Virginia Blogger Targeted With Outrageous Subpoena

In perhaps the most blatant misuse of the subpoena power we've seen since the subpoena served on Kathleen Seidel of Neurodiversity last March, a lawyer for Thomas Garrett of Virginia has served a patently overbroad subpoena on blogger Waldo Jaquith, who publishes cvillenews.com, a community news blog about Charlottesville, Virginia. 

Garrett's lawyer served the subpoena in connection with his defamation lawsuit against The Hook, a weekly newspaper in Charlottesville that also publishes content on its website.  Garrett, a chicken farmer and Hollywood publicist (who knew such a combination existed?) sued the newspaper after it published a series of articles covering state criminal proceedings against him (he pled guilty to a "minor count akin to trespassing" according to his complaint in the defamation case).  For more information on the lawsuit, see our database entry, Garrett v. The Hook.

Just like the staff here at the CMLP often does when a lawsuit is filed, Jaquith blogged about the Garrett-Hook lawsuit on December 23, 2008.  His post, entitled "The Hook Sued For Defamation," gave background on the lawsuit, quoted Hook editor Hawes Spencer's comments on it, and explained the elements of a defamation claim.  He also made some critical comments about Garrett: 

I can sympathize with The Hook in their continued coverage of him. In writing this blog entry this afternoon, it’s impossible to ignore the really sketchy aspects about this guy. Seriously, look at this magazine that he claims to have been on the cover of. This was obviously patched together in Microsoft Paint. It just screams “bad photoshop job.” (The fact that the magazine doesn’t seem to exist doesn’t help any.) Then there’s his PR firm’s website, hosted on Angelfire. Remember them? The free website hosting service from the mid-90s? Used primary to host webpages for middle school girls professing their love for boy bands? That’s where his company’s website is, at the address http://www.angelfire.com/film/tgj/. Though the site claims to be at garretticonspr.com, that domain is unregistered. In short, Garrett looks like a train wreck in slow motion, and I get that The Hook is just watching and waiting for his big finish.

As a result of this post, Garrett, through counsel, served Jaquith with a subpoena on January 15 as part of discovery in his lawsuit against The Hook.  The breadth of the information sought is troubling indeed.  The first request, which is the most problematic, asks for:

Any and all documents and information relating to persons posting comments on the article entitled "The Hook Sued for Defamation," which presently appears at http:cvillenews.com/2008/12/23/garrett-hook-lawsuit/ (the "Article"), including but not limited to:

(a) names of persons posting comments on the Article, if known;

(b) the IP addresses associated with each viewer of the Article;

(c) the IP addresses associated with each comment posted on the Article;

(d) the dates and times when each comment on the Article was posted; and

(e) all computer logs generated in connection with the Article.

The second request asks for "[a]ny and all e-mail communications . . . and other written communications that you have received or sent on or after December 19, 2008" relating to the December 23 post and Thomas Garrett, among other things.  The third asks for "[a]ny and all documents and information (including but not limited to work papers, notes, drafts and phone logs) in your possession relating to any and all information obtained, generated, or created in writing the Article."  The fourth requests "[a]ny and all posts, comments or other writings you have made on other sites . . . on or after December 19, 2008, relating to the Article, to Thomas Garrett, or the Lawsuit." 

The return date on the subpoena is February 2, 2009.  Jaquith has indicated that hiring a lawyer to quash the subpoena is beyond his budget, but he plans to fight the subpoena, acting as his own attorney. 

In my humble opinion, the subpoena requests are so broad and poorly tailored to the underlying litigation between Garrett and The Hook that one suspects the subpoena is meant to gather information for a potential new lawsuit or to harass Jaquith for making critical comments, rather than to obtain evidence for The Hook case.  Read the subpoena and the complaint in the underlying case for yourself and see if you agree.

Let's start with the request for names and/or IP addresses of all commenters to the post. Garrett's lawyers might have a colorable argument that a handful of commenters had personal knowledge of events underlying The Hook case, but this would need to be based on the content of specific statements. It is ridiculous to assume, as the subpoena does, that every single commenter (there are currently 81) has such personal knowledge, and Garrett's lawyers didn't bother to narrow the request.

It gets worse when you consider the request for the IP address of every single person who viewed the post. Disclosure of this information could be a potentially huge breach of reader privacy, and nothing seems to justify it. Remember, the lawsuit in question involves another newspaper and website altogether, so the number and (rough) location of cvillenews.com readers has no bearing on the reputational damage caused by the original, allegedly defamatory posts on the newspaper's website

I also fail to see how Jaquith's emails, communications, and other writings could possibly lead to relevant evidence in The Hook case because there is no claim that he had anything to do with the challenged articles in that case.

On top of the relevance and overbreadth problems, the subpoena also seeks privileged information.  Most notably, both the First Amendment and Va. Stat. § 8.01-407.01  protect the identity of anonymous Internet speakers unless the party seeking identifying information meets certain procedural requirements (§ 8.01-407.01) and demonstrates a valid legal and evidentiary basis for his/her claim (the First Amendment).  Since Garrett seeks the identity of every anonymous or pseudonymous commenter to the post without regard for (or even mention of) any specific statements, there is no chance that he can overcome the qualified privilege based on the First Amendment.  Moreover, while Virginia has no shield law, the subpoena seeks source material and journalist work product that may be protected by the reporter's privilege.

As I said at the beginning of this post, the situation reminds me a lot of the subpoena that Clifford Shoemaker, acting on behalf of Lisa and Seth Sykes, served on blogger Kathleen Seidel last March.  (For details, see our database entry, Sykes v. Seidel.)  A federal court in New Hampshire ultimately sanctioned Mr. Shoemaker for misusing the subpoena power, in part because "most of the documents sought ha[d] no arguable relevance to the underlying case and were not likely to lead to admissible evidence," and in part because the subpoena appeared intended to harass Ms. Seidel for her speech.  This recent situation may not be so open-and-shut, but it does raise questions.

It's important to remember that, if Garrett wants to pursue legal action against Jaquith or his commenters based on what was said on cvillenews.com, he has legitimate legal avenues open to him.  What he may not do, and what is potentially sanctionable conduct, is to use a subpoena from The Hook case to fish for information to support a new defamation suit or to punish Waldo Jaquith for his speech.

For more information on the subpoena and underlying lawsuit, see our database entries, Garrett v. Jaquith and Garrett v. The Hook

Last updated on May 1st, 2009

Privacy of readers

As someone who viewed the article but did not comment, the request for IP addresses is particularly troubling. My IP address reveals where I live in a condominium community which has ethernet throughout so this would give this person my location just for happening to read C'ville News as I always do, living in C'ville as I do. And how can that not be a violation of my privacy?

Discovery in defamation cases

What is particularly troubling is that courts will sometimes enforce such a subpoena on the theory of "foreseeable republication." Many states recognize the doctrine that a publisher of defamatory material can be held liable not only for their own publication, but also for damage caused by "foreseeable" republications of the allegedly defamatory statements by third parties. This may be true regardless of whether the original publisher authorized the republication. Thus, if a blogger repeats allegedly defamatory statements originally published in a newspaper article, then it is arguably relevant to seek discovery leading to information on the effect the repeated statements had on the blog's readership, even if the blog's readers never saw the original article. How the right to seek discovery on damages under this theory should be balanced against the privacy rights of the blog's readers is, I think, not well established under existing case law.

I'd be making a call about now

If I'm Jaquith, I'd be calling my NYC personal injury lawyer immediately. I don't think it was right for this subpoena to be served.

   
 
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