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K ELLY / W ARNER , PLLC 404 S. Mill Ave., Suite C-201 Tempe, AZ 85281 Telephone: (480) 331-9397

K ELLY / W ARNER , PLLC 404 S. Mill Ave, Suite C-201 Tempe, Arizona 85281 Aaron M. Kelly, Esq. (AZ Bar #025043) Email: aaron@kellywarnerlaw.com Daniel R. Warner, Esq. (AZ Bar # 26503) Email: dan@kellywarnerlaw.com Tel: 480-331-9397 Fax: 1-866-961-4984 Attorneys for Plaintiff

IN SUPERIOR COURT OF THE STATE OF ARIZONA IN AND FOR THE COUNTY OF MARICOPA INTRAVAS, INC, a California corporation, d.b.a. REVIEW BOOST, Plaintiff, v. JOHN DOES 1-10; JANE DOES 1-10; ABC PARTNERSHIPS I-X; DEF LIMITED LIABILITY COMPANIES I-X; and XYZ CORPORATIONS I-X, Defendants.

NO. CV2012-013872 PLAINTIFFS MOTION TO COMPEL XCENTRIC VENTURES, LLC TO COMPLY WITH SUBPOENA DUCES TECUM

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Pursuant to Rules 45(c)(5) and 37(a)(2)(C), Arizona Rules of Civil Procedure, Plaintiff, by and through undersigned counsel, hereby moves the Court for an Order compelling Xcentric Ventures, LLC to comply with the Subpoena Duces Tecum issued by this Court on 10/26/2012 (the Subpoena), which has been attached hereto as Exhibit A. This Motion is supported by the following Memorandum of Points and Authorities and all pleadings on file with the Court, which are all hereby incorporated by reference. MEMORANDUM OF POINTS AND AUTHORITIES 1

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K ELLY / W ARNER , PLLC 404 S. Mill Ave., Suite C-201 Tempe, AZ 85281 Telephone: (480) 331-9397

I.

FACTS. Plaintiff has been defamed by an unknown individual(s) who published defamatory content (the Postings) on an Arizona-based website,

www.ripoffreport.com (the Blog), which is owned by Xcentric Ventures, LLC, an Arizona limited liability company located in Maricopa County, Arizona.1 Plaintiff subpoenaed Xcentric Ventures, LLC (the Operator) to ascertain the identity of the individual(s) (collectively and/or individually Defendant) defaming Plaintiff on the Blog. The Operator has refused to comply with the Subpoena because the Defendant is claiming that the Postings are true. It should be noted that the Operator has a written policy on the Blog stating that it will not comply with any subpoena requiring the Operator to disclose the identity of individuals posting on its Blog, unless the party serving the subpoena complies with certain procedural requirements.2 The Operators written policy and procedural

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requirements state, in pertinent part, as follows: YOU CANT OBTAIN AN AUTHORS NAME JUST BY CLAIMING THAT SOMETHING IN A REPORT IS FALSE OR INACCURATE Although the First Amendment does not protect defamatory speech, this does not mean that you can contact the Ripoff Report and obtain an authors name just by claiming that something in a report is false or inaccurate. *** So, what does this mean? What do you have to do in order to get the real name of an author? The Arizona Court of Appeals recently answered that question as follows: We hold that to obtain a court order compelling discovery of an anonymous internet speakers identity, the requesting party must show that: (1) the speaker has been given adequate notice and a reasonable

The defamatory posting has been attached to Exhibit A to the Subpoena. See http://www.ripoffreport.com/ConsumersSayThankYou/FalseReport.aspx

