protected,	 then	 they	 are	 not	 “unprivileged,”	 and	 Gunning	
cannot	satisfy	the	second	element	of	a	libel	claim.		See	Simmons,	Zillman	&	Gregory,	Maine	Tort	Law	
§	13-11	at	13-19	(2004	ed.)	(“[A	defamation]	action	that	meets	all	state	common	law	requirements	
for	 recovery	 may	 fail	 because	 a	 recovery	 for	 the	 plaintiff	 would	 unconstitutionally	 abridge	 the	
freedom	of	speech	and	press.”).		If	Gunning’s	libel	claim	fails	for	that	reason,	her	claim	for	intentional	
infliction	of	emotional	distress	fails	as	well.		See	Shay	v.	Walters,	702	F.3d	76,	83	(1st	Cir.	2012)	(“The	
Supreme	Court	has	made	it	pellucid	that	a	failed	defamation	claim	cannot	be	recycled	as	a	tort	claim	
for	negligent	or	intentional	infliction	of	emotional	distress.”);	Ault	v.	Hustler	Magazine,	860	F.2d	877,	
880	 &	 n.1	 (9th	 Cir.	 1988)	 (“There	 is	 no	 independent	 cause	 of	 action	 for	 intentional	 infliction	 of	
emotional	 distress	 based	 on	 the	 very	 same	 acts	 which	 are	 insufficient	 to	 support	 an	 action	 for	
defamation.”),	cert.	denied,	489	U.S.	1080	(1989).	
                                                                                      7	

nationwide	 force”).	 	 Maine	 law,	 however,	 determines	 whether	 the	 judgment	

acts	to	foreclose	Gunning’s	claims	in	this	State.		See	Restatement	(Second)	of	

Conflict	of	Laws	§	95	cmt.	c	(Am.	Law	Inst.	Supp.	1989	revisions)	(“[L]ocal	law	

of	the	State	where	the	judgment	was	rendered	.	.	.	will	be	consulted	to	determine	

whether	the	judgment	affects	the	claim	or	only	some	incidental	issue.		If	under	

this	law	the	judgment	was	not	on	the	merits	and	settled	only	some	incidental	

issue	.	.	.	the	judgment	will	be	held	conclusive	in	other	States	only	as	to	the	issue	

decided	and	the	plaintiff	will	remain	free	to	maintain	an	action	on	the	original	

claim.”).	

	     [¶9]	 	 In	 beginning	 that	 analysis,	 we	 have	 explained,	 applying	

well-established	law,	that	

      [c]ollateral	 estoppel	 is	 the	 issue	 preclusion	 component	 of	 the	
      principle	 of	 res	 judicata.	 	 It	 prevents	 the	 relitigation	 of	 factual	
      issues	 already	 decided	 if	 the	 identical	 issue	 was	 determined	 by	 a	
      prior	final	judgment,	and	the	party	estopped	had	a	fair	opportunity	
      and	 incentive	 to	 litigate	 the	 issue	 in	 a	 prior	 proceeding.	 .	 .	 .	 The	
      court’s	 conclusion	 that	 collateral	 estoppel	 applies	 is	 a	 legal	
      determination;	our	review	of	that	conclusion	is	therefore	de	novo.	
      	
Gray	v.	TD	Bank,	N.A.,	2012	ME	83,	¶	10,	45	A.3d	735	(alteration	and	quotation	

marks	 omitted)	 (emphases	 added);	 see	 Macomber	 v.	 MacQuinn-Tweedie,	

2003	ME	121,	¶	22,	834	A.2d	131	(stating	that	“[w]e	have	long	recognized	that	
8	

the	doctrine	of	res	judicata	has	two	prongs,”	including	“[i]ssue	preclusion,	also	

referred	to	as	collateral	estoppel,”	and	claim	preclusion).	

A.	    Identical	Issue	     	

	      [¶10]		Concerning	the	first	element,	the	issue	decided	by	the	California	

court	and	that	to	be	decided	by	Maine	courts	if	Gunning	is	not	estopped	from	

relitigating	it	is	the	same—did	Gunning	make	out	a	prima	facie	showing	of	libel,	

or	 were	 the	 statements	 made	 about	 her	 in	 the	 Crow’s	 Nest	 shielded	 by	 the	

First	Amendment	from	being	the	basis	for	a	libel	claim.		The	trial	court	correctly	

found	that	“Gunning	previously	litigated	that	issue	in	California[.]”	

B.	    Final	Judgment	      	

	      [¶11]		Gunning	vigorously	contests	the	court’s	determination	that	“[t]he	

decision	 of	 the	 California	 Superior	 Court	 constituted	 a	 final	 decision	 on	

Gunning’s	application	for	interstate	discovery.”		Nonetheless,	the	only	issue	that	

the	California	court	was	asked	to	decide	was	whether	the	subpoena	directed	to	

the	Crow’s	Nest’s	website	host	should	be	quashed.		Once	it	did	so,	there	was	

nothing	 left	 for	 the	 California	 court	 to	 consider.	 	 See	 Fitzgerald	 v.	 Bilodeau,	

2006	ME	122,	¶	4,	908	A.2d	1212	(“[A]	judgment	is	final,	and	not	interlocutory,	

when:	(1)	the	trial	court’s	action	fully	decides	and	disposes	of	the	whole	matter	

leaving	nothing	further	for	the	consideration	and	judgment	of	the	trial	court;	
                                                                                             9	

and	(2)	no	subsequent	proceedings	in	the	case	will	render	the	appellate	court’s	

decision	 immaterial.”	 (quotation	 marks	 omitted)).	 	 The	 final	 provision	 in	 the	

California	court’s	order	and	the	final	notation	in	the	docket	entries	concern	the	

resolution	 of	 costs	 and	 attorney	 fees	 involved	 in	 adjudicating	 the	 motion—

indicative	of	a	finished	case.	

	      [¶12]	 	 Gunning’s	 argument	 that	 she	 is	 not	 estopped	 because	 appellate	

review	 of	 the	 California	 judgment	 was	 effectively	 unavailable	 to	 her	 is	 not	

persuasive.	 	 She	 points	 to	 the	 Restatement	 (Second)	 of	 Judgments	 §	 28	

(Am.	 Law	 Inst.	 1982),	 which	 provides	 that	 “relitigation	 of	 [an]	 issue	 in	 a	

subsequent	action	between	the	parties	is	not	precluded	.	.	.		[when]	[t]he	party	

against	whom	preclusion	is	sought	could	not,	as	a	matter	of	law,	have	obtained	

review	of	the	judgment	in	the	initial	action.”		The	first	comment	to	section	28	

elaborates:	“There	is	a[n]	.	.	.	exception	to	the	rule	of	preclusion	when	.	.	.	appeal	

does	not	lie[]	by	.	.	.	extraordinary	writ[.]”		Id.	cmt.	a.	

