Essent v. Doe [1]

In June 2007, a subsidiary of Essent Healthcare, Inc. filed suit in Texas state court against an anonymous blogger and an undefined number of anonymous posters to his blog. Essent's petition [2] contains claims for defamation, trade disparagement, breach of contract, and breach of the duty of loyalty.

The case revolves around a blog called "The-Paris-site," which focuses on Essent's Paris Regional Medical Center (the "Hospital") in Paris, Texas. The operator of the blog goes by the pseudonyms "Frank Pasquale" (no relation to the law professor) and "fac_p". He posted critical remarks about the Hospital on the blog, including statements that, according to Essent, assert or imply that the Hospital is engaged in Medicare fraud. He also posted statements that allegedly accuse the Hospital of having a high incidences of bacterial infections and of post-surgical complications.

Anonymous users also posted comments on the blog. Some of the comments included information that Essent claims is confidential patient health information. Essent maintains that these anonymous posters (and possibly the blog operator himself) are current or former Hospital employees, and that these disclosures of patient information violate the Health Insurance Portability and Accountability Act ("HIPAA"). Essent's petition contains no claim for violations of HIPAA as such, but asserts that anonymous employee posters breached their employment contracts with the Hospital, and their duties of loyalty to it, by disclosing confidential information in violation of HIPAA.

Essent filed an ex parte [3] request [2] for an order compelling SuddenLink Communications, the anonymous blogger's internet service provider, to disclose his identity. On June 19, 2007, the court issued an order directing SuddenLink to do so, and SuddenLink subsequently sent notice to the blogger pursuant to the Cable Communications Act, which contains an interesting requirement that a cable operator may not disclose "personally identifiable information concerning any subscriber" unless the cable operator first notifies the subscriber. 47 U.S.C. 551(c) [4].

On August 3, 2007, a lawyer representing the anonymous blogger wrote a letter [5] to the court, opposing disclosure of his client's identity. Essent submitted briefs, arguing that the blogger's objection was unfounded. On September 14, 2007, Scott McDowell, the district judge, issued a letter ruling [6], rejecting the blogger's objection, stating that he would sign an order requiring SuddenLink to disclose the blogger's name and address, and requesting that Essent prepare the order. The September 14 letter ruling stated that the "burden by plaintiff has been met to meet the requirements of the exceptions to the [Cable] Communications Act to grant the request by Plaintiff." On September 24, counsel for the anonymous blogger filed a letter pointing out that no evidentiary support had been provided by Essent to justify disclosure of his client's identity and arguing that, in the absence of such evidence, even the lowest standard of review imposed by court's before unmasking an anonymous poster had not been met.

On September 27, Essent submitted an affidavit from a Hospital representative, indicating that the statements in Essent's petition were true and attaching copies of the blog and various documents regarding the hospital's contract claims against the anonymous employee posters. On October 1, the court signed an order compelling SuddenLink to disclose the name and address of the anonymous blogger. The order stated that the court had considered the September 27 filing and everything else previously submitted to the court.

On October 9, counsel for the anonymous blogger filed a petition for a writ of mandamus asking a Texas appellate court to order the trial court to withdraw its order. On December 12, 2007, the appellate court conditionally granted [7] the writ of mandamus, ordered the trial court to vacate its previous order, and sent the case back to the trial court for further consideration. The court held that the Cable Communications Act gives courts no independent authority for ordering non-party discovery, and that the trial court had entirely failed to consider the Texas rules of civil procedure relating to non-party discovery and therefore had lacked authority to issue its order. Additionally, the appellate court offered the trial court "some guidance" in applying the Texas rules of discovery in light of First Amendment protection for anonymous speech. The court indicated that it would follow Doe v. Cahill [8] in requiring that a plaintiff produce evidence sufficient to survive a summary judgment motion before ordering disclosure of an anonymous defendant's identity. "Summary judgment" is a legal term of art, and applying this standard means that the plaintiff must show that it has sufficient evidence for each of the elements of its claim. The court, like the Delaware Supreme Court in Cahill, loosened the standard somewhat, however, indicating that a plaintiff at this preliminary stage of the litigation need not provide evidence for elements of his/her claim that are nearly impossible to show without knowing the defendant's identity (such as whether the defendant acted with the requisite degree of fault).