Arizona Court of Appeals Division One holds that a defamation plaintiff requesting disclosure of an anonymous defendant’s identity must show that it could survive a motion for summary judgment, setting aside those elements which are dependent on the identity of the speaker.

A mining company sought investors for its projects.  Three states sent the company or its subsidiaries cease and desist orders alleging misleading solicitations.  Later, a blogger anonymously criticized the mining company.  The mining company sued the blogger for defamation and served a subpoena on a telecommunications company to reveal his IP address.  The superior court denied the blogger’s motion to quash and ordered his identity revealed.  The blogger filed a special action petition.  The Court of Appeals accepted jurisdiction. 

A party requesting disclosure of an anonymous party’s identity must show that (1) the speaker has been given adequate notice and a reasonable opportunity to respond to the discovery request, (2) the requesting party’s cause of action could survive a motion for summary judgment on the elements of the claim not dependent on the identity of the anonymous speaker, and (3) the balance of interests favors disclosure. 

The superior court held that the mining company could survive summary judgment as to six of the allegedly defamatory claims.  The Court of Appeals disagreed, holding that none of those statements was false in a manner that changed their “substantial sting.”  For example:

• The blogger had written that the mining company had “bilked” investors out of $30 million.  The mining company argued that this was defamatory because it had sought to raise only $10 million.  The court held that the precise amount of money at issue would not substantially change the allegation of fraudulent conduct.
• The blogger had referenced a Maryland cease and desist order against the company.  In fact, that order was against a subsidiary.  The court held that, to a reasonable person reading the blogger’s statement, this distinction would not matter. 

The Court of Appeals, therefore, granted relief and remanded for the superior court to determine whether any of the other claims raised by the mining company could survive a motion for summary judgment.

Judge McMurdie delivered the opinion of the court; Judges Swann and Winthrop joined.