Michael K.

Jeanes, Clerk of Court *** Electronically Filed *** 08/12/2010 8:00 AM

SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV 2010-009238 08/09/2010

HONORABLE JOHN A. BUTTRICK

CLERK OF THE COURT C. Castro Deputy

BRANCH BANKING AND TRUST COMPANY

KERRY A HODGES JIMMIE W PURSELL JR.

v. COMPUTERTRAINING.EDU L L C COMPUTERTRAINING.EDU L L C NO ADDRESS ON RECORD

DAVID S GINGRAS

RULING

The Court has reviewed Plaintiff’s Motion to Compel Documents and Things from Xcentric Ventures, LLC, filed on July 12, 2010, Non-Party Xcentric Ventures, LLC’s Response, filed on July 23, 2010, and Plaintiff’s Reply, filed on July 30, 2010.1 The parties here agree that the resolution of this Motion turns on the application of Mobilisa, Inc. v. Doe, 217 Ariz. 103 (App. 2007) (“Mobilisa”) to the facts of this case. Mobilisa sets forth Arizona’s three pronged test for compelling the discovery of an anonymous internet speaker’s identity. The parties further agree that Plaintiff has satisfied Mobilisa’s first prong, notice to the speaker. Id. at 110.

1

This action seeks discovery in connection with a defamation action pending in the Circuit Court for Baltimore County, Maryland. That action was brought by the Plaintiff here, Branch Banking and Trust Company (“BB&T”), against a “John Doe” Defendant alleged to have posted defamatory items on the Ripoff Report website. In this action BB&T seeks enforcement of a subpoena seeking the true identity of “John Doe,” information presumably known to the website owner. Form V000A Docket Code 019 Page 1

SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV 2010-009238 08/09/2010

While acknowledging, as it must, that “an anonymous speaker…has no First Amendment right to engage in …libel” [Id. at 108 (citing Beauharnais v. Illinois, 343 U.S. 250, 266 (1952))], non-party Xcentric Ventures, LLC (“Xcentric”), the website owner, argues that the third part of the Mobilisa test, weighing the balance of the parties’ competing interest [id. at 110-12] counsels against granting BB&T’s Motion. In applying that test here, the Court notes that two factors cited in Mobilisa are present here. First, the Court should weigh “the potential consequence of the discovery order to the speaker and others similarly situated.” Id. at 111. If the Court were to grant BB&T’s request on this record, it might well serve to undermine the expectation of anonymity of many posters on Xcentric’s website, Ripoff Report. Second, the Court must assess “the availability of alternative discovery methods.” Id. Here BB&T’ has not taken discovery from Mr. Rau or other present or former employees or representatives of ComputerTraining.edu. While there is no assurance that such discovery would yield conclusive evidence of the identity of “John Doe” it may well do so without implicating the legitimate First Amendment concerns raised by Xcentric. BB&T’s Motion is denied without prejudice to its reassertion after efforts have been made to acquire the sought after information via alternative discovery methods.

This case is eFiling eligible: http://www.clerkofcourt.maricopa.gov/efiling/default.asp

Docket Code 019

Form V000A

Page 2