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### STATE OF MICHIGAN

COURT OF APPEALS

FAZLUL SARKAR,

Plaintiff-Appellant, FOR PUBLICATION December 6, 2016
9:00 a.m.

v No. 326667 Wayne Circuit Court JOHN DOE, LC No. 14-013099-CZ

Defendant-Appellee,

and

JANE DOE

Defendant,

and

PUBPEER FOUNDATION,

Appellee.

FAZLUL SARKAR,

Plaintiff-Appellee,

v No. 326691 Wayne Circuit Court JOHN DOE and JANE DOE, LC No. 14-013099-CZ

Defendants,

and

PUBPEER FOUNDATION,

Appellant.-2- Before: F ORT H OOD , P.J., and G LEICHER and O’B RIEN , JJ.

O’B RIEN
, J.

The issues presented in these appeals boil down to one simple question: Are the identities of anonymous scientists who comment on other scienti sts’ research online protected by
the First Amendment?

I. FACTUAL & PROCEDURAL BACKGROUND

According to his complaint, “Fazlul H. Sarkar, PhD is a distin guished professor of pathology at Karmanos Cancer Center, Wayne State University wit h a track record of cancer research over 35 years.” 1 Dr. Sarkar began his research at Wayne State University in 19 89, and “his work has led to the discovery of the role of chemopreventi ve agents in sensitization of cancer cells (reversal of drug resistance) to conventional ther apeutics (chemo-radio-therapy).” Dr. Sarkar alleges that “[h]e is a perfect example of a true tr anslational researcher bringing his laboratory research findings into clinical practice,” that he “ is involved in several collaborative projects including breast, lung, and pancreatic cancer,” that “ [h]e has published over 430 original scientific articles in peer-reviewed journals,” that he has wri tten or reviewed hundreds of articles and book chapters, that he has edited several books, that he ha s received numerous publically funded grants, and that he has trained a variety of pre- and po st-doctoral students. In short, it appears undisputed that he is we ll-accomplished in the cancer-r esearch community.

It is presumably these accomplishments that led to Dr. Sarkar pursuing employment with the University of Mississippi in 2013. According to Dr. Sarkar , the University of Mississippi presented him with the “anticipat ed terms of an offer of a posi tion” in September 2013, which set forth several terms of employment, including, most notably, ten ure, a $350,000 salary, $15,000 in relocation expenses, “[a] start up package of $750,000,” and a variety of other benefits. In March 2014, the University of Mississippi formally offered him this position, Dr. Sarkar accepted, and he resigned from Wayne State University approxima tely two months later. Dr. Sarkar relocated to Oxford, Missi ssippi, shortly t hereafter and was set to begin his employment with the University of Mississippi in July 2014. At some point , however, “his start date was adjusted to August 1, 2014 per late r agreement and approval . . . .”

On June 19, 2014, however, the University of Mississippi resci nded Dr. Sarkar’s offer of employment. According to Dr. Sar kar, the Univers ity of Mississ ippi was unwilling to “go forward with an employment rela tionship with [him] and [his] gr oup” based on “allegations lodged in a public space and presented directly to colleagues [ t]here . . . .” In pertinent part, the University of Mississippi’s per sonnel cited public comments mad e on pubpeer.com, which were

1 All quotations in Section I of our opinion are from the pleadi ngs submitted by the parties before the trial court. In reviewing a trial court’s decision on a mo tion for summary disposition pursuant to MCR 2.116(C)(8), we are required to accept the factual allegations in the pleadings, including in the complaint, as true; thus, quoting the pleading s is appropriate.-3- apparently made known to the Uni versity of Mississippi by an an onymous individual. 2 After losing this employment opportuni ty with the University of Missi ssippi, Dr. Sarkar attempted to rescind his resignation with Wayne State University the followi ng day, on June 20, 2014, and Wayne State University allowed him to return, albeit in a non-t enured position. Once he learned he would be returning to Wayne S tate University, however, eithe r the same or a different anonymous individual also distri buted a flyer containing a scre enshot from pubpeer.com to Wayne State University personnel. 3

Obviously unhappy with the outcome of his employment offer wit h the University of Mississippi, the comments on pubp eer.com, and the distribution of the flyer to Wayne State University personnel, Dr. Sarkar pursued a variety of legal rem edies including this lawsuit. On October 9, 2014, Dr. Sarkar filed this five-count lawsuit again st “John and/or Jane Doe(s).” Dr. Sarkar alleged, in pertinent part, that the comments made on pu bpeer.com were defamatory, that the comments made on pubpeer.com and forwarded to the Universit y of Mississippi intentionally interfered with a business expect ancy, that the comments made o n pubpeer.com and forwarded to Wayne State University intentionally interfered with a busin ess relationship, that the posting of an email from Wayne State University personnel on pubpeer.co m and in public constituted an invasion of privacy, and that the circulation of the flyer was intended to inflict emotional
distress.

In an attempt to learn the iden tities of the individual or ind ividuals who were responsible for the actions at issue, Dr. S arkar subpoenaed the PubPeer Fou ndation (“PubPeer”), the entity that operates pubpeer.com, seeking the following: “All identif ying information, including but not limited to user names, IP addresses, email addresses, profi le information, and any other identifying characteristics of all users who have posted any of the comments that were posted on your web site that are described i n the attached complaint that was filed in Wayne county, MI.” Although somewhat unclear from his complaint and subpoena, it a ppears that Dr. Sarkar sought all identifying information for approximately 30 comments made on pubpeer.com about his research. PubPeer objected, moving to quash the subpoena on Fi rst Amendment grounds.

Specifically, PubPeer argued that, in order to unmask the iden tity of the anonymous commenter or commenters, Dr. Sarkar was required to prove that his claims could survive a motion for summary disposition. Asserting that Dr. Sarkar had failed to do so, PubPeer argued that the trial court should quash the subpoena. 4 Analyzing each comment at issue, PubPeer also

2 According to Dr. Sarkar’s complaint, “Pubpeer.com . . . is a w eb site that describes itself as ‘an online community that uses the publication of scientific result s as an opening for fruitful discussion among scientists.’ ” Pubpeer.com appears to have be en created by anonymous scientists, and scientists are permitted to comment on pubpeer. com anonymously as well.

3 The contents of the flyer a re discussed further below.

4 PubPeer also argued that Michigan courts should require that p laintiffs in defamation cases put forth evidence establishing a prima facie case of defamation be fore unmasking the identities of anonymous commenters as other jur isdictions have done. See, e. g., Dendrite Int’l, Inc v Doe, No
3 , 342 NJ Super 134, 141-142; 775 A2d 756 (2001) (“ Dendrite ”); see also Doe No 1 v Cahill

,-4- argued that Dr. Sarkar failed to adequately plead the allegedlydefamatory comments, that the allegedly defamatory comments were not capable of defamatory me aning, that the
communications sent to or distribu ted at the universities were insufficiently connected to PubPeer, and that the balance of interests in this case favored preserving scientists’ ability to anonymously comment on other scientists’ research.

Dr. Sarkar responded, arguing that “[t]his case is not about f ree speech.” Rather, he asserted, “[i]t is about torti ous conduct that is destroying a man’s life and career.” Dr. Sarkar described the anonymous commenter or commenters as “an enemy [o r enemies] hiding behind the anonymity afforded by the internet” who is or are “sabotagi ng” his career. Dr. Sarkar, relying on the fact that one John Doe had already filed an appe arance, argued that no preliminary showing was required and that, at best, the appearing John Doe could seek a protective order on behalf of him or herself. Dr. Sarkar also pointed to the fact that his complaint was adequate, that he alleged torts beyond defamation, that the confidential natur e of misconduct proceedings had been breached, that the comments at issue are defamatory, and, ultimately, that disclosure of the
commenters’ identities is necessary to seek the legal remedy th at he is entitled to.

A hearing on PubPeer’s motion to quash was held on March 5, 20 15. After hearing arguments similar to those discu ssed above, the trial court gra nted, in part, PubPeer’s motion to quash. 5 Specifically, the trial court granted the motion in full with the exception of one subparagraph in Dr. Sarkar’s co mplaint: Subparagraph 40(c). A s it relates to subparagraph 40(c), the trial court reserved i ts ruling as it related to tha t specific subparagraph for a later date after the parties were afforded additional time for supplementa l briefing. A second hearing on Pubpeer’s motion to quash was held two weeks later, on March 19 , 2015. After reviewing the parties’ supplemental briefs and hearing additional argument, t he trial court denied PubPeer’s motion to quash with resp ect to subparagraph 40(c). 6 These appeals followed. On April 20, 2015, the trial court granted PubPeer’s motion to stay proceedi ngs pending the outcome of these appeals.

884 A2d 451, 460-461 (Del, 2005) (“ Cahill ”). PubPeer, John Doe (an anonymous defendant who has filed an appearance and is a party to this appeal), and amici (Google, Inc. and Twitter, Inc., Public Citizen, Inc., and Dr. Bruce M. Alberts and Dr. Ha rold E. Varmus) raise this same argument on appeal. However, as indicated below and acknowledg ed by those partie s, this Court has declined to do so in the pa st, and we are bound by that dec ision. MCR 7.215(J)(1).

