MATHIAS, Judge.
Jeffrey M. Miller and Cynthia S. Miller ("the Millers") appeal the Marion Superior Court's grant of summary judgment in favor of Federal Express Corporation ("FedEx") and 500 Festival, Inc. ("500 Festival") on the Millers' claim of defamation
We affirm.
From 1994 until his retirement in 2008, Jeffrey Miller ("Miller") was the president of Junior Achievement of Central Indiana ("JACI"). After his retirement, Miller acted as president of the Experiential Learning and Entrepreneurship Federation ("ELEF"), which is a separate organization from JACI, but which works with JACI. In the spring of 2008, Miller announced a joint project between JACI, ELEF, and Ivy Tech Community College ("Ivy Tech"), which provided for ELEF to construct a culinary school on JACI property which Ivy Tech would then lease. Construction on the building began in 2009, but was stopped in 2010 when the primary financial backers of the project stopped providing the necessary funds. This was allegedly due to defamatory statements made by Jennifer Burk ("Burk") and Brian Payne ("Payne"), who are co-defendants in the Millers' current action.
What happened next is the focus of the current controversy. On March 18, 2010, the Indianapolis Business Journal ("IBJ") published an article on its website regarding the allegations and controversy surrounding the construction of the culinary school. Several comments regarding this article were posted to the IBJ website. The Millers allege that several of these comments were defamatory.
One comment, posted by a user with the screen name "JA Fan" on March 19, 2010, read:
Appellant's App. pp. 82.
On March 23, 2010, a user with the screen name "Really?" posted a comment which read in relevant part:
Appellant's App. pp. 82-83. Another comment was posted on April 6, 2010,
During discovery, the Millers learned that the first two comments were made by Dave Wilson ("Wilson"), the vice president of corporate sponsorship at 500 Festival. He used a computer owned by 500 Festival and located at 500 Festival offices to make these comments. The IP address from which these comments were posted was assigned to 500 Festival by AT & T, 500 Festival's internet service provider ("ISP"). The third comment was made by an unknown person from an IP address assigned to FedEx. The IP address was not traceable to any specific user, but instead belonged to one of FedEx's proxy servers which filtered internet traffic from tens of thousands of FedEx users.
On February 25, 2011, the Millers amended their complaint to add 500 Festival and FedEx as defendants. On November 23, 2011, the Millers served FedEx with interrogatories and requests for production. FedEx objected to the scope of these discovery requests and sought a protective order, which the trial court denied. And after FedEx had responded to the Millers' discovery, the Millers took issue with the adequacy of FedEx's response.
On February 21, 2013, FedEx filed a motion for summary judgment. 500 Festival filed a motion for summary judgment one week later, on February 28, 2013. The Millers responded to these motions on April 30, 2013, after having been granted an extension of time in which to reply. In their response, the Millers claimed that they had received inadequate discovery from 500 Festival. The Millers then filed a motion for sanctions against FedEx and 500 Festival on May 22, 2013, claiming that these defendants had spoliated evidence. The trial court held a hearing on the motions for summary judgment on May 22, 2013, and on July 1, 2013, entered summary judgment in favor of FedEx and 500 Festival. The trial court entered a separate order on July 1, 2013, denying the Millers' motion for sanctions against 500 Festival and entered a similar order denying the Millers' motion for sanctions
Our standard for reviewing a trial court's order granting a motion for summary judgment is well settled: a trial court should grant a motion for summary judgment only when the evidence shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Altevogt v. Brand, 963 N.E.2d 1146, 1150 (Ind.Ct.App.2012) (citing Ind. Trial Rule 56(C)). The trial court's grant of a motion for summary judgment comes to us cloaked with a presumption of validity. Id. "`An appellate court reviewing a trial court summary judgment ruling likewise construes all facts and reasonable inferences in favor of the non-moving party and determines whether the moving party has shown from the designated evidentiary matter that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law.'" Id. (quoting Dugan v. Mittal Steel USA Inc., 929 N.E.2d 184, 186 (Ind.2010)). However, a de novo standard of review applies where the dispute is one of law rather than fact. Id. On appeal, we examine only those materials designated to the trial court on the motion for summary judgment, and we must affirm the trial court's entry of summary judgment if it can be sustained on any theory or basis in the record. Id.
