Subpoenas

Judge Sanctions Lawyer for Issuing Subpoena to Blogger Kathleen Seidel

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.

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Eclipse Aviation Uses Subpoena to Uncover Identities of Anonymous Critics

Eclipse Aviation, a manufacturer of "affordable" jets, recently sent a subpoena to Google seeking to uncover the identities of 28 users who posted on Eclipse Aviation Critic NG, a blog that Google hosts on its Blogger service.

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Subject Area: 

Eclipse Aviation Corporation v. John Doe

Date: 

04/14/2008

Threat Type: 

Subpoena

Party Receiving Legal Threat: 

John Doe; Jane Doe; Google Legal Support, Blogger CMCA Complaints

Type of Party: 

Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Santa Clara County Superior Court

Case Number: 

108CV110380

Legal Counsel: 

Warren Stephen Jacobson; Norman Malinski

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

Eclipse Aviation, a manufacturer of "affordable" jets, recently sent a subpoena to Google seeking to uncover the identities of 28 users who posted on the blog Eclipse Aviation Critic NG, which Google hosts on its Blogger service.

The subpoena, which includes a colorful list of pseudonyms such as "Turn-and-Burn," "Bill E. Goat," and "Niner Zulu," does not state why the information is necessary. AINonline, an aviation news site, reports:

According to Eclipse president and CEO Vern Raburn, the Albuquerque, N.M. aircraft manufacturer has been irreparably damaged by the “lies” posted by anonymous visitors on the blog, and he seeks to unmask them via the subpoena. But the blog hasn’t been far off the mark on several occasions, suggesting that some of the anonymous posters might be Eclipse employees who could be breaking a non-disclosure agreement signed when they were hired.

According to news reports and comments on Eclipse Aviation Critic NG, the website operator, Shane Price, and the impacted users plan to file a motion to quash in Santa Clara Superior Court where the subpoena was filed.

Update:

May 8, 2008 - "John Doe" filed a motion to quash the subpoena

August 2008 - After a change in company management, Eclipse withdrew the lawsuit.

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Judge Quashes Subpoena to Blogger Kathleen Seidel, Orders Lawyer to Explain Justification for Subpoena

A federal magistrate judge in New Hampshire has quashed the subpoena issued to Kathleen Seidel. Seidel publishes the blog Neurodiversity, where she writes about autism issues.

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Blogger Kathleen Seidel Fights Subpoena Seeking Information About Vaccine Litigation

We've been following the subpoena issued to Kathleen Seidel in the Citizen Media Law Project's Legal Threats Database, but thought it was time to throw our support behind Seidel and post about this egregious attempt to chill online speech.

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Sykes v. Seidel

Date: 

03/24/2008

Threat Type: 

Subpoena

Party Receiving Legal Threat: 

Kathleen Seidel

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the District of New Hampshire

Case Number: 

1:08-mc-00013

Legal Counsel: 

Kathleen Seidel (Pro Se); Paul Alan Levy (Public Citizen Litigation Group); Jeffrey Spear (Orr & Reno)

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Subpoena Quashed

Description: 

On March 28, 2008, Clifford Shoemaker, acting on behalf of Lisa and Seth Sykes, subpoenaed blogger Kathleen Seidel. Seidel publishes the blog Neurodiversity, where she writes about autism issues. In February 2008, she wrote about the Sykes' lawsuit against various vaccine manufacturers, Sykes v. Bayer, in which they seek to link exposure to mercury to their son's autism.

Seidel's post mainly focused on developments in the lawsuit, but some of her language was critical of the Sykes and their case. For example, she indicated that the Sykes have "aggressively promoted the overwhelmingly discredited scientific hypothesis that autism is a consequence of mercury poisoning" and called their lawsuit "a hydra-headed quest for revenge, for compensation, and for judicial validation of autism causation theories roundly rejected by the greater scientific community, by numerous courts, and by a great number of individuals and families whose interests they purport to represent." Apparently as a result of this post, the Sykes served her with a subpoena in connection with the Sykes v. Bayer lawsuit. The subpoena demands that Seidel appear for a deposition on April 30, 2008 and that she produce a breathtaking array of documents.

