Motion to Quash in Garrett v. Better Publications.

Today I submitted a Motion to Quash the subpoena issued to me in Thomas L. Garrett, Jr. v. Better Publications, LLC. It took a couple of weeks of legal research to learn how to quash a subpoena, to study the subpoena to look for legal flaws, and then to manage to write this three-page document. What became clear to me while writing it is that this subpoena was just reprehensible. Call me trusting, but I find it surprising that it’s (apparently) acceptable for an attorney to issue such a recklessly over-broad, inappropriate subpoena. In the words of Sam Bayard, Assistant Director of Harvard’s Citizen Media Law Project:

[T]he subpoena requests are so broad and poorly tailored to the underlying litigation between Garrett and The Hook that one suspects the subpoena is meant to gather information for a potential new lawsuit or to harass Jaquith for making critical comments, rather than to obtain evidence for The Hook case.

The last couple of weeks have been hugely educational. I owe particular thanks to Mark Blacknell, Josh Wheeler, and Paul Levy, of Public Citizen, all of whom provided invaluable legal advice, editing, and support. I’m also grateful to Sam Bayard of the Citizen Media Law Project for providing his organization’s resources, and for connecting me with Paul.

The next step, as I understand it, is going to be me arguing this before a judge in Buckingham County. Having never done this sort of thing before, I’ll have to prepare like a doctoral candidate defending his thesis. That’ll be an adventure. (In the meantime, unfortunately, I’ve had very little time for Richmond Sunlight. Normally I’d be spending 2-4 hours on it each day, but it’s been more like 30 minutes daily for the past couple of weeks. Sorry, folks—I don’t like it, either.) It’s a lot of work, but I don’t like being pushed around by bullies, and I like even less bullies who want to push around my readers.

My motion to quash follows as HTML or, if you prefer, it’s available via Scribd. It’s really interesting, I don’t mind saying—plus, I put a lot of time into it—so I recommend reading it.

VIRGINIA:

IN THE CIRCUIT COURT FOR THE COUNTY OF BUCKINGHAM

Thomas L. Garrett, Jr.,

Complainant,

v.

Better Publications, L.L.C.,

Respondent.

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Case No. CL08000197-00

MOTION TO QUASH

Waldo Jaquith, appearing pro se and a non-party in the above-captioned case, hereby moves this Court pursuant to Va. Code § 8.01-277 to quash the subpoena duces tecum which was served on him, at the request of the complainant, to be returned on February 2, 2009 at 5:00 p.m. A copy of this motion is being provided to the attorney who issued this subpoena.

In support of his motion, Mr. Jaquith states as follows:

1. He is a journalist, working as Web Editor for the Virginia Quarterly Review and privately operating cvillenews.com.

2. He is not a party to Thomas L. Garrett v. Better Publications, L.L.C.

3. Upon information and belief, he has a duty to maintain the confidentiality of the material sought to be compelled by sections 1, 2, 3 and 5 of the subpoena duces tecum.

4. Upon information and belief, the information sought to be compelled by sections 2, 3, and 5 of the subpoena duces tecum are protected as a privileged communication (Brown v. Commonwealth, 1974; Philip Morris v. American Broadcasting Company, 1994; and Hatfill v. New York Times, 1996). “[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” (Von Bulow v. Von Bulow, 811 F.2d 136, 1987).

5. Upon information and belief, this Motion to Quash the production of information sought under section 1 of the subpoena duces tecum deserves the highest deference, because in addition to being unduly burdensome and unfair, movant is not a party to the underlying litigation, nor has he been accused of any wrongdoing. A court order is a form of state action and thus is subject to constitutional limitations (New York Times Co. v. Sullivan, 376 U.S. 254, 265, 1964; Shelley v. Kraemer, 334 U.S. 1, 1948). An order to compel production of a person’s identity in a situation that threatens the exercise of fundamental rights “is subject to the closest scrutiny” (NAACP v. Alabama, 357 U.S. 449, 461, 1958; Bates v. City of Little Rock, 361 U.S. 516, 524, 1960). Courts have ruled repeatedly and clearly that this protection extends to anonymous speech on the Internet. “People who have committed no wrong should be able to participate online without the fear that someone who wishes to harass or embarrass them can file a frivolous lawsuit and thereby gain the power of the court’s order to discover their identities” (Colombia Insurance Company v. Seescandy.com, 185 F.R.D. 573, 578 (N.D. Cal. 1999)).