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K ELLY / W ARNER , PLLC 404 S. Mill Ave., Suite C-201 Tempe, AZ 85281 Telephone: (480) 331-9397

opportunity to respond to the discovery request, (2) the requesting partys cause of action could survive a motion for summary judgment on the elements of the claim not dependent on the identity of the anonymous speaker, and (3) a balance of the parties competing interests favors disclosure. Mobilisa v. Doe, 217 Ariz. 103, 11415, 170 P.3d 712, 72324 (Ariz.App. 2007). . . . Because Ripoff Report is located in Arizona and all of our business records are kept in Arizona, we require that any request for the identity of an author must comply with the standards of Mobilisa. What this means is that if you want to obtain the identity of an author, you must do each of the following things: 1.) Obtain a subpoena from an Arizona court (preferably the Maricopa County Superior Court in Phoenix) which describes the information you are requesting. You can send a copy to us at: EDitor@ripoffreport.com and legal@ripoffreport.com or you can fax a copy to us at: (480) 2483196. 2.) As soon as you have your subpoena, you MUST post a notice as a rebuttal to each report for which you are seeking the authors information. We will not do this for you, so please dont ask. This notice must explain that you have initiated a court proceeding in an effort to learn the authors identity and it should provide a case number and name/address of the court so that the author can appear and defend the case if necessary. *** 3.) After allowing a reasonable amount of time for the author to appear (which may or may not occur), you must bring a motion in the issuing court asking the court to determine that you have complied with the standards set forth in Mobilisa. Depending on the nature of the statements, the position of the author (if any) and the arguments in your motion, Ripoff Report may or may not oppose your motion. If the court reviews your motion and finds that you have satisfied Mobilisas requirements, then we will provide you with the requested information. Id. Accordingly, based upon the Operators refusal to comply with the Subpoena,

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Operators policy, as well as the case law set forth therein, Plaintiff has filed this Motion.

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K ELLY / W ARNER , PLLC 404 S. Mill Ave., Suite C-201 Tempe, AZ 85281 Telephone: (480) 331-9397

II.

ARGUMENT. a. The First Amendment and the Mobilisa Requirements. It is well-established that the First Amendment protects the right to speak

anonymously, Buckley v. Am. Constitutional Law Found., 525 U.S. 182, 199-200, 119 S. Ct. 636, 142 L. Ed. 2d 599 (1999); McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 341-51, 357, 115 S. Ct. 1511, 131 L. Ed. 2d 426 (1995); Talley v. California, 362 U.S. 60, 64-65, 80 S. Ct. 536, 4 L. Ed. 2d 559 (1960), and that the protections of the First Amendment fully extend to speech on the internet, Reno v. Am. Civil Liberties Union, 521 U.S. 844, 870, 117 S. Ct. 2329, 138 L. Ed. 2d 874 (1997). The right to speak anonymously, however, is not absolute. Mobilisa, 217 Ariz. at 108 (Ariz. Ct. App. 2007). For example, an anonymous speaker, like a known one, has no First Amendment right to engage in obscenity, . . . libel, . . . copyright infringement, . . . misleading or commercial speech, . . . or use of fighting words. " Id. (citation omitted). Thus, victims of wrongful internet communications should be able to seek legal redress unimpeded by wrongdoers' attempts to hide behind an unwarranted shield of First Amendment rights. Id. (emphasis added). To protect the competing interests of anonymous speakers and victims of wrongful internet communications, the Arizona Court of Appeals held that in order to compel discovery of an anonymous internet speaker's identity, the requesting party must show: (1) the speaker has been given adequate notice and a reasonable opportunity to respond to the discovery request, (2) the requesting party's cause of action could survive a motion for summary judgment on elements not dependent on the speaker's identity, and (3) a balance of the parties' competing interests favors disclosure. Mobilisa, Inc., 217 Ariz. at 114-115.

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K ELLY / W ARNER , PLLC 404 S. Mill Ave., Suite C-201 Tempe, AZ 85281 Telephone: (480) 331-9397

b.

Plaintiff has satisfied the first requirement of the Mobilisa criteria. The first requirement of Mobilisa requires the requesting party to make reasonable efforts to inform the anonymous party of the pending discovery request, including the pertinent case information, and inform that party of the right to timely and anonymously file and serve a response to the request. The requesting party's efforts must include notifying the anonymous party via the same medium used by that party to send or post the contested message. Id. For example, if the message at issue was sent via email, the requesting party must make the notification via a response to the email or separate email to the anonymous sender's address. Similarly, if the message at issue was posted to an internet message board, the requesting party must make the notification via a posting to that same message board.