Seidel summarizes the subpoena's demands as follows:

The subpoena commands production of "all documents pertaining to the setup, financing, running, research, maintaining the website http://www.neurodiversity.com" -- including but not limited to material mentioning the plaintiffs -- and the names of all persons "helping, paying or facilitating in any fashion" my endeavors. The subpoena demands bank statements, cancelled checks, donation records, tax returns, Freedom of Information Act requests, LexisNexis® and PACER usage records. The subpoena demands copies of all of my communications concerning any issue which is included on my website, including communications with representatives of the federal government, the pharmaceutical industry, advocacy groups, non-governmental organizations, political action groups, profit or non-profit entities, journals, editorial boards, scientific boards, academic boards, medical licensing boards, any "religious groups (Muslim or otherwise), or individuals with religious affiliations," and any other "concerned individuals."

On March 31, 2008, Seidel filed a motion to quash the subpoena in federal district court in New Hampshire. (The underlying lawsuit, Sykes v. Bayer, is taking place in federal court in Virginia, but the Sykes obtained the subpoena from the district court in New Hampshire because that court has jurisdiction over Seidel, a New Hampshire resident.) The motion to quash, which Seidel wrote herself, argues that the Sykes' subpoena infringes her constitutional rights, seeks material irrelevant to the Sykes v. Bayer lawsuit, and was not issued in good faith. Of particular interest, the motion argues that the subpoena requests material protected by the "journalist's privilege":

Although I am unaffiliated with a traditional news organization, and am not compensated for my work except to the extent described above, I am a de facto citizen-journalist regularly engaged in the public dissemination of news and information, and the promotion of discourse and advocacy regarding issues of national importance. See Von Bulow v. Von Bulow, 811 F.2d 136 (“[A]n individual successfully may assert the journalist’s privilege if he is involved in activities traditionally associated with the gathering and dissemination of news, even though he may not ordinarily be a member of the institutionalized press.”). As such, I am entitled to maintain the confidentiality of my work product and information sources.

On April 21, 2008, the federal district court granted Seidel's motion to quash. The court ordered plaintiffs' attorney Clifford Shoemaker to show cause as to why he should not be sanctioned for bringing the subpoena.

Update:

5/1/08 - The parties in Sykes v. Bayer filed a Voluntary Stipulation of Dismissal With Prejudice in the U.S. District Court for the Eastern District of Virginia.

5/6/08 - Attorney for Clifford Shoemaker filed a motion to extend the time for Shoemaker to respond to the order to show cause

5/7/08 - Court granted motion to extend time; response due May 15, 2008

5/14/08 - Shoemaker filed opposition to potential sanctions

5/27/08 - Seidel filed a response to Shoemaker's opposition to sanctions

6/23/08 - Court sanctioned Shoemaker for abusing the legal process by issuing the subpoena

6/24/08 - Court clerk sent letter to Virginia State Bar requesting notification of any action taken by bar counsel.

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CMLP Notes: 

source: rss feeds

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Schuster v. The Fresno Bee

Date: 

01/23/2008

Threat Type: 

Subpoena

Party Receiving Legal Threat: 

The Fresno Bee

Type of Party: 

Individual

Type of Party: 

Media Company

Court Type: 

State

Court Name: 

Superior Court of California, County of Fresno

Case Number: 

F03904715-0

Publication Medium: 

Blog
Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Subpoena Quashed

Description: 

A defense attorney for Larissa Schuster, who was convicted of murder, subpoenaed The Fresno Bee seeking the Internet protocol addresses and dates of access for all users of the paper's website and blog during the period surrounding the time of his client's trial to determine whether jurors violated a judge's order barring them from reading online news stories about the case before they reached a verdict.

The subpoena, which was sent to the "Custodian of Records" at The Fresno Bee, sought IP addresses and dates of access for all users of www.fresnobee.com, the paper's main website, www.fresnobeehive.com, the paper's blog, and "any other internet site associated with The Fresno Bee."

Betsy Lumbye, executive editor and senior vice president of The Fresno Bee, stated that the newspaper would not voluntarily turn over the IP address data of its users.

The idea that we'd violate readers' privacy by digging up that kind of information and disclosing it is preposterous," she said. "We would fight it tooth and nail and I'm confident we'd prevail.