6. Upon information and belief, production of information under section 1 of the subpoena duces tecum is premature, given that the complainant has failed to make the showing required to obtain a subpoena. The qualified privilege to speak anonymously requires that a court review complainant’s claims to ensure that complainant has a valid reason for piercing the speaker’s anonymity (Mobilisa v. Doe, 170 P.3d 712 (Ariz. App. Div. 1, 2007); Doe v. Cahill, 884 A.2d 451 (Del. 2005); Doe v. 2theMart.com, 140 F. Supp.2d 1088, 1093 (W.D.Wash. 2001); Dendrite v. Doe,342 N.J. Super. 141 (2001)). Courts require complainants to quote the exact statements by each anonymous speaker that allegedly violate their rights. (Id.) Complainant has failed to specifically identify a single allegedly false and defamatory statement from cvillenews.com.

7. Upon information and belief, the subpoena fails both procedurally and substantive to comply with the requirements of Virginia law governing subpoenas to identify anonymous Internet speakers (Virginia Code § 8.01-407.1). Although Complainant has not sued the anonymous speakers, movant believes that Complainant is trying to obtain their identities in order to proceed against them for their speech, and Complainant should not be able to evade the strictures of the statute by not (yet) identifying the anonymous speakers as defendants. The subpoena was not served at least thirty days in advance, the specific communications have not been set out verbatim, and none of the substantive showings set forth in the statute has been made prior to service of the subpoena, as required.

8. Upon information and belief, the information sought to be compelled by the subpoena duces tecum-public and private statements from Respondent regarding Complainant-is available elsewhere, most notably from from Respondent. Complainant must demonstrate with substantial evidence that the information is relevant and not available elsewhere, and that its need for the information is compelling (Miller v. Transamerican Press, Inc., 621 F.2d 721, 726, as modified, 628 F.2d 932 (5th Cir., 1980); In re Selcraig, 705 F.2d 789, 792, 799 (5th Cir., 1983)).

9. Upon information and belief, the information sought to be compelled by the subpoena duces tecum is totally unnecessary and irrelevant to the proceeding. Mr. Jaquith never communicated with Respondent with regard to Complainant prior to the filing of the complaint in this action; nor, indeed, had he ever heard of Complainant prior to the initiation of this court action. Complainant’s subpoena duces tecum is an apparent effort to gain all materials that he can possibly access, and is improper under the Supreme Court of Virginia’s decision in Farish v. Commonwealth (2 Va.App. 627, 346 S.E.2d, 736, 1986), (holding that “[a] subpoena duces tecum should not be used when it is not intended to produce evidentiary materials but is intended as a ‘fishing expedition’ in the hope of uncovering information material to the defendant’s case,” citing Bowman Dairy Co. v. United States, 341 U.S. 214, 221, 71, S.Ct. 675, 279, 95 L.Ed. 879, 1951).

10. Upon information and belief, the subpoena has been served on movant as an exercise in intimidation and retaliation for publishing opinions about this litigation, and seeking to send a message that anybody else who expresses opinions publicly about this case can expect to receive a similar subpoena. At the very least, service of the subpoena will have a chilling effect on the public’s right to comment on his lawsuit. The public is entitled to be protected from such a misuse of the discovery process.

WHEREFORE, Waldo Jaquith respectfully prays that the Court enter an order quashing said subpoena duces tecum and that the Court set for hearing, prior to the issuance of any subsequent subpoena duces tecum, the issue of whether or not the material sought to be compelled is privileged or otherwise protected by law.

Dated: January 31, 2009

Respectfully submitted,
/s/
Waldo Jaquith
Pro Se

22 thoughts on “Motion to Quash in Garrett v. Better Publications.”

  1. That’s a fine looking Motion, and well written from a lawyerly perspective. The only concern I have is that in paragraphs 6 and 8 you rely on case law that is not binding in Virginia. The 5th Cir. cases in paragraph 8 aren’t too big a deal, but citing foreign state cases may not go over well with the Buckingham Cir. Ct. judge.