	      [¶13]	 	 The	 Restatement	 limits	 the	 exception,	 however,	 in	 saying	 that	

“[t]he	 [section	 28]	 exception	 .	 .	 .	 applies	 only	 when	 review	 is	 precluded	 as	 a	

matter	 of	 law.	 	 It	 does	 not	 apply	 in	 cases	 where	 review	 is	 available	 but	 is	 not	

sought.”	 	 Id.	 (emphasis	 added).	 	 Here,	 review	 of	 the	 order	 quashing	 the	

subpoena	was	available	by	extraordinary	writ	pursuant	to	the	California	Code	
10	

of	Civil	Procedure,5	but	Gunning	opted	not	to	seek	such	review.		Accordingly,	

the	Restatement	exception	to	the	collateral	estoppel	doctrine	that	is	invoked	

when	no	appellate	review	is	available	does	not	apply.	

	       [¶14]		Although	Gunning	argues	that	she	would	have	been	required	to	

show	“immediate	harm”	in	order	to	obtain	an	extraordinary	writ	and	chose	not	

to	file	a	petition	because	she	believed	she	would	have	been	unsuccessful,	it	was	

for	the	California	courts,	and	not	Gunning,	to	say	that	the	likely	termination	of	

her	Maine	lawsuit	was	not	a	qualifying	“immediate	harm,”	or	that	some	other	

ground	for	granting	a	writ	under	California	law	did	not	apply.	

	       [¶15]	 	 Like	 Gunning,	 the	 dissent	 goes	 to	 great	 lengths	 to	 predict	 an	

adverse	 ruling	 by	 California’s	 appellate	 courts	 had	 Gunning	 pursued	

an	 extraordinary	 writ.	 	 Dissenting	 Opinion	 ¶¶	 23-26.	 	 That	 would	 be	 an	

unnecessary	 exercise	 if	 Gunning	 had	 requested	 a	 writ,	 as	 was	 her	 right.		

See	 Cal.	 Civ.	 Proc.	 Code	 §	 2029.650(a) (Deering,	 LEXIS	 through	 ch.	 4	 of	 the	

2017	 Reg.	 Sess.).	 	 In	 any	 event,	 we	 are	 not	 a	 California	 court,	 and	 it	 is	




    5
       		The	California	Code	of	Civil	Procedure	provides:	“If	a	dispute	arises	relating	to	discovery	.	.	.	any	
request	.	.	.	to	enforce,	quash,	or	modify	a	subpoena,	or	for	other	relief	may	be	filed	in	the	superior	
court	in	the	county	in	which	discovery	is	to	be	conducted	.	.	.	.”		Cal.	Civ.	Proc.	Code	§	2029.600(a)	
(Deering,	LEXIS	through	ch.	4	of	the	2017	Reg.	Sess.).		Thereafter,	“[i]f	a	superior	court	issues	an	order	
.	.	.	resolving	a	petition	under	Section	2029.600	.	.	.	a	person	aggrieved	by	the	order	may	petition	the	
appropriate	 court	 of	 appeal	 for	 an	 extraordinary	 writ.”	 	 Cal.	 Civ.	 Proc.	 Code	 §	 2029.650(a)	
(Deering,	LEXIS	through	ch.	4	of	the	2017	Reg.	Sess.).	
                                                                                       11	

indisputably	true	that	Gunning	did	not	pursue	the	avenue	of	appellate	review	

available	to	her	under	California	law—the	venue	that	she	chose.		Had	she	done	

so,	 in	 addition	 to	 having	 a	 stronger	 argument	 in	 this	 appeal,	 that	 state’s	

appellate	courts	would	have	had	an	opportunity	to	address	what	Gunning	and	

the	dissent	contend	are	serious	errors	of	law	in	the	California	Superior	Court’s	

decision.		See	Dissenting	Opinion	¶	35.	

C.	   Fair	Opportunity	and	Incentive	

	     [¶16]		Gunning	asserts	that	although	in	furtherance	of	her	Maine	lawsuit	

she	 caused	 a	 subpoena	 to	 be	 served	 in	 California	 and	 then	 fully	 litigated	 the	

Does’	motion	to	quash	it,	she	“did	not	have	a	full	and	fair	incentive	to	litigate	

the	issue	in	the	California	court”	because	“she	had	another	avenue	available	to	

her	from	which	to	seek	disclosure	of	the	Crow’s	Nest	authors:	the	depositions	

that	 were	 being	 sought	 in	 Maine.”	 	 That	 position	 is	 counterintuitive	 at	 best.		

A	plaintiff	in	Gunning’s	situation	would	be	very	motivated	to	litigate	a	motion	

that	 (1)	 presumably	 involved	 considerable	 time	 and	 expense	 to	 pursue;	

(2)	 would	 have	 potentially	 yielded	 all	 of	 what	 she	 continues	 to	 seek	 had	 it	

succeeded,	namely	the	identities	and	contact	information	of	the	website’s	host	

and	contributors;	and	(3)	would	predictably	lead,	if	the	motion	to	quash	were	

granted,	 to	 precisely	 what	 occurred—an	 effort	 to	 collaterally	 estop	 Gunning	
12	

from	 relitigating	 in	 Maine	 the	 central	 issue	 of	 whether	 the	 Crow’s	 Nest	

statements	were	actionable	at	all.	

	     [¶17]		The	Restatement	provides,	in	a	comment	captioned	“[l]ack	of	fair	

opportunity	to	litigate	in	the	initial	action,”	that		

      the	 court	 in	 [a]	 second	 proceeding	 may	 conclude	 that	 issue	
      preclusion	should	not	apply	because	the	party	sought	to	be	bound	
      did	not	have	an	adequate	opportunity	or	incentive	to	obtain	a	full	
      and	fair	adjudication	in	the	first	proceeding.		Such	a	refusal	to	give	
      the	 first	 judgment	 preclusive	 effect	 should	 not	 occur	 without	 a	
      compelling	showing	of	unfairness,	nor	should	it	be	based	simply	on	
      a	conclusion	that	the	first	determination	was	patently	erroneous.	
      	
