DENDRITE INTERNATIONAL, INC.
v. John DOE, NO. 3
775 A.2d 756 (N.J. App. 2001)
FALL,
J.A.D.
In this opinion, we
examine the appropriate procedures to be followed and the standards to be
applied by courts in evaluating applications for discovery of the identity of
anonymous users of Internet Service Provider (ISP) message boards.
Information
contained in postings by anonymous users of ISP message boards can form the
basis of litigation instituted by an individual, corporation or business entity
under an array of causes of action, including breach of employment or
confidentiality agreements; breach of a
fiduciary duty; misappropriation of trade secrets; interference with a prospective business
advantage; defamation; and other causes of action.
Plaintiff, Dendrite
International, Inc. (Dendrite), on leave granted, appeals from an interlocutory
order of the trial court denying its request to conduct limited expedited
discovery for the purpose of ascertaining the identity of defendant, John Doe
No. 3, from Yahoo!, an ISP. Here, the posting of certain comments about
Dendrite on a Yahoo! bulletin board by defendant, John Doe No. 3, forms the
basis of the dispute in this appeal in the context of a cause of action based
on Dendrite's claims of defamation. We affirm
the denial of Dendrite's motion based on the
conclusion of the motion judge that Dendrite failed to establish harm resulting
from John Doe No. 3's statements as an element of its defamation claim.
We offer the following guidelines to trial courts when
faced with an application by a plaintiff for expedited discovery seeking an
order compelling an ISP to honor a subpoena and disclose the identity of
anonymous Internet posters who are sued for allegedly violating the rights of
individuals, corporations or businesses.
The trial court must consider and decide those applications by striking
a balance between the well-established First Amendment right to speak
anonymously, and the right of the plaintiff to protect its proprietary
interests and reputation through the assertion of recognizable claims based on the actionable conduct of the
anonymous, fictitiously-named defendants.
We hold that when such an application is made, the trial
court should first require the plaintiff to undertake efforts to notify the
anonymous posters that they are the subject of a subpoena or application for an
order of disclosure, and withhold action to afford the fictitiously-named
defendants a reasonable opportunity to file and serve opposition to the
application. These notification efforts
should include posting a message of notification of the identity discovery request
to the anonymous user on the ISP's pertinent message board.
The court shall also require the plaintiff to identify and
set forth the exact statements purportedly made by each anonymous poster that
plaintiff alleges constitutes actionable speech.
The complaint and all information provided to the court
should be carefully reviewed to determine whether plaintiff has set forth a
prima facie cause of action against the fictitiously-named anonymous
defendants. In addition to establishing
that its action can withstand a motion to dismiss for failure to state a claim
upon which relief can be granted pursuant to R. 4:6- 2(f), the plaintiff
must produce sufficient evidence supporting each element of its cause of
action, on a prima facie basis, prior to a court ordering the disclosure of the
identity of the unnamed defendant.
Finally,
assuming the court concludes that the plaintiff has presented a prima facie
cause of action, the court must balance the defendant's First Amendment right
of anonymous free speech against the strength of the prima facie case presented
and the necessity for the disclosure of the anonymous defendant's identity to
allow the plaintiff to properly proceed.
The application of these procedures and standards must be
undertaken and analyzed on a case-by-case basis. The guiding principle is a result based on a
meaningful analysis and a proper balancing of the equities and rights at issue.
With these
principles in mind, we now turn to an analysis of Dendrite's action against
John Doe No. 3 and the trial court's decision.
Dendrite is a New
Jersey corporation based in Morristown that provides "highly specialized
integrated product and service offerings for the Pharmaceutical and Consumer
Package Goods (CPG) industries."
Dendrite is publicly traded and has offices located in 21 countries. . .
. .
Yahoo! is an ISP
that, among other things, provides a service where users may post comments on
bulletin and message boards related to the financial matters of particular
companies. Yahoo! maintains a message
board for every publicly-traded company and permits anyone to post messages on
it. As such, Yahoo! operates a bulletin
board specifically devoted to Dendrite, hosting exchanges of messages and
comments about issues related to the company's stock performance. Generally, users of the bulletin boards post
messages anonymously under pseudonyms.
Yahoo! requires, however, that users provide identifying information,
including real names, mailing addresses, and e-mail addresses prior to using
the service. Nonetheless, Yahoo! guarantees
to a certain extent that information about the identity of their individual
subscribers will be kept confidential.
