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In The Circuit Court Of Cook County, Illinois County Department, Law Division
ARNOLD B. BOWKER, JOHN A. JOSLIN and the CARIB INN, a foreign corporation,
AMERICA ONLINE, INC., a foreign corporation doing business in Illinois,
Return Date: September 26, 1995
NO. 95L 013509
VERIFIED PETITION FOR DISCOVERY
Petitioners, ARNOLD B. BOWKER ("Bowker"), JOHN A. JOSLIN ("Joslin"), and the CARIB INN (collectively, "Petitioners"), through their attorneys, Levin & Funkhouser, Ltd., pursuant to Illinois Supreme Court Rule 224, and for their Verified Petition For Discovery (the "Petition") to Respondent, AMERICA ONLINE, INC., a foreign corporation doing business in Illinois ("AOL"), state as follows:
1. This is an action for discovery before suit to identify responsible persons and entities. The Petitioners intend to file a suit, sounding in defamation and false light invasion of privacy, against the persons and/or entities responsible for the origination and dissemination of statements through the use of AOL's subscriber services, electronic bulletin boards and electronic mail, which statements falsely impute negligent or criminal actions and other misconduct to the Petitioners.
PARTIES, JURISDICTION AND VENUE
2. Petitioners Bowker and Joslin are United States citizens and current residents of Bonaire, Netherlands-Antilles. Bowker operates the Carib Inn, a tropical resort and scuba diving facility (the "Inn") located in Bonaire. Joslin is a scuba diving instructor for the Inn.
3. The Inn attracts hundreds of guests and divers from the Midwest because of its superb reputation for scuba diving and hospitality, by maintaining a good relationship with Illinois scuba diving shops, placing advertisements in nationally distributed scuba diving and resort magazines, and through the posting of messages by the Inn and its patrons on various electronic bulletin boards on the Internet. The Inn also has a three-page advertisement placed on the Internet through the World Wide Web. Approximately 6-10% of the Inn's guests and divers over the past year originated from the state of Illinois.
4. On information and belief, AOL is a Delaware corporation doing business in Illinois. On information and belief, AOL sells subscriptions and/or memberships to computer users who shop and interact with other computer users, including residents of Illinois, through AOL's electronic bulletin boards on the Internet.
5. On information and belief, AOL maintains a membership list and can otherwise identify current and past subscribers who utilized its services to post individual messages on its bulletin boards. In addition, on infon-nation and belief, AOL maintains payment records for its subscribers and members to further identify those who have used its services.
6. Venue is proper in this Court pursuant to Illinois Supreme Court Rule 224(a)(ii) as this is a Court in which the action or proceeding might be brought, as well as a county in which the Respondent from whom discovery is sought transacts business.
7. On or about June 3, 1995, an unknown subscriber or member of AOL (or someone utilizing that person's subscription or membership) posted at least one defamatory and libelous statement on AOL's electronic bulletin board devoted to scuba diving, accusing Petitioners of various unsafe business practices and commission of a crime. (A copy of the original posting is attached hereto as Exhibit A.) The AOL subscriber's charges of misconduct and unsafe business practices, were false, malicious and made with the intent to injure Petitioners' reputations and rights of privacy, including among other things, the loss of business opportunities and emotional distress.
8. On July 30, 1995, Bowker and Joslin became aware of the libelous statements through correspondence from a frequent patron of the Inn who had read the message that had been posted on AOL's bulletin board. On several occasions, Bowker has corresponded with the party(s) who allegedly posted the original message in order to secure a retraction and to refute the false and libelous allegations. To date, however, Petitioners have been unable to ascertain the identity of the AOL subscriber(s) or member(s) who transmitted the original and subsequent messages in order to halt such activities and sue for damages.
9. The messages posted on AOL's scuba diving bulletin board are accessible from every state in the United States, and the defwnatory message has been accessed in Illinois. It is unknown at this time, how many citizens of this State have read the posted material or corresponded through electronic mail with the unknown subscfiber(s) or member(s) of AOL and decided not to come to the Inn because of the malicious and false accusations that were made.
10. Petitioners seek discovery from AOL, requesting AOL to produce complete copies or printouts of computer screens and other documents revealing subscriber information, applications for membership and payment records which could enable Petitioners to identify and locate those individuals and/or entities responsible for the posting of the defamatory material and other messages on AOL's bulletin boards or in electronic mail.
WHEREFORE, Petitioners, Arnold B. Bowker, John A. Joslin, and the Carib Inn, pray that this Court enter an order compelling the discovery requested herein from Respondent, America Online, Inc.
ARNOLD B. BOWKER, JOHN A. JOSLIN, and
the CARIB INN, Petitioners
Lawrence R. Levin, Esq.
Daniel T. Graham, Esq.
James F. Groth, Esq.
LEVIN & FUNKHOUSER, LTD.
Xerox Centre - Suite 241 0
55 West Monroe Street
Chicago, Illinois 60603
Finn ID #1 1961
Attorneys for Petitioners, Arnold B. Bowker,
John A. Joslin, and the Carib Inn
VERIFICATION BY CERTIFICATION
Under penalties as provided by law pursuant to Section 5/1-109 of the Illinois Code of Civil Procedure (735 ILCS_5/1-109), the undersigned certifies that I have read the foregoing Verified Petition For Discovery and that the statements set forth therein are true and correct, except as to matters therein stated to be on information and belief, and as to such matters the undersigned certifies as aforesaid that he verily believes the same to be true.
Dated: September 12, 1995
From: Jenny TRR
My husband and I visited the Carib Inn last month. Since I'm a little new at diving needless to say diving with a stoned instructor was a little scarry. We left after three days and went to Sand Dollar. I won't mention his name but he's the only white instructor there. Sand Dollar was super nice.
7-30-1995 America online:LCRawls Page I
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