review boost v. doe - response to motion to compel

7/29/2019 Review Boost v. Doe - Response to Motion to Compel

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RESPONSE TO MOTION TO COMPEL

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David S. Gingras, #021097Gingras Law Office, PLLC4025 E. Chandler Blvd., #70-A26Phoenix, AZ 85048Tel.: (480) 264-1400Fax: (480) 248-3196

[email protected]

Attorney for non-partyXcentric Ventures, LLC

ARIZONA SUPERIOR COURT

COUNTY OF MARICOPA

INTRAVAS, INC, a California corporation,d.b.a. REVIEW BOOST,

Plaintiff,

vs.

JOHN DOES 1-10; JANE DOES 1-10; ABCPARTNERSHIPS I-X; DEF LIMITEDLIABILITY COMPANIES I-X; and XYZCORPORATIONS I-X,

Defendants.

Case No: CV2012-013872

NON-PARTY XCENTRIC

VENTURES, LLCS RESPONSE TO

PLAINTIFFS MOTION TO

COMPEL

(Assigned to Hon. Arthur Anderson)

Non-party XCENTRIC VENTURES, LLC (Xcentric) respectfully submits th

following response to Plaintiff INTRAVAS, INC.s (Intravas or Plaintiff) Motion to

Compel. As explained herein, Plaintiff has not met the applicable standards for obtaining

the information it is seeking. As such, the motion should be denied.

I. INTRODUCTION

The question before the court is simpleshould Xcentric be ordered to disclose

the identity of a third party who posted a complaint about Plaintiffs business on

Xcentrics website? The facts relevant to that question are as follows. Xcentric owns and

operates a website called the Ripoff Report located at www.ripoffreport.com. As th

name suggests, the site allows consumers to post complaints and comments abou

businesses or individuals who they feel have wronged them in some manner.

Michael K Jeanes, Clerk of Co*** Electronically Filed ***

Kelle Dyer3/8/2013 4:32:00 PM

Filing ID 5150273


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Although the instant motion is virtually devoid of any discussion or explanation o

Plaintiffs business, it appears that Plaintiff is in the business of, among other things

helping companies to boost their online reputation. According to its websit

(www.reviewboost.com) Plaintiffs services appear to include interviewing or surveyingclients customers and collecting their feedback, presumably for the purpose of inducing

or encouraging those customers to post favorable online reviews about the client

business, thus helping to improve the clients online reputation.

On October 17, 2012, a third party posted an extremely short complaint on

www.ripoffreport.com describing the authors dissatisfaction with Plaintiffs services. In

its entirety, the complaint (a complete copy of which is included within Exhibit A t

Plaintiffs motion) reads as follows:

Plaintiff claims this review is defamatory and is causing irreparable harm to it

business. The review is semi-anonymous (the complaint states that it was submitted by

Jimt from Amarillo, Texas). Because Jimt is presumably a pseudonym, Plaintiff ha

served Xcentric with a subpoena asking it to produce information that would reveal th

true identity of Jimt.

As noted in Plaintiffs motion, subpoenas of this type raise substantial Firs

Amendment concerns. For that reason and because Xcentric has received hundreds o

similar subpoenas, it has adopted a subpoena-processing protocol which is explained on

its website here: http://www.ripoffreport.com/ConsumersSayThankYou/FalseReport.aspx

In short, Xcentrics protocol requests that parties seeking information about an

anonymous author follow the steps described in the controlling Arizona Court of Appeal

case on this issue,Mobilisa v. Doe, 217 Ariz. 103, 170 P.3d 712 (Ariz.App. 2007).

Complaint Review: reviewboost.com

Lots of promises about being able to post positive reviews toGoogle. $500 got me 1 review. Afterwards, lots of excuses thatyou did not hear when they are accepting your money. Beware!


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Once a subpoena has been issued, step #1 in this process requires the plaintiff to

give notice to the author informing him/her of the attempt to discovery their identity. In

this case, Plaintiff has complied with the notice requirement, so only the second and third

steps are relevant.The second and third steps of the process are much more substantive than the first

In sum, the second step requires the plaintiff to demonstrate that it could survive

hypothetical Motion for Summary Judgment filed by the anonymous defendant. Se

Mobilisa, 217 Ariz. at 111 (holding, We therefore adopt the second step from [Doe v

Cahill, 884 A.2d 451 (Del. 2005)] that requires the requesting party to demonstrate i

would survive a motion for summary judgment filed by Doe on all of the elements within

the requesting partys controlin other words, all elements not dependent upon knowing

the identity of the anonymous speaker. Requiring the requesting party to satisfy this step

furthers the goal of compelling identification of anonymous internet speakers only as a

means to redress legitimate misuses of speech rather than as a means to retaliate against o

chill legitimate uses of speech.)