    Did you try to Shepardize the cases to see if there’s Virginia case law on point?

  2. The only concern I have is that in paragraphs 6 and 8 you rely on case law that is not binding in Virginia. The 5th Cir. cases in paragraph 8 aren’t too big a deal, but citing foreign state cases may not go over well with the Buckingham Cir. Ct. judge.

    I had no idea what the deal with that would be, but it hadn’t occurred to me that it might be bad to include those, but only that it would be useless at worst. Most of the ones in paragraph six are the landmark cases in the realm of subpoenaing the identities of anonymous participants in online discussions, or as close as there is to landmark in such a small area of the law.

    Did you try to Shepardize the cases to see if there’s Virginia case law on point?

    I did not. But I did just look up the word “shephardize,” and that was kind of interesting. :) The attorneys helping me out were great about pointing out better cases, or when I’d relied on something that I shouldn’t. And I googled around for every case, reading plenty about ‘em before I relied on them. There were a few that, early on, turned out to have been overturned or at least placed in doubt by conflicting rulings in other courts. But thankfully I was able to find some really recent motions to quash, written by people a lot smarter and more lawyerly than me, and that was helpful in clearing some of those citations.

    How cool that there’s a semi-automated process to do that. It took me hours.

  3. Waldo- Yeah, not to rub this in, but Shepardizing with the brief uploader is about a minute (then you have to go look everything up, but still.).

    Related story about my first legal job to make you feel better. I had to do this massive project on the sex offender registry statutes, comparing them state by state. My boss didn’t know, nor did I, that you could run a search on Westlaw to pull all the statutes in one pdf file delivered to your desktop, in under a minute. He wanted me to go to like, state legislature websites via sex offender registry sites. It took for-ev-er. And I could have been done in a day!

    I’m still bitter about that.

    Hey, but you seem to be enjoying this! Want more practice? ‘Cause I’ve got no less than five papers going right now, and I would love to have someone cite check for me. :)

  4. Yeah, not to rub this in, but Shepardizing with the brief uploader is about a minute (then you have to go look everything up, but still.).

    Presumably, though, I don’t have access to any such service. Though it’s just as likely I could have found somebody with access to it. :)

    No more practice, thank you. I’m sick, I’m limping around on a cane from sticking a 4″ rusty nail in my foot two weeks ago (ER, tetanus shot, x-rays, goofy shoe), and the GA’s in session. I think I’ve got my hands full. :)

  5. Even though the motion is already filed, you still have an opportunity to find other cases before you argue it. The UVA law library is open to the public, and there will be either staff or student librarians who could quickly show you how to use Shepard’s the old-fashioned way. It would take less than an hour to determine if there are any Virginia or 4th Circuit cases that cite those landmark online anonymity decisions.

    As for it being a “bad” idea to cite foreign state cases in circuit courts… the answer is “it depends.” Depends on the judge, on the issue, and on the lawyer doing it. In your case, since you’re pro se, there’s little chance the judge would embarrass you over it.

    When you bring up that issue in the hearing, you might mention right away that it’s a very new area of the law, those are the landmark cases, and there’s no Virginia authority… but better make sure there’s no Virginia authority first. And, on the off chance you find some, print them out and bring extra copies for the court and opposing counsel.

  6. “Presumably, though, I don’t have access to any such service. Though it’s just as likely I could have found somebody with access to it. :)”

    Well, jeez, when you put it like that… Seriously, you want me to run it through and have the report emailed to you? It won’t let you go into Lexis to look up the cases there, but it’ll give you the list of cases and the treatment of your cite in each case, to go look up online elsewhere or in the UVA law library.

  7. First – Does this count toward time needed to read for the bar?

    Second – If you can’t get access to Westlaw or Lexis-Nexus, talk to a currently registered student at UVA. I know that at VCU we had access through the library website to quite a few of those resources that would otherwise have cost an individual way too much to access. It may not be the full services, but it would be a start. Or just bug a laywer to borrow one of their offices for an hour or so.

    Good luck on it all, man.

  8. As for it being a “bad” idea to cite foreign state cases in circuit courts… the answer is “it depends.” Depends on the judge, on the issue, and on the lawyer doing it. In your case, since you’re pro se, there’s little chance the judge would embarrass you over it.