Id. at 110-111. Plaintiff complied with this requirement by posting the required notice on the Blog. See Exhibit A to the Subpoena. The notice clearly explains that the Plaintiff has initiated a court proceeding in an effort to learn the authors identity and provides a case number, as well as the name/address of the court so that the author can appear and defend the case if necessary. To date, the notice has been posted on the Blog for several weeks. Accordingly, Plaintiff has satisfied the first requirement of the Mobilisa criteria. c. The second requirement of the Mobilisa criteria has been satisfied. The second requirement of Mobilisa requires the requesting party to demonstrate it would survive a motion for summary judgment filed by Doe on all of the elements within the requesting party's control -- in other words, all elements not dependent upon knowing the identity of the anonymous speaker. Mobilisa, Inc., 217 Ariz. at 110-111. A motion for summary judgment may only be granted if the facts produced in support of the claim or defense have so little probative value, given the quantum of

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K ELLY / W ARNER , PLLC 404 S. Mill Ave., Suite C-201 Tempe, AZ 85281 Telephone: (480) 331-9397

evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim or defense. Orme School v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (Ariz., 1990). The court is to view the evidence and any reasonable inferences therefrom in the light most favorable to the party opposing summary judgment. Phoenix Baptist Hosp. & Med. Ctr., Inc. v. Aiken, 179 Ariz. 289, 293, 877 P.2d 1345, 1349 (App. 1994). When considering the nature of the Postings, the applicable legal presumptions, the disputed and undisputed facts, and the evidence, it is evident that there is -- at the very least -- a material issue of fact regarding each element of Plaintiffs defamation claim. Sworn statements presenting competing versions of the facts can only be

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sorted out only through credibility determinations. Credibility determinations, of course, are not made at the summary judgment stage. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Rather, courts accept the nonmoving party's evidence as true and decide whether that evidence could support a jury verdict. Id. If so, summary judgment is denied. Id. i. Elements of Defamation.

All claims pled in Plaintiffs complaint arise out of the Postings, including Plaintiffs defamation claim. The four main elements for defamation are: (i) a false and defamatory statement concerning the plaintiff; (ii) an unprivileged publication to a third party; (iii) fault amounting at least to negligence on the part of the publisher; and (iv) "actionability" of the statement either due to special harm caused by the publication or irrespective of special harm given the nature of the allegation. See Restatement

(Second) of Torts 558; see also Boswell, 152 Ariz. at 12 & n.3, 730 P.2d at 189 & n.3 (citing all elements but damages and referring to Restatement 558).

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K ELLY / W ARNER , PLLC 404 S. Mill Ave., Suite C-201 Tempe, AZ 85281 Telephone: (480) 331-9397

Written communications which are claimed to be libelous fall into one of the three classes, (a) those which on their face and without the aid of any extrinsic matter come within the definition above set forth, (b) those which on their face do not fall within the definition but which by reason of special extraneous circumstances actually do, and (c) those which even though aided by the surrounding circumstances cannot reasonably be held to fall within it. Ilitzky v. Goodman, 57 Ariz. 216, 220-221 (Ariz. 1941). Class (a) is called libelous per se because it needs no allegation or existence of extraneous surrounding circumstances to make it such. Id. Communications of this kind are assumed to cause damage, and no special damages need be alleged. Id. Additionally, [i]n Arizona, a publication which impeaches the honesty, integrity or reputation of a person is libelous per se . . . and actionable without proof of special damages because damages are presumed. Peagler v. Phoenix Newspapers, 114 Ariz. 309, 316 (Ariz. 1977) (citation omitted). When a publication addresses a matter of public concern, the First Amendment requires that the plaintiff bear the burden of demonstrating the statements were false. See Phila. Newspapers, Inc., v. Hepps, 475 U.S. 767, 776-77, 106 S. Ct. 1558, 89 L. Ed. 2d 783 (1986) ("To ensure that true speech on matters of public concern is not deterred, we hold that the common-law presumption that defamatory speech is false cannot stand when a plaintiff seeks damages against a media defendant for speech of public concern."); Dombey v. Phoenix Newspapers Inc., 150 Ariz. 476, 481, 724 P.2d 562, 567 (1986) ("[I]n cases involving matters of public concern . . . the plaintiff [has] the burden of proving falsity."). And if the plaintiff is a public official or figure, he or she must show that the defendant exhibited actual malice when publishing the false remark. Id. But if the plaintiff is a private individual, he or she need only show the defendant made