If the plaintiff cannot make this showing, then the inquiry ends and the request to

reveal the authors identity must be denied. On the other hand, if the plaintiffcan show

that it would survive summary judgment, then the court must proceed to the third step

which is essentially an equitable balancing test. See Mobilisa, 217 Ariz. at 11112

This flexible test focuses on various questions such as:

Does the plaintiff really need to know the anonymous speakers identity o

are there other known witnesses with the same information?

Has the plaintiff exhausted other means of learning the authors identity?

Are there any other equitable considerations for denying the plaintiff

request?

As to the last point, Mobilisa directs courts to consider the type of speech

involved, the speakers expectation of privacy, the potential consequence of a discovery

order to the speaker and others similarly situated, the need for the identity of the speaker


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to advance the requesting partys position, and the availability of alternative discovery

methods. Id. at 111.

With these points in mind, Xcentrics position is simplePlaintiff has failed to

show that it could survive a hypothetical Motion for Summary Judgment because it hafailed to offer evidence showing the post is actually false. For that reason, the inquiry

ends and the motion should be denied without any need to considerMobilisas third step.

II. ARGUMENT

a. Preliminary Remarks

Before discussing the merits of the instant motion, Xcentric notes that Plaintiffs

motion does not contain the certificate of good faith required by Ariz. R. Civ. P

37(a)(2)(C). This point is not surprising because Plaintiffs counsel did not, in fact, mee

and confer with Xcentrics counsel before filing the instant motion. Ordinarily, thi

would represent sufficient grounds to summarily deny the motion.

However, after the motion was filed (albeit before undersigned counsel was awar

the motion was filed) the issues were discussed extensively between counsel. Because

this discussion may offer some helpful context which is not otherwise mentioned in

Plaintiffs motion, Xcentric offers the following additional information.

Immediately after receiving Plaintiffs original subpoena, Xcentric contacted the

author of the disputed post to inform the author of the subpoena and to ask if the author

had any evidence showing that the report was true. The author immediately responded

and provided documentation showing that the author was, in fact, an actual customer o

Plaintiff. Furthermore, the author produced information showing that he/she had

complained to Plaintiff about the poor results obtained and that Plaintiff apparently

offered various excuses for these poor results. Despite producing this information, th

author asked Xcentric to attempt to preserve the authors anonymity if possible.

Of course, as a practical matter Xcentric could not disclose the information

provided by the author to Plaintiff since this would necessarily require it to disclose th

authors identity. Faced with that conundrum, undersigned counsel proposed a solution


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if Plaintiff truly insisted that the post was false and actionable, then Plaintiff would need

to provide an affidavit which unequivocally avowed that the post was entirely false and

not substantially true. During this discussion, it was made clear that the affidavit needed

to be clear and unequivocal, the point being to leave no wiggle room for Plaintiff todeny the literal accuracy of the post without directly denying its substance. This situation

has been described by other courts as a negative pregnant, i.e., a denial of the litera

truth of the total statement, but not of its substance. Vogel v. Felice, 127 Cal.App.4t

1006, 1021, 26 Cal.Rptr.3d 350, 362 (Cal.App.6th

Dist. 2005) (discussing plaintiff

perfunctory denial of allegation that he owed thousands to his wife and kids and noting

By denying a debt in a specified amount, it leaves open the possibility of a debt in some

other, perhaps substantially equivalent, amount. Thus if thousands means $2,000 o

more, Vogels simple negation leaves open the possibility that he owes $1,999.99, in

which case the challenged statement remains substantially true.)

In this situation, a plaintiffs use of a negative pregnant affidavit does no

establish that the underlying post is false. See Vogel, 127 Cal.App.4th

at 1022 (explaining

[plaintiffs] failure to plainly refute the defamatory imputation by stating the true facts

may be understood to imply that he did in fact continue to owe substantial amounts o

unpaid child support. Certainly it was insufficient to establish his ability to prove th

substantial falsity of the imputations that he was a deadbeat dad who owed

thousands.) BecauseMobilisa requires the requesting party to demonstrate the ability to

defeat a hypothetical Motion for Summary Judgment, Xcentrics position was (and still is

that without a clear, unequivocal affidavit denying the facts contained in Jimts Ripof

Report post, Plaintiff could not satisfy the burden imposed byMobilisas second step.