5 An order reflecting the trial c ourt’s decision was entered on March 9, 2015, and it is that order that Dr. Sarkar challenges on appeal in Docket No. 326667. Thi s Court granted Dr. Sarkar’s application for leave to appeal in Docket No. 326667 on August 27, 2015. Fazlul Sarkar v John

Doe , unpublished order of the Court of Appeals, entered August 27, 2015 (Docket No. 326667).

6 An order reflecting the trial court’s decision was entered on March 26, 2015, and it is that order that PubPeer challenges on cro ss-appeal in Docket No. 326691. This Court granted PubPeer’s application for leave to appeal in Docket No. 326691 on August 27, 2015. Fazlul Sarkar v John

Doe , unpublished order of the Court of Appeals, entered August 27, 2015 (Docket No. 326691).-5- II. ARGUMENTS ON APPEAL

Generally, we review a trial c ourt’s decision on whether to co mpel discovery for an abuse
of discretion. Cabrera v Ekema , 265 Mich App 402, 406; 695 NW2d 78 (2005). We review a trial court’s decision to grant summary disposition de novo, ho wever. Maiden v Rozwood , 461 Mich 109, 118; 597 NW2d 817 (1999). Similarly, constitutional issues, including the application of the First Amendment, are also reviewed de novo. Smith v Anonymous Joint Enterprise , 487 Mich 102, 111-112; 793 NW2d 533 (2010).

A. THE APPROPR IATE STANDARD

On appeal, Dr. Sarkar first argues that the trial court’s Marc h 9, 2015 order must be reversed because the court erred in allowing PubPeer, a nonpart y, to argue standards for summary disposition. Relatedly, Dr. Sarkar also argues that th at the trial court erroneously heightened the pleading standard for defamation as well as erro neously refused to consider a protective order pursuant to MCR 2.302. Ultimately, these argu ments are each part of Dr. Sarkar’s ultimate position before the trial court and before th is Court on appeal: Dr. Sarkar argues that Thomas M Cooley Law Sch v Doe 1 , 300 Mich App 245; 845 NW2d 128 (2013), not
Ghanam v John Does , 303 Mich App 522; 833 NW2d 331 (2014), controls the outcome o f this case. We will address each case, as well as their application to this matter, in turn.

1. THOMAS M COOLEY LAW SCHOOL V DOE 1 (“COOLEY”)

In Cooley , an anonymous speaker created a w ebsite titled “THOMAS M. COOL EY LAW SCHOOL SCAM” on weebly.com . 300 Mich App at 250. The spea ker, who identified himself as a graduate of Thomas M. Cooley Law School (“Cooley” or “the school”), described
the school as “THE BIGGEST JOKE of all law schools,” characteri zed the school as having an “ ‘open door’ policy” for admission , criticized the school’s attr ition rate and administrative policies, cited rankings, describ ed the school as “ ‘A DIPLOMA MILL,’ ” and called the school’s graduates “unemployed.” Id . at 251. The speaker “permitted visitors to post their own comments on the website, and fre quently responded to the commen tators,” but he eventually “began to ‘filter’ comments, noting that he would delete ‘any s tupid or irrelevant comments or personal attacks[.]’ ” Id . (alterations in original).

Cooley eventually filed a lawsuit against multiple anonymous d efendants, alleging defamation against the anonymous speaker who created the websit e as well as the other anonymous commenters, and subpoenaed Weebly, Inc. (“Weebly”), t he entity that operates weebly.com, “ordering it to produce documents that included [th e speaker]’s user account
information.” Cooley , 300 Mich App at 251-252. The anonymous speaker moved to quas h the subpoena or for a protective order, but, in the meantime, an em ployee of Weebly apparently disclosed the speaker’s identity to the school. Id . at 252. After learning the speaker’s identity, the school filed an amended complaint identifying him by his le gal name. Id . In addressing the speaker’s motion to quash or for a protective order, the trial court first struck the school’s amended complaint and ordered that the school not continue disc overy or disclose the speaker’s identity further. Id . at 252-253. Ultimately, however, the trial court denied the speaker’s motion to quash, reasoning that the speaker’s statements at issue were slanderous per se and, thus, not
entitled to First Ame ndment protection under Dendrite and Cahill

. Id . at 253.-6- The speaker appealed, and this Court reversed and remanded. Cooley , 300 Mich App at 272. Specifically, this Court held that the trial court abused its discretion by applying Dendrite
and Cahill rather than Michigan law as well as erred in making other conc lusions. Id . at 267- 269. This Court explained, in pertinent part, as follows:

We conclude that the trial cour t abused its discretion, which requires reversal. A trial court by definition abuses its discretion wh en it inappropriately interprets and applies the law. First, the trial court erroneo usly concluded that Michigan law does not adequately protect [the speaker]’s intere sts, and then it erroneously adopted and applied foreign law. Second, the trial court’s findings and conclusions in support of its position were erroneous. Thi rd, the trial court did not state any reason supporting its decision to deny [the s peaker]’s alternative request for a protective order.

After adopting the Dendrite and Cahill standards as Michigan law, the trial court appears to have considered only two alternatives: (1) that the subpoena should be quashed and Cooley’s case dismissed, or (2) that the subpoena should not be quashed and the case should proceed with [the speaker]’s name on the complaint. But Michigan law does not address only these polar opposites. [The speaker] also asked for a protective order under MCR 2.302(C). The trial court’s order indicates that it denied [the speaker]’s requests for a p rotective order “for
reasons stated on the record.” But the trial court did not sta te any reasons on the record to deny the protective or der. The trial court appears n ot to have considered whether or to what extent to p rotect [the speaker]’s identity a fter it determined not to quash the subpoena. On remand, the trial court should consi der whether good cause exists to support [the sp eaker]’s request for a protectiv e order.

Next, the trial court ruled that defamatory statements per se were not entitled to First Amendment protections. The trial court was i ncorrect. Not all accusations of criminal activity are automatically defamatory. To put it simply, defamation per se raises the presumption that a person’s reputa tion has been damaged. In that instance, a plaintiff’s failure to prove dama ges for certain charges of misconduct would not r equire dismissal of the suit. Whether a plaintiff has alleged fault—which may require the plaintiff to show actua l malice or negligence, depending on the sta tus of the speaker and the topi c of the speech— concerns an element separate from whether the plaintiff has all eged defamation per se. Thus, the trial court e rroneously concluded that Coole y would not have to prove fault or other elements because the statements were defam atory per se.

More importantly, this erroneous determination was central to the considerations the trial court may balance when determining whe ther to issue a protective order. As noted above , a trial court may consider t hat a party seeking a protective order has alleged that the interests he or she is as king the trial court to protect are constitutionally shielded. But the trial court nee d not, and should not, confuse the issues by making a premature ruling—as though on a motion for summary disposition—while considering whether to issue a protec tive order before the defendant has filed a motion for summary disposition . The trial court-7- should only consider whether good cause exists to issue a prote ctive order, and to what extent to grant relief under MCR 2.302(C).

[The speaker] urges this Court to rule that Cooley has not ple aded legally
sufficient claims for defamation and tortious interference with a business relationship. We conclude that [the speaker]’s motion for a pr otective order did not present the appropriate time or place to do this. These ru lings are best made
in the context of a motion for summary disposition, when the tr ial court is testing the legal sufficiency of the complaint. The trial court’s only concerns during a motion under MCR 2.302(C) should be whether the plaintiff has s tated good cause for a protective order and to what extent to issue a prot ective order if it determines that one is warranted. [Id .]

2. GHANAM V JOHN DOES (“GHANAM”)

In Ghanam , several anonymous speakers made what the plaintiff characteri zed as “false and malicious statements about plaintiff on an Internet message board called The Warren Forum.” 303 Mich App at 525. The statements at issue included allegations that the plaintiff was “involved in the disappearance and theft of approximately 3 ,647 tons of road salt from city storage facilities and of steali ng tires from city garbage truc ks and selling them.” Id . Taking the position that these statements “ ‘prejudiced and caused harm to the Plaintiff in his reputation and office and held Plaintiff up to disgrace, ridicule, and contemp t,’ ” plaintiff filed a defamation lawsuit against the anonymous speakers and sought to depose a f ormer city employee who “plaintiff believed . . . was affiliated with the website” to l earn the speakers’ identities. Id . at 525, 527.

The former city employee, a nonparty, “moved for a protective order, arguing that the First Amendment protects a critic ’s right to anonymously commen t about the actions of a public official and that the identities of the anonymous writers were subject to a qualified privilege.”
Ghanam , 303 Mich App at 527. Specifically, the former city employee “argued that before plaintiff could seek to compel t he identification of the anonym ous posters, he must produce sufficient evidence supporting each element of a cause of actio n for defamation against a public figure.” Id . The trial court, without “c onsider[ing] or acknowledg[ing] t he First Amendment aspects involved,” “merely relied on the open and liberal disco very rules of Michigan” and
denied the motion for a protective order. Id . at 527-528.