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K ELLY / W ARNER , PLLC 404 S. Mill Ave., Suite C-201 Tempe, AZ 85281 Telephone: (480) 331-9397

the remark negligently. Id. ii. Plaintiff is not a public figure, and the Postings do not pertain to a public concern.

An individual may become a public figure if he "thrust[s] himself or his views into public controversy to influence others." Dombey, 150 Ariz. at 483-485 (citation omitted). Under this test, Plaintiff would not be a public figure. He did not insert himself or his views into any public controversy relating to the Postings. Another factor often considered in determining public figure status is whether the individual's position with respect to matters of public concern gives him access to the media on a regular and continuing basis. Id. Plaintiff is a small company and does not have access to the media on a regular basis. Accordingly, Plaintiff is not a public figure or official. See Dombey, 150 Ariz. at 483-485 (stating that the petitioner in Gertz v. Robert Welch, Inc., had published books and articles on legal issues; he had been active in local community affairs[,] . . . [and] the Court concluded that his activities did not make him a public figure). Additionally, the Postings are not maters of public concern. To determine

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whether a publication addresses a matter of public concern, courts examine its " 'content, form, and context . . . as revealed by the whole record.' " Turner v. Devlin, 174 Ariz. 201, 205, 848 P.2d 286, 290 (1993), quoting Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 761, 105 S. Ct. 2939, 86 L. Ed. 2d 593 (1985). In City of San Diego v. Roe, 543 U.S. 77, 83-84, 125 S. Ct. 521, 160 L. Ed. 2d 410 (2004), the Supreme Court defined a matter of public concern as "something that is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of publication." Id.

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K ELLY / W ARNER , PLLC 404 S. Mill Ave., Suite C-201 Tempe, AZ 85281 Telephone: (480) 331-9397

In this case, the Postings only pertain to the individual interest of the speaker and the speakers specific business audience. The Postings would only be of any interest to a very limited group of individuals seeking Plaintiffs services; they do not relate to a public concern. See Dun & Bradstreet, Inc., 472 U.S. at 762, 86 L. Ed. 2d 593, 105 S. Ct. 2939 (holding when alleged defamation is "solely in the individual interest of the speaker and [his] specific business audience," the defamation "concerns no public issue"). Therefore, because Plaintiff is not a public figure/official and the Postings do not pertain to a public concern, Plaintiff does not bear the burden of demonstrating the statements were false, and the statements are presumed to be false malicious. See Dombey, 150 Ariz. at 481, 724 P.2d at 567; see also McClinton, 76 Ariz. at 365-366 (holding that, [u]nless the publication in the instant case was privileged or qualifiedly privileged, the proof of publication of the article carried with it the presumption of its falsity and of malice toward the plaintiff and the burden was upon the defendant to prove both the truth of the publication and a lack of malice toward plaintiff). iii. There is no privilege permitting the publication of the Report.

