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La Society Metro Cash & Carry France v. Time Warner Cable et al.

Case No. CV30197400S (Superior Court Conn., December 2, 2003)

Court grants bill of discovery, requiring ISP to disclose the identity of a subscriber who allegedly sent a defamatory, anonymous e-mail to employees of a French company.  To obtain such discovery, the court required the French company to show that: (1) what it seeks to discover is material, necessary or needed to aid in proof of a claim asserted in an action brought or about to be brought; (2)  there is probable cause to bring the claim, which must be shown by detailed facts; (3) the requested discovery is confined to facts material to the claim; and (4) there are no other adequate means of obtaining the requested discovery.  Finding that the French company met this burden, the court granted the requested relief.

Employees of plaintiff, La Society Metro Cash & Carry France ("Metro Cash") received an allegedly defamatory e-mail accusing Metro Cash of "underhanded and deceptive business practices."  Metro Cash traced the source of the e-mail to the account of a subscriber of Time Warner Cable.  Metro Cash thereafter sought and obtained an order from a French Court, which directed disclosure of the identity of the subscriber.

Time Warner notified the subscriber of the French Court's order, who objected to the disclosure, and disputed the validity of the Order.  Metro Cash thereafter commenced the instant proceeding, seeking a bill of discovery under Connecticut law, compelling Time Warner to disclose the subscriber's identity.  The subscriber appealed and opposed Metro Cash's request. 

To obtain such disclosure, a movant must show that: (1) what it seeks to discover is material, necessary or needed to aid in proof of a claim asserted in an action brought or about to be brought; (2)  there is probable cause to bring the claim, which must be shown by detailed facts; (3) the requested discovery is confined to facts material to the claim; and (4) there are no other adequate means of obtaining the requested discovery.

The Court held that plaintiff had made such a showing.  Metro Cash produced a witness who testified that the e-mail the subscriber purportedly sent was defamatory, and distributed to company employees, who reacted negatively thereto.  This was sufficient to establish the probable cause of Metro Cash's defamation claim.  The Court held that the discovery was appropriately tailored, seeking only the identity of the subscriber, which was material to the prosecution of the claim, as the e-mail was allegedly sent anonymously by him/her.  Lastly, the Court held that there was no other adequate means for Metro Cash to obtain the disclosure.

The subscriber argued that  discovery should not proceed because it abrogated her right to speak anonymously over the Internet, which  was protected by the First Amendment.  While recognizing the existence of such right, the Court held it was not absolute.  Rather, in the context of a defamation claim, it must be balanced against the competing interests of the injured party.  After reviewing the tests used by other courts to strike the appropriate balance, the Court held that the four part test noted above, relied upon by the Court in Journal Publish Co. v. Hartford  Courant Co., 261 Conn. 673, 804 A.2d 856 (2002), struck the appropriate balance.  "This court concludes that the application of the Journal standards is appropriate to protect both the interests of the party seeking discovery as well as those speaking anonymously over the Internet."  As Metro Cash had met its burden under this test, the court directed Time Warner to disclose the subscriber's identity.

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