Yahoo!'s privacy policy states that:
As a general rule, Yahoo! will not
disclose any of your personally identifiable
information except when we have your permission or under special circumstances,
such as when we believe in good faith that the law requires it or under the
circumstances described below.
....
Yahoo! may also disclose account
information in special cases when we have reason to believe that disclosing
this information is necessary to identify, contact or bring legal action
against someone who may be violating Yahoo!'s Terms of Service or may be
causing injury to ... anyone ... that could be harmed by such activities.
The postings by John Doe No. 3 on the Yahoo! Dendrite message board must be viewed in the
following context. Dendrite filed its
Quarterly Report for the second quarter of 1999 with the Securities and
Exchange Commission (SEC) in August of 1999.
In this report, Dendrite stated:
Historically, we have generally recognized
license fees as revenue using the percentage of completion method over a period
of time that begins with execution of the license agreement and ends with the
completion of initial customization and installation, if any. However, we believe that with some of our
newer sales force software products, such as, ForcePharma and SalesPlus, our
customers will not require customization and therefore we may be able to
recognize license fees from these products upon delivery.
Following the
release of this report, several stock analysts commented on the disclosures therein. The Center for Financial Research and
Analysis, Inc. (CFRA) issued a report in September 1999 specifically addressing
what it characterized as Dendrite's "Change in Revenue
Recognition." The CFRA report
concluded that due to the apparent change indicated in its Quarterly Report,
Dendrite's revenue recognition would provide an earnings boost and was actually
one of the reasons for Dendrite's then-improved financial condition. Further, the CFRA report opined that the
associated earnings boost may have "masked weaknesses in the company's
core segment."
An Internet website,
"TheStreet.com," published a similar article concerning Dendrite in
September 1999, also responding to Dendrite's Quarterly Report. There, TheStreet.com noted several "red
flags" about Dendrite, including its "more aggressive recognition of
revenue." The author of the
article stated that this change in Dendrite's revenue recognition policy
"could mean more revenue up front."
Thereafter, at least
two users of the Yahoo! Dendrite
bulletin board mentioned the CFRA report and the article from TheStreet.com in
respective postings. On September 21,
1999 one poster, citing the CFRA report, commented on Dendrite's purported
accounting and operational problems. On
September 22, 1999 another poster, citing TheStreet.com article, noted changes
in Dendrite's policy of recognizing revenue.
Sometime after the CFRA report was released Dendrite responded, denying
it changed its revenue recognition policy as
asserted in the CFRA report.
During the period
from March 14, 2000 through June 2, 2000 John Doe No. 3, posted nine comments
on the Yahoo! Dendrite bulletin board
under the pseudonym "xxplrr."
Three of these comments related to purported changes in Dendrite's
revenue recognition accounting.
Specifically, these comments included the following:
John's [ (Dendrite president John Bailye)
] got his contracts salted away to buy another year of earnings--and note how
they're changing revenue recognition accounting to help it.
....
Bailye has his established contracts
structured to provide a nice escalation in revenue. And then he's been changing his revenue-recognition
accounting to further boost his earnings (see about 100 posts back).
....
[Dendrite] signed multi-year deals with
built in escalation in their revenue year-over-year (pharma cares most about
total price of the contract, so they don't care; nor do they care if the price is in software
or services). They also have been able
to restructure their contracts with Pfizer and Lilly the same way.
The certification of
Dendrite Vice President, R. Bruce Savage, submitted in support of Dendrite's discovery
application, asserts that the substance of these
statements are categorically false, specifically averring that Dendrite did not
change its revenue recognition policy, nor are Dendrite's contracts structured
to defer income.
Dendrite also takes issue
with the following March 28, 2000 posting by John Doe No. 3:
[Dendrite] simply does not appear to be
competitively moving forward. John
[Bailye, Dendrite's president] knows it and is shopping hard. But Siebel and SAP already have turned him
down. Hope Oracle does want in bad (and
that's why they'll get). But it doesn't
help job prospects in Morristown any does it?
Dendrite contends this statement falsely asserts Dendrite
was secretly and unsuccessfully "shopping" the company. Dendrite states John Doe No. 3's claims that
Dendrite is not competitive, that its president is aware of this and is trying
to sell the company, and that the company is not desirable to potential
purchasers, are all false.
