Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘online speech’

“Bloggers win 92% of cases”

Assuming, that is, they aren’t brought down by the legal costs before ever getting a resolution (Christopher J. Boggs, “Blogs Can Get Insurance Clients ‘SLAPP’ed!”, Insurance Journal, Jul. 14, via Instapundit who got it from Robert Cox, Media Bloggers Association).

In other news of online speech and liability: “Anonymous commenting may have just gotten a little less anonymous. With the help of a subpoena issued six months ago, attorneys for two Yale Law School students have succeeded in unmasking several anonymous users of the Web forum AutoAdmit whom the women are suing for defamation.” (Isaac Amsdorf, “Lawyers to name defendants in AutoAdmit case”, Yale Daily News, Jul. 31, via Volokh).

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Compelling disclosure of commenters’ identities

A judge in Westchester County, N.Y. (hey, that’s here!) has ruled on the circumstances under which libel complainants can employ compulsory process to unveil the identity of anonymous ill-wishers on blogs and online forums. In this case the plaintiff is Richard Ottinger, a former liberal Congressman who’s now the dean of Pace University Law School (NYLJ via Greenfield).

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June 16 roundup

  • Educator acquitted on charges of roughness toward special ed student sues Teacher Smackdown website over anonymous comments criticizing her [NW Arkansas Morning News, Citizen Media Law Project, House of Eratosthenes]

  • Lorain County, Ohio judge who struck down state’s death penalty has Che Guevara poster in his office, though Guevara wasn’t exactly an opponent of killing [USA Today]

  • Privatization of U.S. Senate food service is a parable for wider issues [Tabarrok]

  • Low-end strategies for acquiring criminal-law clients include trolling the attorney visiting area at the federal lockup, paying the hot dog guy in front of the courthouse [Greenfield]

  • A Canadian Senator on why his country’s medical malpractice law works better than you-know-whose [Val Jones MD leads to audio]

  • U.K.: convicted rapist sexually assaults and murders teenage girl after housing authority is told evicting him would breach his human rights [Telegraph]

  • No word of legal action (yet, at least) in Salina, Kansas car crash that driver blames on “brain freeze” from Sonic restaurant frozen drink [AP/K.C. Star]

  • In Michigan, some mysterious entity is trying to drop an electoral anvil on two of our favorite jurists [PoL]

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Shoemaker’s lawyers respond to Seidel

Attorney Clifford Shoemaker has now filed a memorandum in support of his harassing subpoena of blogger Kathleen Seidel. The memorandum, signed by attorneys John F. McHugh and Brian T. Stern, is every bit as absurd and internally-self-refuting as one might have dared hope. Seidel skillfully marks it up with links on key phrases, some providing substantive background on the controversy, other ironically commenting on the apparent belief of Shoemaker & Co. that a court will agree to construe as “a series of intentional torts” a blogger’s investigative journalism based on publicly available sources. Earlier posts here. More: Orac.

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Seidel subpoena aftermath

As a judge considers whether to impose sanctions on attorney Clifford Shoemaker for hitting investigative blogger Kathleen Seidel with an intimidating subpoena, one of Shoemaker’s attorneys asks the court for more time “to gather the material I would need to show the Court the justification for the Subpoena and its scope,” which prompts Eric Turkewitz to wonder (May 6): “Why is it necessary to look for justification for the subpoena after it was issued?” And: “Other than talking to Shoemaker, who must have already had justification before the subpoena was issued, why would it be necessary to interview any other witness? It’s only Shoemaker’s rationale that matters to the sanctions motion.”

In another indication that heavy-handed pursuit of a blogger might not have worked out very well as a legal strategy, Shoemaker’s own clients, the Sykes family, have now voluntarily dropped their vaccine-autism suit against Bayer, which was the basis for the subpoena (Seidel, Orac).

Perhaps-ominous sequel: Seidel points out in a new post that Shoemaker’s legal papers accuse her of arguably tortious conduct in her comments on autism litigation, including interfering with “witnesses’ professions, professional relationships, and economic opportunities”, and that the witnesses in question in the Sykes suit, Dr. Mark Geier and David Geier, have previously pursued long and costly litigation against four scientists and the American Academy of Pediatrics over an article in Pediatrics which disputed the Geiers’ findings. The suit — which was eventually dismissed without prejudice as to the scientists, and dismissed with prejudice as to AAP — contended that damages were owing because the article in question had cut into the Geiers’ potential income as expert witnesses.

