Delaware Chancery Court Permits Discovery of “Actionable Statements of Fact” on Twitter
By Sara Beth A.R. Kohut, Young Conaway Stargatt & Taylor, LLP
The Delaware Court of Chancery recently issued a letter opinion explaining a bench ruling that authorized Twitter to comply with subpoenas served by plaintiff BDO USA in its quest for identifying information relating to four anonymous Twitter accounts allegedly used by a former BDO partner and his new business to disparage BDO. BDO USA, LLP v. EverGlade Global, Inc., C.A. No. 2021-0244-KSJM (Del. Ch. Ct. Jan. 5, 2022). Chancellor Kathaleen McCormick looked to Doe v. Cahill, 884 A.2d 451 (Del. 2005), which set the standard for discovery of an anonymous blogger who derided a local elected official. Applying that standard, the Court of Chancery concluded that the discovery should proceed because (a) Twitter had made reasonable efforts to notify the holder of the account and provide an opportunity to respond, and (b) BDO showed facts sufficient to defeat a motion for summary judgment. The court refuted the defendant’s contention that notice was required to be given using Twitter, noting that tweets to the since-deleted accounts were futile. Twitter had sent notice to the email addresses it had on file for the accounts, which satisfied the requirement for “reasonable efforts.”
Further, the court concluded BDO provided sufficient facts to survive summary judgment on defamation. While the defendant argued platforms like Twitter “are informal outlets of personal opinion and not reliable sources of information,” the Chancellor discussed the dramatic changes in social media since earlier precedent was issued, and that such outlets are “used increasingly as a news source and people expect that at least some of what they encounter on the site is factual.” While certain of the statements on the Twitter accounts would be considered opinion, others were statements “susceptible of proof,” such that the Chancellor deemed them “actionable statements of fact” for purposes of satisfying the summary judgment standard as to defamation. Accordingly, the court authorized Twitter to comply with the subpoenas.