A lawyer files a personal injury suit arising from vaccine use and autism. A blogger writes about the subject and criticizes the plaintiff’s attorney. The plaintiff’s attorney issues a subpoena demanding the following:
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. (source)
The blogger fought back by filing a masterfully written (for a pro-se party) motion to quash. I’m guessing that she had some help, or maybe she’s just a natural. Her motion describes the subpoena as “unconstitutional, unreasonable, irrelevant, excessive, invasive, burdensome, frivolous, and clearly retaliatory” (source).
I love that she brought in the journalist privilege angle.
The materials and information demanded in the subpoena are subject to 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. (source)
Even better, she makes it clear that she is not going to take this lying down.
The subpoena was not issued in good faith because its manifest purpose is not to elicit information relevant to determining Bayer’s liability for Wesley Sykes’ medical and developmental problems, but to indulge his parents’ and their attorney’s curiosity about my motivations and associations; to aggressively communicate their suspicion that I am not merely a fellow citizen who openly, intelligently and conscientiously disagrees with their public statements and actions, but a covert agent of the government, the pharmaceutical industry, or some other hidden force; to disrupt my relationships with my associates and news sources; and to intimidate, harass and retaliate against me for exercising my constitutional right to report and express opinions about matters of widespread public interest in which plaintiffs and plaintiffs’ counsel are involved. These are not legitimate reasons to invoke the judicial subpoena power. Indeed, in so doing, Mr. Shoemaker has engaged in a sanctionable abuse of his authority as an officer of the court. (source)
Hopefully the judge will be one of the rare few with the chram to actually make Rule 11 mean something.
Eric Turkewitz writes about the issue here, and I couldn’t have said it better myself.
