Sandals Resorts Int’l Ltd. v. Google, Inc., 2010 WL 1428266 (Table, Text in WESTLAW), unreported disposition, 2010 N.Y. Slip Op. 50606(U) (N.Y. Sup. Mar. 04, 2010).
Petitioner Sandals Resorts International Limited, a Jamaican LLC, commenced this special proceeding for pre-action disclosure, making a broad request for Google, Inc. to produce "all information concerning the Google account jft3092@Qmail.com." Petitioner manages a group of hotels operating under the trade names "Sandals" and "Beaches." Petitioner alleges that the referenced Google account was used to send emails to undisclosed recipients questioning "why Jamaicans are not speaking up against the alleged under-employment by Sandals of Jamaicans," which Petitioner alleges is defamatory.
Trial Court Proceedings
Sandals and Google entered into a Corrected Joint Stipulation and Proposed Order providing that Google would notify the account holder of the proceeding and that he/she would have until February 22, 2010 to appear and contest the required production of the pre-discovery information. An individual did contact the court during the required period of time and argued that the email was not defamatory. While a pre-action discovery request may be granted by the court to Petitioners who can establish a meritorious claim and genuine need for the information requested to bring their claim, Sandals was unable convince the court to grant its request.
Pre-action discovery of information identifying a potential defendant is granted "where there is a demonstration that the party bringing such a petition has a meritorious cause of action and that the information being sought is material and necessary to the actionable wrong." In the present case, Sandals' claim for defamation required (1) a false and defamatory statement of fact; (2) regarding the plaintiff [petitioner]; (3) which is published to a third party; and which (4) results in injury to plaintiff.
For some reason Petitioner chose not to provide the Court with the full text of the account holder's email. From the content provided to the Court, it was determined that the speaker did not make any assertions of objective fact with regard to Sandals, and what was submitted consisted of opinion. As a result the court held that the account holder's words were "meant to provoke either thought or discussion and are therefore protected speech." Furthermore, Sandals offered no evidence of the harm the account holder's email caused and as a result the Petitioner failed to satisfy the fourth element of defamation cited by the court.