            IN THE SUPERIOR COURT OF THE STATE OF DELAWARE




SUNENERGY1, LLC, KENNEY CHARLES                )
E. HABUL AND KIMBERLY HABUL,                   )
                                               )
                   Plaintiffs,                 )
                                               )
v.                                             )      C.A. No. N14M-12-028
                                               )
JEFFERY LAWRENCE BROWN,                        )
                                               )
                   Defendant.                  )
                                               )



                            Date Submitted: November 6, 2015
                            Date Decided: November 30, 2015

                                       ORDER

     PLAINTIFFS’ MOTION TO COMPEL COMPLIANCE WITH AN OUT-OF-STATE
         SUBPOENA AND NON-PARTY GLASSDOOR’S MOTION TO QUASH


Ryan T. Costa, Esquire, DRINKER BIDDLE AND REATH, LLP, 222 Delaware Avenue, Suite
1410, Wilmington, Delaware, 19801, Attorney for Plaintiffs.

Kathleen St. J. McCormick, Esquire and Elisabeth S. Bradley, Esquire, YOUNG CONAWAY
STARGATT AND TAYLOR, LLP, Rodney Square, 1000 North King Street, Wilmington, DE
19801, Attorneys for Glassdoor INC.




MANNING, Commissioner
           Before the Court is Plaintiffs’ motion to compel production of an anonymous internet

user’s Internet Protocol address (IP address) 1 based on an out-of-state subpoena directed against

Glassdoor, Inc., a non-party Delaware corporation. In response, Glassdoor filed a motion to

quash, arguing that Plaintiffs’ subpoena is overbroad, unduly burdensome, and most critically,

infringes upon the anonymous user’s First Amendment right to freedom of speech. A hearing

before all parties to the motion was held on November 6, 2015. The Court finds the following:

           (1) Plaintiffs filed a lawsuit in North Carolina Business Court against defendant, Jeffery

L. Brown, on February 17, 2014. Plaintiffs allege that Brown, a former employee and Chief

Financial Officer, posted defamatory comments about Plaintiffs’ business, SunEnergy1, on the

website Glassdoor.com, on December 15, 2013. 2 Glassdoor.com is an employment website

(similar to other sites such as Monster.com) where job-seekers can post resumes and employers

can advertise vacancies. Glassdoor.com describes itself as a “free jobs and career community

that offers the world an inside look at jobs and companies.” In addition to a job search feature,

Glassdoor.com utilizes a five star rating system for each company based on user input and offers

a forum where users can post reviews about the companies listed on the website in an

standardized Pros/Cons format.




1
  An Internet Protocol address (IP address) is a numerical label assigned to each device (e.g. computer, printer)
participating in a computer network that uses the Internet Protocol for communication. This information can be
used by the Internet Service Provider (e.g. Verizon, Comcast etc.) to identify the account information of the
registered subscriber.
2
    Brown has sworn under oath that he did not author the post in question. Glassdoor’s motion to quash at p.3.


                                                           1
      (2) On December 15, 2013, the following review of SunEnergy1 was posted on

Glassdoor.com by an anonymous author:

             “This is a terrible place to work”
                    Anonymous Employee (Former Employee)

             I worked at SunEnergy1

             Pros - There really are none. All of these reviews are true. The Building
             is nice, Good location in Mooresville, nice landscaping.

             Cons – Nobody is relaxed and enjoys their job. Any quality professional is
             going to leave as soon as they find another position. The owners really
             think they are so much better than anyone, which paradoxically makes
             them so vulgar. The CEO will yell and pound on his desk when unhappy
             with someone so loudly that my office walls (down the hall) would shake.
             This behavior is pretty typical, this is how human resource situations are
             dealt with at this company or he will start stating lies about you and the
             other employees will go along with it because they are afraid of becoming
             a target themselves. This company’s culture is one of oppression, untruths,
             and bullying spearheaded and condoned by the owners. Its pretty
             appalling to think that a publicly owned utility that gives them all their
             business would do so when this company treats their employees the way
             they do, if they are not fair and ethical dealing with their employees I
             would wonder if the same was true in their business dealings.