The former city employee appealed, and this Court reversed and remanded for further proceedings. Ghanam , 303 Mich App at 550. First, while it recognized that it was bound by Cooley , this Court nevertheless fou nd that “application of the Cooley protections scheme in the instant case, containing circumstances which Cooley declined to address, appears inadequate to protect the constitutional right s of an anonymous defendant who is unaware of pending litigation.” Id . at 540. In light of this inadequate protection, this Court “ conclude[d] that when an anonymous defendant in a defamation suit is not shown to be aware of or involved with the lawsuit, some showing by the plaintiff and review by the trial court are required in order to balance the plaintiff’s right to pursue a meritorious defamatio n claim against an anonymous critic’s First Amendment rights.” Id . Consequently, this Court “impose[d] two additional requirements in an effort to bala nce” these competing interests : (1) “a plaintiff must have made-8- reasonable efforts to provide the anonymous commenter with reas onable notice that he or she is the subject of a subpoena or moti on seeking disclosure of the c ommenter’s identity,” and (2) “the plaintiff’s claims must be evaluated by the court so that a det ermination is made as to whether the claims are sufficient to survive a motion for summary dispo sition under MCR 2.116(C)(8).”
Id . at 541. Determining that there was nothing in the record tha t would satisfy either of those two additional requirements, this Court reversed and remanded f or the entry of an order granting summary disposition in the anonymous speakers’ favor. Id . at 543-550.

3. APPLICATION TO THIS CASE

In our view, this case does not fit neatly into the framework articulated by Cooley or Ghanam . As Dr. Sarkar argues, Cooley is similar in that it involved a defendant who had appeared. As PubPeer argues, however, Cooley differs in that it involved a defendant whose identity had already been disclosed to the plaintiff. That is, to date, the identities of the anonymous speakers in this case are not yet known by plaintiff. 7 On the other hand, as PubPeer

argues, Ghanam is similar in that it involved a defendant whose identity had n ot yet been disclosed to the plaintiff. As Dr. Sarkar argues, however, Ghanam differs in that it involved a situation where seemingly no defendants were aware of nor had a ppeared in the matter. That is, as of now, one anonymous defendant is aware of and has filed an appearance in this matter. Thus, the protections schemes articulated in Cooley and Ghanam , while helpful, do not control
the outcome of this case.

Nevertheless, it is our opinion that the framework as set fort h in Ghanam is most appropriate here. In essence, Dr. Sarkar’s position is simple: He argues that because a defendant has appeared, PubPeer cannot argue the standards for summary di sposition standards. We cannot agree with this position.

“The First Amendment of the United States Constitution provide s that ‘Congress shall make no law . . . abridging the freedom of speech . . . .’ ” Cooley , 300 Mich App at 255-256, quoting US Const, Am I. Similarly, our “Michigan Constitution provides that ‘[e]very person may freely speak, write, express and publish his views on all s ubjects, being responsible for the abuse of such right; and no law shall be enacted to restrain or abridge the liberty of speech . . . .’

7 Additionally, and perhaps more importantly, Cooley is distinguishable from this matter in that Cooley involved a motion to quash or fo r a protective order filed by t he anonymous speaker at issue, not a nonparty. 300 Mich App at 252 (“On August 5, 2011 , Doe 1 filed a motion in the Ingham Circuit Court, requesting that it quash any outstanding subpoenas to Weebly or, alternatively, issue a protectiv e order limiting or restricting Cooley’s use or disclosure of his identifying information.”). Conversely, this case involves a m otion to quash by a nonparty relating, at least in part, to statements made by anonymous spe akers who have not appeared. Thus, while Cooley is still helpful to our analysis in this case, the circumstance s presented in that
case are not identical to those here as Dr. Sarkar claims.-9- ” Id . at 256, quoting Const 1963, art 1, § 5 (alterations by the Cooley Court). 8 The United States Constitution protects an individual’s “speech over the Internet to the same extent as speech over other media,” and this remains true regardless of whether the i ndividual identifies him or herself or remains anonymous. Id . Stated again, “The United States Supreme Court has . . . det ermined that ‘an author’s decision to remain anonymous, like other deci sions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the
First Amendment.’ ” Id ., quoting McIntyre v Ohio Elections Comm , 514 US 334, 342; 115 S Ct 1511; 131 L Ed 2d 426 (1995). However, “[t]he right to anonymo us expression over the Internet does not extend to defamatory sp eech, which is not protected by the First Amendment.”
Ghanam , 303 Mich App at 534.

While courts in other jurisdictions have tried, “[t]o very dif ferent extents,” “to balance a defendant’s right to speak anonymously against a plaintiff’s in terest in discovering the information necessary to prosecute its defamation claims,” Cooley , 300 Mich App at 257, this Court has clearly held “that Michigan’s procedures for a protec tive order, when combined with Michigan’s procedures for summa ry disposition, adequately prote ct a defendant’s First Amendment interests in anonymity,” id . at 264, and we are bound by that decision. MCR 7.215(J)(1). 9 Thus, as recognized by Cooley , it is this state’s procedures for protective orders and summary disposition that cont rol in this circumstance. 300 Mich App at 259-264.

A party commences a civil action when he or she files a compla int with the court. Cooley , 300 Mich App at 259. After doing so, a party is permitted to “ ‘obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action[.]’ ” Id . at 260, quoting MCR 2.302(B)(1) (alteration by the Cooley Court). Generally speaking, “Michigan follows a policy of open and broa d discovery.” Id

. Nevertheless, “a trial court should protect parties from excess ive, abusive, or irr elevant discovery requests” by issuing a protective order. Id . at 260-261. In deciding whether to do so, i.e., whether to issue a protective or der, courts turn to the procedu re set forth in MCR 2.302(C). Id

. at 261. Relatedly, courts may also grant summary disposition t o one party when the opposing party has failed to state a viable claim pursuant to MCR 2.116( C)(8). Id . Summary disposition pursuant to MCR 2.116(C)(8) should be granted “if the claim is so clearly unenforceable as a matter of law that no factual development could possibly justif y the opposing party’s right to recovery.” Id . at 262. As this Court explained in Cooley , “[t]he availability and application of summary disposition is important in this case because summary d isposition is an essential tool to protect First Amendment rights.” Id

.

8 Because “[t]he United States and Michigan Constitutions provid e the same protections of the freedom of speech,” “this Cout may consider federal authority w hen interpreting the extent of Michigan’s protections of free speech.” Cooley , 300 Mich App at 256.

9 In Cooley , a panel of this Court expressly refused to adopt Dendrite , reasoning that any expansion beyond the Michigan rules of civil procedure would be better-suited for the Legislature. 300 Mich App at 266-267.-10- However, when an anonymous defendant has not appeared, it is c lear that he or she is completely unable to seek summary disposition on unviable claim s; stated differently, when an anonymous defendant has not appeared, it is clear that he or sh e is completely unable to utilize an (and arguably the most) important tool to protect his or her First Amendment rights. This is precisely the concern that was identified in Ghanam :

In the present case, no defenda nt was notified of the lawsuit and no defendant had been involved with any of the proceedings, which means that there was no one to move for summary disposition under MCR 2.116(C)(8 ). Thus, one of the two protections that Cooley relied upon is conspicuously absent. Further,
when defendants are not aware of and not involved with a lawsui t, any protection to be afforded through the entry of a protective order under MC R 2.302(C) is contingent upon a nonparty, e.g., the Internet service provider, asserting the defendants’ First Amendment rights. Thus, application of the Cooley protections scheme in the instant case, containing circumstances which Cooley declined to address, appears inadequate to protect the constitutional right s of an anonymous defendant who is unaware of pending litigation. [303 Mich App at 539-540 (emphasis in original).] 10

Consequently, under Ghanam , “some showing by the plaintiff and review by the trial court are required in order to ba lance the plaintiff’s right to pursue a meritorious defamation claim against an anonymous critic’s First Amendment rights.” 3 03 Mich App at 540. In this case, that requires that plaintiff satisfy the two additional r equirements imposed by the Ghanam panel and set forth above: (1) Dr. Sarkar “must have made reas onable efforts to provide the anonymous commenter with reasonable notice that he or she is th e subject of a subpoena or motion seeking disclosure of th e commenter’s identity,” and (2) Dr. Sarkar’s “claims must be evaluated by the court so that a determination is made as to wh ether the claims are sufficient to survive a motion for summary disposition under MCR 2.116(C)(8). ” Id . at 541. With respect to the “reasonable notice” requirement, there is no dispute in thi s case that reasonable notice was

10 As indicated above, Dr. Sarkar argues on appeal that the appea rance of one anonymous speaker, in and of itself, renders Ghanam wholly inapplicable. We can not agree. The practical implications of such an understanding are unacceptable. In ess ence, that understanding would require that the appearing anonymous speaker represent the inte rests of all anonymous speakers, and that is simply unacceptable in cases, such as this one, whe re the anonymous speakers made
different statements. There is si mply no legal authority that would support a conclusion that the appearance of one anonymous speaker somehow affects the anonymi ty protections afforded to other anonymous, but non-appearing, speakers simply because the y happened to comment on the same website. Furthermore, Dr. Sarkar’s position overlooks the fact that Ghanam expressly held that a motion for summary disposition, whether it be made by an anonymous speaker or a nonparty, is not required: “This evaluation is to be performed even if there is no pending motion for summary disposition before the court .” 303 Mich App at 541 (emphasis added). Thus, the trial court was required to perform this evaluation regardless of whether PubPeer, an anonymous speaker, or any other individual or entity moved for summary di sposition.-11- provided, and we see no reason to address it further. 11 Thus, the primary issue we need to address here is whether the second requirement, i.e., whether D r. Sarkar’s claims could survive a motion for summary disposition pursuant to MCR 2.116(C)(8), is satisfied. We conclude that it
is not.