On February 4, 2008, a Fresno County judge quashed the subpoena, concluding that Schuster's lawyer had not provided compelling reasons to force The Bee to turn over the information and characterizing the subpoena as "a fishing expedition."

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Highlights from the Legal Guide: Deciding Whether and How to be Anonymous

This is the third in a series of posts calling attention to some of the topics covered in the Citizen Media Legal Guide we published in January. As we roll out new sections of the guide each month, we will highlight some of the more important topics in blog posts.

Subject Area: 

Responding to Subpoenas

You've received a document that might be a subpoena. Your immediate reaction may be shock and a desire to immediately obey its request. As with anything legal, it's best not to act on impulse but to carefully consider the options before you. While you will likely need to comply, there are times when a court will agree to modify the subpoena's request or even to terminate it entirely. This guide cannot give you legal advice about your situation and you should contact a lawyer for specific legal advice.

Legal Protections for Anonymous Speech in Arizona

Note: This page covers information specific to Arizona. For general information concerning legal protections for anonymous speech see the Legal Protections for Anonymous Speech section of this guide.

In both cases where Arizona courts have considered attempts to unmask an anonymous online speaker, Arizona courts have applied tests that are highly protective of anonymous speech. The two cases are discussed below:

Legal Protections for Anonymous Speech

Say that you receive notice that a someone has subpoenaed your ISP for information about your identity, and you move to quash (i.e., block or challenge) the subpoena. How will a court decide whether or not to allow the plaintiff to uncover your identity? This is a complex question that quickly brings us into a realm full of technical legal language and concepts. For those interested, this section and the State Law: Legal Protections for Anonymous Speech section that go with it delve into some of the details.

SI03 v. Does

Date: 

06/11/2007

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

John Does; Doe Companies

Type of Party: 

Organization

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Northern District of Illinois; United States District Court for the District of Idaho

Case Number: 

1:07-cv-03266 (Illinois); 1:07-mc-06311 (Idaho)

Legal Counsel: 

Kelly Tillery; Thomas G. Walker (BodyBuilding.com)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Description: 

SI03, Inc., the company that makes the "Syntrax" line of nutritional supplements, sued 31 individual John Doe defendants and 5 Doe companies over derogatory comments made about Syntrax on the BodyBuilding.com Forums.  The complaint claimed that some of the individual Doe defendants were agents of the Doe companies, believed to be Syntrax competitors.  

SIo3 alleged that the anonymous posters made defamatory statements on the forums, suggesting in numerous posts that Syntrax products caused ill-health effects and that SI03 had engaged in unethical conduct.  The complaint, filed in federal district court in Illinois, included claims of defamation, trade libel, commercial disparagement, tortious interference with prospective economic advantage, and civil conspiracy, as well as breach of the Consumer Fraud and Deceptive Business Practices Act (815 Ill. Comp. Stat. 505/1), and the Uniform Deceptive Trade Practices Act (815 Ill. Comp. Stat. 510/1).

The U.S. District Court in the Northern District of Illinois dismissed SI03's claim without prejuduce on the ground that it had not sufficiently identified the defendants to determine whether the court had personal jurisdiction over them. However, the court granted SI03 permission to conduct expedited discovery in order to ascertain the identity of the defendants for the purposes of determining jurisdiction. 

SI03 subpoenaed Bodybuilding.com for the identity of the posters, which  Bodybuilding.com resisted on the basis that a subpoena could not be issued because SI03's complaint was no longer active.  SI03 sought and obtained clarification from the court that it was permitted to use a subpoena.

When Bodybuilding.com still refused to hand over its members' information, SI03 filed a motion to compel and a motion to preserve electronic evidence in the U.S. District Court for the District of Idaho, where Bodybuilding.com is based.  The Idaho district court dismissed the motion to compel on the ground that SI03 had not provided adequate notice to the Doe defendants.  The court granted the motion to preserve evidence in part, ordering BodyBuilding.com to preserve the requested data but not requiring the site to turn it over to a court or third party.

Update:

06/27/08 - SI03 filed a renewed motion to compel.

Content Type: 

Subject Area: 

Priority: 

1-High

CMLP Notes: 

Updated 08/08/08. {MCS}

Jurisdiction: 

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