Opinion
100628/10.
March 4, 2010.
Jonathan E. Gates, Esq., Day Pitney LLP, New York, NY, Attorney for Petitioner.
Joshua A. Plaut, Esq., Wilson, Sonsini, Goodrich Rosati, Esqs., New York, NY, Attorney for Respondent
Petitioner Sandals Resorts International Limited is a Jamaican limited liability company that provides management services to a group of hotels which trade under the names "Sandals" and "Beaches." Sandals commenced this special proceeding for pre-action disclosure pursuant to CPLR § 3102(c), making a broad request for Google, Inc. to produce all information concerning the Google account jft3092@gmail.com. Sandals seeks information including, but not limited to, all email messages, instant messages, contact lists, account histories, user identification records and ISP access records, connected to this email address.
The request was prompted by an e-mail sent to "Undisclosed Recipients" from the above address, referenced as belonging to "John Anthony," presumably the email account holder or a pseudonym. The email cites to several on-line articles and pictures regarding Sandals. Alongside the citations, the account holder questions why Jamaicans are not speaking up against the alleged under-employment by Sandals of Jamaicans. Sandals alleges that the email is defamatory, and thus would like to pursue a lawsuit against the account holder. To pursue that action, Sandals seeks in this proceeding identifying information about the account holder from Google.
In response to the Order to Show Cause, Sandals and Google entered into a Corrected Joint Stipulation and Proposed Order. This Stipulation provides that Google will notify the account holder of this proceeding and provide a copy of the Order to Show Cause as entered by the Court and the Stipulation. The Stipulation further provides that the account holder shall have until February 22, 2010 to appear in this proceeding and contest the requested production of the pre-action discovery information. Whether or not the account holder appears, the Stipulation necessarily acknowledges that the Court must decide based on the governing law whether and to what extent Google should turn over to Sandals the requested information.
An individual did contact the Court by February 22, 2010 and acknowledged receipt of Google's notification. Further, the individual avers that the email is not defamatory. This contact constitutes an appearance before the Court.
Discussion
A party may seek permission from a court pursuant to CPLR § 3102(c) to conduct pre-action discovery. The statute states in relevant part:
Before an action is commenced, disclosure to aid in bringing an action, to preserve information or to aid in arbitration, may be obtained, but only by court order.
The purpose of pre-action discovery is to aid a party in bringing an action against a potential defendant. Such permission is only to be granted "where there is a demonstration that the party bringing such a petition has a meritorious cause of action and that the information being sought is material and necessary to the actionable wrong." Liberty Imports, Inc. v. Bourguet, 146 AD2d 535, 536 (1st Dep't 1989). The merits of the cause of action are to be determined by the court. Matter of Peters v. Sotheby's Inc. , 34 AD3d 29 , 34 (1st Dep't 2006).
Here, Sandals must demonstrate a meritorious cause of action sounding in defamation against the account holder for pre-action discovery to be granted. Defamation occurs when one's reputation is injured by another's written (libel) or oral (slander) expression. Morrison v. National Broadcasting Co., 19 NY2d 453 (1967). In this instance, because a written email is at issue, libel is applicable. There are four elements of libel: (1) a false and defamatory statement of fact; (2) regarding the plaintiff [petitioner]; (3) which is published to a third party; and which (4) results in injury to plaintiff. Penn Warranty Corp. V. DiGiovanni, 10 Misc 3d, 1002 (Sup Ct NY County 2005), citing Idema v. Wager, 120 F Supp 2d 361 (SD NY 2000).
Thus, the Court must first determine whether the statements of the account holder were those of fact or opinion based on what a reasonable reader would have believed them to be. Millius v. Newsday, Inc., 89 NY2d 840 (1996) The Court of Appeals in Brian v. Richardson, explained that the following factors are considered in distinguishing fact from opinion: (1) whether the language used has a precise meaning or whether it is indefinite or ambiguous, (2) whether the statement is capable of objectively being true or false, and (3) the full context of the entire communication or the broader social context surrounding the communication. 87 NY2d 46 (1995). In addition, the Court in Guerrero v. Carva makes a distinction between a statement of opinion that implies a factual basis that is not disclosed to the reader and an opinion that is accompanied by a recitation of facts on which it is based. 10 AD3d 105 (1st Dep't 2004), citing Steinhilber v. Alphonse, 68 NY2d 283, 289 (1986). An opinion accompanied by the facts is ordinarily not actionable because "a proffered hypothesis that is offered after a full recitation of the facts on which it is based is readily understood by the audience as a conjecture." Gross v. New York Times Co., 82 NY2d 146, 154 (1993).
Here, the Court finds that the account holder's email contains protected assertions of opinion. The email does not contain assertions of fact, nor would a reasonable person construe that it does. Accordingly, Sandals has failed to establish a meritorious claim of defamation.
Although Sandals chose not to provide the Court with the full text of the account holder's email, from what was submitted it can be ascertained that the account holder did not assert objective facts. For the most part, the account holder enumerates queries in response to articles and pictures. The account holder provides links to the text on which his/her assertions are based. As stated above in Gross, because the account holder provides links, the reader is in essence provided with the facts and can come to his or her own determination about Sandals. This indicates to the reader that the account holder's words are meant to provoke either thought or discussion and are therefore protected speech.
As the email at issue does not contain assertions of objective fact with regard to Sandals, the email cannot form the predicate for a defamation claim based on the first criterion stated above. Furthermore, as Sandals offers no evidence of the harm the account holder's email has caused it, Sandals has failed to prove the fourth element of defamation cited above. Therefore, Google shall not disclose the requested information relating to the account holder.
It is clear that the second and third element of libel have been demonstrated in this proceeding. The email discusses the petitioner Sandals, and as the email was sent to "undisclosed recipients," it was published to a third party.
Accordingly, it is hereby
ADJUDGED that the petition is denied and this proceeding is dismissed. The Clerk shall enter judgment accordingly.
This constitutes the decision and judgment of this Court.