Sykes v. Seidel [1]

Summary

Threat Type:

Subpoena

Date:

03/24/2008

Status:

Concluded

Disposition:

Subpoena Quashed

Location:

New Hampshire

Verdict or Settlement Amount:

N/A

Legal Claims:

None

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... read full description

Parties

Party Receiving Legal Threat:

Kathleen Seidel

Type of Party:

Individual

Type of Party:

Individual

Location of Party:

Virginia

Location of Party:

New Hampshire

Legal Counsel:

Clifford J. Shoemaker

Legal Counsel:

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

Description

On March 28, 2008, Clifford Shoemaker, acting on behalf of Lisa and Seth Sykes, subpoenaed blogger Kathleen Seidel. Seidel publishes the blog Neurodiversity [2], where she writes about autism issues. In February 2008, she wrote about the Sykes' lawsuit against various vaccine manufacturers, Sykes v. Bayer [3], in which they seek to link exposure to mercury to their son's autism.

Seidel's post [4] 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 [5] 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, LexisNexisÂ® 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 [6] 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 [7], 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 [8] 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 [9] 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 [10] 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 [11] to potential sanctions

5/27/08 - Seidel filed a response [12] to Shoemaker's opposition to sanctions

6/23/08 - Court sanctioned [13] Shoemaker for abusing the legal process by issuing the subpoena

6/24/08 - Court clerk sent letter to Virginia State Bar [14] requesting notification of any action taken by bar counsel.

Details

Web Site(s) Involved:

Neurodiversity [2]

Neurodiversity: Sykes Saga Continues [35]

Content Type:

Text

Publication Medium:

Blog

Subject Area:

Subpoenas
Sanctions

Court Information & Documents

Jurisdiction:

New Hampshire

Court Name:

United States District Court for the District of New Hampshire

Court Type:

Federal

Case Number:

1:08-mc-00013

Relevant Documents:

2008-01-22-Sykes v. Bayer Amended Complaint.pdf [36]

2008-03-24-Sykes Subpoena.pdf [37]

2008-03-31-Seidel's Motion to Quash.pdf [38]

2008-04-22-Order Quashing Subpoena.pdf [39]

2008-05-06-Shoemaker Motion to Expand Time to Respond to Order to Show Cause.pdf [40]

2008-05-14-Response by Clifford Shoemaker.pdf [41]

2008-05-14-Memorandum in Response to Order to Show Cause.pdf [42]

2008-05-14-Statement of Clifford Shoemaker.pdf [43]

2008-05-14-Statement of Dr. Geier.pdf [44]

2008-05-14-Statement of Lisa Sykes.pdf [45]

2008-05-15-Order of Judge Muirhead.pdf [46]

2008-05-27-Seidel Response to Order to Show Cause.pdf [47]

2008-06-23-Order Imposing Sanctions on Shoemaker.pdf [48]

2008-06-24-Letter from Clerk to Virginia Bar Counsel per Court Order.pdf [49]

CMLP Information (Private)

CMLP Notes:

source: rss feeds

Comments

Thanks [50]

Thanks for explaining the case so clearly.

I wrote more about it (perhaps not as cogently, though) at

http://thizndat.blogspot.com/2008/04/i-am-kathleen-freedom-of-speech.html [51]

with some additional references to other bloggers who also have been threatened, and with ideas for what people can do to help.

Shoemaker has hired someone [52]

Shoemaker has hired someone to defend his subpoena in an attempt to avoid sanctions, and in doing so is making allegations against Seidel:
http://tinyurl.com/4y9yp8 [53]

Also, the underlying case has been dismissed:
http://neurodiversity.com/weblog/article/155/ [54]

Seidel, Public Citizen Urge Court to Sanction Shoemaker [55]

For those who have been following the case of Sykes v. Bayer, we have an update. This is the case in which disagreement over whether mercury in medicines causes autism was turned into a discovery witch hunt. Kathleen Seidel backs her position regarding autism on a Web site devoted to issues involving autism, disability and other topics. Among other things, her Web site criticizes Lisa Sykes, who is suing Bayer and believes mercury does cause autism.

Recall that on April 21, the court quashed an incredibly broad subpoena from attorney Clifford Shoemaker, who represents Sykes. Shoemaker did not just request that Seidel release her correspondence with Bayer; he also demanded all of her documents pertaining to the issues she has written about on her Web site, as well as all of her correspondence with attorneys, physicians, the federal government, non-governmental political organizations, religious groups, and scientific and academic boards. To make matters worse, Shoemaker tried to defend his discovery demands by accusing Seidel and Bayer of conspiring to defame Sykes.

On Tuesday evening, Public Citizen, on behalf of Seidel, filed papers arguing that sanctions against Shoemaker were appropriate because the requests in his subpoena were irrelevant to the lawsuit against Bayer and “abusive and burdensome.” In its brief, Public Citizen cites the Supreme Court case Reno v. ACLU to support its argument that anyone can present “findings and conclusions” freely on the Internet if he or she so chooses, and argues that the use of discovery to harass a critic warrants sanctions. For more information, visit http://www.citizen.org/litigation/forms/cases/CaseDetails.cfm?cID=477 [57].

Thanks for the update [58]

Thanks for updating us on this. I've added the latest filing to the entry. It makes a compelling argument that sanctions are warranted in this case.

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