Restatement	(Second)	of	Judgments	§	28	cmt.	j.		Gunning	does	not	make	any	

“compelling	showing	of	unfairness”	sufficient	for	us	to	conclude	that	she	lacked	

opportunity	or	incentive	to	fully	litigate	this	matter	in	California.	

	     [¶18]	 	 Furthermore,	 in	 charging	 that	 our	 decision	 is	 unfair	 to	 Gunning	

because	“we	are	allowing	the	California	law	to	prevent	[her]	from	pursuing	her	

defamation	case	in	this	state,”	Dissenting	Opinion	¶	37,	the	dissent	ignores	the	

fact	that	Gunning	had	a	full	opportunity	to	litigate	the	issue	at	hand	in	the	venue	

of	 her	 choosing.	 	 Had	 Gunning	 chosen	 to	 prosecute	 this	 Maine	 action	 by	

pursuing	discovery	in	Maine’s	courts—for	example	if	she	had	sought	to	depose	
                                                                                                13	

the	Freeport	employee	before	serving	a	subpoena	in	California,6	 or	if	she	had	

withdrawn	the	subpoena	when	the	Does’	California	motion	to	quash	raised	a	

potentially	dispositive	issue—then	the	Superior	Court	would	have	decided	the	

Freeport	 employee’s	 motion	 to	 quash	 based	 on	 Maine	 law,	 and	 either	 party	

could	have	appealed	an	adverse	ruling	to	this	Court.		Instead,	Gunning	opted,	of	

her	 own	 volition,	 to	 litigate	 a	 substantive	 issue	 in	 the	 California	 courts,	

presumably	hoping	for	a	favorable	result.		After	receiving	an	unfavorable	ruling,	

and	choosing	not	to	pursue	an	appeal	of	that	ruling,	she	cannot	simply	elect	to	

relitigate	the	very	same	issue	involving	the	same	parties	in	another	jurisdiction,	

hopeful	 of	 obtaining	 a	 more	 favorable	 result.	 	 Such	 is	 the	 long-standing,	

well-established	doctrine	of	collateral	estoppel.		See	Gray,	2012	ME	83,	¶	10,	

45	A.3d	735.	

D.	     Conclusion	

	       [¶19]	 	 Because	 the	 issue	 decided	 by	 the	 California	 court	 in	 a	 final	

judgment	was	the	same	issue	that	Gunning	seeks	to	have	a	Maine	court	revisit,	

namely	whether	the	Crow’s	Nest	enjoys	constitutional	protection	sufficient	to	

foreclose	 her	 libel	 claim,	 and	 because	 Gunning	 had	 both	 opportunity	 and	



    6
    		In	that	event,	if	the	Does	had	intervened	and	the	Maine	court	ruled	that	Gunning	had	made	out	
a	prima	facie	case	of	libel,	that	judgment	would	have	had	preclusive	effect	in	California.	
	
14	

incentive	to	litigate	that	issue	in	California,	she	is	estopped	from	relitigating	it	

in	 the	 Maine	 action.	 	 See	 id.	 	 Accordingly,	 the	 trial	 court	 did	 not	 abuse	 its	

discretion	 in	 quashing	 the	 subpoena	 served	 on	 the	 Freeport	 employee,	 or	 in	

dismissing	 Gunning’s	 complaint	 for	 lack	 of	 service	 on	 the	 defendants	 as	 a	

result.7		See	Marroquin-Aldana,	2014	ME	47,	¶	33,	89	A.3d	519;	M.R.	Civ.	P.	3.		

Having	concluded	that	the	court	did	not	err	in	finding	that	Gunning	is	precluded	

from	relitigating	the	dispositive	issue,	we	do	not	address	the	question	raised	in	

the	 cross-appeal	 of	 whether	 on	 de	 novo	 review	 we	 would	 reach	 the	 same	

conclusion	as	did	the	California	court,	and	we	offer	no	opinion	as	to	whether	

the	trial	court	correctly	articulated	Maine	law	concerning	the	extent	to	which	

anonymous	speech	is	protected.8	


   7	
      	 Gunning	 does	 not	 challenge	 the	 court’s	 statement	 that,	 by	 agreement,	 if	 the	 subpoena	 were	
quashed	 then	 she	 “had	 no	 further	 avenues	 to	 pursue	 disclosure	 of	 the	 identities	 of	 John	 Does	 #1	
and	#2.”	
	
   8
    		Although	the	trial	court	went	to	considerable	lengths	to	set	out	the	analysis	that	it	would	have	
applied	had	it	been	“writing	on	a	clean	slate”	on	the	issue	of	whether	the	Crow’s	Nest’s	statements	
concerning	 Gunning	 constituted	 actionable	 defamation,	 including	 citing	 a	 test	 articulated	 in	
Dendrite	 International,	 Inc.	 v.	 Doe,	 775	 A.2d	 756,	 760-61	 (N.J.	 Super.	 Ct.	 App.	 Div.	 2001),	 that	
discussion	 was	 dicta	 given	 the	 court’s	 ultimate	 conclusion	 that	 Gunning	 was	 estopped	 by	 the	
California	decision.		We	have	previously	made	mention	of	Dendrite	but	have	not	adopted	it,	and	we	
do	not	do	so	today.		See	Fitch	v.	Doe,	2005	ME	39,	¶¶	26-27,	869	A.2d	722	(“Because	Doe	failed	to	
raise	 the	 issue	 in	 the	 trial	 court,	 we	 decline	 at	 this	 time	 to	 consider	 the	 extent	 to	 which	 the	 First	
Amendment	 affects	 the	 consideration	 of	 motions	 to	 disclose	 information	 about	 anonymous	 ISP	
subscribers.”).		Thus,	the	dissent’s	discussion	of	the	trial	court’s	Dendrite	analysis,	and	its	declaration	
that	 “we	 have	 not	 addressed	 whether	 the	 Dendrite	 ‘heightened	 burden’	or	 some	 other	 procedural	
hurdle	at	the	commencement	of	the	suit	will	be	the	law	of	our	state,”	Dissenting	Opinion	¶	34,	simply	
create	and	then	attack	a	straw	man.		See	supra	¶	7.		We	take	no	issue	with	the	dissent’s	appeal	to	
sovereignty	when	it	says	that	“[t]he	law	in	this	area	is	evolving	and	we	should	be	making	our	own	
decision	as	to	what	is	the	best	policy	for	Maine,”	Dissenting	Opinion	¶	39,	but	today’s	opinion	does	
                                                                                                          15	

	       The	entry	is:	

                         Judgment	affirmed.	

