In a case of first impression, the Arizona Court of Appeals recently considered the ability of a litigant to determine the identity of an anonymous Internet user. Mobilisa, Inc v. Doe, Case No 1-CA-CV 06-0521, 2007 Ariz. App. LEXIS 225 (Ariz. Ct. App., November 27, 2007). While the Court did not require disclosure of an anonymous Internet user’s identity (as the lower court had done), it set forth a balancing test to consider whether or not the user’s identity should remain anonymous. Thus, the Arizona court recognized that there may indeed be circumstances where anonymity must fall and a user’s identity must be disclosed in litigation.
In Mobilisa, an employee of Mobilisa, Inc. sent an “intimate message” to a person outside the company. Six days later, an anonymous e-mail was sent to Mobilisa’s management, enclosing the intimate message with the headline, “Is this a company you want to work for?”. After both the employee and the recipient confirmed that they had not sent the message to anyone else, Mobilisa concluded that someone must have improperly and without authorization accessed the company’s computer network. It promptly filed a lawsuit to compel the disclosure of the anonymous e-mailer’s identity.
Since no Arizona court had examined the issue, the lower court looked to the Supreme Court of Delaware for guidance. In Doe v. Cahill, 884 A.2d 451 (Del. 2005), the Delaware Supreme Court announced a two-step test to determine whether an internet user’s identity should be disclosed. The test, adopted by the lower court , first requires a court to determine whether (1) the requesting party has made reasonable efforts to notify the anonymous speaker of the request for disclosure (and whether the speaker was afforded a reasonable time to respond); and (2) the requesting party demonstrates that its cause of action would survive a motion for summary judgment. If the answer to both questions is in the affirmative, the Cahill court held, the speaker’s identity must be disclosed.
The Mobilisa lower court, applying the reasoning Cahill, ruled that Mobilisa should be allowed to conduct discovery into the anonymous e-mailer’s identity. The Court of Appeals, however, found that the lower court’s analysis was incomplete. Specifically, the Court found that a third step should be included in the analysis: a balancing of the parties’ competing interests to determine whether disclosure is warranted. Such a step “would provide the court with the flexibility needed to ensure a proper balance is reached between the parties’ competing interests on a case-by-case basis.”