As indicated above, a motion for summary disposition pursuant to MCR 2.116(C)(8) may be filed “when the opposing party has failed to state a claim o n which relief can be granted.” Cooley , 300 Mich App at 261. A motion for summary disposition pursua nt to subsection (C)(8) “tests the legal basis of the complaint on the pleadings alone. ” Id . Therefore, all factual allegations made in the complaint must be viewed in a light mos t favorable to the nonmoving party and accepted as true. Id . at 261-262. “The trial court will grant the motion if the cl aim is so clearly unenforceable as a matter of law that no factual dev elopment could possibly justify the opposing party’s righ t to recovery.” Id . at 262.

In Michigan, a defamation claim requires proof of four element s:

“(1) a false and defamatory statement concerning the plaintiff, (2) an unprivileged communication to a third party, (3) fault amounting at least to negligence on the part of the publisher, and (4) either actionability of the stat ement irrespective of special harm (defamation per se) or the existence of special ha rm caused by publication.” [ Smith , 487 Mich at 113, quoting Mitan v Campbell , 474 Mich 21, 24; 706 NW2d 420 (2005).] 12

At issue on appeal is whether the statements identified in Dr. Sarkar’s complaint are capable of defamatory meaning. “A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or t o deter third persons from associating or dealing with him” Smith , 487 Mich at 113 (citation and internal quotation marks omitted). “To be considered def amatory, statements must assert facts that are ‘pr ovable as false.’
” Ghanam , 303 Mich App at 545, quoting Milkovich v Lorain Journal Co , 497 US 1, 19; 110 S Ct 2695; 111 L Ed 2d 1 (1990). “ ‘The dispositive question . . . is whether a reasonable factfinder could conclude that the statement implies a defamatory m eaning.’ ” Id ., quoting Smith

,

11 The record reflects that a copy of the complaint filed by Dr. Sarkar in this action was posted to pubpeer.com. It also appears that this lawsuit, as well as the underlying allegation, has generated significant publicity in the cancer-research community. In sum , while neither party expressly agrees or disagrees that the “reasonable notice” requirement wa s satisfied, it appears insignificant and is largely irrelevant in light of our conclus ion with respect to the second requirement.

12 With respect to the third element, we would note that Dr. Sark ar appears to be a limitedpurpose public figure. Thus, he is required to prove that the anonymous speakers acted with actual malice in making the statements at issue. VandenToorn v Bonner , 129 Mich App 198, 207; 342 NW2d 297 (1983). Nevertheless, because none of the co mments at issue are capable of defamatory meaning, we need not address whether the record refl ects any indication of actual
malice.-12- 487 Mich at 128. “The context and forum in which statements ap pear also affect whether a reasonable reader would interpret the statements as asserting p rovable facts,” and this Court has recognized “that Internet message boards and similar communicat ion platforms are generally regarded as containing statement s of pure opinion rather than s tatements or implications of actual, provable fact.” Id . at 546-547. “Whether a statement is actually capable of defa matory meaning is a preliminary questi on of law for the court to decid e.” Id . at 544.

Accordingly, to determine whether Dr. Sarkar’s defamation clai m could survive a motion for summary disposition pursuant to MCR 2.116(C)(8), we are tas ked with analyzing each allegedly defamatory statement i dentified in his complaint, and we do so below. 13

I. PARAGRAPHS 41, 42, 44, 45, 46, 47, 50, 51, 52, 53, 54, 55, & 56

Paragraphs 41, 42, 44, 45, 46, 47, 50, 51, 52, 53, 54, 55, and 56 of Dr. Sarkar’s complaint state, in full, as follows:

41. At https://pubpeer.com/public ations/16546962 there are comm ents that conclude that certain figures are “identical” to others, accusi ng him of research
misconduct.

42. At https://pubpeer.com/public ations/21680704 there are comm ents that conclude that certain figures show “no vertical changes,” are t he “same bands,” and are “identical” to others, a lso accusing him of research mi sconduct.

* * *

44. At https://pubpeer.com/publicati ons/2D67107831BCCB85BA8EC45A72FCEF

, another discussion takes place am ong posters, ac cusing Dr. Sark ar of “sloppiness” of such magnitude that it calls i nto question the scientific va lues of the papers. The comments demand a “correction” with a “public set of data t o show that the experiments exist,” falsely stating that the data were false an d that the experiments were fabricated.

13 At the outset, it must be noted that facially deficient claims cannot survive a motion for summary disposition pursuant to MCR 2.116(C)(8) as a matter of law. Ghanam , 303 Mich App at 543. Thus, because “ ‘[a] plaintiff claiming defamation mus t plead a defamation claim with specificity by identifying the e xact language that the plaintif f alleges to be defamatory,’ ” our review as to whether statements are capable of defamatory meani ng in order to survive a motion for summary disposition is limited to those statements that are specifically identified in the complaint. Ghanam , 303 Mich A pp at 543, quoting Cooley , 300 Mich App at 262 (alterations by
the Ghanam Court). We have therefore elected to quote, in full , each paragraph at issue in Dr. Sarkar’s complaint. We would also note, however, that we attem pted to copy the formatting used by Dr. Sarkar in his complaint as closely as possible. So me spacing, however, differs minimally.-13- 45. An unregistered submission on the URL as #44 above doubts t hat the authors have taken “physics” and that they have decided to “sho w the world” fabricated data. The same, or perhaps a different unregistered submission
concludes: “One has to wonder how this was not recognized earl ier by the journals, reviewers, funding ag encies, study sections, and the university. Something is broken in our system.”

46. At https://pubpeer.com/publications/21680704, “Inactivation of AR/TMPRSS2-ERG/Wnt signaling networks atte nuates the aggressive behavior of prostate cancer cells,” accusations include “no vertical changes ... problematic,” and “same image.”

47. On July 24, 2014, at https:// pubpeer.com/publications/22806 240, “Activated K-Ras and INK4a/Arf deficien cy promote aggressivenes s of pancreatic cancer by induction of EMT consistent with cancer stem cell phenotype,” a comment made from “Peer 3” contains the comment “There seems to be a lot more [‘]honest errors[’] to co rrect,” with the quotes communica ting that they were
not honest errors.

* * *

50. The dialogue set forth in #49 above urges the PubPeer “comm unity” to target Dr. Sarkar, and contains a false statement, as the Plain tiff has previously replied to PubPeer comments [November 10, 2013 submission apolo gizing for the inadvertent error and promising a correction at this page: https://pubpeer.com/publicati ons/170E31360970BE43408F4AC52E57FD

, “CXCR2 Macromolecular Complex in Pancreatic Cancer: A Potential Therapeutic Target in Tumor Growth.” ]

51. The interaction between anonymous posters in the paragraphs above suggests that multiple users are independently conversing about Dr. Sarkar and making false accusations about him. On information and belief, these are from the same person pretending to hav e a dialogue with someone else , or persons working in concert.

52. For example, a “dialogue” between two allegedly different p osters took place on July 24, 2014. These posters, “Peer 1” and “Unregiste red Submission,” each posted in the middle of the night, one responding to the o ther just 56 minutes
later. See: https://pubpeer.com/publicati ons/A3845DA138FC83780CB5071ED74AEC

, “Concurrent Inhibition Of NF-Kappab, Cyclooxygenase-2, And Epidermal Growth Factor Receptor Leads To Grea ter Anti-Tumor Activity In Pancreatic
Cancer.” This is either a very odd coincide nce that two scientists were independently reading the same page regarding Dr. Sarkar (in th e example stated in this paragraph, a page regarding a 2010 paper that at the ti me had only had 151 views) – on the same day, in the middle of the night; or drawin g a reasonable-14- inference from these facts, it’s the same person feigning a dia logue; or two persons working in concert with one another.

