Gunning v. Doe

Marie Gunning, a citizen who is active in politics in Freeport, Maine, and who was an unsuccessful candidate for  Town Council, sued the anonymous host and author of a local parody newspaper, filed a defamation action over such statements as that “rumors continue that [she] suffers from bipolar disorder with acute depression and paranoia, amplified by substance abuse.”  She pursued discovery, initially in Maine but eventually in California because that was where the online version of the parody newspaper was hosted.  The California court, applying the Krinsky v. Doe standard for identification of anonymous defendants, held that Gunning had not made a sufficient showing of a valid claim because the Does’ speech was opinion rather than fact.  Gunning then came back to Massachusetts and sought leave to complete alternative service by sending the complaint to Does’ counsel.  The Maine trial court denied that motion because counsel could not be required to identify his client.  Plaintiff also sought leave to take depostions of people who knew who was publishing the hard copies of the newspaper that were disseminated in town.  The motion was granted, but the deponent and Does both moved to quash the discovery.  The trial court granted that motion to quash, holding first that the Dendrite standard governed such motions in Maine; second that plaintiffs had properly shown that at least some of the allegedly defamatory statements were matters of fact and were false; but that the viability of plaintiff’s claims had been fully litigated in the California discovery proceeding and the disposition of the discovery motions in California was res judicata in Maine. Gunning appealed, and Public Citizen filed a brief as amicus curiae (joined by the Maine ACLU chapter), arguing that the Maine Supreme Court should adopt the Dendrite approach to identifying anonymous defendants sued for their online speech.  We took no position on the res judicata issue. The Maine Supreme Court affirmed, but only on the res judicata ground; it chose not to address the question whether Dendrite or some similar standard would apply in Maine. A lone dissenter objected to the res judicata ruling and implied a hostile attitude toward Dendrite.