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Update: judge quashes Seidel subpoena

[Bumped on breaking news: A federal court in New Hampshire has quashed the subpoena and ordered attorney Clifford Shoemaker to show cause why he should not be subjected to sanctions. Also: Orac. Earlier Monday post follows:]

Autism blogger Kathleen Seidel reports that the online free speech project at Public Citizen has agreed to provide her with legal assistance in responding to vaccine lawyer Clifford Shoemaker’s subpoena (see earlier coverage here, here, and here). One way to read this is as a fairly devastating commentary on just how weak Shoemaker’s position is, since there is ordinarily no more potent public presence on behalf of the plaintiff’s side in pharmaceutical litigation than Public Citizen. Seidel also has discovered that as a Shoemaker target she is in distinguished company:

I learned that on March 26, 2008 — the same afternoon that I was greeted at my doorstep with a demand for access to virtually the entire documentary record of my intellectual and financial life over the past four years — Dr. Marie McCormick, Sumner and Esther Feldberg Professor of Maternal and Child Health at the Harvard School of Public Health, and Professor of Pediatrics at Harvard Medical School, was subjected to a similar experience at her Massachusetts home.

From 2001 to 2004, Dr. McCormick chaired the Immunization Safety Review Committee of the Institute of Medicine (IOM), charged with analyzing and reporting on data regarding the safety of vaccination practices. …As a result of her voluntary work on the committee, Dr. McCormick has found herself a frequent target of suspicion by plaintiffs, their attorneys and advocates, and opponents of vaccines, who disagree with its conclusions, and whose legal and political positions are not supported by its reports.

McCormick’s lawyers are likewise seeking to quash the subpoena. Much more here (& Beck & Herrmann, Orac, Pharmalot).

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Kathleen Seidel blogger-subpoena furor

After much discussion in the blogosphere this story would seem more than ready to cross over into mainstream-press coverage; here’s a local columnist who says he left three messages with attorney Clifford Shoemaker but got no response (Dave Brooks, “What a Web of actional links we can weave”, Nashua Telegraph, Apr. 9)(via Liz Ditz/I Speak of Dreams’ ongoing list monitoring coverage).

Update 5:30 p.m.: Here’s James Taranto at WSJ Best of the Web, giving just the shove the story may need:

It might behoove the ACLU, or some organization devoted to civil liberties, to devote some resources to figuring out how to defend speech that is inconvenient to plaintiffs lawyers.

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Vaccine lawyer subpoenas Kathleen Seidel

I’ve often linked in the past to the work of New Hampshire blogger Kathleen Seidel, whose weblog Neurodiversity presents a fearless, systematically researched, and frequently brilliant ongoing critique of autism vaccine litigation. A prominent plaintiff’s lawyer in that litigation, Clifford Shoemaker of Vienna, Virginia, has just hit Seidel with an astoundingly broad and sweeping subpoena (PDF) demanding a wide range of documents and records relating to her publication of the blog. Seidel has been sharply critical of Shoemaker’s litigation, and indeed the subpoena arrived only hours after she posted a new Mar. 24 entry, “The Commerce in Causation“, critical of his legal efforts.

The subpoena contains no indication that Seidel herself is accused of defaming anyone or violating any other legal rights of any party. Instead it seems she is being dragged in as a third-party witness in Shoemaker’s suit on behalf of his clients, Rev. Lisa Sykes and Seth Sykes, against vaccine maker Bayer. Although Seidel has been a remarkably diligent blogger on autism-vaccine litigation, I can find no indication that she is in possession of specialized knowledge that Shoemaker would not be able to obtain for his clients through more ordinary means.

Instead, the first phrase that occurred to me on looking through the subpoena was “fishing expedition”, and the second was “intimidation”. Several clauses indicate that Shoemaker is hoping to turn up evidence that Seidel has accepted support from the federal government, or from vaccine makers, which she says she hasn’t. Also among the documents demanded: Seidel’s correspondence with other bloggers. As she puts it in her response:

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.”…

Plaintiffs and their counsel seek not only to rummage through records that they suspect pertain to themselves, but also through my family’s bank records, tax returns, autism-related medical and educational records, and every communication concerning all of the issues to which I have devoted my attention and energy in recent years.

Seidel has responded with a self-drafted motion to quash the subpoena, and expresses confidence that a judge will rule in her favor, and perhaps go so far as to agree with her contention that it constitutes sanctionable abuse. Should the subpoena somehow be upheld and its onerous demands enforced, it could signal chilly legal times ahead for bloggers who expose lawyers and their litigation to critical scrutiny (& welcome Instapundit, Pure Pedantry, P.Z. Myers, I Speak of Dreams, Law and More, Open Records, Matt Johnston readers. And Orac/Respectful Insolence, with what he terms an “important rant“. More reactions here and here).

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