Romance Novels, Subpoenas and Twitter

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.