The District of Columbia Court of Appeals has ruled that a Washington-based software industry trade group can keep the identity of an anonymous informant secret, denying enforcement of a subpoena by a company that claimed the John Doe defamed them.
Finding that Arlington, Va.-based defense contractor Solers Inc. failed to show evidence that the informant's speech harmed the company, the three-judge appellate panel sided with the Software & Information Industry Association. The opinion (PDF), published on Jan. 12, reversed a trial court's order to enforce the subpoena.
The informant, through the trade group's Web site, accused Solers in 2005 of using unlicensed computer software. Solers, an information technology services provider, conducted an internal investigation and notified the trade group that it used only properly licensed software.
The trade group never took action beyond notifying Solers of the complaint, but Solers sued the informant in District of Columbia Superior Court in 2005 for defamation. The company subpoenaed the trade group for the informant’s name, the original report and any other correspondence. The trade group fought the subpoena, a dispute that’s kept the underlying lawsuit on hold for the past six years.
“The appellate decision is terrific vindication of the First Amendment speech rights of whistleblowers, to remain anonymous,” Scott Bain, chief litigation counsel for the trade group, wrote in an e-mail. “It sets a solid First Amendment precedent that will benefit the SIIA, other associations, and publishers here in D.C., and is a persuasive roadmap for other jurisdictions.”
The trade group was represented by Holland & Knight partner Charles Tobin.
Solers’ attorney, Daniel Tobin of Ballard Spahr (no relation to opposing counsel), said Tuesday that he and his client are still reviewing the decision and declined to discuss their next steps. “We disagree with the reasoning, [and] we’re disappointed with the outcome,” Tobin said.
The appeals court issued its first decision in the case in 2009, reversing a lower court ruling that the case be dismissed for failing to state a claim; the appeals court found that Solers had made sufficient claims that the informant engaged in defamatory speech.
But the court declined to weigh in on the subpoena issue, instead laying out a five-step test for determining whether the weight of claims and evidence outweighed an informant’s right to anonymous speech under the First Amendment. The Solers I decision established new precedent.
On remand, the trial judge found that Solers had failed to present evidence that the company was injured by the informant’s speech; the company claimed its reputation was harmed and that it was forced to spend $7,114 in legal fees. However, the trial judge wrote that because the appeals court found that Solers had properly stated a claim, she felt compelled to enforce the subpoena. The trade group brought the case back to the appeals court, arguing that the trial judge misinterpreted Solers I and did have the authority to deny enforcement of the subpoena.
The appeals court found that under its five-step test, there was no direct evidence that Solers’ business interests suffered because of the informant’s speech.
“To accept Solers’ argument…would mean that a corporate plaintiff may overcome a speaker’s First Amendment right to anonymity with little more than an allegation of defamation and its own decision to expend money in response,” the court wrote in a per curiam decision.
Associate Judge John Fisher and Senior Judges Michael Farrell and Inez Reid heard the case.