                	        	       	        	       	       	        	       	

JABAR,	J.,	dissenting.	

	       [¶20]	 	 I	 respectfully	 dissent	 because	 I	 do	 not	 believe	 that	 a	 California	

court’s	order	concerning	a	discovery	dispute	should	be	given	preclusive	effect	

on	 a	 defamation	 claim	 in	 Maine.	 	 The	 law	 addressing	 defamation	 claims	 in	

California	and	Maine	is	not	identical,	and	because	of	significant	differences	we	

should	 not	 give	 deference	 to	 the	 California	 court’s	 order.	 	 For	 the	 reasons	

discussed	 below,	 I	 would	 vacate	 the	 trial	 court’s	 decision	 and	 remand	 for	

further	proceedings.	

                                              I.		DISCUSSION	

A.	     Restatement	of	Judgments	

	       [¶21]		The	Court	refers	to	the	Restatement	(Second)	of	Judgments	§	28	

(Am.	 Law	 Inst.	 1982)	 to	 support	 its	 decision.	 	 Court’s	 Opinion	 ¶	 13.	 	 The	

Restatement	in	fact	supports	vacation	of	the	trial	court’s	judgment.		It	reads:	




not	have	the	effect	that	the	dissent	fears.		The	California	decision	is	controlling	only	in	this	case,	and	
then	only	because	that	is	where	Gunning	chose	to	litigate.		In	the	future,	the	Legislature	is	free	to	
make	 any	 policy	 judgment	 in	 this	 area	 that	 it	 deems	 fit	 within	 constitutional	 constraints,	 and,	
contrary	to	the	dissent’s	accusation,	see	Dissenting	Opinion	¶¶	28,	37,	39,	our	jurisprudence	remains	
very	much	our	own.	
16	

      Although	 an	 issue	 is	 actually	 litigated	 and	 determined	 by	 a	 valid	
      and	 final	 judgment,	 and	 the	 determination	 is	 essential	 to	 the	
      judgment,	relitigation	of	the	issue	in	a	subsequent	action	between	
      the	parties	is	not	precluded	in	the	following	circumstances:	
      	
      (1)		The	party	against	whom	preclusion	is	sought	could	not,	as	a	
      matter	of	law,	have	obtained	review	of	the	judgment	in	the	initial	
      action;	or	
      	
      .	.	.	
      	
      (3)		A	new	determination	of	the	issue	is	warranted	by	differences	
      in	the	quality	or	extensiveness	of	the	procedures	followed	in	the	
      two	 courts	 or	 by	 factors	 relating	 to	 the	 allocation	 of	 jurisdiction	
      between	them;	or	
      	
      (4)		The	party	against	whom	preclusion	is	sought	had	a	significantly	
      heavier	burden	of	persuasion	with	respect	to	the	issue	in	the	initial	
      action	than	in	the	subsequent	action;	the	burden	has	shifted	to	his	
      adversary;	or	the	adversary	has	a	significantly	heavier	burden	than	
      he	had	in	the	first	action;	or	
      	
      (5)		There	is	a	clear	and	convincing	need	for	a	new	determination	
      of	 the	 issue	 (a)	 because	 of	 the	 potential	 adverse	 impact	 of	 the	
      determination	on	the	public	interest	or	the	interests	of	persons	not	
      themselves	 parties	 in	 the	 initial	 action,	 (b)	 because	 it	 was	 not	
      sufficiently	foreseeable	at	the	time	of	the	initial	action	that	the	issue	
      would	arise	in	the	context	of	a	subsequent	action,	or	(c)	because	
      the	party	sought	to	be	precluded,	as	a	result	of	the	conduct	of	his	
      adversary	or	other	special	circumstances,	did	not	have	an	adequate	
      opportunity	or	incentive	to	obtain	a	full	and	fair	adjudication	in	the	
      initial	action.	
      	
Restatement	(Second)	of	Judgments	§	28.	

      [¶22]		The	California	discovery	order	against	Gunning	meets	several	of	

these	 exceptions	 to	 the	 general	 rule	 of	 issue	 preclusion.	 	 First,	 pursuant	 to	
                                                                                      17	

section	28(1)	Gunning	could	not	have	obtained	review	of	the	judgment	of	the	

California	Superior	Court.		Next,	pursuant	to	sections	28(3)	and	(4),	because	

California	 applies	 a	 different	 burden	 at	 the	 threshold	 of	 a	 case	 to	 litigants	

making	 defamation	 claims	 than	 the	 burden	 applied	 in	 Maine,	 a	 new	

determination	 of	 the	 issue	 is	 warranted.	 	 Finally,	 pursuant	 to	 section	 28(5),	

there	is	a	clear	and	convincing	need	for	a	determination	in	Maine	of	the	scope	

of	First	Amendment	protection	when	it	conflicts	with	a	plaintiff’s	right	to	seek	

recovery	 for	 defamation	 because	 this	 conflict	 involves	 important	 public	

interests.		

B.	    Inability	to	Seek	Review	

	      [¶23]		The	Restatement	provides	that	relitigation	is	not	precluded	where	

“[t]he	party	against	whom	preclusion	is	sought	could	not,	as	a	matter	of	law,	

have	 obtained	 review	 of	 the	 judgment	 in	 the	 initial	 action.”	 	 Restatement	

(Second)	of	Judgments	§	28(1).		Though	the	Court	asserts	that	Gunning	should	

have	sought	review	in	California	of	the	order	granting	Doe’s	motion	to	quash,	

Court’s	 Opinion	 ¶¶	 13-15,	 I	 disagree	 that	 as	 a	 matter	 of	 law	 review	 was	

available	to	Gunning.	

