Ottinger v. The Journal News [1]

Former House Representative Richard Ottinger and his wife, June Ottinger, filed a John Doe lawsuit in New York state court and served a subpoena on The Journal News [2], a daily newspaper distributed in New York and Southern Connecticut that operates LoHud.com [3], a website providing an online version of the newspaper as well as community forums. The subpoena sought identifying information for three posters to the site's Mamaroneck community forum going by the psuedonyms "SAVE10543," "hadenough," and "aoxomoxoa." According to court documents, the three posters falsely accused the Ottingers of bribing a local official and presenting a fraudulent deed in connection with a neighborhood dispute over their construction of a house in the Village of Mamaroneck, New York. 

In March 2008, the Journal News moved to quash the subpoena. In a May 28, 2008 hearing on the motion, the court converted the John Doe lawsuit into a "special proceeding" for pre-action discovery against the Journal News. In the same hearing, the court adopted the standard for protecting the First Amendment right to anonymous speech set forth in Dendrite v. Doe [4], 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001), and required the Ottingers to post notice on two LoHud forums notifying the pseudonymous posters of the pending discovery request and asking them to appear through counsel or otherwise on June 25, 2008.

At the June 25 hearing, none of the pseudonymous posters appeared through counsel or otherwise. In a subsequent opinion and order [5], the court held that the Ottingers had satisfied the requirements of the Dendrite standard and ordered the Journal News to turn over the requested information within five days. More specifically, the court found that the Ottingers had identified and set forth the alleged defamatory statements with sufficient precision, provided adequate notice via the LoHud forums, and made a sufficient preliminary factual showing on the merits of their defamation case. Relying on Doe v. Cahill [6], 884 A.2d 451 (Del. 2005), the court held that the Ottingers were not required to make a factual showing on the element of "actual malice" because that information could not reasonably be expected to be in their possession at such an early stage in the proceedings, given the anonymity of the defendants.