         [Cite as Fisher v. Doe, 2016-Ohio-7383.]
                      IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                       HAMILTON COUNTY, OHIO




ERIC FISHER,                                        :   APPEAL NO. C-160226
                                                        TRIAL NO. A-1503940
        Plaintiff-Appellee,                         :
                                                           O P I N I O N.
  vs.                                               :

JOHN DOE,                                           :

    Defendant-Appellant.                            :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: October 19, 2016




Vorys, Sater, Seymour & Pease LLP, Whitney C. Gibson, Adam C. Sherman, James
B. Lind and Colleen M. Devanney, for Plaintiff-Appellee,

Strauss Troy Co., LPA, Christopher R. McDowell and Christopher S. Houston, for
Defendant-Appellant.
                     OHIO FIRST DISTRICT COURT OF APPEALS




M OCK , Judge.

       {¶1}    Defendant-appellant John Doe appeals a decision of the Hamilton

County Court of Common Pleas denying in part his motion to quash a subpoena.

Ultimately we find that his two assignments of error are without merit, and we affirm

the trial court’s judgment.

       {¶2}    The record shows that plaintiff-appellee Eric Fisher is a certified

registered nurse anesthetist (“CRNA”), who worked for various employers in Ohio

and Virginia in 2014 and 2015. According to Fisher, an unidentified individual sent

letters and emails to his employers containing defamatory information.                These

communications were allegedly sent from fictitious individuals or entities. They

accused Fisher of having a substance-abuse problem, using drugs, being fired from a

job in California due to drug use, soliciting a former patient on a gay website to do

drugs with him, and posting on the internet homosexual pornography in which he

was a participant.

       {¶3}    Based on circumstantial evidence, Fisher believed that a man in

California might be responsible for the harassment. At his request, his attorneys sent

a letter to the man stating that if the man did not stop his harassment, Fisher was

prepared to file suit against him, and requesting a settlement for his litigation costs.

That   man    adamantly       denied   being       the   individual   responsible   for   the

communications.

       {¶4}    Fisher filed suit against an unknown defendant, John Doe, alleging

defamation, invasion of privacy, intentional infliction of emotion distress and

negligence.   He began conducting third-party discovery to discover Doe’s true

identity. Fisher served a subpoena on Google for information related to a Gmail




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account referenced in one of the communications that was allegedly used by Doe.

Google notified its subscriber of the subpoena and received no objection. Google

then produced information relating to the email address including a number of IP

addresses used when Doe logged in and out of that account.

       {¶5}    One of those addresses was 71.102.80.231, a California IP address

registered to Verizon Online, LLC, doing business as Verizon Interest Services

(“Verizon”), which could be linked to a specific subscriber. Fisher served a subpoena

on Verizon seeking information related to the identity of the subscriber who was

assigned that IP address at the dates and times used to log in and out of the email

account. Verizon notified its subscriber, who filed a motion to quash the subpoena,

denying that he was the letter writer and alleging that he had a First Amendment

right to remain anonymous.

       {¶6}    The trial court found that Fisher had set forth a prima-facie case of

defamation. It also found that “the necessity of identifying the speaker outweighs

any First Amendment right of anonymous free speech.” It stated that “Defendant

has identified no compelling reason in maintaining his anonymity, or irreparable

harm which would result from its disclosure, which would outweigh Plaintiff’s right

to seek redress against the speaker.” Therefore, it denied that part of the motion to

quash related to the subscriber’s name, mailing address, residential address,

business address, email address, user name, and phone numbers. But the court

granted that part of the motion to quash related to credit-card information,

electronic-account numbers, and other information related to payment methods

associated with the account. This appeal followed.

       {¶7}    In his first assignment of error, Doe contends that the trial court

erred in denying in part his motion to quash the subpoena because Fisher’s causes of



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action are not maintainable under Ohio law. He argues that this court should apply

the four-part test set forth in a New Jersey case in deciding whether to affirm the

trial court’s decision. In his second assignment of error, Doe contends that the trial

court erred in denying in part the motion to quash because it failed to address the

evidence he set forth and Fisher’s complete failure to submit evidence in support of

his claims. Again, Doe relies upon the four-part test set forth in the New Jersey case

in arguing that Fisher failed to rebut his evidence disproving Fisher’s claims. These

assignments of error are not well taken.

       {¶8}    We begin with general Ohio law on motions to quash. Trial courts

have broad discretion over discovery, including ruling on a motion to quash a

subpoena. McDade v. Morris, 9th Dist. Summit No. 27454, 2015-Ohio-4670, ¶ 8;

Wright v. Perioperative Med. Consultants, 1st Dist. Hamilton No. C-060586, 2007-

Ohio-3090, ¶ 9. Under Civ.R. 45(C), a trial court may quash or modify a subpoena if

it subjects a person to an “undue burden.” The person seeking to quash must

establish the “undue burden.” McDade at ¶ 9; Wright at ¶ 10. Once an undue

burden is established, the party seeking the discovery must demonstrate a

substantial need for the materials that cannot be met through alternate means

without undue hardship. McDade at ¶ 9; Lambda Research v. Jacobs, 170 Ohio

App.3d 750, 2007-Ohio-309, 869 N.E.2d 39, ¶ 18 (1st Dist.).