53. These probably fake dialogues are an attempt to falsely com municate that there are more scientists concerned about Dr. Sarkar, and more persons communicating accusations, than there actually are. This is si gnificant because there are so many criticisms of Dr. Sarkar that rely on the she er number of PubPeer comments as an indication that he must be engaged in mi sconduct. See, for example, the examples ci ted at paragraphs 40 (d) and 48, ab ove.

54. Another example of a tactic t o artificially increase accusa tions of misconduct is to make a single comment on old papers. Similar to what is stated in paragraph 53 above, this too is significant because there ar e so many comments that rely on the sheer number of papers with comments on PubPeer (as opposed to the total number of comments, cf. ¶ 53) to indicate misconduct:

a. There are two comments at this page: https://pubpeer.com/publicati ons/5A875EBFF7D16C8CCE342257412E5B

, “BDIM Impairs Radiation-Induced Survival Pathways Independently Of Androgen Receptor Expression and Augments Radia tion Efficacy in Prostate Cancer.” These two comments are in April and July, 2014, concerning a 20 12 paper with no previous comments. This indi cates someone intentionally see king to increase the number of papers with comments on PubPeer.

b. Below is a comment simply inviting the reader to perform a search on Dr. Sarkar, at https://pubpeer.com/publications/5 8FE2E47C6FEB3BE00367F26BF7A83 , has nothing at all to do with that 1999 paper, but instead is inten ded for the reader to search and see how many of Dr. Sarkar’s papers have been commen ted about on
PubPeer:

Unregistered Submission: (April 21st, 2014 1:33am UTC)

1994-2014 here: https://pubpeer.com/search?q=Sarkar+FH

c. Another comment was made on July 24, 2014 at 7:04 AM from “Peer 1” at https://pubp eer.com/publications /997E578FC0B61F6BAE1974D4051157, “Mitochondrial Dysfunction Promotes Breast Cancer Cell Migration and Invasion through HIF1 α Accumulation via Increased Production of Reactive Oxygen Species.” This doubled the amount of comments on this 2006 paper.

d. A July 13, 2014 comment was made about a 2005 paper that previously had no comments: https://pubpeer.com/publications /6B44D6D4111B59BAB78E642C8D1758

,-15- “Molecular Evidence for Increased Antitumo r of Gemcitabine by Genistein in Vitro and in Vivo Using an Orthopedi c Model of Pancreatic Cancer.”

e. All told, there are 42 papers with Dr. Sarkar as lead researcher that have garnered only one comment on PubPeer, many of them extreme ly recent comments on relatively old papers.

55. The comment that was made [as set forth in paragraph 54 (d) ] appears innocuous on its face, merely stating that one illustration app ears to be the same as another one, but “flipped.” This would meet PubPeer’s guide lines that it was permissible to state that one illustration appears the same as another. The
comment is as follows:

Unregistered Submission: (July 13th, 2014 6:26pm UTC)

Compare Fig. 3B and Fig. 3D [AT http://cancerres.aacrjournals .org/content/65/19/9064.full.pdf+h tml]

When Colo357 lane for 0 and 25 i n 3B is flipped it looks simil ar to the control and genistei n in Fig. 3D for Colo357.

56. However, while that comment communicates that these are the same illustration, they are in fact not – they are clearly different illustrations to the untrained eye. As such, this is another false accusation of re search misconduct. While some PubPeer comments do point out illustrations that app ear similar, others like this example are not. Accordingly, the comment set forth in this paragraph is false, made i n bad faith, and defamatory.

After reviewing these paragraphs, we conclude that they are fa cially deficient and unable to survive a motion for summary disposition pursuant to MCR 2.1 16(C)(8). As stated above, “[a] plaintiff claiming defamation must plead a defamation clai m with specificity by identifying the exact language that the plaintiff alleges to be defamatory. ” Ghanam , 303 Mich App at 543 (citation and internal quotation marks omitted). 14 Here, minimal language is specifically identified in these paragraphs in the complaint, and Dr. Sarkar apparently relies on the trial court and this Court to visit pubpeer.com and learn the underlying sc ience at issue to determine whether the statement constitutes a potentially defamatory accu sation. In essence, we would be

14 See also Royal Palace Homes, Inc v Channel 7 of Detroit, Inc , 197 Mich App 48, 57; 495 NW2d 392 (1992) (“Plaintiffs must plead precisely the statement s about which they complain.”); Gonyea v Motor Parts Fed Credit Union , 192 Mich App 74, 77; 480 NW2d 297 (1991) (“These elements must be specifically pleaded, including the allegation s with respect to the defamatory words, the connection between the plaintiff and the defamatory words, and the publication of the alleged defamatory words.”); Cooley , 300 Mich App at 266 (“[U]nder Mich igan law, the plaintiff must allege the exact defamatory statements.”).-16- left searching the webpages that he cites to in hopes of findin g comments that do or do not support his claim. This is his, not our, burden, and we declin e to do so for him. 15 Thus, as identified in Dr. Sarkar’s complaint, the statements at issue i n paragraphs 41, 42, 44, 45, 46, 47, 50, 51, 52, 53, 54, 55, and 56 are not capable of defamatory me aning. Thus, defendants are entitled to summary disposition pursuant to MCR 2.116(C)(8) wit h respect to these paragraphs, and the trial court correctly gr anted PubPeer’s motion to quash in this regard. 16

II. PARAGRAPHS 40(A) , (B), AND (D), 43, 48, & 49

Paragraphs 40(a), (b), and (d), 43, 48, and 49 of Dr. Sarkar’s complaint, however, identify, at least to an extent , the exact language at issue; t hus, we are able to provide meaningful
review. 17 These paragraphs provide, in full, as follows:

40. At and commenting from “Down-regulation of Notch-1 contributes to cell growth inhibition and apoptosis in pancreatic cancer cells” [https://pubpeer.com/publications/16546962]

a. In this discussion, “Peer 1 ’s” commentary begins with an i nvitation for the reader to compare certain illustrations with others. But t hen an unregistered submission links to another page, where someone sarcastically a sserted that a paper “[Used] the same blot to represent different experiment(s ). I guess the reply
from the authors would be inadve rtent errors in figure preparat ion.”

b. Perhaps that same unregistered submission complains, “You might expect the home institution to at least look into the multiple concerns which have

15 To be clear, we are holding that Michigan law requires a plain tiff to specifically identify every statement that he or she claims is capable of defamatory meanin g. Here, Dr. Sarkar quotes certain words, some phrases, a nd provides citations to various webpages. This is insufficient. Indeed, the majority of the webpages that Dr. Sarkar cites to h ave changed and no longer include the words or phrases that he quotes. For example, the webpage cited in in paragraph 41 of Dr. Sarkar’s complaint includes approximately 63 comments, the majo rity of which were made after he filed the complaint in this case. The comments were made be tween November 2013 and October 2016, beginning with invi tations to “please compare” ce rtain figures that appear similar and ending with a link to an ar ticle on retractionwatch.com tha t summarizes a Wayne State University investigation findi ng that Dr. Sarkar had engaged in misconduct.

16 Nevertheless, we do recognize that, ordinarily, a plaintiff ma y be given an opportunity to amend a facially deficient com plaint. See MCR 2.116(I)(5). Ho wever, for the reasons discussed below, allowing Dr. Sarkar to do so in this case would be futil e and is thus unnecessary.

17 We should note that we are assuming, for purposes of paragraph s 40(a), (b), and (d), 43, 48, and 49, that Dr. Sarkar’s complaint sufficiently identified the allegedly actionable statements. While we still believe that some of these paragraphs or subpara graphs are inadequate, we feel that we are able to provide meaningful review and choose to do so. Nevertheless, providing a citation to a webpage and quoti ng words or incomplete phrases i s not sufficient.-17- been raised.” (sic) This statement is defamatory. Given the regulatory scheme described above that requires su ch investigations only where th ere are ”good faith” complaints of “alleged research misconduct” [deliberate fabrication, falsification, or plagiarism], t his unknown author has accused Dr. Sarkar of
deliberate misconduct.

* * *

d. The discussion that follows attack’s [sic] Dr. Sarkar’s ch aracter and expresses an invitation for his c urrent employer (Wayne State), his potential future employer (the University of Mississippi), the National I nstitute of Health, and even the Department of Defense to investigate and take negative action against Dr. Sarkar:

Unregistered Submission: (June 19th, 2014 1:11pm UTC)

Talking about the Board of Gove rnors, see this public info

http://prognosis.med.wayne.edu/ article/board-of-governors-name s-drsarkar-a-distinguished-professor

Peer 2: (June 19th, 2014 7:52pm UTC)

“currently funded by five Nationa l Institutes of Health RO1 gr ants”

That probably works out at about $200k per PubPeer comment. I should think that NIH must be prett y happy with such high productivity

.

