Our previews of the newest additions to the Illinois Supreme Court’s civil docket continue with Hadley v. Subscriber Doe. Hadley is a defamation case arising from an anonymous internet posting, but that issue comes wrapped in a couple of interesting procedural problems.
The plaintiff was a candidate for political office. At the end of an online newspaper article discussing the plaintiff’s fiscal positions, an anonymous reader posted a defamatory comment about the plaintiff. The plaintiff filed a defamation suit against the poster, using only his online screen-name. Then the plaintiff sent the cable company a subpoena, demanding that they disclose who the poster’s ISP address belonged to.
At the hearing on the motion to quash, the trial court noted that the whole matter would be better addressed within the context of Supreme Court Rule 224. Rule 224 allows persons who wish to engage in discovery for the sole purpose of identifying a person who might be liable to them in damages to file a verified petition for such discovery.
Based on the trial court’s instructions, the plaintiff filed an amended complaint. The first count was the defamation claim against the poster. The second count named the internet company as the respondent and asked, pursuant to Rule 224, for an order that the poster’s identity and address be disclosed.
After a hearing, the trial court entered an order granting the Rule 224 petition for disclosure on the grounds that the poster’s comment was not susceptible to an innocent construction, and could reasonably be interpreted as an assertion of fact. On reconsideration, the poster brought up a procedural problem. He asked whether the Court’s order was a standard order on a Rule 224 action, which would be immediately appealable, or an order disposing of one count of a two count complaint, in which case it would require Rule 304(a) language finding that it was a final order and appeal shouldn’t be postponed? The trial court expressed the opinion that its order was final as disposing of the Rule 224 issue, but just to make sure, the court added Rule 304(a) language.
The majority of the Court of Appeal affirmed, dealing in some detail with the issues of innocent construction and whether an anonymous post on an internet comments thread can reasonably be construed as a factual assertion. The majority then turned to the procedural issues.
First up was the question of the statute of limitations. The poster said there’s no reason to disclose his name because the plaintiff can’t possibly state a claim within the one-year statute of limitations. The defendant conceded that the plaintiff had filed his complaint within the one-year statute, but the complaint was directed only against the poster’s fictitious screen name. The poster said a complaint suing a fictitious person is a nullity, so that doesn’t satisfy the statute. The Appellate Court conceded that the issue had never been addressed in a Rule 224 case, but they turned to another recent case of the Supreme Court, in which the Court held that a suit against an alias of an actual person is not a nullity. The screen name was a fictitious name, the Court held, not a fictitious person. Since the poster had been sued within the one year statute, the statute of limitations defense failed.
Next, the court turned to the jurisdictional question. The majority concluded that even though the plaintiff’s petition had been stated in a single complaint with the defamation claim – which was still pending – it was an ordinary Rule 224 order. The only other procedural tool available to determine the identity of a missing defendant was found in 735 ILCS 5/2-402, but that wouldn’t work here, because Section 2-402 was intended to identify additional defendants when you’d already named one. Here, the poster was the only defendant.
The majority conceded that the case was a procedural tangle. Rule 224 petitions are ordinarily supposed to be brought before filing suit, and they’re the sole claim – when the petition is resolved, the case is over, and can proceed up on appeal as a final order. Here, the defamation claim was still pending before the trial court. But even if that ordinarily would render the order non-final, the Court concluded, the Rule 304(a) language took care of the problem.
Justice Birkett dissented on the procedural issue. He argued that the case couldn’t be treated as a Rule 224 petition – it hadn’t been brought as an independent, standalone action. He pointed out that the only reason a Rule 224 order was final and appealable is it usually concluded the action. But that wasn’t true here, so there was no basis for an appeal. Besides, there was no need for a Rule 224 petition in this case, according to Justice Birkett. The plaintiff could have simply subpoenaed the internet company and demanded the name and address of the account holder. “No matter how you dress it up,” Justice Birkett concluded, “this is a nonfinal discovery order, which is not appealable.” Regardless of the important issues and rights at stake, the trial court was “simply looking for a jurisdictional hook . . . to have an immediate appeal.” Justice Birkett believed that no such jurisdictional hook existed.