	      [¶24]	 	 The	 California	 Code	 of	 Civil	 Procedure	 provides	 that	 when	 a	

California	superior	court	issues	an	order	resolving	a	motion	to	quash,	“a	person	
18	

aggrieved	 by	 the	 order	 may	 petition	 the	 appropriate	 court	 of	 appeal	 for	 an	

extraordinary	writ.”		Cal.	Civ.	Proc.	Code	§	2029.650(a)	(Deering,	LEXIS	through	

ch.	4	of	the	2017	Reg.	Sess.);	Cal.	Civ.	Proc.	Code	§	2029.600(a)	(Deering,	LEXIS	

through	ch.	4	of	the	2017	Reg.	Sess.).		The	case	law	in	California	indicates	that	

an	 extraordinary	 writ	 is	 difficult	 to	 obtain:	 “[discovery]	 rulings	 are	 typically	

vested	in	the	trial	court’s	discretion,	and	even	if	an	abuse	can	be	shown	it	is	

often	impossible	for	the	aggrieved	party	to	establish	grounds	for	interlocutory	

intervention.”	 	 O’Grady	 v.	 Superior	 Court,	 44	 Cal.	 Rptr.	 3d	 72,	 82	

(Cal.	Ct.	App.	2006).		Only	when	an	immediate	harm	is	threatened	by	failure	to	

grant	review,	“such	as	loss	of	a	privilege	against	disclosure,	for	which	there	is	

no	other	adequate	remedy,”	will	review	be	granted.		Id.	at	83	(emphasis	added);	

see	 also	 Raytheon	 Co.	 v.	 Superior	 Court,	 256	 Cal.	 Rptr.	 425,	 427	

(Cal.	 Ct.	 App.	 1989)	 (“[W]rit	 review	 is	 appropriate	 when	 [a]	 petitioner	 seeks	

relief	from	an	order	which	may	undermine	a	privilege.”).	

	     [¶25]		The	extraordinary	writ	required	for	Gunning’s	discovery	appeal	to	

move	forward	in	California	is	not	available	to	her	because	such	a	writ	would	

only	be	granted	if	the	facts	were	flipped—to	achieve	the	writ,	the	order	would	

need	to	have	breached	some	privilege,	rather	than	maintained	it.		For	example,	

review	by	extraordinary	writ	has	been	granted	when	a	court’s	order	denying	
                                                                                        19	

motions	 to	 quash	 resulted	 “in	 the	 production	 of	 privileged	 materials	 and	

threaten[ed]	 the	 confidential	 relationship”	 between	 a	 client	 and	 an	 attorney.		

Bank	of	Am.,	N.A.	v.	Superior	Court,	151	Cal.	Rptr.	3d	526,	546	(Cal.	Ct.	App.	2013)	

(quotation	marks	omitted).		Nor	was	Gunning	subject	to	the	immediate	harm	

that	is	required	to	be	granted	an	extraordinary	writ.		The	only	review	permitted	

for	the	discovery	order	was	by	extraordinary	writ,	and	it	was,	as	a	matter	of	

California	law,	unavailable	to	Gunning.	

	     [¶26]	 	 It	 is	 unrealistic	 for	 the	 Court	 to	 assume	 otherwise.	 	 See	 Court’s	

Opinion	¶	13.		A	litigant	need	not	go	through	a	lengthy	and	expensive	process	

to	 demonstrate	 something	 that	 is	 legally	 evident	 on	 its	 face.	 	 Where	 we	 can	

plainly	see	that	review	of	the	discovery	order	was	not	available	in	California,	

pursuant	to	section	28(1)	of	the	Restatement,	we	should	not	allow	collateral	

estoppel	to	prevent	Gunning	from	litigating	her	defamation	claim	in	Maine.	

C.	   Differing	Burdens	

	     [¶27]		The	Restatement	also	provides	that	relitigation	is	not	precluded	if	

the	issue	is	one	of	law	and	a	“new	determination	of	the	issue	is	warranted	by	

differences	 in	 the	 quality	 or	 extensiveness	 of	 the	 procedures	 followed	 in	 the	

two	 courts,”	 or	 where	 “[t]he	 party	 against	 whom	 preclusion	 is	 sought	 had	 a	

significantly	heavier	burden	of	persuasion	with	respect	to	the	issue	in	the	initial	
20	

action.”		Restatement	(Second)	of	Judgments	§	28(3)-(4).		Here,	both	of	these	

exceptions	are	implicated	for	essentially	the	same	reason:	the	law	addressing	

the	 issue	 of	 whether	 or	 not	 the	 litigant	 has	 a	 “heightened	 burden”	 when	

asserting	 a	 defamation	 action	 against	 an	 anonymous	 speaker	 has	 not	

previously	 been	 decided	 by	 this	 Court.	 	 California,	 in	 contrast	 to	 Maine,	 has	

adopted	a	“heightened	burden”	standard	requiring	a	prima	facie	showing	of	the	

elements	 of	 the	 plaintiff’s	 claim	 in	 order	 to	 overcome	 a	 motion	 to	 quash	 a	

subpoena	 seeking	 the	 speaker’s	 identity.	 	 See	 Krinsky	 v.	 Doe,	

72	Cal.	Rptr.	3d	231,	245	(Cal.	Ct.	App.	2008).		Applying	the	California	law	here	

imposes	 California’s	 “significantly	 heavier	 burden	 of	 persuasion”	 upon	

Gunning.		See	Restatement	(Second)	of	Judgments	§	28(4).	

	      [¶28]	 	 The	 drafters	 of	 the	 comments	 to	 the	 Restatement	 assert	 that	 in	

subsequent	 cases	 such	 as	 this,	 “the	 more	 flexible	 principle	 of	 stare	 decisis	 is	

sufficient	to	protect	the	parties	and	the	court	from	unnecessary	burdens.”		Id.	

cmt.	b.		“A	rule	of	law	declared	in	an	action	between	two	parties	should	not	be	

binding	on	them	for	all	time,	especially	.	.	.	when	other	litigants	are	free	to	urge	

that	the	rule	should	be	rejected.		Such	preclusion	might	unduly	delay	needed	

changes	 in	 the	 law	 and	 might	 deprive	 a	 litigant	 of	 a	 right	 that	 the	 court	 was	

prepared	to	recognize	for	other	litigants	in	the	same	position.”		Id.		Allowing	the	
                                                                                         21	

California	 order	 to	 determine	 the	 outcome	 of	 Maine	 defamation	 claims	 by	

collaterally	estopping	litigation	in	Maine	on	the	basis	of	discovery	orders	delays	

needed	 review	 of	 Maine	 law	 and	 deprives	 litigants	 of	 rights	 that	 would	

otherwise	be	recognized.	

