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I may have been defamed on Facebook by a person who verbally threatened to put defamatory material about me on their page. I do not have access to this person's Facebook page.

In order to determine whether I should sue this person for defamation, I need to see the content of the page. Normally, Facebook requires a subpoena issued under the guidance of US code section 2703 (I believe).

Is there a way for me to get a court order to do this discovery without actually making a complaint. I don't really want to file a lawsuit of the "I-think-somebody-may-have-defamed-me" type. I only want to file the complaint if indeed the defamation has occurred, but in that case I need to do discovery to determine whether defamation has occurred.

I know in criminal cases it is easy for police to get administrative subpoenas of this type. In other words, a cop does not have to make a criminal complaint against someone to get a subpoena to search for evidence. Is there a civil equivalent to this?

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  • Just curious: how is it relevant who is the user to determine if there is defamation? It seems that what makes some content defamatory or not is the content itself, not its source.
    – SJuan76
    Mar 7, 2022 at 21:09
  • @SJuan76 You can't sue unless you can name a defendant. Facebook is immune from suits for user content under Section 230.
    – ohwilleke
    Mar 7, 2022 at 21:32
  • @ohwilleke I know who is defaming me. I am not suing Facebook. Maybe read the post?
    – Cicero
    Mar 7, 2022 at 21:38
  • @Cicero I'm responding to SJuan76's comment about "how is it relevant who is the user" I understand what you are saying.
    – ohwilleke
    Mar 7, 2022 at 21:40
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    @ohwilleke Ok, sorry.
    – Cicero
    Mar 7, 2022 at 21:41

1 Answer 1

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Short Answer

How can I get a discovery subpoena without necessarily filing a civil complaint?

You usually can't, even though that is often unfair and denies you legal relief.

Long Answer

There is no general civil alternative to this tool. A handful of states have pre-litigation discovery, but most do not and it is not available in the federal system. According to Professor Scott Dodson of William and Mary (quoted here by me as of 2019):

Texas allows presuit discovery for the express purpose of investigating claims where justice or some other benefit outweighs the burden and expense of the discovery requested. The available empirical evidence suggests that presuit discovery is widely sought and usually allowed in Texas, though only rarely sought relative to the total number of cases filed in Texas. A recent survey found that presuit investigative discovery in Texas was used primarily to ensure that the complaint would be valid under the rules. In cases in which no lawsuit was filed after presuit discovery was allowed, the predominant reason was that the parties had settled. These data suggest that presuit investigative discovery is, at least in Texas, used properly and can be a net cost gain—early peeks at critical evidence may result in no lawsuit ever being filed, either because the evidence is too scanty to be worth anything other than a meager settlement, or because the evidence is substantial enough that the defendant wishes to settle rather than defend a lawsuit. . . .

Florida enacted a statutory requirement of presuit discovery in medical malpractice claims under a complicated procedural mechanism. The Florida rule is designed to deter meritless claims, as well as to facilitate the early resolution of them, by requiring the prospective plaintiff and defendant to share information under penalty of sanctions. . . .

Rule 4003.8 of the Pennsylvania Rules of Civil Procedure allows a plaintiff to “obtain pre-complaint discovery where the information sought is material and necessary to the filing of the complaint and the discovery will not cause unreasonable annoyance, embarrassment, oppression, burden or expense to any person or party.” Upon a defendant‟s objection, the court can require the plaintiff to “state with particularity how the discovery will materially advance the preparation of the complaint.”

Connecticut, which recognizes an independent equitable action for discovery, is similar. To be entitled to such discovery, the petitioner must demonstrate that what he seeks to discover is material and necessary for proof of, or is needed to aid in proof of, another action already brought or about to be brought. The plaintiff must describe with reasonable detail the material he seeks.

Alabama allows for preaction investigative discovery under its Rule 27160 and provides for similar showings. A petition for preaction discovery must show that the petitioner is presently unable to bring the cause of action and must identify the facts which the petitioner desires to establish by the proposed discovery. Other states [New York and Ohio] have similar requirements.

One of the reasons for this lack of remedy is that prior to the U.S. Supreme Court rulings Iqbal and Twombly in federal courts in 2008 and 2009, a 70 year old system of notice pleading allowed you to file suit without knowing for sure that key facts were true, if you had "information and belief" to suggest otherwise, and you could use that complaint to get discovery, and dismiss the case if your educated guess that you believed to be true was wrong.

In federal court, the Iqbal and Twombly rule of pleading essentially prohibits pleading certain key kinds of facts on "information and belief". This is particularly problematic in the context of the question or any other case where key facts are in the sole possession of a defendant accused of wrongdoing.

Many U.S. states, although not all, have followed the federal rule. A list of states that had done so as of 2019 can be found in the linked law review article. The list has probably grown longer in the following three years. Also, Facebook could, in most cases, remove to federal court causing federal rules of civil procedure to apply, an issue that the American Bar Association commentators have commented upon).

Establishing that a forum jurisdiction has jurisdiction over Facebook in this kind of case could also be challenging, if that jurisdiction isn't California where Facebook has its headquarters, a state which doesn't allow for pre-litigation discovery.

The U.S. Supreme Court has, in recent years, also greatly curtailed the ability of people to sue an out of state defendant in another state's courts. See, e.g., Daimler AG v. Bauman (U.S. 2014) (overruling the rule of the International Shoe case since 1945 that a business may be sued on any subject matter anyplace it has a brick and mortar office or an agent for the conduct of its business).

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  • I am suing a person for defamation, not Facebook. I just need a court order to get the relevant Facebook pages to establish the basis for the lawsuit. It seems kind of bogus to me that cops can get discovery subpoenas from administrative judges, but civil plaintiffs cannot.
    – Cicero
    Mar 7, 2022 at 21:40
  • @Cicero It is kind of bogus, but it is the law. If a state with jurisdiction over the defendant has notice pleading, you can sue first and get discovery later. If not, you're probably stuck.
    – ohwilleke
    Mar 7, 2022 at 21:43

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