In light of these
statements, and those posted by other Yahoo! bulletin board users, Dendrite
filed a verified complaint on May 24, 2000 against numerous fictitiously-named
John Doe defendants, including John Doe No. 3. The complaint alleged that
certain postings on the Yahoo! Dendrite
bulletin board constituted breaches of contract, defamatory statements and
misappropriated trade secrets. Relevant to this appeal, the complaint alleged
that the aforementioned messages posted by
John Doe No. 3 defamed Dendrite and misappropriated trade secrets.2
Since most
participants on the Yahoo! Dendrite
bulletin board identified themselves through the use of pseudonyms unrelated to
their actual identities, Dendrite sought an order to show cause why Dendrite
should not be granted leave to conduct limited discovery for the purpose of
ascertaining the true identity of the John Doe defendants Nos. 1 through 4.
Accordingly, on June 20, 2000 the trial court issued an order directing these
John Doe defendants to show cause why the relief requested by Dendrite should
not be granted. The order further
directed that this same notice be posted on the Yahoo! Dendrite bulletin board. . . . .
On November 23,
2000, the motion judge issued a detailed written opinion, granting Dendrite's
motion to conduct limited discovery to ascertain the identities of John Doe
defendants Nos. 1 and 2, but denied the motion as to John Doe defendants Nos. 3
and 4. In reaching his decision, the judge stated, in pertinent part:
The Court has been called upon to balance
an individual's right to anonymously voice their opinions against a plaintiff's
right to confront his accusers.... Dendrite has not made a prima facie case of
defamation against John Doe No. 3, as Dendrite has failed to demonstrate that
it was harmed by any of the posted messages.
Dendrite has also failed to provide this Court with ample proof from
which to conclude that John Does Nos. 3 and 4 have used their constitutional
protections in order to conduct themselves in a manner which is unlawful or
that would warrant this Court to revoke their constitutional protections. Therefore, Dendrite's request for limited
expedited discovery, including the issuance of a commission to take discovery
out-of-state is denied.
The conclusions of
the judge were memorialized in an order executed on December 13, 2000.
By order entered on
January 31, 2001, we granted Dendrite's motion for leave to appeal from that
portion of the December 13, 2000 order denying limited discovery as to John Doe No. 3.
. . . .
It is
well-established that rights afforded by the First Amendment remain protected
even when engaged in anonymously. Buckley
v. American Constitutional Law Found., 525 U.S.
182, 197-99 (1999); McIntyre v. Ohio Elections Comm., 514 U.S.
334 (1995); Talley v. California, 362 U.S.
60 (1960).
. . . .
In Buckley,
supra, 525 U.S. at 197-98,
the Court addressed a Colorado statute that required distributors of political
petitions campaign materials to wear identifying badges and file affidavits
disclosing their identity. There, the
Court found the requirement that petitioners wear identifying badges was
prohibitively burdensome on a person's right to anonymously exercise First
Amendment rights. Id., 525 U.S. at 200.
Specifically, the Court concluded that "[t]he badge requirement
discourages participation in the petition circulation process by forcing name
identification without sufficient cause."
Ibid.
. . . .
Assuming John Doe
No. 3's statements are lawful, they would be afforded Constitutional
protection, both under the First Amendment of the Federal Constitution and our
New Jersey Constitution. Accordingly,
the discovery of John Doe No. 3's identity largely turns on whether his statements
were defamatory or not.
"The key principle in defamation/free expression cases
is the 'profound national commitment to
the principle that debate on public issues should be uninhibited, robust, and
wide-open[.]' " Sedore v.
Recorder Pub. Co., 315 N.J.Super. 137, 146, 716 A.2d 1196 (App.Div.1998) (quoting New York Times Co.
v. Sullivan, 376 U.S. 254, 270 (1964)). "The law of defamation exists to achieve
the proper balance between protecting reputation and protecting free
speech." Ward v.
Zelikovsky, 136 N.J. 516, 528, 643 A.2d 972 (1994); Sedore, supra, 315 N.J.Super. at 146, 716 A.2d 1196. "Thus, the purpose of the law of
defamation is to strike the right balance between protecting reputation and
preserving free speech." Lynch
v. New Jersey Educ. Ass'n, 161 N.J. 152, 166, 735 A.2d 1129 (1999).
Dendrite argues on appeal that the motion judge
imposed an inappropriate burden of proof
when he evaluated whether Dendrite's claim could withstand a motion to
dismiss. Dendrite asserts this burden
of proof is contrary to the recognized standards applicable to motions to
dismiss, which require a judge to look liberally upon a complaint at the pleading
stage. Moreover, Dendrite contends harm is not an element that must be pled in
a defamation action, and if it is a required element of the pleading, then it
has in fact sufficiently pled that element.
