Mobilisa v. Doe [1]

In mid-2005, Mobilisa, Inc., a Washington company that provides wireless and mobile communication systems to government and military clients, filed a John Doe lawsuit in state court in Washington.

According to a court opinion in related litigation in Arizona, the dispute arose out of a June 21, 2005 email from Nelson Ludlow, the founder and chief executive of Mobilisa, to Shara Smith, who was having a personal relationship with Ludlow and was not employed by Mobilisa. Six days after Ludlow sent the email, members of Mobilisa's management team received an email from an anonymous sender with an address from "theanonymousemail.com," which is owned by The Suggestion Box, Inc., an Arizona corporation. The anonymous email contained the contents of Ludlow's email to Smith and the subject line: "Is this a company you want to work for?"

Mobilisa filed a lawsuit in Washington State, asserting that an anonymous defendant or defendants violated two federal statutes that make it illegal to "hack" electronic communications. The crux of the claim was that the anonymous defendant(s) accessed Mobilisa's protected computer systems and email accounts without or in excess of authorization.

In August 2005, Mobilisa filed an application in Arizona Superior Court requesting the court to issue a subpoena compelling The Suggestion Box to disclose the identity of the person who used its service to send the anonymous email. The court initially granted the request, but then vacated its discovery order when The Suggestion Box objected in December 2005. In this ruling, the court adopted the standard set out in Doe v. Cahill [2], 884 A.2d 451 (Del. 2005), to decide whether the identity of the anonymous defendant would be unmasked. The court found that Mobilisa had not satisfied the Cahill standard, but allowed the company to supplement its application. The court also ordered The Suggestion Box to notify its email account holder of Mobilisa's request for a subpoena.

In February 2006, counsel for The Suggestion Box notified the court that, with The Suggestion Box's consent, it would be representing the anonymous defendant in the matter as well. Through counsel, the anonymous defendant objected to Mobilisa's discovery request and asserted in an affidavit that he did not access or obtain the Ludlow email through Mobilisa's computers. Later that month, the court granted Mobilisa permission to conduct the requested discovery, ruling that the company had made a sufficient showing to meet the Cahill standard.

The anonymous defendant and The Suggestion Box appealed. On November 27, 2007, the Arizona appellate court remanded the case to the trial court for further consideration, holding that the lower court had applied the wrong standard. The court adopted the standard set forth in Dendrite Int'l, Inc. v. Doe [3], 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001). Under that standard, the lower court was required not only to apply the "summary judgment" standard from Cahill, but to determine additionally whether the balance of the parties' competing interests favored disclosure. The court upheld the trial court's earlier determination that Mobilisa had produced sufficient evidence to survive a motion for summary judgment.

Update:

2/13/2008 - Mobilisa moved to withdraw its subpoena and dismiss the action pursuant to a joint stipulation of the parties

3/17/2008 - The court dismissed the action.