The Millers first claim that the trial court erred in granting summary judgment because both of the Defendants failed to preserve evidence for discovery. Specifically, the Millers refer to certain computer records or files that the Defendants had in their possession. As noted by the Millers, our supreme court has recognized that:
Gribben v. Wal-Mart Stores, Inc., 824 N.E.2d 349, 354 (Ind.2005) (citations and internal quotations omitted). But there is no independent cause of action in Indiana for spoliation of evidence by a party to the suit. Id. at 355. Instead, Indiana trial courts have considerable discretion to respond to discovery violations with such sanctions "as are just" under Trial Rule 37(B). Also, "intentional first-party spoliation of evidence may be used to establish an inference that the spoliated evidence was unfavorable to the party responsible." Id. at 351.
Here, in November 2010, before the Millers added FedEx as a defendant, they served FedEx with a non-party discovery request for information regarding the IP address that was used to post one of the comments on the IBJ website. FedEx responded to this request by informing the Millers that the IP address that had been used to post the comment to the IBJ website was that of a proxy server which filtered internet traffic for tens of thousands of users. FedEx also gave the
By this time, however, the proxy server had been taken out of service. And the server logs from April 6, 2010, the date when the comment was posted to IBJ, were purged on April 6, 2011, shortly after FedEx was served with the Millers' complaint but pursuant to the retention policy produced by FedEx to the Millers in third-party discovery. Thus, at the time the server logs were destroyed, FedEx had already responded to the Millers' requests for non-party discovery, and the Millers had not complained of FedEx's discovery responses. Moreover, FedEx has never denied that the IP address at issue was associated with its server. Nor had the Millers at that time requested that FedEx preserve the server logs. Under these facts and circumstances, we cannot say that the trial court erred by failing to sanction FedEx for failing to preserve the records of the proxy server.
The Millers also complain, however, that FedEx failed to preserve any electronic records until November 15, 2012, which was over a year after FedEx had been added as a defendant. The Millers' initial, non-party discovery requests were broad-effectively asking FedEx to search for documents relating to the Millers' claims from all 290,000 FedEx employees. FedEx objected to the breadth of these requests, and on July 11, 2012, sent correspondence to the Millers' counsel asking for information to help narrow the discovery requests. The Millers did not respond. Eventually, the trial court ordered the parties to meet and resolve the discovery issues after the Millers filed a motion for sanctions due to FedEx's alleged failure to properly provide discovery. This was done on November 6 and November 15, 2012. Only then did the Millers limit the scope of their requests to seventeen current and former employees of FedEx who had volunteered for JACI. Thus, once the Millers narrowed their discovery requests to a reasonable scope, FedEx began to preserve records pertaining to these identified employees. Again, under these facts and circumstances, we cannot say that the trial court erred by failing to sanction FedEx for its responsiveness to the Millers' discovery requests.
With regard to 500 Festival, however, the situation was different. Relatively early on in the discovery process, Wilson was known to be the employee who used 500 Festival's computer system to post the comments via his Yahoo account. And the Millers added Wilson as a defendant at the same time that they added 500 Festival. Thus, from the beginning of its involvement in this case, 500 Festival knew that one of its employees was also a defendant and had made the comments at the heart of the Millers' claims. Despite this, 500 Festival made no efforts to preserve the contents of Wilson's computer. In fact, 500 Festival replaced Wilson's computer but failed to make a complete archival backup of the contents of the drive(s) on the computer. Instead, it simply relied on its policy that employees save documents to 500 Festival's file server. It also instructed
Certainly, the better practice for 500 Festival would have been to preserve the contents of Wilson's computer, otherwise known as placing a unilateral "litigation hold" on the computer and its contents. The seminal case in electronic discovery is Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 217 (S.D.N.Y.2003), In Zubulake, Judge Scheindlin recognized the dilemmas posed by the nature of electronic documents, saying that a corporation, upon recognizing the threat of litigation, need not "preserve every shred of paper, every e-mail or electronic document, and every backup tape," as such a rule would "cripple large corporations ... that are almost always involved in litigation."
Id. (citation and internal quotation omitted). Further, "if a company can identify where particular employee documents are stored on backup tapes, then the tapes storing the documents of `key players' to the existing or threatened litigation should be preserved if the information contained on those tapes is not otherwise available." Id. at 218. Thus, after being added as a defendant and identifying co-defendant Wilson's computer at issue in the present case, 500 Festival should have taken measures to preserve the contents of his computer.