	      [¶29]		Additionally,	“reexamination	[of	a	legal	principle]	is	particularly	

appropriate	when	the	application	of	the	rule	of	issue	preclusion	would	impose	

on	 one	 of	 the	 parties	 a	 significant	 disadvantage.”	 	 Id.	 cmt.	 c.	 	 This	 conflict	

between	 a	 litigant’s	 right	 to	 access	 the	 courts	 and	 a	 defendant’s	 First	

Amendment	rights	is	analogous	to	Maine’s	anti-SLAPP	statute,	which	imposes	

a	 statutory	 burden	 upon	 those	 bringing	 claims	 that	 implicate	 a	 party’s	

constitutionally	protected	First	Amendment	rights.		See	14	M.R.S.	§	556	(2016).		

In	an	anti-SLAPP	case,	upon	a	showing	by	the	speaker	“that	the	claims	against	

it	are	based	on	the	exercise	of	that	party’s	constitutional	right	to	petition,”	the	

burden	 shifts	 to	 the	 nonmoving	 party	 to	 demonstrate	 prima	 facie	 evidence	

through	 pleadings	 and	 affidavits	 that	 “at	 least	 one	 of	 the	 moving	 party’s	

petitioning	 activities	 was	 devoid	 of	 any	 reasonable	 factual	 support	 or	 any	

arguable	 basis	 in	 law	 and	 caused	 actual	 injury	 to	 the	 [non-moving	 party].”		

Nader	 v.	 Me.	 Democratic	 Party,	 2013	 ME	 51,	 ¶¶	 13-14,	 66	 A.3d	 571;	 see	 also	

14	 M.R.S.	 §	 556.	 	 This	 procedural	 hurdle	 placed	 before	 litigants	 in	 Maine	 is	
22	

similar	 to	 the	 “heightened	 burden”	 hurdle	 imposed	 by	 California	 on	 litigants	

pursuing	 a	 defamation	 action	 against	 a	 defendant	 claiming	 protected	 speech	

under	the	First	Amendment.	

	      [¶30]		Like	our	jurisprudence	addressing	the	anti-SLAPP	statute,	we	are	

faced	with	a	clash	between	Gunning’s	right	to	access	the	courts	for	redress	of	

grievances,	and	Doe’s	First	Amendment	rights.		However,	unlike	the	anti-SLAPP	

protections,	there	is	no	Maine	legislation	nor	any	Maine	case	law	imposing	a	

“heightened	 burden”	 upon	 litigants	 who	 bring	 defamation	 claims	 against	

individuals	claiming	that	First	Amendment	protection.		Instead,	there	is	only	

case	law	in	a	few	scattered	states	that	have	placed	this	type	of	threshold	hurdle	

against	plaintiffs.		To	date,	we	have	not	established	such	a	hurdle,	nor	has	the	

United	States	Supreme	Court.		There	are	serious	policy	concerns	that	this	Court	

should	consider	prior	to	placing	this	type	of	obstacle	in	front	of	litigants,	not	the	

least	of	which	is	whether	such	an	obstacle	should	be	imposed	by	us	or	by	the	

Maine	Legislature.	

	      [¶31]	 	 The	 policy	 concerns	 are	 significant.	 	 The	 California	 court	 relied	

upon	Krinsky	to	require	that	Gunning	show	a	prima	facie	case	of	defamation.		

Krinsky,	 in	 turn,	 relied	 upon	 Dendrite	 International,	 Inc.	 v.	 Doe,	 775	 A.2d	 756	

(N.J.	 Super.	 Ct.	 App.	 Div.	 2001);	 Doe	 v.	 Cahill,	 884	 A.2d	 451	 (Del.	 2005);	 and	
                                                                                                            23	

Highfields	Capital	Management	L.P.	v.	Doe,	385	F.	Supp.	2d	969	(N.D.	Cal.	2004),	

among	 other	 cases,	 to	 hold,	 after	 a	 thorough	 analysis	 of	 methods	 by	 which	

courts	 in	 several	 jurisdictions	 balance	 the	 competing	 rights	 of	 access	 to	 the	

courts	 and	 First	 Amendment	 protection,	 that	 California	 will	 require	 a	

prima	facie	showing	before	allowing	discovery	to	proceed	in	defamation	cases	

against	anonymous	speakers.		Krinsky,	72	Cal.	Rptr.	3d	at	241-46.		The	Krinsky	

court	undertook	a	California-specific	assessment	of	the	case	law,	noting	that	it	

was	 addressing	 “California	 subpoenas”	 and	 that	 “specific	 Dendrite	 criteria	 to	

defeat	a	protective	order	or	motion	to	quash	may	likewise	be	dependent	on	the	

different	pleading	and	motion	procedures	across	states.”9		Id.	at	244.		The	court	

even	pointed	out	that	in	certain	states	the	second	Dendrite	criterion	would	be	

“essential,”	whereas	in	other	states,	it	would	be	“superfluous.”		Id.	




   9
     	 	 It	 is	 worth	 noting	 that	 the	 Dendrite	 court’s	 analysis	 emphasized	 that	 “New	 Jersey’s	 State	
Constitution	affords	even	greater	protection	to	persons’	rights	to	free	speech	than	does	[the]	federal	
Constitution	.	.	.	.”		Dendrite	Int’l,	Inc.	v.	Doe,	775	A.2d	756,	765	(N.J.	Super.	Ct.	App.	Div.	2001).		Other	
courts	have	therefore	applied	a	“heightened	burden”	to	plaintiffs	in	defamation	cases	based	on	state	
constitutional	protections	that	may	or	may	not	be	coextensive	with	the	constitutional	protections	
guaranteed	 by	 the	 Maine	 Constitution,	 see	 id.	 at	 766—protections	 that	 the	 Court	 here	 does	 not	
address.	
   	
24	

         [¶32]		We	should	engage	in	our	own	assessment	of	whether	to	impose	a	

“heightened	 burden”	 in	 defamation	 claims	 against	 anonymous	 speakers	

asserting	First	Amendment	protection.10	

D.	      Public	Interests	

	        [¶33]		Finally,	the	Restatement	provides	that	relitigation	is	not	precluded	

when	 “[t]here	 is	 a	 clear	 and	 convincing	 need	 for	 a	 new	 determination	 of	 the	

issue	.	.	.	because	of	the	potential	adverse	impact	of	the	determination	on	the	

public	interest	or	the	interests	of	persons	not	themselves	parties	in	the	initial	

action.”		Restatement	(Second)	of	Judgments	§	28(5)(a).	