Unregistered Submission: (June 20th, 2014 9:44am UTC)

just letting you know that the award for doing what he/she all egedly did is promotion a prestigious position at a different institution. S trange http://www.umc.edu/news_and_public ations/thisweek.aspx?type=thi sweek&date =6%2F9%2F2014 [ link is to the University of Mississippi site announcing Dr.
Sarkar’s hire ]

Unregistered Submission:

(June 20th, 2014 5:30pm UTC)

The last author is now correcti ng “errors” in several papers. Hopefully he will be able to address and correct the more than 45 papers (sp anning 15 years of concerns: 1999-2014), which w ere all posted in PubPeer.

Peer 2:-18- (June 20th, 2014 6:39pm UTC)

From the newsletter:

“Sarkar has published more th an 525 scholarl y articles”

... nearly 50 of which have att racted comments on PubPeer!

It’s not hard to imagine why Wayne State may not have fought t o keep him. And presumably the movers and shakers at the University o f Mississippi
Medical Center didn’t know tha t they should check out potential hires on PubPeer (they just counted the grants and papers). I wonder which inst itution gets to match up NIH grants with papers on PubPeer.

It can only be a matter of time, grasshopper, but that time ma y still seem long. You saw it first on PubPeer.

...

Unregistered Submission:

(July 5th, 2014 12:58am UTC)

From a look at this PI’s funding on NIH website it seems this lab has received over $13 million from NIH during the last 18 years. A n online CV shows he has received DOD funds as well, bring the federal fund close to $20 million. Why isn’t the NIH and DOD investigating? The problem s came to light only because they were gel photos. What else could be wrong? Figures, tables could be made-up or manipulated as well.

The problems on PubPeer is for about 50 papers-all based on im age analysis. That is just 10% of the output from this lab (or $2 million worth of federal dollars). What about the other 90%? Sadly this is wha t happens when research output becomes a numbers game. An equivalent PI would be happy to have just 50 high impact papers properly executed, that moves t he research field forward. This lab has 500; but now it will be very difficult t o figure out the true
scientific value of any of them. Sad!

* * *

43. At https://pubpeer.com/publications/22806240, there are com ments that state: “You are correct: using the same blot to represent dif ferent experiment(s). I guess the reply from the authors would be “inadvertent errors in figure preparation,” which also accuse him of research misconduct and sarcastically noting that any defense to the contrary would be inadequate.

* * *-19- 48. At https://pubpeer.com/publications /88B8619C6BD964F6EDDD98AD8ECE47

, “Inhibition of Nuclear Factor Kappab Activ ity by Genistein Is Mediated via Notch-1 Signaling Pathway in Pancreatic Cancer Cells,” a discussion takes place between an unregistered submitter and “Peer 1,” accusing signif icant misconduct,
as follows:

Unregistered Submission: (March 29 th , 2014 11:20pm UTC)
The last author has more tha n 20 papers commented in Pubpeer.

Peer 1: ( March 30 th , 2014 10:07am UTC)
“The last author has more tha n 20 papers commented in Pubpeer.”

He’s been very productive.

Presumably the journals know and his university knows. How lo ng would it have taken for you to find out f rom them? Still counting.

Unregistered Submission: (May 17th, 2014 7:38pm UTC)

An Erratum to a report this previous PubPeer comment has been published by the authors in Int J Cancer. 2014 Apr 15;134(8):E3. In the erratum, the authors state that: “An error occurred during the creation of the composite figure for Fig-5B (Rb) and Fig-6B (I?B?) which has recently been uncov ered although it has no impact on the overall findi ngs and conclusions previousl y reported”

Not so fast!

See additional concerns (band recycling, not addressed in Erra tum) in Figure 4A and Figure 6; here:

http://imgur.com/LVa2cVc http://i.imgur.com/4ARd2Mp.png http://i.imgur.com/miK0HGw.png

Based on these issues, can we agree with the authors that “an ERROR occurring during the creation of the composite figures” and tha t these (and previous “errors” have “NO IMPACT on the overall findings and c onclusions previously reported”?

49. At https://pubpeer.com/publicati ons/0189A776A6094A60759DB718F9C535

, “Foxm1 Is a Novel Target of a Natural Agent in Pancreatic Cancer,” there are two comments that seem to be finishing each other’s thought:-20- Unregistered Submission: (July 23rd, 2014 6:37pm UTC)

FH Sarkar has never replied to any of the Pubpeer comments.

Peer 1: (July 23rd, 2014 10:31pm UTC)

but if we send our concerns to his institution and the journal s involved, hopefully there will be changes...

Assuming that these paragraphs are facially sufficient, we nev ertheless conclude that they
are also unable to survive a mo tion for summary disposition pur suant to MCR 2.116(C)(8). While we are unable to find any Michigan caselaw specifically a ddressing comments of this nature, other jurisdictions, bot h federal and state, have addre ssed similar issues on many occasions. In doing so, they have recognized “that when a spea ker outlines the factual basis for his conclusion, his statement is protected by the First Amendme nt.” Partington v Bugliosi , 56 F3d 1147, 1156 (CA 9, 1995). 18 This is true even if the speake r expresses his or her opinion

18 While not binding, we are permitted to consider caselaw from o ther jurisdictions as persuasive. Travelers Prop Cas Co of America v Peaker Servs, Inc , 306 Mich App 178, 188; 855 NW2d 523 (2014) (citation omitted). We fi nd the Ninth Circuit’s reasoni ng persuasive and quote it at length
below:

Reading each of the statements in context, we find that the st atements themselves, as well as the implications that Partington attribu tes to them, do not represent assertions of objectiv e fact. When one reads the fir st passage in context, it is clear that Bugliosi does not claim to know the reason for the defense lawyers’ failure to bring out the existen ce of the contradiction; rather , he speculates on the basis of the limited facts available to him. The passage clear ly represents Bugliosi’s personal interpretation of the available information and not a verifiable factual assessment of Partington ’s conduct. As the Seventh Cir cuit has noted:

A statement of fact is not shielded from an action for defamati on by being prefaced with the words “in my opinion,” but if it is plain that the speaker is expressing a subjective view, an interpreta tion, a theory, conjecture, or surmise, rather than claiming to be in possession of objectively verifiable facts, the statement is no t actionable.

With regard to the second statement, Bugliosi merely outlines a set of facts, allowing the reader to draw his own conclusion about the m. Even if we were to attribute to Bugliosi’s statement the implication that Partington contends arises from it—that Partington re presented his client poorly—Bu gliosi can only be said to have expressed his own opinion after having outlined all of the facts
that serve as the basis for his conclusion.-21- anonymously. Cooley , 300 Mich App at 256. Each of the paragraphs above reflect th e speaker’s opinion based on underlying facts that are available to readers . Specifically, Dr. Sarkar expressly admits in his complaint that the comment at issue in subparagraph 40(a) “begins with an invitation for the reader to compare certain illustrations w ith others,” the comment at issue in subparagraph 40(b) was in response to the same underlying facts as subparagraph 40(a), and the comment at issue in subparagraph 40(d) as in response to those underlying facts as well. Similarly, the comments at issue in paragraphs 43, 48, and 49 a re all also part of discussions based on underlying facts that are available on the same webpag es on pubpeer.com. This is precisely the type of opinion that state and federal courts hav e consistently held was protected by the First Amendment, and we believe the same should be true in Michigan as well. Thus, summary disposition pursuant to MCR 2.116(C)(8) was appropriate with respect to paragraphs 40(a), (b), and (d), 43, 48, and 49, and t he trial court correc tly granted PubPeer’s motion to quash in this regard.

III. PARAGRAPH 40(C)

In light of our conclusions above, we are left with only one s ubparagraph—subparagraph 40(c)—that Dr. Sarkar alleges is capable of defamatory meaning. Indeed, it is this subparagraph, and only this subparagraph, that the trial court concluded was capable of defamatory meaning, and it is this subparagraph that is at issue in PubPeer’s cross -appeal in Docket No. 326691. Subparagraph 40(c) of Dr. Sarkar’ s complaint provides, in entir ety, as follows:

The courts of appeals that have considered defamation claims a fter
Milkovich have consistently held that when a speaker outlines the factua l basis for his conclusion, his statement is p rotected by the First Amendme nt. As the Fourth Circuit noted, “[b]ecause the bases for the . . . conclusion ar e fully disclosed, no
reasonable reader would consider the term anything but the opin ion of the author
drawn from the circumstances r elated.” Similarly, the District of Columbia Circuit has noted that “ ‘[b]ecause readers understand that suc h supported opinions represent the writer’s i nterpretation of the facts pre sented, and because
the reader is free to draw his or her own conclusions based on those facts, this type of statement is not actionable in defamation.’ ” Finally, the First Circuit has held that, as long as the author presents the factual basis for his statement, it can only be read as his “personal co nclusion about the information presented, not as a statement of fact .”

* * *

Thus, we join with the other courts of appeals in concluding th at when an author outlines the facts available to him, thus making it clear that the challenged statements represent his own interpretation of those facts and leaving the reader free to draw his own conclusions, those statements are generall y protected by the First Amendment. [ Partington , 56 F 3d at 1156-1157 (citations omitted; alterations and emphasis by the Partington Court).]-22- c. Then an unregistered user (likely the same one, given the c ontext) reveals that s/he is either a person at Wayne State University who made a fo rmal complaint against Dr. Sarkar, or is otherw ise privy to the a [sic] person who did so:

Unregistered Submission: (June 18th, 2014 4:51pm UTC)

Has anybody reported this to this institute?