In an effort to resolve the issue, undersigned counsel took the extra step o

preparing and forwarding a proposed affidavit to Plaintiffs counsel for Plaintiff to sign

A copy of the draft affidavit is attached hereto as Exhibit A.

This one-page affidavit was extremely simpleit merely recited the facts

contained in the report and then asked the witness to unequivocally avow that those facts


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were totally and completely false. In order to foreclose the problem of a negativ

pregnant, the affidavit also required the witness to affirmatively refute the factua

allegations of the report directly.

For instance, the Ripoff Report posting alleged: $500 got me 1 review. Thproposed affidavit directly refuted that by avowing: Review Boost has never at any time

received $500 from a customer who later complained about only having received 1

review. After discussing the matter, undersigned counsel made it clear that if Plaintif

was willing to execute the proposed affidavit, Xcentric would have no choice but to

withdraw its objection and comply with the subpoena (assuming no Motion to Quash was

filed by the author).

Unfortunately, this did not occur. Instead, Plaintiff refused to sign Xcentric

proposed affidavit and instead provided a far less specific and for more equivoca

statementas reflected in the affidavit attached to Plaintiffs motion as Exhibit B

Xcentric believes that this watered-down affidavit fails to show the statements in th

Ripoff Report are false for exactly the same reasons descried in Vogel v. Felice; i.e., they

attempt to deny the literaly accuracy of the complaint without in any way addressing it

substance. For that reason, Xcentric maintained its original objection. The curren

motion followed.

b. Plaintiff Has Failed To Prove The Report Is False

Against this backdrop, the court must answer just one simple questionha

Plaintiff offered admissible evidence sufficient to show that it has a valid, viable claim

against the author? In other words, Plaintiff must supply evidence sufficient to create a

triable issue of fact as to its defamation claim. See Mobilisa, 217 Ariz. at 111, 170 P.3d a

720; see also Best Western Intl, Inc. v. Doe, 2006 WL 2091695, *4 (D.Ariz. 2006

(holding, [T]o obtain discovery of an anonymous defendants identity under the

summary judgment standard, a defamation plaintiff must submit sufficient evidence to

establish a prima facie case for each essential element of the claim in question. In other

words, the defamation plaintiff, as the party bearing the burden of proof at trial, mus


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introduce evidence creating a genuine issue of material fact for all elements of a

defamation claim within plaintiffs control.)

Of course, the sine qua non of any defamation action is a false statement of fact

To be defamatory, a publication must be false and must bring the defamed person intodisrepute, contempt, or ridicule, or must impeach plaintiff's honesty, integrity, virtue, o

reputation. Godbehere v. Phoenix Newspapers, Inc., 162 Ariz. 335, 341, 783 P.2d 781

787 (1989) (empahsis added). Furthermore, because Arizona recognizes the doctrine o

substantial truth, mere technical errors are not sufficient. Even if a statement contain

one or more factual inaccuracies, it remains non-actionable if it is otherwise substantially

true; Slight inaccuracies will not prevent a statement from being true in substance, a

long as the gist or sting of the publication is justified. Read v. Phoenix Newspapers

Inc., 169 Ariz. 353, 355, 819 P.2d 939, 941 (1991) (quoting Heuisler v. Phoenix

Newspapers, Inc., 168 Ariz. 278, 285 n. 4, 812 P.2d 1096, 1103 n. 4 (App. 1991)). Thus

the real question here is whether Plaintiff has demonstrated the presence of at least on

substantially false and defamatory statement of fact in the four-sentence, 33-word posting

on www.ripoffreport.com.

As low as this hurdle seems, Xcentrics position is that Plaintiff has failed to clea

it because the only evidence it offers is an affidavit which fails to directly rebut the actua

factual allegations contained in the anonymous post. Specifically, the post contains only

three1 basic contentions:

1.) Lots of promises about being able to post positive reviews to Google;

2.) $500 got me 1 review. And:

3.) Afterwards, lots of excuses that you did not hear when they are accepting

your money.