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There are two classes of privileges, "absolute" and "qualified." Arizona courts have recognized an absolute privilege for statements made during judicial, legislative or executive proceedings, by litigators in the furtherance of litigation and when the publication is required by law. See Giles v. Hill Lewis Marce, 195 Ariz. 358, 361 P7, 988 P.2d 143, 146 (App. 1999) (judicial proceedings); Lewis v. Oliver, 178 Ariz. 330, 335, 873 P.2d 668, 673 (App. 1993) (legislative or executive proceedings); Green Acres Trust v. London, 141 Ariz. 609, 613, 688 P.2d 617, 621 (1984) (litigators); Paros v. Hoemako Hosp., 140 Ariz. 335, 338, 681 P.2d 918, 921 (App. 1984) (required by

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K ELLY / W ARNER , PLLC 404 S. Mill Ave., Suite C-201 Tempe, AZ 85281 Telephone: (480) 331-9397

law). Other than consent, the only other absolute privilege to defamation and injurious falsehood recognized by the Restatement is a publication between spouses. See Restatement 592; see also id. at 635 ("The rules on absolute privilege to publish defamatory matter stated in 583 to 592A apply to the publication of an injurious falsehood."). Given the nature of the Postings and the method of publication via the Blog, the absolute privilege defense clearly does not apply. Because qualified privileges depend on the occasion and the scope of the privilege, rarely can a reviewing court determine that a qualified privilege exists as a matter of law to bar the plaintiff's action. See Burns v. Davis, 196 Ariz. 155, 164 P36, 993 P.2d 1119, 1128 (App. 1999). Moreover, the privilege "give[s] protection from liability only when exercised for the purpose for which [it] is given and with reasonable care that no more harm shall be done to the interests of others than is necessary to accomplish the end for which the privilege is given." Restatement (Second) of Torts, Chap. 25, Topic 3, Title A, "Occasions Making a Publication Conditionally Privileged," p. 258. In general, Arizona law establishes a two-part analysis for determining whether a qualified privilege exists. Green Acres Trust, 141 Ariz. at 616-619. The court must first determine whether a privileged occasion arose, and, if so, whether the occasion for the privilege was abused. Id. (citing Roscoe v. Schoolitz, 105 Ariz. 310, 464 P.2d 333 (1970)). Whether a privileged occasion arose is a question of law for the court, and whether the occasion for the privilege was abused is a question of fact for the jury. Id. (citation omitted). To establish that a privileged occasion arose, a defamation defendant must establish that the circumstances in which the communication was made created an

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obligation to speak. Id. (citation omitted). Once a defendant demonstrates that a conditional privilege may apply, the plaintiff may then prove an abuse of that privilege either by proving publication with actual malice or by demonstrating excessive publication. Id. (citation omitted). An abuse through actual malice occurs when the defendant makes a statement knowing its falsity or actually entertaining doubts about its truth. Id. (citation omitted). Abuse through excessive publication results from publication to an unprivileged recipient not reasonably necessary to protect the interest upon which the privilege is grounded. Id. (emphasis added). In this case, to the extent the Defendant could establish that the circumstances in which the communication was made created an obligation to speak, the nature of the Postings demonstrate that the publication was abusive especially considering that the publication was not limited to select individuals and was posted on an internet website that anyone can access. Therefore, it is evident that no privilege applies. iv. The Report was published in a malicious, reckless, or negligent manner. The Postings are false and defamatory on their face. The Postings state facts indicating that Plaintiff knowingly misrepresented and/or omitted information pertaining to its ability to obtain certain results. v. The Report constitutes defamation per se and is clearly actionable.

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A defamatory statement provides a basis for relief if the statement causes demonstrable injury, see, e.g., Modla, 17 Ariz. App. at 56-57, 495 P.2d at 496-97, or is so potentially injurious to one's reputation that the statement qualifies as defamation per se. See, e.g., McClinton, 76 Ariz. at 365, 265 P.2d at 429-30. Plaintiff need not allege specific and recoverable losses stemming from the Postings because they qualify as

