This post examines a decision a U.S. District Court Judge
recently issued in a civil case: Ellora's Cave Publishing, Inc., et al. v.
Dear Author Media Network, LLC, 2015 WL 3403811 (U.S. District Court fort he Northern District of Ohio 2015). The
judge begins his opinion by outlining the legal claims involved in this suit:
The Plaintiffs in this case are
publishing companies for romance novels. Plaintiffs allege that Defendants made
`false and defamatory statements concerning [Plaintiffs'] financial stability
and practices, insinuating that the [Plaintiffs] are on the verge of financial
ruin.’ . . . As a result, Plaintiffs seek injunctive relief and recovery on
claims for defamation.
Defendants have denied these
allegations and asserted that the lawsuit was filed to `intimidate
[Plaintiffs'] authors, editors, and cover artists into silence, so that they
would not dare to speak of their experiences with [Plaintiffs] or attempt to
recover money from [Plaintiffs] that they were rightfully owed.’ . . . Therefore,
Defendants have filed a counterclaim alleging abuse of process.
Ellora's Cave
Publishing, Inc., et al. v. Dear Author Media Network, LLC, supra.
The articles you can find here (“Erotica Publisher Takes Blogger to Court Over Financial Trouble
Allegations”) and here outline why and how this suit arose.
As Wikipedia notes, “abuse of process” is a civil cause of action “in tort” that arises from
one party making a malicious and
deliberate misuse or perversion of regularly issued court process (civil or
criminal) not justified by the underlying legal action. . . . It is to be
distinguished from malicious prosecution, another type of tort that
involves misuse of the public right of access to the courts.
The elements of a valid cause of
action for abuse of process in most common law jurisdictions are as
follows: (1) the existence of an ulterior purpose or motive underlying the use
of process, and (2) some act in the use of the legal process not proper in the
regular prosecution of the proceedings. Abuse of process can be
distinguished from malicious prosecution, in that abuse of process
typically does not require proof of malice, lack of probable
cause in procuring issuance of the process, or a termination favorable to
the plaintiff, all of which are essential to a claim of malicious prosecution.
`Process’ . . . includes not only the
`service of process,’ i.e. an official summons or other notice issued from a
court, but means any method used to acquire jurisdiction over a person or
specific property that is issued under the official seal of a court. .
. . Subpoenas to testify, attachments of property, executions on property,
garnishments, and other provisional remedies are among the types of `process
considered to be capable of abuse.
Getting back to the judge’s opinion, he goes on to explain
that,
[w]ith these opposing allegations, the
parties are now at the discovery phase of litigation. The Federal Rules ofCivil Procedure guide the discovery process.
Specifically, Federal Rule of Civil Procedure 26(b)(1) states:
`. . . Parties may obtain discovery
regarding any nonprivileged matter that is relevant to any party's claim or
defense -- including the existence, description, nature, custody, condition,
and location of any documents or other tangible things and the
identity and location of persons who know of any discoverable matter. For
good cause, the court may order discovery of any matter relevant to the subject
matter involved in the action. Relevant information need not be admissible at
the trial if the discovery appears reasonably calculated to lead to the
discovery of admissible evidence.
Ellora's Cave
Publishing, Inc., et al. v. Dear Author Media Network, LLC, supra (emphasis in the original). As Wikipedia explains, “discovery”, in U.S.
law, is a
pre-trial procedure in
a lawsuit in which each party, through the law of civil
procedure, can obtain evidence from the other party or parties by means of
discovery devices such as a request for answers to interrogatories, request for
production of documents, request for admissions and depositions. Discovery
can be obtained from non-parties using subpoenas. . . .
Again, getting back to the opinion, the judge then explains
that the
Federal Rules of Evidence outline the
test for `relevant evidence:’
`Evidence is relevant if:
(a) it has any tendency to make a fact
more or less probable than it would be without the evidence; and
(b) the fact is of consequence in
determining the action.
Federal Rule of Evidence 401.’
Ellora's Cave
Publishing, Inc., et al. v. Dear Author Media Network, LLC, supra.
He also, presumably to clarify exactly what is at issue
here, explains that a subpoena
is a mechanism commonly used in the
discovery process to obtain relevant documents, deposition testimony, and other
information from people and entities who are not parties to the
litigation. Federal Rules of Civil Procedure 45. The person or entity
subject to a subpoena must file a motion to quash or modify in order to attempt
to avoid the mandates of a subpoena. Federal Rules of Civil Procedure 45(d)(3).
