Unmasking Effort Mooted by Single Publication Rule–Glassdoor v. Andra

Glassdoor allows employees to review employers. An employer, Andra, was unhappy about ten pseudonymous reviews posted about it from June 2014 to June 2015. In August 2015, it sought pre-suit discovery of the reviewers’ identities. Glassdoor opposed the request and filed a Texas anti-SLAPP motion to strike. In February 2016, the trial court denied the motion to strike and granted Andra’s request to unmask two of the 10 reviewers. The appellate court affirmed.

However, this case has been tied up in court long enough that Andra’s underlying claims against the reviewers are now barred by the statute of limitations. As a result, the Texas Supreme Court dismisses the case as moot.

The statute of limitations (SOL) calculation depends on the application of the single publication rule, something I haven’t blogged about in a while. Online, the SOL can start on the first upload, the last download, or something in between. Measuring the SOL by the last download constantly pushes back the date, often eliminating the SOL in practice. As a result, almost all of the courts addressing the issue start the SOL upon the initial upload. (This might be reset if the uploaded content is edited and the edits are relevant to the claim; that’s not an issue here). So the SOL for the 10 reviews started no later than June 2015, though the court slips the date to August 2015, when Andra demonstrably had discovered the reviews because it started the pre-suit discovery process then. Andra’s claims have a 1 or 2 year SOL, so all SOLs ran out no later than August 2017. Now, in 2019, the deadlines are passed.

To get around the SOL, Andra argued that “Glassdoor has absolute and complete ability to control and has undisputed title and interest in the posts.” Putting aside the dubious factual predicates of the claim, the court says that workaround argument has been tried and rejected before.

Andra argued that the rule should be different for “restricted access sites” like Glassdoor. The court rejects the factual claim: “posts to Glassdoor’s website are not confidential and that Glassdoor does not charge users for access. Once posted, the reviews are equally accessible to all users.” In a footnote, the court acknowledges (without endorsing) the argument that SOLs should slip when Internet publications are obscure, i.e., they can’t be viewed by the general public or aren’t indexed in search engines, but says it “need not address this concern here, as Andra highlights Glassdoor’s ‘high number of visitors and visibility to the general public.'”

Andra also argued that the reviewers’ pseudonymity meant that the SOL should be tolled until it discovered their identities. The court says that Andra could have filed a “John Doe” lawsuit and sought discovery; but instead it chose to seek pre-suit discovery against Glassdoor.

Unfortunately for Glassdoor, the mootness ruling also takes out its anti-SLAPP motion and the associated attorneys’ fee shift. Nevertheless, Glassdoor once again successfully defended its reviewers’ privacy, a result we all benefit from.

So here’s the dilemma that’s been bothering me all morning. Texas has a pre-suit discovery proceeding to help plaintiffs bring their claims and possibly reduce the total amount of litigation. This ruling effectively punishes Andra for trying to take advantage of it, creating a procedural “gotcha.” When Glassdoor or its reviewers fight back, they can tie up the pre-suit discovery request in court long enough for the SOLs to run. So either Andra should skip the pre-suit discovery proceeding altogether and just start with a John Doe lawsuit, or if the proceeding gets tied up in court, it should bring a separate John Doe lawsuit before the SOLs run out. The obvious solution would be to toll the SOLs while the pre-suit discovery proceeding is pending, but the Texas Supreme Court expressly rejects that outcome. So I’m not sure if this ruling completely guts the pre-suit discovery process, but at minimum it makes the process less attractive and more risky to plaintiffs.

Case citationGlassdoor, Inc. v. Andra Group, LP, 2019 WL 321934 (Tex. Sup. Ct. Jan. 25, 2019)