John Doe Discovery Cases Go from Meritless to Expensive

The John Doe lawsuit filed solely for discovery purposes is not only dying, but it may become its very own tort! We addressed some of the issues and developments in this area early last month. Daniel Solove just posted to the Politech list about an important case involving anonymity on the Internet. He blogs the story on his Concurring Opinions blog, to wit:

The company filed a “John Doe” lawsuit against the anonymous blogger for a tort claim of “breach of fiduciary duty and breach of duty of loyalty.” The employee was completely unaware that a lawsuit had been filed against him.

Three months after filing the lawsuit, the company filed an emergency motion to prevent “John Doe” from posting more messages. It claimed that Doe’s posting violated the company’s anti-harassment policy. The company obtained a subpoena and served it on Yahoo. Yahoo sent an email to the employee that Yahoo would respond within 15 days unless the employee filed a motion to quash. The employee claimed he never received the email. Yahoo subsequently turned over the employee’s identity to Allegheny Energy. Afterwards, Allegheny Energy filed papers to discountinue its civil action against the employee. The employee was then fired for making the racial slur.

The employee has now sued, claiming: (1) abuse of process; (2) wrongful use of civil proceedings; (3) intrusion upon seclusion; (4) public disclosure of private facts; and (5) wrongful discharge.

This is a fascinating lawsuit that, prima facie, sounds like it has a decent likelihood of succeeding. I wonder what Walter Olson’s slant would be on this, in terms of who the “overlawyerer” is…

Final twist, from Solove:

The case also raises larger policy issues about employee speech and privacy outside of the workplace. The comment made by the blogger was quite offensive. He wrote: “[W]e were force fed ‘love thy n*****’ with [Allegheny Energy’s] DIVERSITY program.” Should a company have any business in finding out which employee made this comment and disciplining him even though he made the comment at his home?

Ron Coleman

I write this blog.

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