Unregistered Submission: (June 18th, 2014 5:43pm UTC)

Yes, in September and October 2013 the president of Wayne Stat e University was informed several times.

The Secretary to the Board of Governors, who is also Senior Ex ecutive Assistant to the President Wayne State University, wrote back o n the 11th of
November 2013:

“Thank you for your e-mail, which I have forwarded to the appr opriate individual within Wayne State University. As you are aware, sc ientific misconduct investigations are by their nature confidential, and Wayne would not be able to comment on whether an inquiry is under way, or if so , what its status might be.[”]

“Thank you for bring this matter to our attention.”

On appeal, Dr. Sarkar claims that the trial court’s decision w ith respect to paragraph 40(c) was correct because the statement at issue “is a clear indication that [the speaker] is alleging that Dr. Sarkar committed research miscond uct – which is a public accusation at the very heart of Dr. Sarkar’s case (and contrary to PubPeer’s denials that such an accusation was never made on their web site).” The trial court apparently agreed to an extent, opining that “there could be an inference that this was of a na ture to attempt to defame Dr. Sarkar.” Ultimately, it appears that Dr. Sarkar argues and the trial court concluded that these statements, in context and when coupled with the public disclos ure of the email from Wayne State University, are capable of defamatory meaning. We cannot agree with this reasoning.

The contents of the email, even when released to the public, a re no more defamatory than
the other comments discussed a bove. It reflects, drawing infer ences in a light most favorable to Dr. Sarkar, Cooley , 300 Mich App at 261-262, that the email sender, i.e., the ind ividual from Wayne State University, was “not . . . able to comment on wheth er an inquiry [presumably a scientific misconduct inquiry] is under way, or if so, what its status might be.” Other than reaffirming the intent of the speaker, i.e., the PubPeer commen ter, the publication of this email did not make any false assertions that were otherwise capable o f defamatory meaning. As indicated above and below, “when a speaker outlines the factual basis for his conclusion, his statement is protected by the First Amendment,” Partington

, 56 F3d at 1156. This is true regardless of whether the speaker later publicizes his or her a ctions that he or she took based on that subjective opinion. Accordingly, we disagree that the sta tements at issue in subparagraph-23- 40(c) are sufficient to survive s ummary dispositio n or entitled Dr. Sarkar to learn the identities of the anonymous speakers. Thus, the trial court should have gran ted summary disposition and PubPeer’s motion to quash with res pect to subparagraph 40(c) as well. 19

IV. THE STATEMENTS AS A WHOLE

Dr. Sarkar additionally argues that, while perhaps the individ ual statements, taken in isolation, do not appear capable of defamatory meaning, a reaso nable person reviewing the entirety of the comments regarding Dr. Sarkar’s research on pub peer.com would find them defamatory. In essence, it is D r. Sarkar’s position that all c riticism of his research on PubPeer is defamatory and therefore not protected by the First Amendment. For similar reasons as those articulated with respect to pa ragraphs 40, 43, 48, and 49, we a lso conclude that the anonymous speakers’ criticism of Dr. Sarkar’s research, even when reviewe d as a whole and in the appropriate context, is not capable of a defamatory meaning.

As stated above, the First Amendment protects an individual’s right to speak anonymously. Cooley , 300 Mich App at 256. However, defamatory statements are not entitled to this same protection. Ghanam , 303 Mich App at 534. “To be considered defamatory, statements must assert facts that are ‘provable as false.’ ” Id . at 545. Nevertheless, state and
federal courts alike have consiste ntly held “that when a speake r outlines the factual basis for his conclusion, his statement is protected by the First Amendment,” Partington

, 56 F3d at 1156. That is, when a speaker presents a factual basis for the opinio n he or she reached, his or her opinion is not capable of defamatory meaning. Id

.
Applying those rules to the facts of this case, we cannot conc lude that the comments made on pubpeer.com regarding Dr. Sarkar are capable of defamat ory meaning. In short, Dr. Sarkar is asking this Court to hold that the anonymity of indiv iduals who engage in critical discussions of his work is not protected by the First Amendment , and we simply cannot do so. Had this been a situation where, for example, speakers falsely stated that he was found guilty of research misconduct, our conclusion may well have been differen t. But that is not what is before

us . Rather, the situation befor e us involves critical discussion s between anonymous individuals that are, at least to some extent, critical of Dr. Sarkar’s res earch. At best, some of the speakers opine that Dr. Sarkar should be investigated for research misconduct, and their opinions in that regard are protected by the First Amendment. Indeed, their dis cussions repeatedly invite readers
to review Dr. Sarkar’s research for themselves and reach their own conclusions, and we are not inclined to chill this type of constitutionally protected speec h. Accordingly, for the reasons set

19 Dr. Sarkar has also raised the idea that, by quoting the email in a public post on pubpeer.com,
the commenter violated various f ederal laws involving the confi dentiality of research-misconduct investigations. However, he fails to fully develop this argume nt as well as to provide sufficient legal support for his claim so as to allow us to provide meanin gful review. Thus, we deem it
abandoned. Peterson Novelties, Inc v City of Berkley , 259 Mich App 1, 14; 672 NW2d 351 (2003). In any event, we do not b elieve that the public disclo sure of this email, alone, constitutes a violation of any federal laws involving confidentiality in re search-misconduct investigations. See, e.g., 42 CFR 93.108 (2005).-24- forth above, we conclude that summary disposition pursuant to M CR 2.116(C)(8) with respect to the comments made on pubpeer.com regarding Dr. Sarkar is approp riate. 20 For similar reasons, PubPeer’s motion to quash shoul d have been granted in full.

V. THE FLYER

As indicated above, we conclude that none of the statements fr om pubpeer.com identified, whether specifically or implicitly, in Dr. Sarkar’s complaint are not capable of defamatory meaning. Thus, with respect to those statements, su mmary disposition pursuant to MCR 2.116(C)(8) is appropriate. However, the flyer that was al legedly distributed to Wayne State University personnel presents a different issue. Accordi ng to Dr. Sarkar, the distributed flyer implied that he was under senatorial investigation when h e was, in fact, not. Taking that as true, we agree that summary disposition pursuant to MCR 2.116(C )(8) with respect to Dr. Sarkar’s defamation claim based on that flyer is inappropriate at this time. With that being said, it is still necessary for us to determine whether, and to what extent, Dr. Sarkar is permitted to
unmask the identities of comme nters on pubpeer.com as it relate s to that flyer, and it is our view that he is not entitled to unmask the identities of any of thos e commenters. Stated simply, there
is no reasonable connection betw een the flyer and pubpeer.com. The only connection between the two is the fact that the flyer included a screenshot of a w ebpage on pubpeer.com; however, pubpeer.com is a public website available to, literally , everyone. While Dr. Sarkar asks that we assume that the flyer was likely distributed by someone who cri ticized his research on pubpeer.com and therefore unmask t he identities of all the indi viduals who have commented on his research on that website, we simply cannot do so. In short and as indicated above,
individuals are entitled to mak e anonymous statements under the First Amendment, and the mere fact that someone later prints some of those anonymous statemen ts and distributes them does not suddenly destroy that protecti on. Accordingly, we conclude tha t, while Dr. Sarkar’s defamation claim may nevertheless procee d, he is not entitled to discovery from PubPeer in this regard.

B. EVIDENCE BEYO ND THE PLEADINGS

On appeal, Dr. Sarkar also argues that the trial court’s March 9, 2015 order must be reversed because the court erred in considering affidavits, err ed in making factual inferences against him, and erred in requi ring the production of evidence. In essence, Dr. Sarkar argues that the trial court misapplied MCR 2.116(C)(8) under Ghanam . As stated in greater detail above, a motion for summary disposition pursuant to MCR 2.116(C)(8) may be filed “when the opposing party has failed to state a claim on which relief can be grante d.” Cooley , 300 Mich App at 261. Such a motion “tests the legal basis of the complaint on the pl eadings alone.” Id . This standard requires that all factual allegations made in the complaint be viewed in a light most favorable to the nonmoving party and accepted as true. Id . at 261-262.

20 See also Orr v Argus-Press Co , 586 F2d 1108, 1114-1115 (CA 6, 1978) (differentiating between stating “that the plaintiff sits around in his back yar d with a drink in his and therefore must be an alcoholic,” which is “not actionable,” and stating “ that the plaintiff is an alcoholic,” which is actionable. (Citation a nd internal quotation marks om itted.)-25- 1. AFFIDAVITS

As indicated above, Dr. Sarkar claims on appeal that the trial court impermissibly
considered two affidavits in re aching its decision, which is un disputedly prohibited by MCR 2.116(C)(8). However, Dr. Sarkar d oes not point to anything in the record to support his claim that the trial court actually considered these affidavits in re aching its decision. 21 Thus, this argument is abandoned. Peterson Novelties, Inc , 259 Mich App at 14. Moreover, we are unable to find any mention of these affidavits by the trial court in t he entire record. Thus, this claim of
error is meritless.