    Well, I’ll spend some quality time researching the judges in this circuit. Since their decisions aren’t online, I’m limited to reviewing those cases that made it to the appeals court, and seeing what they said about the lower court’s ruling, but it’s a start. :) And it’s actually pretty interesting so far. It turns out that a man can be charged with B&E for breaking into his own home, if his wife has kicked him out. Though that’s scant help for this woman, since he tried to kill her just as soon as he got in the house, so I’m not sure that the B&E charge would have deterred him. Anyhow, yeah, it’s been interesting, but I’ll definitely have to learn more about these judges, so I know what I’m in for.

    Well, jeez, when you put it like that… Seriously, you want me to run it through and have the report emailed to you?

    :) Well, I suspect that’d be real helpful, Genevieve. It hadn’t occurred to me that might be useful now, but given I.Publius’ comments, that might be a pretty great thing. If there’s anything I should do to prepare it first (like stripping out a listing of all of the cases, for instance), I’d be happy to do it. Thanks so much for that!

  9. Waldo- I say these things, and Lexis is being stupid. I’ll have it to you COB today, but at this moment, Lexis is not wanting to finalize processing the report. Ayy.

  10. I wonder if this Garrett guy knows Aleksey Vayner. I’m curious if this whacko will have to be the court room when you have to present in court or if it will just be his attorney.

  11. That’s a nicely written motion. It’s great that both CMLP and Public Citizen gave you advice. When I got served, I didn’t hook up with Public Citizen until after I’d filed my motion to quash. My first reactions upon digesting the subpoena were, “Bar the door!” then, “Who has the money for a lawyer?” then, “A double scotch on the rocks, please,” then, “Homework time!” But after I published the motion online, I got all sorts of free advice from lawyers, including advice on where I got it wrong (such as sequence of argument — you’re supposed to start with local court rules, then work your way up to the Constitution, not the other way around). And that’s when I hooked up with Public Citizen.

    We online opinionistas are very fortunate to have Paul Levy on our side.

    I’m curious — must you argue your motion, or is there any chance that the judge will just quash the subpoena without you having to show up in court?

    BTW, for free LexisNexis access, find a local public community college with a paralegal program, head to the library and let ‘er rip.

  12. I’m curious — must you argue your motion, or is there any chance that the judge will just quash the subpoena without you having to show up in court?

    I wish I knew. :) I think I’m in about the same boat that you were at this point, Kathleen—feeling pretty unsure as to what comes next! But here’s hoping that’s the outcome. It’d be a big time-saver.

  13. Waldo — one red herring that you will want to be familiar with is Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), which held that there was no journalistic privilege, at least in a grand jury investigation. That was a case where the government wanted to subpoena reporters to a grand jury to disclose who their sources were; the reporters argued that they had a confidential privilege not to disclose their sources. The Supreme Court held that there was no journalistic privilege, at least in a criminal case. They held that, in essence, the grand jury is entitled to everyone’s evidence. But their holding is necessarily only applicable to a criminal case.

    But this is not a criminal case; it is a civil case. So Branzburg v. Hayes does not apply. The policy arguments in favor of a journalist in a civil case are much stronger than they would be in a criminal case. You’re not trying to hide criminals.

    One last point — Judge Blanton, who usually sits in Buckingham, is not a xenophobe; he won’t be turned off by a citation from another state.

  14. I read most of lightfoot’s defamation complaint. It was very interesting…except that the Exhibits were missing or simply not included. Do you know where these can be found online?

    Randy

  15. Waldo, I wouldn’t presume to give you legal advise, for any number of reasons. Just remember the old joke: “What do you call a lawyer with an IQ of 50?

    “Your Honor.”

    ‘Course, the guy who told me that one is now on the bench himself.

  16. So when do we hear? I’m really interested in finding out how effective your motion was.

    Are you left guessing like the rest of us or is there some date when you expect to find out what the court thinks?

  17. grs, Garrett isn’t the whacko everyone assumes he is. A long time ago, Colbert’s lawyer was heard to say he never wants to go up against a guy like that again. He said the more you throw at him, the harder he fights.

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