Individuals and entities `affected by a subpoena’ may file a motion to quash,
along with those who are actually the subject of a particular subpoena. Federal
Rules of Civil Procedure 45(d)(3)(B). `Motions to compel and motions to quash a
subpoena are both entrusted to the sound discretion of the district court.’ In
re Fitch, Inc., 330 F.3d 104 (U.S. Court of Appeals for the 2d Circuit
2003) (internal quotation marks omitted).
Ellora's Cave
Publishing, Inc., et al. v. Dear Author Media Network, LLC, supra.
And that brings us to how and why the issue the judge
addresses in this opinion arose. As it
explains,
[t]his matter results from a letter
faxed directly to the Court by a non-party, who identifies itself only as
`@pubnt Twitter account.’ The letter voices objections to a subpoena served on
Twitter, Inc. by Defendants, requesting the IP addresses associated with
`@pubnt,’ along with the names and other account information for the
registrants of the account. Although the letter was not properly filed, the
Court deemed it a motion to quash. Defendants then filed an opposition, and the
matter is now ripe for decision. . . . .
Ellora's Cave
Publishing, Inc., et al. v. Dear Author Media Network, LLC, supra.
The judge goes on to point out that
@pubnt objects to any information being
produced by Twitter that may assist in identifying the `owners’ of the account.
However, in the five-page letter, @pubnt does not identify or analyze any basis
for quashing or modifying the subpoena permitted under Rule 45. Instead,
the letter indicates that the individual or individuals who purport to be the
`owners of the “@pubnt” Twitter account’ are intimately familiar with the
parties in this case, along with the claims and defenses asserted.
They speak adamantly, declaring to all
readers that they have witnessed misconduct by Defendants and that they can
prove their negative statements about the Defendants. These facts alone put
@pubnt and its `owners’ within the confines of Federal Rule of Civil
Procedure 26 and Federal Rule of Evidence 401, and therefore, their information
is subject to discovery under the subpoena power of the Civil Rules.
Ellora's Cave
Publishing, Inc., et al. v. Dear Author Media Network, LLC, supra.
He then explains that
[i]n their letter—let alone the actual
tweets on the account—the @pubnt `owners’ confirm that they have knowledge
about the underlying allegations and defenses, such as claims for
defamation/libel and the defenses of truth, substantial truth, and lack of
malice. For example, the `owners’ state:
`The Defendant in this case is a vicious troll who leads a gang defaming and harassing successful people and anyone who supports them.’ . . . `If you peruse our Twitter account you will be able to verify every legal argument and statement we have put forward is against the Defendant's case. You will see clearly that there is nothing we have stated that will support the Defense's case and everything we have said defeats the Defendant's case.’ . . . `This is added proof of Malice [sic] against the Claimant [i.e. Plaintiffs].’ . . . `We present evidence below that the Defendant, Jennifer Gerrish–Lampe, is a vicious troll who runs a gang and maliciously attacks, runs smear campaigns against, libels, stalks, and criminally harasses successful businesses and individuals in the publishing industry.’ . . . `Some years ago [Defendant] Jennifer Gerrish–Lampe and [sic] a similar smear campaign against a small publisher, libeling and defaming the publisher, similar to her current smear campaign she has started against [Plaintiff] Ellora's Cave.’ . . . @pubnt then provides a web address purporting to support this allegation).
Ellora's Cave
Publishing, Inc., et al. v. Dear Author Media Network, LLC, supra.
The judge then resolves the issue this opinion addresses:
Simply reading the `owners' letter
demonstrates that they have relevant information that is discoverable in this
case. Merely because the Defendants may be able to obtain certain information
from other sources does not render the subpoena unnecessary.
Furthermore, Defendants are entitled to
pursue discoverable evidence from the primary source, instead of merely
accepting statements by the `owners’ that information they have can be procured
by other means (especially considering the tenor of their letter shows an
almost venomous disregard for Defendants).
Finally, the `owners’ identities are
not protected by any form of privilege. The `owners’ assert that their
statements on Twitter have been an exercise of their 1st Amendment rights. No
one disputes this point. However, the exercise of an individual's right to free
speech under the 1st Amendment is irrelevant to the analysis of whether the
speaker's identity can be discovered through subpoena. The `owners’ fear
reprisal in the future for the statements they have made. Once their identities
are produced, if the `owners’ believe they are victims of unlawful conduct, the
law provides remedies they can then pursue at that time.
For the reasons stated above, the motion
to quash is DENIED, and Twitter, Inc. is instructed to comply with all lawful
requirements of the subpoena.
Ellora's Cave
Publishing, Inc., et al. v. Dear Author Media Network, LLC, supra.
If what all this means is still not clear, I suggest you read
this article Slate published on the case earlier this year.
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