    10
      		In	this	case,	the	Maine	Superior	Court	mistakenly	concluded	that	Maine	and	California	law	are	
identical,	 imposing	 a	 “heightened	 burden”	 on	 litigants	 pursuing	 a	 defamation	 claim	 against	 an	
anonymous	 defendant.	 	 The	 court	 attempted	 to	 define	 the	 issue	 before	 it	 by	 stating	 that	 “[t]he	
motions	to	quash	before	the	court	turn	on	whether	Gunning	has	met	her	burden	of	demonstrating	
entitlement	to	proceed	with	discovery	when	her	rights	are	weighed	against	what	the	Law	Court	has	
stated	 as	 ‘the	 recognized	 right	 to	 anonymous	 speech,’”	 citing	 to	 our	 decision	 in	 Fitch	 v.	 Doe,	
2005	ME	39,	¶	26,	869	A.2d	722.	
	
    In	Fitch,	however,	Doe	and	amici	urged	the	Court	to	adopt	the	“heightened	burden”	test	enunciated	
in	 Dendrite,	 and	 the	 Court	 declined	 to	 address	 the	 question	 because	 Doe	 failed	 to	 raise	 a	 First	
Amendment	issue	in	the	trial	court.		Id.	¶	27.		As	the	Court	today	acknowledges,	Court’s	Opinion	¶	18	
n.8,	we	have	never	held	that	Dendrite	is	the	law	in	our	state,	or	otherwise	indicated	that	Dendrite	or	
any	similar	“heightened	burden”	would	control	cases	in	which	a	plaintiff	seeks	to	bring	a	defamation	
case.	
    	
    It	is	therefore	inapposite	that,	relying	upon	the	elements	from	Dendrite,	which	the	California	court	
did	 not	 even	 cite,	 the	 Maine	 Superior	 Court	 would	 conclude	 that	 because	 “one	 of	 the	 essential	
Dendrite	requirements”—whether	Gunning	established	a	prima	facie	case	sufficient	to	support	her	
libel	 claim—was	 fully	 litigated	 in	 California	 and	 decided	 adversely	 to	 Gunning,	 collateral	 estoppel	
precludes	Gunning	from	relitigating	her	claim	in	Maine.	
    	
                                                                                                              25	

	        [¶34]		In	Maine,	we	have	not	addressed	whether	the	Dendrite	“heightened	

burden”	or	some	other	procedural	hurdle	at	the	commencement	of	the	suit	will	

be	the	law	of	our	state.11		Even	though	the	Maine	Superior	Court	in	this	case	

indicated	 that	 Gunning	 had	 presented	 a	 prima	 facie	 case,	 the	 Court	 today	 is	

preventing	 Gunning	 from	 proceeding	 with	 her	 defamation	 claims	 because	 a	

California	court	interpreting	California	state	law	concluded	that	pursuant	to	an	

analysis	 applied	 uniquely	 in	 California—which	 the	 Krinsky	 court	 found	

“unnecessary	 and	 potentially	 confusing,”	 Krinsky,	 72	 Cal.	 Rptr.	 3d	 at	 244—

Gunning	had	not	presented	a	prima	facie	case.		This	is	not	the	approach	that	we	

should	take.	

	        [¶35]		Also	concerning	is	the	California	court’s	conclusion	that	the	speech	

at	 issue	 was	 parody	 and	 therefore	 protected	 by	 the	 First	 Amendment,	

rendering	the	speech	not	actionable.12		What	constitutes	parody	includes	factual	

determinations	 best	 left	 to	 a	 jury.	 	 See	 Masson	 v.	 New	 Yorker	 Magazine,	


    11
     		The	Court	states	in	its	opinion	that	if	Gunning	had	litigated	the	motion	to	quash	in	Maine	and	
the	Maine	court	had	ruled	that	Gunning	had	made	out	a	prima	facie	case,	that	judgment	would	have	
preclusive	 effect	 in	 California.	 	 Court’s	 Opinion	 ¶	 18	 &	 n.6.	 	 This	 argument	 is	 misplaced	 because	
presently,	under	Maine	law,	Gunning	would	not	be	required	to	establish	a	prima	facie	case	before	
proceeding	with	discovery.	
   	
   12
     	 	 The	 Court	 states	 that	 the	 claim	 for	 defamation	 was	 for	 Doe’s	 comparison	 in	 newsprint	 of	
Gunning	 with	 the	 “Wicked	 Witch	 of	 the	 West”	 from	 The	 Wizard	 of	 Oz,	 as	 well	 as	 a	 caption	 stating	
“Miss	 Prozac	 2003.”	 	 Court’s	 Opinion	 ¶	 2.	 	 The	 article	 concerning	 Gunning	 also	 contains	 a	 more	
blatantly	defamatory	statement:	“Rumors	continue	that,	Marie	is	suffering	from	a	bipolar	disorder	
with	acute	depression	and	paranoia,	amplified	by	substance	abuse.”	
26	

501	U.S.	496,	522	(1991)	(stating	that	when	“[a]	reasonable	jury	could	find	a	

material	difference	between	the	meaning	of	[a	published,	written]	passage	and	

[a]	 tape-recorded	 statement,”	 the	 falsity	 of	 the	 published	 passage	 is	 a	 jury	

question);	Nike,	Inc.	v.	“Just	Did	It”	Enters.,	6	F.3d	1225,	1232	(7th	Cir.	1993)	

(discussing	several	trademark	parody	cases	in	which	summary	judgment	was	

vacated	because	“[t]oo	many	disputed	facts	require[d]	a	trial	for	resolution”);	

Anheuser-Busch,	 Inc.	 v.	 L&L	 Wings,	 Inc.,	 962	 F.2d	 316,	 317-18,	 320	

(4th	Cir.	1992)	(holding	that	a	federal	district	court	judge	“improperly	assumed	

the	 jury’s	 role	 of	 determining”	 whether	 a	 t-shirt	 depicting	 a	 beer	 can	 was	

parody	when	the	district	court	granted	entry	of	judgment	notwithstanding	the	

verdict,	 because	 “the	 jury	 was	 uniquely	 positioned	 to	 make	 the	 critical	

determination	 in	 that	 regard”);	 San	 Francisco	 Bay	 Guardian,	 Inc.	 v.	 Superior	

Court,	21	Cal.	Rptr.	2d	464,	468	(Cal.	Ct.	App.	1993)	(“It	is	not	for	the	court	to	

evaluate	 the	 parody	 as	 to	 whether	 it	 went	 ‘too	 far.’”);	 Kiesau	 v.	 Bantz,	

686	 N.W.2d	 164,	 177	 (Iowa	 2004)	 (“To	 be	 a	 parody,	 the	 jury	 must	 find	 the	

altered	 photograph	 could	 not	 reasonably	 be	 understood	 as	 describing	 actual	

facts	.	.	.	or	actual	events	.	.	.	.”),	overruled	on	other	grounds	by	Alcala	v.	Marriott	

Int’l	Inc.,	880	N.W.2d	699,	708	&	n.3	(Iowa	2016).		Because	the	California	court	

entered	into	its	own	assessment,	based	on	review	of	the	parties’	moving	papers,	
                                                                                        27	

of	whether	the	speech	constituted	a	parody,	thereby	reducing	a	mixed	question	

of	 fact	 and	 law	 into	 a	 question	 of	 law,	 the	 California	 court’s	 discovery	 order	

should	not	have	preclusive	effect	on	the	litigation	of	the	issue	in	Maine.	