Still, 500 Festival notes that the Millers failed to send 500 Festival any request to place a "litigation hold" on the content of Wilson's computer. See Reinbold v. Harris, IP00-0587-C-T/G, 2000 WL 1693792 (S.D.Ind. Nov. 7, 2000) ("Mere ownership of potential evidence, even with knowledge of its relevance to litigation, does not suffice to establish a duty to maintain such evidence."). Again, if the Millers thought the content of Wilson's computer was vital to their case, they could have specifically requested that 500 Festival archive the content of Wilson's computer. Thus, it appears that neither the Millers nor 500 Festival did all that they could have done and should have done in order to preserve the contents of Wilson's computer. However, we need not pursue the discovery issues concerning the contents of the hard drive on Wilson's computer, and we do not think that 500 Festival's failure to preserve the contents of this computer required the trial court to deny summary judgment in favor of 500 Festival. Both of these issues are mooted by the fact that both FedEx and 500 Festival are immune from the claims brought by the Millers.
The trial court granted summary judgment in favor of 500 Festival and FedEx based on its conclusion that these defendants were protected from liability by operation of the federal Communications Decency Act ("CDA"). On appeal, the Millers claim that the trial court's conclusion was erroneous. Because this is strictly a question of law, our review is de novo. Altevogt, 963 N.E.2d at 1150.
At issue here is Section 230 of the CDA, which provides:
It is the policy of the United States —
As used in this section:
47 U.S.C. § 230 (1998) (bold emphasis added).
In the leading case on Section 230 immunity, the federal Fourth Circuit Court of Appeals in Zeran v. Am. Online, Inc., 129 F.3d 327 (4th Cir.1997), noted that:
Id. at 330. The Zeran court also noted that the purpose of Section 230 immunity is not difficult to discern:
Id.
Thus, Congress made a policy choice not to deter harmful online speech through the separate route of imposing tort liability on companies that serve as intermediaries for other parties' potentially injurious messages. Id. This is so because interactive computer services have millions of users, and the amount of information communicated via interactive computer services is "staggering." Id. "The specter of tort liability in an area of such prolific speech would have an obvious chilling effect. It would be impossible for service providers to screen each of their millions of postings for possible problems." Id. Congress considered the weight of the
Other courts have adopted this broad reading of the protections afforded by Section 230(c). See, e.g., Doe v. MySpace, Inc., 528 F.3d 413, 418-19 (5th Cir.2008) (holding that operator of social media website was protected by Section 230 from suit by minors who were sexually assaulted by men they met on the site); Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1123-24 (9th Cir.2003) (holding that an online dating service provider was not liable when an unidentified party posted a false online profile for a popular actress, leading her to receive sexually explicit phone calls, letters, and faxes at home); Batzel v. Smith, 333 F.3d 1018, 1030-31 (9th Cir.2003) (concluding that operator of a museum security website was protected by Section 230 from suit brought by person allegedly defamed by email posted to the site and its email list because language of Section 230 confers immunity on both providers and users of interactive computer services); Green v. Am. Online (AOL), 318 F.3d 465, 471 (3d Cir.2003) (holding that web-based service provider was protected by Section 230 from claim by user who claimed he received a computer virus from third party and endured derogatory comments directed at him by other users); Ben Ezra, Weinstein, & Co. v. Am. Online Inc., 206 F.3d 980, 984-86 (10th Cir.2000) (holding that online service provider was immune from defamation claim based on inaccurate stock information). And even those courts which have not interpreted Section 230(c)'s protection as broadly as the Fourth Circuit in Zupan have still acknowledged that a provider of an interactive computer service cannot be liable as a publisher or speaker of information provided by someone else. See Chicago Lawyers' Committee for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 671 (7th Cir.2008).
Thus, the question before us is whether 500 Festival and FedEx qualify as providers of an "interactive computer service" for purposes of Section 230(c)(1). The Millers argue that neither 500 Festival nor FedEx provided an interactive computer service, but are instead employers providing computer services to their employees via third-party ISPs.
Section 230(f)(2) defines an "interactive computer service" to mean "any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions." The Millers acknowledge the case law that has extended Section 230 immunity to websites such as Google, Yahoo, and Microsoft, but claim that it does not extend to employers who provide access to their employees and others to the internet. The cases that have addressed this question, however, have decided otherwise.
