Gunning v. Doe, 2017 ME 73 (May 4, 2017).
Blogger’s Note: This case presents several issues that are likely to recur. If some courts, such as California, reach conclusions of constitutional dimensions in discovery orders, is preclusion of further litigation in another forum fundamentally sound? It is not unlikely that much subpoena litigation occurs in California, home to many internet based companies, while merits litigation may be initiated elsewhere. If no issues determined by a California court are considered final, much manipulation may ensue. (“Nothing can estop me now!”) Yet where the “host” state would approach fundamental determinations in a different manner than California are the parties’ interests well served by failing to take an independent look? The dissent here thought Maine should think for itself.
Marie Gunning sought but failed to attain public office in Freeport, Maine. Shortly thereafter Gunning was the subject of multiple publications of jabs and an unflattering pictorial in a local online news parody publication, News as Viewed from the Crow’s Nest (“Crows Nest“).
Gunning sued the Crows’ Nest’s anonymous publisher and writer for defamation in Maine and sought disclosure of their identities through service of a subpoena on the Crow’s Nest’s website host in California. In California, the publisher and writer submitted “John Doe” declarations resisting disclosure, arguing that their work was constitutionally protected as parody and as anonymous speech.
The California Superior Court agreed, and entered an order quashing the subpoena, finding that the Crow’s Nest was protected parody which would not support an action for defamation, which in turn made disclosure of the Crow’s Nest’s publisher’s and writer’s identities unwarranted.
Gunning sought discovery in Maine but again failed to meet with success. The Maine Superior Court quashed her subpoena and dismissed her case for failure to effect service on defendants. The Superior Court observed that, notwithstanding its own questions about whether the published material in issue was parody, the Maine court was precluded from considering the issue further, as this question had been ruled on by the California Superior Court.
The Maine Supreme Court affirmed the trial court’s collateral estoppel determination, casting aside Gunning’s argument that the California ruling was not final and that appeal in California could not be effective where the order was interlocutory and she could not make a showing of immediate harm. The appellate panel perceived no fundamental unfairness or deprivation of any opportunity to litigate where contesting the issues in California would lead, if successful, to disclosures of the critical facts sought. Given the predictability of estoppel on the central issue of actionability, and where no compelling unfairness had otherwise been shown, and where Gunning had always been free to pursue her claim he her choice of forum, the trial court’s finding of estoppel, and accompanying dismissal, was sound. Once Gunning had been unsuccessful in California, permitting re-litigation in Maine would defy longstanding estoppel precepts. California had established with finality the absence of an actionable claim, the Maine trial court did not err in quashing Gunning’s Maine subpoena and dismissing her complaint.
The Maine Supreme Court’s Lone Dissenting Voice
Justice Jabor criticized the soundness of precluding merits litigation in Maine on the basis of a California court’s discovery ruling. Where effective appellate review of the California ruling could not be had, and where preliminary determinations in defamation cases differ in the two jurisdictions, giving preclusive effect to the California order was not justified.
The dissent found compelling the notion that adopting the California court’s conclusions precluded needed review of Maine law, particularly given the significant issues in play: does a heightened burden apply to defamation actions concerning anonymous speech?
Maine has not spoken to this issue, although California has imposed that heavier burden, requiring prima facie proof that a cause of action exists to avoid quashing a subpoena seeking identity disclosures.
Similarly, the dissent observed, issue preclusion is ill advised where one party would be disadvantaged. The balance between the litigants is especially significant in this case, in which each party have substantial constitutionally protected interests at stake: the right to access to the courts versus the protections accorded parody and anonymous speech.
While in other contexts anti-SLAPP statutes provide a balancing mechanism for substantial competing interests, Maine has not yet ruled on the “heightened burden” issue in cases like Gunning’s.
Where a “heightened burden” hurdle implicates the parties’ core constitutional concerns, the Maine judiciary or its legislature should speak for Maine’s law.
Moreover, conclusions reached by California might be better suited for a jury, such as whether a publication is parody. Particularly where the Maine trial court sensed that Gunning had made a prima facie showing and the trial court had questioned the California parody conclusion, applying California law to preclude consideration in Maine seemed ill-founded. The dissent opined that where substantial public policy issues are present, the principles of judicial economy and comity that inform estoppel determinations should yield to better enable thorough judicial review.