Taking the middle point first, Plaintiffs affidavit simply does not address th

question of whether any customer has ever paid $500 to Plaintiff for services that resulted

in only a single positive review (or an equivalently disappointing result). Plaintiff

1 The cautionary term beware is plainly a non-actionable expression of opinion thatcannot support a defamation claim.


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affidavit is simply silent on that issue. As a result, Plaintiff has failed show that portion o

the post is false, either completely or substantially.

Likewise, as to the first contention about Plaintiff making lots of promises abou

being able to post positive reviews to Google, the only response offered to rebut this isReview Boost has never at any time made any unqualified promises and/or guarantees to

any customer about being able to post positive reviews to Google. The problem with

this denial is that it simply does not correspond with the actual statement in the post.

In other words, the report at issue does not say that Plaintiff guaranteed any results

so Plaintiffs denial on that point is meaningless. Further, the report does not say tha

Plaintiff made unqualified promises -- it simply says that Plaintiff offered lots o

promises; hardly a shocking allegation to be leveled against any seller of intangibl

services such as Plaintiff.

Ultimately, the fact remains that Plaintiff has failed to directly respond to tha

specific allegation (as it easily could have done). This should be interpreted as an

admission that the claim is true or, at least, that Plaintiff has failed to prove the statemen

is not substantially true. See Vogel, 127 Cal.App.4th

at 1022 (finding, [plaintiffs] failur

to plainly refute the defamatory imputation by stating the true facts may be understood to

imply that [the allegations were true]. This is exactly the negative pregnant scenario

described above.

This conclusion is, in fact, also supported by the odd wording of 8 of Plaintiff

affidavit which asserts The Postings [sic] seek to impeach Review Boosts credibility

honesty, and reputation because they imply that Review Boost knowingly made fals

promises to obtain money from the Defendant. Again, this simply misconstrues the

actual language of the post which does NOT allege that Plaintiff knowingly made any

false promises. Instead, the post simply says that the author/customer was presented with

lots of promises about being able to post positive reviews to Google (a point Plaintiff

does not directly deny, followed by a statement that the author/customer was disappointed

in the results after only one review was obtained (which Plaintiff also does not deny).


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Plaintiff seems to concede that these facts are true, but it nevertheless strains to

argue that they carry a defamatory implication because they suggest that at the time the

promises were made regarding the future results, Plaintiff knew those results wer

unattainable but made the promises anyway in order to obtain money from the author. Inplain English, Plaintiff interprets the report as falsely implying that it defrauded th

author.

This is simply not a valid argument because as a matter of law, even if Plaintiff did

make false promises about future results, this would not be actionable as fraud absent

showing that the Plaintiff had no present intent of performing. See Staheli v. Kauffman

122 Ariz. 380, 384, 595 P.2d 172, 175 (1979) (explaining, In order that a representation

constitute actionable fraud, it must relate to either a past or existing fact. It cannot b

predicated on unfulfilled promises, expressions of intention or statements concerning

future events unless such were made with the present intention not to perform.); see also

Arnold & Associates, Inc. v. Misys Healthcare, 275 F.Supp.2d 1013, 1027 (D.Ariz. 2003

(same).

Here, no reasonable person viewing the report would agree that it accuses Plaintif

of actual fraud in the sense that Plaintiff took money from the author without any intent o

performing. On the contrary, the report specifically states that the Plaintiff did perform -

by obtaining one positive review for the author. Thus, the report does not accuse th

Plaintiff of fraud; it merely accuses the Plaintiff of failing to accomplish the level o

success that was initially promiseda point which Plaintiff does not deny.

In light of these facts, Plaintiff has failed to demonstrate that the post contains any

false statements of fact. Without that showing, Plaintiff cannot satisfyMobilisas second

prong and on that basis alone, the Motion to Compel should be denied.

Furthermore, although the court need go no further, in determining whethe

Plaintiff has proven the original post to be actionable, it is worth nothing the facts of this

matter are similar if not identical to those discussed in Global Telemedia, Inc. v. Doe, 132

F.Supp.2d 1261 (C.D.Cal. 2001). Like this case, Global Telemedia involved an attemp


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to pursue anonymous authors for negative complaints posted on the Internet.