       {¶9}    Doe relies upon Dendrite Internatl., Inc. v. Doe No 3, 342 N.J.Super.

134, 775 A.2d 756 (App.Div.2001) in which the Superior Court of New Jersey,

Appellate Division, established “guidelines to trial courts when faced with an

application by a plaintiff for expedited discovery seeking an order compelling an ISP

to honor a subpoena and disclose the identity of anonymous Internet posters” sued

for allegedly violating the rights of individuals, corporations or businesses. Id. at 141.



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The parties also cite cases from other state and federal courts that discuss various

tests to be applied in balancing a First Amendment right to be anonymous on the

Internet with the rights of a litigant to obtain discovery, to prove claims or defenses,

and to be free from defamation.         See Doe v. Individuals, 561 F.Supp.2d 249

(D.Conn.2008); McMann v. Doe, 460 F.Supp.2d 259 (D.Mass.2006); John Doe No. 1

v. Cahill, 884 A.2d 451 (Del.2005); Krinsky v. Doe 6, 159 Cal.App.4th 1154, 72

Cal.Rptr.3d 231 (Cal.Ct.App.2008).

          {¶10}   We find those cases to be distinguishable.     They all involve the

cyberspace equivalent of public forums, Internet bulletins boards, review sites, and

other places where a large number of people are free to express their opinions. They

raise First Amendment concerns much like the proverbial public square in the real

world. “[S]ome commentators have likened cyberspace to a frontier society free

from the conventions and constraints that limit discourse in the real world.”

Krinsky at 1163, quoting Lidsky, Silencing John Doe: Defamation & Discourse in

Cyberspace, 49 Duke L.J. 855, 863 (2000). The use of a screen name “offers a safe

outlet for the user to experiment with novel ideas, express unorthodox political

views, or criticize corporate or individual behavior without fear of intimidation or

reprisal.” Krinsky at 1162.

          {¶11}   A common theme in these cases is the idea of protecting individuals

on the Internet from censorship. For example, the Delaware Supreme Court has

stated:

          Indeed, there is reason to believe that many defamation plaintiffs

          bring suit merely to unmask the identities of anonymous critics. As

          one commentator has noted, “the sudden surge in John Doe suits

          stems from the fact that many defamation actions are not about



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       money.”     “The goals of the new breed of libel action are largely

       symbolic, the primary goal being to silence John Doe and others like

       him.” This “sue first, ask questions later” approach, coupled with a

       standard only minimally protective of the anonymity of defendants,

       will discourage debate on important issues of public concern as more

       and more anonymous posters censor their online statements in

       response to the likelihood of being unmasked.

Cahill at 457, quoting Lidsky at 872 and 859. See Individuals at 253-254.

       {¶12}   We do not find these cases to be applicable because this case is

significantly different. It does not involve a public forum of any kind. An unknown

individual sent targeted communications to Fisher’s employers. Some were sent by

regular United States mail. The one at issue in this case happened to be sent by

email, but the medium by which it was sent is irrelevant. The case would be the

same if that particular communication was also sent by regular mail. The larger

issues implicated in the out-of-state cases related to public forums are not implicated

here. This is not a corporation or the government trying to stifle an individual’s First

Amendment rights or prevent open discourse. This is a standard tort case between

two individuals.

       {¶13}   This case is no different than any number of defamation/invasion-of-

privacy cases that are frequently filed in Ohio courts. It involves the same First

Amendment issues and other defenses inherent in defamation/invasion-of-privacy

and other tort cases, on which Ohio has well-settled law. See McLean v. Roberston,

1st Dist. Hamilton No. C-150651, 2016-Ohio-2953; Brown v. Lawson, 169 Ohio

App.3d 430, 2006-Ohio-5897, 863 N.E.2d 215 (1st Dist.); Fuchs v. Scripps Howard

Broadcasting Co., 170 Ohio App.3d 679, 2006-Ohio-5349, 868 N.E.2d 1024 (1st



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Dist.); Pollock v. Rashid, 117 Ohio App.3d 361, 690 N.E.2d 903 (1st Dist.1996).

Consequently, we decline to apply the tests set forth in the out-of-state cases cited by

the parties.

       {¶14}   It is much too early in the proceedings to determine what, if any,

defenses apply. There is little support in the scant record before us for many of the

accusations the parties raise in this court. We decide only the issue of whether the

trial court erred in denying in part the motion to quash.

       {¶15}   We hold that Doe has failed to meet his burden to show that he would

be subject to an undue burden by providing his name and other identifying

information. The trial court’s decision denying in part the motion to quash was not

so arbitrary, unreasonable, or unconscionable as to connote an abuse of discretion.

See Blakemore v. Blakemore, 5 Ohio St.3d 217, 218, 450 N.E.2d 1140 (1983); Evans

v. Thrasher, 1st Dist. Hamilton No. C-120783, 2013-Ohio-4776, ¶ 37. Consequently,

we overrule Doe’s assignments of error and affirm the trial court’s judgment.

                                                                   Judgment affirmed.


F ISCHER , P.J., and H ENDON , J., concur.


Please note:
       The court has recorded its own entry this date.




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