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.
IN THE CIRCUIT COURT FOR THE COUNTY OF BUCKINGHAM
Thomas L. Garrett, Jr.,
Better Publications, L.L.C.,
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