             Advice to Senior Management – Your employees are not your servants,
             when people get hired by a company typically they agree to work a certain
             number of hours for a certain wage, they don’t want another “family” ,
             they don’t want to be forced to have lunch with you, they want to do the
             work they are supposed to do, and go home to be with their own families.
             They are not there to serve you, shampoo your carpets, praise your “wife”,
             and act like you are “god” like.

             No, I would not recommend this company to a friend – I’m not optimistic
             about the outlook for this company.




                                              2
           (3) Discovery in a civil case is generally controlled by Superior Court Civil Rule 26.3

“Parties may seek discovery of any non-privileged, relevant matter, as well as information

reasonably calculated to lead to the discovery of admissible information.” 4 Rule 26(a)(1)(a)(i)

states that the Court shall limit the extent of discovery if it determines that the “discovery sought

is unreasonably cumulative or duplicative, or is obtainable from some other source that is more

convenient, less burdensome, or less expensive . . . .” Most applicable here, Rule 45(c)(3)(A)

states that “[o]n timely motion, the Court shall quash or modify a subpoena if it . . . (ii) requires

disclosure of privileged information or other protected matter and no exception or waiver

applies.”

           (4) The right to discover the identity of an anonymous author alleged to have made

defamatory statements must be balanced against the author’s First Amendment right to free

speech and to remain anonymous. In the precedential case Doe v. Cahill, the Delaware Supreme




3
  Rule 26. General provisions governing discovery.
(a) Discovery methods. -- Parties may obtain discovery by one or more of the following methods: Depositions upon
oral examination or written questions; written interrogatories; production of documents or things or permission to
enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests
for admission.
(b) Discovery scope and limits. -- Unless otherwise limited by order of the Court in accordance with these rules, the
scope of discovery is as follows:
(1) In general. -- Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject
matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to
the claim or defense of any other party, including the existence, description, nature, custody, condition and location
of any books, documents, or other tangible things and the identity and location of persons having knowledge of any
discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the
information sought appears reasonably calculated to lead to the discovery of admissible evidence.
The frequency or extent of use of the discovery methods set forth in subdivision (a) shall be limited by the Court if it
determines that: (i) The discovery sought is unreasonably cumulative or duplicative, or is obtainable from some
other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had
ample opportunity by discovery in the action to obtain the information sought; or (iii) the discovery is unduly
burdensome or expensive, taking into account the needs of the case, the amount in controversy, limitations on the
parties' resources, and the importance of the issues at stake in the litigation. The Court may act upon its own
initiative after reasonable notice or pursuant to a motion under subdivision (c).
4
    Huff Fund Inv. P’Ship v. CKX, INC., 2012 WL 3552687, at *1 (Del. Ch. August 15, 2012).


                                                           3
Court held that “[courts] must adopt a standard that appropriately balances one person’s right to

speak anonymously against another person’s right to protect his reputation.” 5

           (5) “In Delaware, a defamation claim requires “(1) a defamatory communication; (2)

publication; (3) [that] the communication refers to the plaintiff; (4) a third party’s understanding

of the communication’s defamatory character; and (5) injury. However, proof of damages

proximately caused by a publication deemed libelous need not be shown in order for a defamed

plaintiff to recover nominal or compensatory damages.” 6 In this case, the second and third

requirements are clearly met and not at issue.                 The fifth requirement, injury, need not be

considered by the Court at this time.

           (6) Whether or not a statement is defamatory is a question of law. 7 The threshold issue a

reviewing court must address is “first, whether the alleged defamatory statements are expressions

of fact, or protected expressions of opinion; and [second], whether the challenged statements are

capable of a defamatory meaning.” 8 Pure expressions of opinion are protected under the First

Amendment. 9 However, “[a]n opinion is not protected and is actionable if it implies the

allegation of undisclosed defamatory facts as the basis for the opinion.” 10

            (7) In Cahill, the Delaware Supreme Court held that “before a defamation plaintiff can

obtain the identity of an anonymous defendant through the compulsory discovery process he




5
    Doe v. Cahill, 884 A.2d 451, 456 (Del. 2005).
6
    Wallace, 2013 WL 4054147, at *3(internal quotations and citations omitted).
7
    Cahill, 884 A.2d at 463.
8
    Id.
9
    Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).
10
     Cahill, 884 A.2d at 462.


