In Mobilisa, Inc. v. Doe, 217 Ariz. 103, 170 P.3d 712 (2007), the Arizona Court of Appeals adopted a three-part test for use in determining when an anonymous internet poster's identity may be obtained. Mobilisa, a Washington wireless communications company, sought to obtain the identity of a person that forwarded the contents of a private email message sent by the company's president to an unknown number of persons including other Mobilisa executives. The Company filed a John Doe lawsuit in Washington and obtained an order from the Washington Court to obtain the information from the Arizona based Internet Service Provider ("ISP"). The ISP objected to the subpoena and appealed the Arizona Superior Court's order granting Mobilisa's discovery request.
In balancing the competing rights of anonymous internet speakers and parties seeking redress for wrongful communications, the Court of Appeals held that in order to compel discovery of an anonymous internet speaker's identity, the requesting party has the burden to show: (1) the speaker has been given adequate notice and a reasonable opportunity to respond to the discovery request (notice can be provided using the same means as the anonymous speaker used); (2) the requesting party's cause of action could survive a motion for summary judgment on elements not dependant on the speaker's identity, and (3) a balance of the parties' competing interest favors disclosure (permitting the superior court to consider factors such as the type of speech involved, the speaker's expectation of privacy, the potential consequence of a discovery order to the speaker and the others similarly situated, the need for the identity of the speaker to advance the requesting party's position, and the availability of alternative discovery methods.).
The Arizona test differs from those adopted by courts that had previously looked at the issue. For example, the Southern District of New York enumerated the following five factors: (1) plaintiff's ability to establish a prima facie claim, (2) the specificity of plaintiff's discovery request, (3) the availability of alternative means to obtain the subpoenaed information, (4) the central need for discovery to advance plaintiff's claim, and (5) defendants' expectation of privacy. Sony Music Entm't, Inc. v. Does 1 – 40, 326 F. Supp. 2d 556, 563 S.D.N.Y. 2004).
California courts use a four-part test: (1) identify the defendant with sufficient specificity such that the court can determine if the defendant is a real person or entity, (2) show previous efforts taken to locate the defendant, (3) demonstrate to the court's satisfaction that its cause of action could withstand a motion to dismiss, and (4) justify the discovery request and identify persons who could reasonably and likely lead to identifying information about the defendant. Columbia Insurance Co. v. Seescandy.com, 185 F.R.D. 573, 578 (N.D.Cal.1999).
New Jersey courts use a slightly different five-part test: (1) plaintiff must take efforts to notify the anonymous posters about the discovery request and allow the posters a reasonable opportunity to respond, (2) plaintiff must specify the exact statements made by the posters, (3) the complaint must set forth a prima facie cause of action, (4) plaintiff must produce sufficient evidence to support each element of its claim on a prima facie basis, and (5) the court must balance the strength of plaintiff's prima facie case against the necessity for disclosure. Dendrite Int'l, Inc. v. John Doe No. 3, 342 N.J.Super. 134, 775 A.2d 756, 760-61 (App.Div.2001).
While similar, each test is slightly different requiring attention to the jurisdiction that will be involved if an anonymous poster challenges an attempt to obtain his/her identity.