In light of free
speech and defamation considerations, as well as the fact that the Internet
played a role in this dispute, the motion judge relied on the case of Columbia
Ins. Co., v. Seescandy.Com, 185 F.R.D. 573 (N.D.Cal.1999)
to resolve whether he should permit Dendrite to conduct discovery to ascertain
John Doe No. 3's identity. In Seescandy.Com,
the Federal District Court for the Northern District of California addressed
whether it should authorize limited discovery so that plaintiff could ascertain
defendant's identity so as to effectuate service. Id.
at 575. There, the unknown defendant
had registered an Internet domain name, "seescandy.com." Id.
at 575-76. Plaintiff, the assignee of various trademarks related to the
operation of "See's Candy Shops, Inc.", sued the unknown defendants
alleging that in registering that domain name the unknown defendant infringed
on federally registered trademarks. Id.
at 576. However, the actual identity of
the defendant who registered the domain name was unknown to plaintiff. . . . .
In light of the particularly unique arena of
discussion and communication created by the Internet forum, the District Court
imposed certain limiting principles on "whether discovery to uncover the
identity of a defendant is warranted" under such circumstances. Id. at 578. The court outlined a four-prong approach to
this issue seeking to "ensure that this unusual procedure will only be
employed in cases where the plaintiff has in good faith exhausted traditional
avenues for identifying a civil defendant pre-service, and will prevent use of
this method to harass or intimidate."
Ibid.
"First, the
plaintiff should identify the missing party with sufficient specificity such
that the Court can determine that defendant is a real person or entity who
could be sued in federal court." Ibid.
Second, plaintiff must "identify all previous steps taken to locate the
elusive defendant" to demonstrate that plaintiffs have made a good-faith
effort to comply with the requirements of service of process. Id.
at 579. Third, and most relevant to this appeal,
"plaintiff should establish to the Court's satisfaction that plaintiff's
suit against defendant could withstand a motion to dismiss." Ibid. Fourth, the moving
"plaintiff should file a request for discovery with the Court, along with a statement of
reasons justifying the specific discovery requested as well as identification
of a limited number of persons or entities on whom discovery process might be served
and for which there is a reasonable likelihood that the discovery process will
lead to identifying information about defendant that would make service of
process possible." Id.
at 580.
Relying on Seescandy.Com,
the motion judge reasoned that Dendrite did not satisfy the third prong-the
ability to withstand a motion to dismiss-because it failed to make out a prima
facie case of defamation against John Doe No. 3. Accordingly, the judge
concluded Dendrite was not entitled to conduct limited discovery to ascertain
the identity of John Doe No. 3. Specifically, the judge found Dendrite failed
to show that the statements posted by John Doe No. 3 caused Dendrite any harm. Dendrite
contends the motion judge imposed an excessively demanding burden of proof,
generally not required when defending a motion to dismiss.
Dendrite cites to Printing Mart-Morristown v. Sharp Electronics
Corp., 116 N.J. 739, 563 A.2d 31 (1989)
to support this contention. There, our
Supreme Court reviewed, in part, whether we properly upheld dismissal of a
plaintiff's defamation claim for a failure to state a cause of action. Id.
at 744, 563 A.2d 31. The
Court initially established that the review of plaintiffs' pleadings on
a motion to dismiss are entitled to deference . . . .
The Court reversed,
finding three of six contested statements made by defendants were "open to
a defamatory meaning and actionable on their face." Id.
at 766, 563 A.2d 31. Those three statements asserted plaintiffs
were (1) " 'ripping off' " clients;
(2) plaintiffs " 'were not qualified to do the work for defendant
... (if stated as fact rather than merely as opinion, an issue to be determined
at trial)"; and (3) that plaintiffs
"did unreasonably-priced, inadequate work." Ibid. The Court found the import of
these statements to be clear, and concluded "that those statements could
not be held as a matter of law to be not defamatory." Id.
at 766-67, 563 A.2d 31.
Dendrite's verified
complaint alleges, in relevant part, the following:
46.
Defendants' publication of these statements has caused irreparable harm to Dendrite for which Dendrite has no adequate
remedy at law, and will continue to cause such irreparable harm unless
restrained by this Court. In addition,
as a proximate result of defendants' publication of these statements, Dendrite
has sustained harm to its business reputation resulting in damages in an amount
to be proven at trial, and Dendrite will continue to suffer additional damages
in the future according to proof.