                                                          4
must support his defamation claim with facts sufficient to defeat a summary judgment motion.”11

Under this 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 … must introduce evidence creating a genuine issue of material fact for all elements of a

defamation claim within the plaintiff’s control.” 12

           (8) The summary judgment standard is well-known. The rule states that summary

judgment will only be granted when there are no genuine issues of material fact and the moving

party is entitled to judgment as a matter of law. 13 Additionally, “the moving party bears the

burden of establishing the non-existence of a material issue of fact. If a motion is properly

supported, the burden shifts to the non-moving party to establish the existence of material issues

of fact. In considering the motion, the facts must be viewed in the light most favorable to the

non-moving party.” 14

           (9) Applied here, Cahill requires Plaintiffs to show that their defamation claim can

survive a motion for summary judgment before the Court will order production of the

anonymous author’s IP address. As this Court previously held in Wallace v. Geckosystems,

Plaintiffs will be treated as the non-moving party and the Court will view their claims in the light

most favorable to them. 15 Framing it in the context of this case, the question the Court must

decide is could any “reasonable person” have interpreted the statements in the December 15,



11
     Id. at 460.
12
     Wallace v. Geckosystems, 2013 WL 4054147, at *2 (Del. Super. July 31, 2013).
13
     Super Ct. Civ. Rule 56(c).
14
     Wallace, 2013 WL 4054147, at *3.
15
 Wallace at *2 (holding that Wallace, as the Plaintiff in the defamation action, “should be treated as the non-
moving party to a summary judgment motion.”).


                                                          5
2013 review “as being anything other than an opinion”? 16 If yes, then a material issue of fact

exists and summary judgment is not appropriate. If no, then Plaintiffs have not met the summary

judgment standard and their motion will be denied. “Because this question is one of law, a judge

can just as easily make the determination … [t]he judge will have before him the allegedly

defamatory statements and can determine whether they are defamatory based on the words and

the context in which they were published.” 17

            (10)   Before turning to the statements in question, it is necessary to address one other

unique aspect of this issue first. Plaintiffs’ claim is brought under North Carolina law where

they have alleged libel per se. Under North Carolina law, libel per se is defined as the

publication of an “obviously defamatory” statement and to be actionable “must be false and must

be communicated to a person or persons other than the person defamed.” 18 Plaintiffs’ motion

argues that the Glassdoor.com posting contained defamatory statements that constitute libel per

se and therefore they have established a prima facie cause of action. Implicit in Plaintiffs’

argument is the notion that because their claim is considered libel per se, it somehow

circumvents the summary judgment pleading standard as outlined in Cahill. The Court can

locate no North Carolina case addressing the specific issue presented here. 19 Nevertheless,

Plaintiffs seek to invoke the power of this Court to compel production of an anonymous author’s

IP address via a Delaware subpoena. Such an action, in the Court’s opinion, implicates the very
16
     Cahill, 884 A.2d at 467.
17
     Id. at 463.
18
  Daniels v. Metro Magazine Holdings Company L.L.C., 634 S.E.2d 586, 590 (N.C. App. 2006) (internal citations
omitted).
19
   The closest a North Carolina court has come to addressing the issue presented here appears to have been in
Daniels v. Metro Magazine. The Court of Appeals of North Carolina upheld the trial court’s dismissal of plaintiff’s
defamation claims under a Rule 12(b)(6) standard. The Court held that statements made were “either (1)
expressions of pure opinion not capable of being proven or disproven; or (2) rhetorical hyperbole which no
reasonable reader would believe, the statements made [were] protected by the First Amendment . . . .” 634 S.E.2d
at 542.