2. FACTUAL INFERENCES

As indicated above, Dr. Sarkar a lso claims on appeal that the trial court impermissibly made factual inferences against him, which is also undisputedly prohibited by MCR 2.116(C)(8). Again, however, Dr. Sarkar does not point to anything in the re cord to support his claim that the trial court made any factual inferences against him. 22 Thus, this argument is abandoned as well.

21 Dr. Sarkar argues, in pertinent part, as follows:

The court’s error in consideri ng (C) (8) factors was compounde d when it considered the affidavit of Dr. Krueger (opining about Dr. Sark ar’s research) attached to PubPeer’s motion. Even assuming arguendo that the court were permitted to consider (C) (8) factors on the motion to quash, M CR 2.116 does not permit reference to affidavits in determining a (C) (8) motion by its plain language: “Only the pleadings may be considered when the motio n is based on subrule (C)(8) or (9).”

* * *

As argued above, because there was an appearing defendant, Pub Peer was not permitted under Cooley to argue the standards of MCR 2.116 (C) (8). The error was exacerbated by PubPeer’s submission of two affidavits in support of their motion. They may not submit them, and this court may not consider them. Specifically, their expert’s affidavit must be completely disre garding, and it is not harmless, because its focus was that the anonymous commenters’ statements were substantially true and not defama tory – an argument the lower c ourt considered.

As is obvious from the quoted text above, Dr. Sarkar points to nothing in the record to support
his claim that the trial court consider these affidavits. In e ssence, Dr. Sarkar asks this Court to assume that, because they are incl uded in the record, the trial court impermissibly relied on them,
and that is certainl y not an assumption we are willing to make.

22 Dr. Sarkar argues, in pertinent part, as follows:

Furthermore, clear precedent requires that all factual allegat ions and the
inferences to be drawn from ther e are to be taken in the light most favorable to the non-moving party and taken as true. However, the court’s remar ks at oral-26- Peterson Novelties, Inc , 259 Mich App at 14. Moreover, as with his argument with resp ect to the affidavits, we are unable to find any indication in the record that the trial court made any factual inferences in one party’s favor ove r the other. Thus, this cla im of error is also meritless.

3. PRODUCTION OF EVIDENCE

Additionally, Dr. Sarkar argues that the trial court’s March 9 , 2015 order must be reversed because the court required that he produce evidence in support of his claims. 23 This
claim of error is meritless as well. While it is true that the trial court requested that Dr. Sarkar’s counsel provide PubPeer’s counsel with a copy of the distribute d document, Dr. Sarkar does not cite, and we are unable to find, any authority to support the p roposition that this request requires reversal. Thus, this arg ument is also abandoned. Peterson Novelties, Inc , 259 Mich App at 14. Furthermore, Dr. Sarkar’s attorney expressly stated that he was “happy” to allow PubPeer’s counsel an opportunity to review this document. Consequently, even if not abandoned, we deem
the issue waived. The Cadle Co v City of Kentwood , 285 Mich App 240, 254-255; 776 NW2d 145 (2009). Moreover, this request, which appears to have been made for convenience purposes only, i.e., to allow PubPeer’s counsel to know what document Dr . Sarkar’s counsel was referring to, has no impact on the applicatio n of the First Amendment in this matter.

argument repeatedly assumed an in terpretation of the pleadings favorable to the defendant. That is improper wh en considering the pleadings alo ne.

* * *

As argued in the first section, because there was an appearing defendant, PubPeer was not permitted under Cooley to even argue the standards of MCR 2.116 (C) (8). The error was com pounded by the court’s interpr etation of all of Dr. Sarkar’s factual allegations, and the inferences therefrom, in a light favorable
to PubPeer.

Again, Dr. Sarkar points to nothi ng in the record to support hi s claim that the trial court made factual inferences against him other than to generally point to the tone of the trial court’s “remarks.” In essence, Dr. Sarkar is asking us to search the r ecord for him in hopes of finding something that supports this assertion, and it is not our duty to do so.

23 Specifically, Dr. Sarkar ar gues, in entirety, as follows:

PubPeer argued, and the court ag reed, that plaintiff was requi red to produce evidence at this stage, to wit: the document that sugg ested Dr. Sarkar was under U.S. Senate inquiry. The transcript will indicate th at after the court directed plaintiff produce this document, a copy was handed ove r on the record to the attorneys for PubPeer. For the same reasons set forth abov e, that any analysis under MCR 2.116 (C) (8) must be based on the pleadings alone, t his was plain

error.-27- C. REMAINING CAUSES OF ACTION

On appeal, Dr. Sarkar lastly argues that the trial court’s Mar ch 9, 2015 order must be reversed because the court did not separately consider his othe r four causes of action. Specifically, Dr. Sarkar contends that, assuming that the First Amendment prohibits the unmasking of the identities of t he anonymous commenters with re spect to his defamation claim,
he is nevertheless entitled to l earn their identities with resp ect to his other four claims. However, First Amendment protections “are not exclusive to defamation cl aims.” Ireland v Edwards , 230 Mich App 607, 624; 584 NW2d 632 (1998). That is, the same Firs t Amendment protections apply whether Dr. Sarkar is trying to unmask the speakers’ iden tities in a defamation lawsuit or any other type of lawsuit. Id

. 24 To the extent Dr. Sarkar claims that the defamation claim is distinguishable from the others because the others rely solely on conduct completely separate from the comments on pubpeer.com, we agree that summary disposi tion pursuant to MCR 2.116(C)(8) in that respect would be improper. 25 However, like with the flyer, any conduct that is completely separate from the comments on pubpeer.com is not reasonably connected so as to allow discovery of the anonymous speakers’ identities. Thus, w hile the other claims may proceed, PubPeer’s motion to quash with respect to those claims was nevertheless properly granted. See Hustler Magazine, Inc v Falwell , 485 US 46, 56; 108 S Ct 876; 99 L Ed 2d 41 (1988) (“We conclude that public figures and public officials m ay not recover for the tort of
intentional infliction of emoti onal distress by reason of publi cations such as the one here at issue without showing in addition that the publication contains a fal se statement of fact that was made with ‘actual malice’ . . . .”). 26

24 Stated differently, where the alleged tortious conduct “is a d efendant’s utterance of negative statements concerning a plaintiff, privileged speech is a defen se.” Lakeshore Community Hosp, Inc v Perry , 212 Mich App 396, 401; 538 NW2d 24 (1995).

25 It should be noted, however, that Dr. Sarkar’s complaint does not identify completely separate conduct as he claims. Rather, his complaint expressly identifi es the comments on pubpeer.com as the basis or at least as part of the basis for more than jus t his defamation claim. For example,
while Dr. Sarkar claims that the additional causes of action ci te completely separate conduct, his
intentional infliction of emoti onal distress claim expressly re lies on “false statements made on PubPeer[.]” Thus, we feel it necessary to clearly state that, to the extent his other causes of action rely in any wa y upon the statements made on pubpeer.com, those causes of action may not proceed on remand because they are premised on constitutionallyprotected speech.

26 Relatedly, we completely reject the idea that only the defamat ion claim is subject to First Amendment limitations. Using that logic, if Dr. Sarkar simply dismissed his defamation claim and continued with the other four claims with respect to the st atements on pubpeer.com, there would be no First Amendment protection, and that is directly co ntrary to the United States and Michigan Constitutions as well as Michigan’s, other states’, fe deral, and United States Supreme
Court caselaw.-28- III. CONCLUSION

Accordingly, the trial court’s March 5, 2015 and March 19, 201 5 orders are affirmed in part and reversed in part, and th is matter is remanded for furt her proceedings consistent with this opinion. Specifically, the trial court’s March 5, 2015 order p artially granting summary disposition to defendants and pa rtially granting PubPeer’s moti on to quash is affirmed, and its March 19, 2015 order de nying summary disposition to defendants and denying PubPeer’s motion to quash with respect to subparagraph 40(c) is reversed. Never theless, to the extent either order dismissed Dr. Sarkar’s defamation claim with respect to the dis tributed flyer or his intentional interference with a business expectancy, intentional interferen ce with a business relationship, invasion of privacy, or intentional infliction of emotional dis tress claims, we conclude that the trial court did so erroneously. Those claims may proceed; howe ver, we hold that Dr. Sarkar is not entitled to unmask the identities of any speakers on pubpee r.com with respect to those claims due to the anonymity protections afforded by the First Amendmen t.

Affirmed in part, reversed in part, and remanded for further p roceedings consistent with this opinion. As the prevailing pa rty, PubPeer may tax costs p ursuant to MCR 7.219.

/s/ Colleen A. O’Brien
/s/ Karen M. Fort Hood
/s/ Elizabeth L. Gleicher