In general, the comments at issue accused the plaintiff of financia

mismanagement and potential fraud, suggesting that the executives intended to fly th

coop, taking their investors money with them. Like in this case, the plaintiff arguedthese comments were actionable because they impliedly accused it of unlawful conduct

Plaintiffs argue that fly the coop again is stating a fact that GTMI not only intends to

steal investor money, but that such theft is or will be merely a repeat of a previous GTMI

theft. This is not opinion, but an outright accusation of criminal intention coupled with

proof based on alleged albeit unstated prior criminality. Global Telemedia, 132

F.Supp.2d at 1269.

The district court rejected plaintiffs arguments, finding that despite certain

apparent factual allegations, the anonymous online posts were nothing more than the non

actionable opinions of the authors:

Here, in the context of the full message, [the authors] comments arehyperbolic and figurative. The posting is also in response to anotherposting, making it less likely to be a statement of fact. Given the tone andcontext of the message, a reasonable reader would not take this to be

anything more than a disappointed investor who is making sarcastic cracksabout the company.

Id. at 1268. The same is true here. The post at issue is extremely brief, and viewed as a

whole, it suggests nothing more than the fact that the author hired Plaintiff to perform

some sort of online reputation management services, the results were lackluster, and

Plaintiff offered various excuses for the poor results. Given that Plaintiff does not deny

any of these points, whatever implied meaning a reader may find in the post is ultimately

nothing more than the authors reasonable expression of opinion and assumption based on

the facts he/she describes.

Thus, for a second reason Plaintiff cannot show it would survive summary

judgment. This is so because opinions based on disclosed facts are non-actionable as

matter of law; although there is no categorical constitutional defense for statements o


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opinion, the First Amendment will fully protect statements that cannot reasonably [be

interpreted as stating actual facts about an individual. Snyder v. Phelps, 580 F.3d 206

218 (4th Cir. 2009) (emphasis added), affd, 131 S.Ct. 1207 (2011) (quotingMilkovich v

Lorain Journal Co., 497 U.S. 1, 22, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990)); see alsoKnievel v. ESPN, 393 F.3d 1068, 1074 (9th Cir. 2005) (holding, The First Amendmen

protects statements that cannot reasonably [be] interpreted as stating actual facts about an

individual. Courts have extended First Amendment protection to such statements in

recognition of the reality that exaggeration and non-literal commentary have become an

integral part of social discourse.) (internal quotation marks omitted).

III. CONCLUSION

For the reasons stated, Plaintiffs Motion to Compel should be denied.

RESPECTFULLY SUBMITTED: March 8, 2013.

GINGRAS LAW OFFICE, PLLC

/S/ David S. GingrasDavid S. GingrasAttorney for Xcentric Ventures, LLC


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ORIGINAL e-filed this 8th

day of March 2013and a COPY of the foregoing delivered to:

Hon. Arthur AndersonECB, Courtroom 511

101 W. JeffersonPhoenix, AZ. 85003-2243

And a COPY mailed to:

Daniel R. Warner, Esq.Kelly / Warner, PLLC404 S. Mill Ave., Suite C-201Tempe, AZ 82581Attorney for Plaintiff

/s/ David S. Gingras


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Exhibit A


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AFFIDAVIT OF BRAD MERKEL

I, BRAD MERKEL declare as follows:

1. My name is BRAD MERKEL. I am a resident of the State of California

am over the age of 18 years, and if called to testify in court I could and would truthfullytestify to the following information based upon my own personal knowledge.

2. I am employed by INTRAVAS, INC., d/b/a REVIEW BOOST (Review

Boost) and I am familiar with Review Boosts business practices and business records.

3. I am aware that on October 17, 2012, a complaint about Review Boost was

posted on the website www.RipoffReport.com. The complaint #956097 is located here:

http://www.ripoffreport.com/reviewboost-com/internet-services/internetinternet-internet-

e507c.htm and it reads as follows: Lots of promises about being able to post positive

reviews to Google. $500 got me 1 review. Afterwards, lots of excuses that you did not

hear when they are accepting your money. Beware!

4. Review Boost has never at any time made any promises to any customer

about being able to post positive reviews to Google.

5. Review Boost has never at any time received $500 from a customer who

later complained about only having received 1 review.

6. Review Boost has never at any time received any complaint from any

customer who was unhappy about the results we obtained for them.

7. Review Boost has never at any time offered any excuses to any customer

who was unhappy about the results we obtained for them.

Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury under the laws of the

United States of America that the foregoing is true and correct.

EXECUTED ON: January ____ 2013.

______________________________________BRAD MERKEL

review boost v. doe - response to motion to compel

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