In an opinion that ultimately may have more significance in the development of Michigan defamation law than on the outcome of the underlying dispute, the Court of Appeals has sided, sort of and temporarily, with the anonymous blogger who is being sued by Cooley for defamation and tortious interference on the question of whether a protective order preserving his anonymity should be issued. In July 2011, Cooley sued several anonymous bloggers, including Doe 1 who ran the weblog “Thomas M. Cooley Law School Scam.” Cooley subpoenaed the blogger's California-based Internet-hosting company for the blogger's identity but before a motion to quash the subpoena was filed the company turned over the name to Cooley, which disclosed the name in a court filing. (The disclosed information has been sequestered, and the papers filed in the case naming the blogger stricken from the record.) Noting that he was dealing with an open question in Michigan law, the trial court judge, Ingham County circuit court judge Clinton Canady, issued a ruling in Cooley's favor, applying a standard stated in a New Jersey case, Dendrite v Doe, as the governing rule. Canady held that Cooley had sufficiently alleged slander per se, that per se slanderous statements are not entitled to First Amendment protection, and thus Cooley would not have to prove actual malice. He also denied Doe 1’s motion to quash and declined to grant a protective order, allowing Cooley to use the information that it discovered from the website host. The ruling has been stayed pending appeal.
Cooley argued before the Court of Appeals that the question of protecting the blogger's identity was moot and that Michigan law does not require a plaintiff to prove the strength of its claims before it can carry out discovery. Doe's brief (PDF) urged the Court of Appeals to respond in Doe's favor and in the process "develop a test for the identification of anonymous speakers that makes it neither too easy for deliberate defamers to hide behind pseudonyms, nor too easy for a big company or a public figure to unmask critics simply by filing a complaint that purports to state an untested claim for relief."
Although it's clear that Cooley did not win this round, it is not so clear that the COA majority has provided the test that Doe wanted. The majority opinion by Judge William Whitbeck, concurred in by Judge Patrick Meter, concluded that the trial court abused its discretion when it denied Doe 1’s motion for a protective order after it adopted and applied foreign law, and that Michigan law adequately protects Doe 1’s free speech interests in this case. It ordered the trial court on remand to determine whether it has the power to quash a California subpoena. If not, or if it declines to do so, the trial court should apply Michigan law to determine whether Doe 1 is entitled to an order protecting his identity.A partial concurrence/dissent by Judge Jane Beckering disagreed with the conclusion that Michigan law adequately protects a defendant's First Amendment right to speak anonymously when the defendant's identity is sought in a defamation action. Beckering would adopt a modified Dendrite standard allowing a defamation plaintiff to engage in discovery to learn an anonymous defendant’s identity only after (1) the plaintiff has made reasonable attempts to notify the defendant and then has given the defendant a reasonable opportunity to defend against the discovery request, (2) the plaintiff has presented the trial court with prima facie evidence sufficient to support each element of its cause of action, other than the elements dependent on the defendant’s identity, and (3) the strength of the plaintiff’s prima facie case and the necessity of disclosure of the defendant’s identity outweighs the defendant’s right to speak anonymously.