47. Dendrite is informed and believes, and
thereon alleges, that defendants' publication of these statements was willful,
malicious and oppressive, in that they intended to harm the business reputation
of Dendrite. These acts, therefore,
justify awarding of punitive damages.
In addition, the
complaint highlights the postings made by John Doe No. 3, which asserted
Dendrite had changed its revenue recognition policy and that Dendrite was
"shopping" the company.
Dendrite argues that
in applying the motion-to-dismiss standard, the motion judge ignored the
Court's direction to review pleadings on motions to dismiss with liberality and
generosity and, instead, applied a de facto summary judgment standard. Dendrite asserts the judge mistakenly concluded
that Dendrite must prove "actual reputational injury" in its
complaint.
Our review of the
motion judge's analysis of the harm/injury element of Dendrite's defamation
claim reveals he required more evidentiary support for the pleading than is
traditionally required when applying motion-to-dismiss standards.
The judge relied on McLaughlin v.
Rosanio, Bailets & Talamo, Inc., 331 N.J.Super. 303, 751 A.2d 1066
(App.Div.2000), as the basis for outlining the requirement for a
defamation cause of action. However, it
is clear the judge implemented an analysis that relied on more than a . . . more
probing review of Dendrite's complaint and pleadings than outlined in Printing
Mart, requiring specific proof establishing Dendrite's harm as an element
of its defamation claim. The judge found Dendrite had not established that
fluctuations in its stock prices were a result of John Doe No. 3's postings,
and could not find any nexus between the postings and the drop in Dendrite's
stock prices.
"In the case of
a complaint charging defamation, plaintiff must plead facts sufficient to
identify the defamatory words, their utterer and the fact of their
publication." Zoneraich v.
Overlook Hosp., 212 N.J.Super. 83, 101, 514 A.2d 53 (App.Div.),
certif. denied, 107 N.J. 32, 526 A.2d 126 (1986).
Here, Dendrite has (1) identified the "revenue recognition" and
"shopping" statements as purportedly defamatory words, (2) identified
"xxplrr" (John Doe No. 3) as the utterer, and (3) established that
they were in fact published on Yahoo!'s bulletin board. Accordingly, Dendrite meets the bare minimum
requirements for a defamation cause of action, and would survive a motion to
dismiss under the traditional application of R. 4:6-2(e).
However, application
of our motion-to-dismiss standard in isolation fails to provide a basis for an
analysis and balancing of Dendrite's request for disclosure in light of John
Doe No. 3's competing right of anonymity in the exercise
of his right of free speech.
We first note that
the motion judge was not presented with an actual motion to dismiss and, as
such, was not necessarily bound to a dogmatic application of the associated
rules. Nonetheless, the third prong of
the Seescandy.Com test requires a showing that plaintiff's claim would
survive a motion to dismiss. However, a
closer analysis discloses that the District Court distinguished the actual
application of the third prong of the test from the traditional application of
a motion-to-dismiss standard, stating:
Pre-service discovery is akin to the
process used during criminal investigations to obtain warrants. The requirement that the government show
probable cause is, in part, a protection against the misuse of ex parte
procedures to invade the privacy of one who has done no wrong. A similar requirement is necessary here to
prevent abuse of this extraordinary application of the discovery process and to
ensure that plaintiff has standing to pursue an action against defendant.
[Seescandy.Com,
supra, 185 F.R.D.
at 579-80.]
Probable cause as
it relates to obtaining warrants is a non-technical, flexible concept that does
not require rigid, "technical demands for specificity and
precision[.]" State v. Boyd, 44 N.J. 390, 392-93, 209 A.2d 134 (1965); Ornelas v. United States, 517 U.S. 690, 695-96 (1996). The District Court added that by equating this prong to the probable cause requirement
for warrants, "plaintiff must make some showing that an act giving
rise to civil liability actually occurred and that the discovery is aimed at
revealing specific identifying features of the person or entity who committed
the act." Id. at 580
(emphasis added).
In fact, the literal
reading of the third prong of the Seescandy.Com test, as worded by the
District Court, supports such a flexible, non-technical application of the
motion to dismiss standard.
Specifically, the third prong provides "plaintiff should establish
to the Court's satisfaction that plaintiff's suit against defendant
could withstand a motion to dismiss." Seescandy.Com, supra, 185 F.R.D. at 579
(emphasis added). The court
characterized the four-prong test as "safeguards," necessary to
"prevent [plaintiffs from] harrass[ing] or intimidat[ing]" anonymous
persons on the Internet. Ibid.