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K ELLY / W ARNER , PLLC 404 S. Mill Ave., Suite C-201 Tempe, AZ 85281 Telephone: (480) 331-9397

defamation per se. In Arizona, a publication which impeaches the honesty, integrity or reputation of a person is libelous per se . . . and actionable without proof of special damages because damages are presumed. Peagler, 114 Ariz. at 316 (citation

omitted); see also Vacca v. Gen. Elec. Credit Corp., 88 A.D.2d 740, 451 N.Y.S.2d 869, 870 (App. Div. 1982) (statements by defendant creditor that plaintiffs "are crooks and hijackers and you are going to find a lot of your units missing, and if you leave your merchandise here and don't entrust it to [defendant] for safe-keeping, you will find more will be missing" made in plaintiffs' place of business clearly slander per se in context); Kinsey v. Real Detective Pub. Co., 52 Ariz. 353, 358, 80 P.2d 964, 967 (1938) (As to libel per se, "the law presumes its falsity and that it was published with malicious intent."). The Postings constitute libel per se. The Postings imply that Plaintiff knowingly made false promises. However, Plaintiff does not guarantee results and has not

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guaranteed results. See Declaration of Brad Merkel, attached to Exhibit B hereto. Therefore, based upon the foregoing, it is evident that there is -- at the very least -- a material issue of fact regarding whether Plaintiff knowingly made false promises and/or guarantees regarding its services, and that the second requirement of the Mobilisa criteria has been satisfied. d. The third requirement of the Mobilisa criteria has been satisfied. [R]equiring the court to balance the parties' competing interests is necessary to achieve appropriate rulings in the vast array of factually distinct cases likely to involve anonymous speech. Mobilisa, Inc., 217 Ariz. at 111. [W]ithout a balancing step, the superior court would not be able to consider factors such as the type of speech involved, the speaker's expectation of privacy, the potential consequence of a

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K ELLY / W ARNER , PLLC 404 S. Mill Ave., Suite C-201 Tempe, AZ 85281 Telephone: (480) 331-9397

discovery order to the speaker and 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. Id. (emphasis added). Requiring the court to consider and weigh these factors, and a myriad of other potential factors, would provide the court with the flexibility needed to ensure a proper balance is reached between the parties' competing interests on a case-by-case basis. Id. When balancing Defendants interest in remaining anonymous against Plaintiffs interest seeking compensation for the harm suffered, as well as preventing further irreparable harm, it is clear that the identify of Defendant should be disclosed. Plaintiffs reputation is being harmed each day the Postings remain searchable online. See Declaration of Brad Merkel, attached to Exhibit B hereto. Moreover, it is essentially impossible to determine and quantify all the harm that was caused and/or will be caused -- to Plaintiffs reputation as a result of the Postings. Id. Conversely, however, the only consequence that may result from obtaining Defendants identity is that Defendant will be summoned to justify publication of the Postings, which are defamatory per se. Additionally, the following facts greatly weigh in favor of disclosure: (i) Plaintiff has no other method of obtaining the Defendants identify other than compelling the Operator to provide the same; and (ii) the Defendant has no reasonable expectation of privacy given that defamatory speech is not protected. III. CONCLUSION. WHEREFORE, based upon the foregoing, Plaintiff respectfully requests that the Court issue an Order compelling Xcentric Ventures, LLC to comply with the Subpoena, together with such other and further relief as the Court finds necessary and

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K ELLY / W ARNER , PLLC 404 S. Mill Ave., Suite C-201 Tempe, AZ 85281 Telephone: (480) 331-9397

reasonable. RESPECTFULLY submitted this 30th day of January, 2013.

KELLY / WARNER, PLLC By: /s/ Daniel R. Warner Daniel R. Warner, Esq. 404 S. Mill Ave, Suite C-201 Tempe, Arizona 85281 Attorneys for Plaintiff

A copy of the foregoing e-filed and a copy mailed and emailed January 30th, 2013, to: David S. Gingras, Esq. GINGRAS LAW OFFICE, PLLC 3941 E. Chandler Blvd., #106-243 Phoenix, AZ 85048 david@gingraslaw.com Attorney for Xcentric Ventures, LLC /s/ Rachel N. Eisner

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