                                                         6
same pernicious considerations as expressed by the Court in Cahill. 20 These considerations led

the Cahill Court to set the bar necessarily high before disclosure would be ordered. Accordingly,

and despite being pled under North Carolina law, this Court holds that Plaintiffs’ claims must

still meet the Cahill summary judgment standard before the Delaware subpoena will be enforced.

           (11) “In Cahill, the court emphasized that the context can be ‘particularly important’ in

making the fact/opinion distinction when evaluating statements found in certain types of internet

sources.” 21 The Cahill opinion noted that “[b]logs and chat rooms tend to be vehicles for the

expression of opinions; by their very nature, they are not a source of facts or data upon which a

reasonable person would rely.” 22 Since the Cahill opinion in 2005, the internet has evolved

considerably.       While chat rooms and blogs certainly still exist, user posted reviews and

comments are now de rigueur on many of the most popular internet sites.                              Amazon.com,

homedepot.com, bestbuy.com, opentable.com and tripadvisor.com—to name just a few— all

allow users to post virtually anonymous reviews covering everything from how shoes fit to the

quality of the food or service at a restaurant. Similarly, Glassdoor.com allows users to post

reviews so prospective job-seekers can get a feel for the company in question and if it is a place

where he or she might want to work. The content of the reviews on Glassdoor.com are such that

it should be obvious to any reasonable person that the authors (all listed as current or former

employees) are using the website as a vehicle to express their personal opinions about the

company in question. Additionally, the context in which the comments are posted lends further

support to this conclusion.            Glassdoor.com is a website for employment and company

20
   For example, in Cahill the Court noted that “[a]fter obtaining the identity of an anonymous critic through the
compulsory discovery process, a defamation plaintiff who either loses on the merits or fails to pursue a lawsuit is
still fee to engage in extra-judicial self-help remedies; more bluntly, the plaintiff can simply seek revenge or
retribution.” 884 A.2d at 457.
21
     Wallace, 2013 WL 4054147 at *4.
22
     Id.


                                                          7
evaluation—it is not a news website (e.g. WSJ.com or NYT.com) where there is an expectation

of objective reporting and journalistic standards. Nor is it a website where a person would go to

find detailed factual information about a company such as earnings reports and SEC filings. It is

quite evident to the Court that Glassdoor.com is a website where people go to express their

personal opinions having worked for a company—not a website where a reasonable person

would go looking for objective facts and information about a company.

         (12) Finally, the Court will turn to the actual statements in the December 15, 2013

review. First, the title of the review, “This is a terrible place to work,” sets the tone for the rest of

the review. Words such as “best,” “worst” and “terrible” are undeniably subjective assessments.

It is readily apparent that the author of this review is unhappy about his or her time at

SunEnergy1 and has the proverbial axe to grind—no reasonable person would think otherwise.

The fact that the author is a “former employee” who wished to remain anonymous only cements

this conclusion. 23 Even when viewed in the light most favorable to Plaintiffs, the content of the

review is simply nothing more than a rant by a former employee, citing anecdotal evidence,

about why he or she thinks it is a terrible place to work. The author makes no objectively

provable factual assertions. For every negative thing the author states, another poster could state

the opposite with equal conviction and neither would be a provable fact. Furthermore, the only

objective statement that could arguably be taken as a provable fact is whether or not the walls of

an office “down the hall” actually shake if a person pounds on the CEO’s desk. Even if true, this

fact is irrelevant as it is not a defamatory statement about Plaintiffs.




23
  Journalists universally tend to sign their name to articles in an effort to lend credibility and allow for fact
checking—something wholly absent here.


                                                            8
       (13) For the reasons set forth herein, Plaintiffs’ motion to compel is DENIED and non-

party Glassdoor’s motion to quash is GRANTED.

IT IS SO ORDERED.




                                                 /s/ Bradley V. Manning
                                                 BRADLEY V. MANNING,
                                                 Commissioner

oc:   Prothonotary




                                             9