In Delfino v. Agilent Technologies, Inc., 145 Cal.App.4th 790, 52 Cal.Rptr.3d 376 (2006), the plaintiffs sued the employer of a man they claimed had sent them threatening emails and messages posted to online bulletin boards. The trial court granted the employer's motion for summary judgment, and the plaintiffs appealed. The California Court of Appeals noted that no case had yet held that a corporate employer was a provider of an "interactive computer service" for providing internet
The Illinois Appellate Court came to a similar conclusion in Lansing v. Sw. Airlines Co., 366 Ill.Dec. 537, 980 N.E.2d 630, 631 (Ill.App.Ct.2012), appeal denied, 366 Ill.Dec. 77, 979 N.E.2d 878 (Ill.2012). In that case, the plaintiff sued the employer airline, claiming that it had negligently supervised an employee who sent threatening messages. The trial court granted summary judgment in favor of the airline, concluding that Section 230 of the CDA afforded it immunity from the plaintiff's claims that arose from the emails and text messages sent over the internet. The plaintiff appealed and argued that the defendant was an airline, not an ISP, and that when Congress enacted the CDA in 1996, it did not intend to include within the definition of a provider of an interactive computer service those employers who gave their employees access to the Internet for the purpose of their work. Although the parties in Lansing focused their arguments on whether the airline was an ISP, the court observed that an ISP was neither mentioned nor defined by the CDA. Instead, the proper focus was on whether the airline was a provider of an interactive computer service. The court answered this question in the affirmative:
Lansing, 366 Ill.Dec. 537, 980 N.E.2d at 637. Cf. Kathleen R. v. City of Livermore, 87 Cal.App.4th 684, 104 Cal.Rptr.2d 772, 777 (2001) (holding that public library was immune from suit under Section 230 because it provided an interactive computer service by enabling multiple users to access the internet through its public computers).
Here, the designated evidence clearly establishes that both 500 Festival and FedEx provide or enable computer access for multiple users on their respective computer networks to access the Internet by means of the servers on each network. We conclude that this is all that is required under Section 230(c)(1) to be considered a provider of an interactive computer service.
Of course, simply because the defendants here have established that they
We have already concluded that both 500 Festival and FedEx are providers of an interactive computer service. And it is clear that the information at issue — the comments posted to the IBJ website — was provided by another "information content provider," which is defined as "any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet[.]" 47 U.S.C. § 230(f)(3). FedEx's unknown user and 500 Festival's known employee, Wilson, easily fall within this definition.
The final question then is whether the Millers' cause of action treats the defendants as publishers of the information. The Millers' complaint clearly seeks to hold 500 Festival and FedEx liable for what they published. See Appellant's App. p. 87 ("Mr. Wilson, 500 Festival, Ms. Hanlon, Mr. Leagre, Ms. Leagre, FedEx, Does #1-3, Mr. Burk, Ms. Steege, Mr. Starr and Ms. Starr, individually and/or in a concerted action among some or all of the Defendants, published unfounded statements regarding misuse of funds and other criminal and/or lewd acts on the IBJ website, the Indianapolis Star website and WRTV-6s website"); id. at 88 (same); id. at 89 (same). And despite their references to other doctrines, such as respondeat superior, the Millers' actual complaint seeks to hold 500 Festival and FedEx liable as publishers of the statements. Thus, their claims are barred by Section 230(c) of the CDA. See Delfino, 52 Cal.Rptr.3d at 389; Lansing, 366 Ill.Dec. 537, 980 N.E.2d at 637 (both holding that employers were protected by Section 230(c)(1) from suits seeking to hold them liable for the actions of their employees while using the employers' computer networks to access the internet). Accordingly, the trial court properly granted summary judgment in favor of 500 Festival and FedEx.
Although there may have remained a genuine issue of material fact concerning spoliation of evidence under state law, the trial court properly granted summary judgment in favor of 500 Festival and FedEx, finding each to be sued in their capacity as a publisher of the information at issue and concluding that, as such, these defendants were immune from the Millers' claims under Section 230(c) of the federal Communications Decency Act because these defendants are providers of an interactive computer service.
Affirmed.
BAILEY, J., and BRADFORD, J., concur.
