A federal magistrate judge in New Hampshire has sanctioned Clifford Shoemaker, a Virginia attorney, for abusing the legal process by issuing a subpoena to Kathleen Seidel. Seidel publishes the blog Neurodiversity, where she writes about autism issues. In February 2008, she wrote about a lawsuit against various vaccine manufacturers, Sykes v. Bayer, in which the plaintiffs Lisa and Seth Sykes sought to link exposure to mercury to their son's autism. (For more on her statements about the lawsuit, see my previous post: Blogger Kathleen Seidel Fights Subpoena Seeking Information About Vaccine Litigation.)On March 24, 2008, Shoemaker, an attorney for the Sykes, served Seidel with a subpoena in connection with the Sykes v. Bayer lawsuit. The subpoena demanded that Seidel appear for a deposition on April 30, 2008, and that she produce a shockingly broad collection of information, including her bank statements, tax returns, communications with religious organizations, and personal correspondence with other bloggers.
On April 21, magistrate judge Muirhead granted Seidel's well argued motion to quash the subpoena. The judge also ordered Shoemaker to show cause why he should not be sanctioned under Federal Rule of Civil Procedure 11 for issuing the subpoena. In response, Shoemaker filed a rambling opposition to potential sanctions in which he asserted that Seidel was engaged in a conspiracy with Bayer and others to harass him, his client, and various witnesses. (With the help of Paul Levy from Public Citizen, Seidel filed a restrained response that made Shoemaker's outlandish claims seem all the more, well, outlandish.)
Not surprisingly, the judge didn't buy any of Shoemaker's conspiracy theories and in a strongly worded opinion, made it clear that the subpoena was an abuse of the legal process:
Mr. Shoemaker made no attempt to avoid imposing an undue burden or expense on Ms. Seidel. To the contrary, I find that he sought to burden her by requiring production of every scrap of paper related to autism, her web site, her tax returns, and her communications with the government. He improperly imposes a requirement to create documents, e.g., a list of “names of persons helping, paying or facilitating . . . these endeavors.” The documentation sought is exhaustive. . . .
Shoemaker has not offered a shred of evidence to support his speculations. He has, he says, had his suspicions aroused because she has so much information. Clearly he is unfamiliar with the extent of the information which a highly-competent librarian like Ms. Seidel can, and did, accumulate. If Shoemaker wanted to know if Ms. Seidel was in part supported by or provided information by Bayer, he could have inquired of Bayer or limited the Seidel subpoena to that information. Instead he issued the subpoena calling for production of documents and a deposition on the day before he stipulated to dismiss the underlying suit with prejudice. His failure to withdraw the subpoena when he clearly knew that suit was over is telling about his motives. His efforts to vilify and demean Ms. Seidel are unwarranted and unseemly.
In the end, the judge didn't order Shoemaker to pay a monetary sanction, but he did order the Virginia lawyer to attend ethics training and directed his court clerk to notify the Virginia State Bar so that it could consider disciplinary action on its own.
Shoemaker and his client have a right to disagree with Seidel and, if they think they've been the victims of a conspiracy, to sue her. But they don't have a right to misuse the legal system to coerce a critic to "shut up." As I've noted before, we all lose when we allow that to happen.
(You can read more about the case in our Legal Threats Database entry: Sykes v. Seidel.)
Dang, you beat Kathleen to
Dang, you beat Kathleen to the post on this. That's no small feat.
Thanks for covering this. And great thanks that this is over.
Dang, you beat Kathleen to
Kathleen is probably too busy conferring with her Big Pharma accomplices right now :-) (If you are reading this, Cliffy, that was a joke - J O K E - geddit?)
Seriously, full marks to the judge and thank you to everyone who helped Kathleen stand up to this bully.
But he succeeded - didn't he?
He wanted to punish her by burdening her with a spurious needless and ridiculously broad subpoena. And he did.
She may not have had to provide the information. But she has still suffered very significant costs and stress from being dragged into this, which was apparently all that he was really after. She is not being reimbursed. And he isn't being fined or punished. OK - so the judge may have made a few nasty comments about his behavior. Well pardon me and woop-de-do. He still got away with it.
The bottom line: He used the legal system to punish her; She got punished; And he got away with it.
he may've succeeded but...
a court imposing sanctions on an attorney and ordering him to attend a legal education course on the proper use of subpoenas is nothing to sneeze at. It's my understanding that lawyers can be refused privileges to argue a case in another state if they have been sanctioned by a court in their home state.
... for good reason
I had the privilege of passing the news to her during a presentation at Autreat, "Rule 11 sanctions imposed against subpoena attorney". This was based on a verbal description on the phone the night before of what was obviously a Rule 11 sanction.
It's too bad the court
It's too bad the court didn't order Sykes to pay Seidel's legal fees. In order to really deter this sort of abuse, the people being subpoenaed need to know it won't cost them more to fight back than it would to comply.