       [¶36]	 	 Furthermore,	 the	 Maine	 Superior	 Court	 stated	 that	 it	 believed	

Gunning	had	established	a	prima	facie	case	of	defamation	and	that	there	was	a	

genuine	issue	of	fact	as	to	whether	Doe’s	speech	constituted	parody,	but	it	felt	

compelled	to	collaterally	estop	Gunning	from	litigating	the	issue	because	of	the	

California	court’s	discovery	decision.		Unless	and	until	we	impose	a	“heightened	

burden”	 on	 litigants	 claiming	 defamation,	 a	 jury,	 rather	 than	 a	 court,	 should	

determine	whether	Doe’s	speech	was	parody.		Because	of	the	status	of	the	law	

in	Maine,	the	issues	in	the	California	court	are	not	identical	to	those	before	the	

court	in	Maine	and	do	not	warrant	preclusive	application	of	collateral	estoppel.	

       [¶37]		Despite	the	Maine	trial	court’s	indication	that	Gunning	may	have	

satisfied	the	“heightened	burden”	standard,	we	are	allowing	the	California	law	

to	prevent	Gunning	from	pursuing	her	defamation	case	in	this	state.		Maine	has	

never	ruled	that	there	is	a	“heightened	burden”	for	a	plaintiff	to	make	a	prima	

facie	showing	of	defamation	before	proceeding	with	a	claim.		A	decision	of	this	

magnitude	 should	 not	 be	 decided	 by	 simply	 deferring	 to	 a	 California	 trial	

court’s	 imposition	 of	 a	 “heightened	 burden”	 on	 a	 discovery	 order.	 	 See	
28	

Restatement	(Second)	of	Judgments	§	29(7)	(Am.	Law	Inst.	1982)	(stating	that	

a	party	should	not	be	precluded	from	relitigating	an	issue	when	“[t]he	issue	is	

one	 of	 law	 and	 treating	 it	 as	 conclusively	 determined	 would	 inappropriately	

foreclose	 opportunity	 for	 obtaining	 reconsideration	 of	 the	 legal	 rule	 upon	

which	it	was	based”).	

       [¶38]	 	 “Decisions	 of	 this	 sort	 demonstrate	 that	 res	 judicata,	 as	 the	

embodiment	of	a	public	policy,	must,	at	times,	be	weighed	against	competing	

interests,	 and	 must,	 on	 occasion,	 yield	 to	 other	 policies.”	 	 Spilker	 v.	 Hankin,	

188	 F.2d	 35,	 38-39	 (D.C.	 Cir.	 1951).	 	 “[W]hen	 as	 here	 private	 litigation	 has	

extensive	implications	of	public	import,	the	rule	of	res	judicata	or	estoppel	is	

not	allowed	to	stultify	reassessment	of	the	prior	decision.		The	public	interest	

supersedes	the	private	interest.”		Griffin	v.	State	Bd.	of	Educ.,	296	F.	Supp.	1178,	

1182	(E.D.	Va.	1969).		Because	the	public	interest	in	Maine	courts	establishing	

our	 own	 framework	 for	 balancing	 the	 rights	 at	 stake	 in	 this	 case	 outweighs	

Doe’s	interest	in	not	relitigating	the	issue	of	whether	Doe’s	speech	constitutes	

defamation,	I	cannot	join	the	Court’s	decision.	

                                    II.		CONCLUSION	

       [¶39]		There	are	significant	issues	in	today’s	society	surrounding	social	

media,	blogs,	and	claims	of	“fake	news.”		The	law	in	this	area	is	evolving,	and	we	
                                                                                        29	

should	 be	 making	 our	 own	 decision	 as	 to	 what	 is	 the	 best	 policy	 for	 Maine.		

Furthermore,	 as	 was	 done	 by	 the	 Maine	 Legislature	 with	 our	 anti-SLAPP	

statute,	 the	 Legislature	 should	 determine	 whether	 any	 “heightened	 burden”	

should	 be	 imposed	 upon	 litigants	 at	 the	 filing	 stage.	 	 This	 important	 policy	

decision	should	not	be	resolved	by	a	discovery	order	in	California.	

         [¶40]		I	would	vacate	the	Maine	Superior	Court’s	decision	and	remand	

the	case	so	that	it	may	proceed	as	any	other	defamation	case	filed	in	a	Maine	

court.	

	        	        	         	   	   	

Gene	 R.	 Libby,	 Esq.,	 Tara	 A.	 Rich,	 Esq.,	 and	 Tyler	 Smith,	 Esq.	 (orally),	 Libby	
O’Brien	Kingsley	&	Champion	LLC,	Kennebunk,	for	appellant	Marie	Gunning	
	
Sigmund	 D.	 Schutz,	 Esq.	 (orally),	 Preti,	 Flaherty,	 Beliveau	 &	 Pachios,	 LLP,	
Portland,	for	appellee	John	Doe	
	
Zachary	L.	Heiden,	Esq.,	American	Civil	Liberties	Union	of	Maine	Foundation,	
Portland,	Paul	Alan	Levy,	Esq.,	Public	Citizens	Litigation	Group,	Washington,	DC,	
and	George	J.	Marcus,	Esq.,	Marcus,	Clegg	&	Mistretta,	P.A.,	Portland,	for	amici	
curiae	 Public	 Citizen,	 Inc.,	 and	 American	 Civil	 Liberties	 Union	 of	 Maine	
Foundation	
	
	
Cumberland	County	Superior	Court	docket	number	CV-2013-359	
FOR	CLERK	REFERENCE	ONLY	
	
