• Can Hospital Decloak Anonymous Critic?
  • March 17, 2008
  • Law Firm: Holland & Hart LLP - Denver Office
  • Last month a Texas Court of Appeals granted a limited mandamus to an anonymous blogger who was frequently critical of Paris (Texas) Regional Medical Center (PRMC"), a subsidiary of a hospital system known as Essent.  PMRC filed suit earlier in the year against the anonymous blogger who goes by the nom de guerre of Frank Pasquale and nine other anonymous contributors or commentators on his blog for libel. Since the PRMC didn't know the identity of Pasquale they sought an court order under the Cable Communications Policy Act of 1984 to force Suddenlink to disclose the IDP number and identity of Pasquale. To its credit, Suddenlink balked until the hospital agreed to permit Pasquale to be given notice and an opportunity to object. He appeared through and attorney and objected. When his objections were rejected by the trial court Pasquale filed a mandamus action to interdict the court's order.

    The Texas Court of Appeals in In Re DOES 1-10, __SW. 3d __, 2007 WL 4328204(Tex. App. -Texarkana), held that the Hospital and the trial court were proceeding outside of the Rules of Civil Procedure.

    The mechanisms set out in the rules of discovery that might authorize and regulate such an order (and also the protections to the person inherent in those procedures) were not utilized. Instead, counsel sought and originally obtained an ex parte order entirely outside the rules, based on the application of a statute that is not relevant to this situation.

    The Court noting the inherent conflict between First Amendment right to speak anonymously and the need to redress wrongs in the court adopted a balancing test that requires the trial court to hold an additional evidential hearing to determine whether PRMC has sufficient evidence of libel or other wrongs to withstand a summary judgment motion before obtaining the identity of the anonymous blogger. The Court adopted the same standard as the court in Doe v. Cahill, 884 A 2d 451 (Del. 2005). Other courts have adopted less stringent standards.

    One of the interesting facets of libel litigation is that it is extremely difficult to survive summary judgment motions brought by the defendant because of the onerous First Amendment protections and second, that the publicity surrounding the filling results in the republication and expansion of the alleged libel.  The national publicity generated over this litigation and the negative publicity earned by PRMC as a result seems hardly worth any satisfaction of decloaking Pasquale, if PRMC is ultimately successful in surving an evidential presentation.  In the meantime Pasquale is probably getting a great deal of joy out of the notoriety.