Our review
of Seescandy.Com discloses that a strict application of our rules surrounding
motions to dismiss is not the appropriate litmus test to apply in evaluating
the disclosure issue. We conclude that
the District Court envisioned this four-part test to act as a flexible,
non-technical, fact-sensitive mechanism for courts to use as a means of
ensuring that plaintiffs do not use discovery procedures to ascertain the
identities of unknown defendants in order to harass, intimidate or silence
critics in the public forum opportunities presented by the Internet. . . . .
Here, although
Dendrite's defamation claims would survive a traditional motion to dismiss for
failure to state a cause of action, we conclude the motion judge appropriately
reviewed Dendrite's claim with a level of scrutiny consistent with the
procedures and standards we adopt here today and, therefore, the judge properly
found Dendrite should not be permitted to conduct limited discovery aimed at
disclosing John Doe No. 3's identity. .
. . .
A defamatory statement is one that is false and 1) injures
another person's reputation; 2) subjects
the person to hatred, contempt or ridicule;
or 3) causes others to lose good will or confidence in that person. Romaine v. Kallinger, 109 N.J. 282, 289, 537 A.2d 284 (1988). A defamatory statement harms the reputation
of another in a way that lowers the estimation of the community about that
person or deters third persons from associating or dealing with him. McLaughlin v. Rosanio, supra, 331 N.J.Super. at 312, 751 A.2d 1066; Restatement
(Second) of Torts § 559 (1977). "Words that clearly denigrate a person's
reputation are defamatory on their face and actionable per se." Printing Mart-Morristown, supra, 116 N.J. at 765, 563 A.2d 31. When determining if a statement is
defamatory on its face "a court must scrutinize the language 'according to
the fair and natural meaning which will be given it by reasonable persons of
ordinary intelligence.' " Ibid.
(quoting Romaine, supra, 109 N.J. at 290, 537 A.2d 284). A plaintiff does not make a prima facie
claim of defamation if the contested statement is essentially true. Hill v. Evening
News Co., 314 N.J.Super. 545, 552, 715 A.2d 999
(App.Div.1998).
The motion judge determined that Dendrite failed
to demonstrate the statements posted by John Doe No. 3 caused it any harm. The certification of Dendrite Vice
President, Bruce Savage alleges John Doe No. 3's postings "may ... have a significant
deleterious effect on Dendrite's ability to hire and keep employees." (Emphasis added). Dendrite also contends that John Doe No. 3's
postings caused detrimental fluctuations in its stock prices.
Dendrite's NASDAQ
trading records were submitted to the court for the period of March 1, 2000
through June 15, 2000. Those records
indicate Dendrite experienced gains on 32 days, losses on 40 days, and no
change on two days during that period, which overlaps the period when John Doe
No. 3 was posting his statements on the Yahoo! bulletin board. Dendrite's total loss during this period was
29/32 of a point.
Moreover, John Doe
No. 3 made nine postings, two on the same day.
On three of the days that immediately followed a posting by John Doe No.
3, Dendrite's stock value decreased.
However, on five of the days that immediately followed a posting by John
Doe No. 3, Dendrite's stock value increased.
The net change in Dendrite's stock value over those seven days was
actually an increase of 3 and 5/8 points.
Although the motion
judge stated Dendrite was "entitled to every reasonable inference of fact
in this analysis[,]" he refused to "take the leap to linking messages
posted on an internet message board regarding individual opinions, albeit
incorrect opinions, to a decrease in stock prices without something more
concrete." The record does not
support the conclusion that John Doe's postings negatively affected the value
of Dendrite's stock, nor does Dendrite offer
evidence or information that these postings have actually inhibited its hiring
practices, as it alleged they would.
Accordingly, the motion judge appropriately concluded that Dendrite
failed to establish a sufficient nexus between John Doe No. 3's statements and
Dendrite's allegations of harm.
We are satisfied
that the analysis and conclusions by Judge MacKenzie set forth in his
comprehensive letter opinion dated November 23, 2000 are supported by the
record. Dendrite has failed to
establish that the judge abused his discretion in entering the December 13,
2000 order.
Accordingly, we affirm.
2 In this appeal, Dendrite bases its application seeking disclosure of John Doe No. 3's identity on its contention that John Doe No. 3's posted messages constitute actionable defamation.