“Motion to Compel” in Garrett subpoena

In response to my Motion to Quash, the complainant’s attorney sent back a Motion to Compel yesterday, which is basically their response to my arguments as to why I shouldn’t have to comply with the subpoena. There are two bits about the Motion to Compel that are noteworthy.

The first is the claim that bloggers are not and cannot be journalists, and as such receive zero privileges under the law. This should be frightening to those of us who run community news blogs or political blogs, and perhaps doubly so to those who work with bloggers as they would journalists. I routinely communicate with sources for stories to whom I assure anonymity. My opposition argues that that veil can be pierced for the most slight of reasons. That’s a disturbing proposition.

The second is the attack on me for the comments that have been posted to cvillenews.com. Garrett complains that the comments are “tawdry, sophomoric, and spiteful.” The enormous irony is here is that the comments that fit that description were posted by Garrett himself (or, at least, somebody who says that he’s Garrett and demonstrates an extraordinary amount of knowledge about the man), all of which were pretty nasty attacks on me, libelously accusing me of committing criminal acts. And in an effort to claim that I have contempt for the legal process (as a reader of my blog, you understand that precisely the opposite is true), Garrett’s attorney cites a comment left by James Young, in which he recites a joke about judges told to him by a judge. (James, as you may know, is an attorney who recently argued a case before the Supreme Court.) Of course, I disagreed with everything that Garrett wrote, and I generally disagree with just about everything that James writes on my blog (and his). But their comments stood, because I believe that’s necessary in a healthy democracy. It’s enormously chilling to claim that bloggers are implicitly in agreement with the comments left on their blog by third parties and, worse still, hold them liable for that agreement.

The next step is a court date. That will take place sometime in the first week of March. I assume that both sides will get up before the judge and argue over the merits of each of our claims. Having never done such a thing, it appears that I’ll be a bit busy for the next few weeks, studying for my oral exams, as it were. I’ve approached a pair of Virginia legal groups who specialize in free speech cases, to ask if they would provide me with counsel for the occasion. We’ll see if either have the resources.

Published by Waldo Jaquith

Waldo Jaquith (JAKE-with) is an open government technologist who lives near Char­lottes­­ville, VA, USA. more »

43 replies on ““Motion to Compel” in Garrett subpoena”

  1. I’m over my head in the legalese here. So has the court decided anything on your motion to quash? If not, then wouldn’t this motion to compel be moot?

  2. Nope, the court hasn’t decided a thing. As I understand it, when we go before the court, these motions are what we’re bringing to the table. The judge will have read these, and the actual debate before the court will be our defenses of these claims.

  3. This should be frightening to those of us who run community news blogs…

    You’re damn right. I’m absolutely effed if I’m really responsible for the comments left on CHPN, where “tawdry, sophomoric, and spiteful” is something of a house specialty.

  4. Was there not some case law regarding message boards and comments that we utilized at nancies.org in order to avoid the assumption of responsibility for third party content (board posts, comments, etc)?

    A paralegal in DC once told me in regards to his job description (and I paraphrase) that “it’s not who is right who wins, but he who can file the most paperwork.”

    Good luck on this one, sir.

  5. I think you’re thinking of the DMCA’s Safe Harbor provision. It holds that you’re not liable for what people post, w/r/t copyright law, and also that you cannot be hold liable if you remove user-provided content that you believe contains copyrighted material that’s being reproduced without permission. It was one of the few good things about the DMCA.

  6. Wow.

    We had a cat named Chloe once. She was a really nasty cat. She ran away, and we didn’t look for her.

  7. Waldo, this is more than unnerving. It’s scary. Not just for you, but for democracy. Not to sound all melodramatic or anything. Hmm. This is just all kinds of wrong.

  8. I emailed you about this yesterday, but, um, wow. That’s…that’s a heckuva motion to compel.

    “It’s enormously chilling to claim that bloggers are implicitly in agreement with the comments left on their blog by third parties and, worse still, hold them liable for that agreement.”

    I spent some time trying to think, off the top of my head how that could be right, and the only thing I can come up with is ratification by silence, but that’s a super-stretch, given the context. I mean, under principle-agent theory, if Mr. Young were your agent, or your implied agent or your apparent agent… but he’s not, so you can’t be. I think. Oy. I hope one of those VA groups comes through for you.

  9. Tommy’s lawyer doesn’t seem very good at researching his claims before he makes them.

    Nor is a person considered a journalist if he merely relies upon another party as his sole source of information, uncovers no story on his own, and does not independently investigate any of the information provided to him by that other party.

    This is my favorite part of Mr. Finch’s motion, because one needs look no further than the cvillenews.com story in question (“The Hook Sued for Defamation”) to see that Waldo meets Mr. Finch’s own standard for a journalist. Conveniently, Mr. Finch has attached said story to his motion, so he disproves his own point all from within his motion.

    The story cited multiple sources: Tasha Kates’ Daily Progress article and several Hook articles by Courteney Stuart and Lindsay Barnes, for information immediately relevant to Garret’s specific case. He goes beyond that, though, sourcing the Columbia Journalism Review regarding another local defamation suit, along with a YouTube clip of one of Garrett’s TV appearances, Amazon’s listings of Garrett’s books and Garret’s PR firm’s web site on AngelFire. So, point one is trivial to disprove.

    Mr. Finch’s use of the word “and” instead of “or” means this alone disproves his entire point, but let’s overlook that and keep going.

    When Waldo contacted Hawes Spencer for comment, that’s independently investigating the information provided to him by the Daily Progress, so point three is also down for the count. Furthermore, Hawes’ statement that the Hook had never been contacted regarding any misstatement or factual inaccuracy (despite Garrett’s claim of false statements) was a key and unique story uncovered by Waldo, thus disproving point two. Even a cursory glance at the last few month’s articles on cvillenews.com reveals numerous other instances of these points being inaccurate.

    So, by Garrett’s lawyer’s own standard, Waldo is a journalist.

  10. Let me get this straight. It has merely alleged that some of the pseudonymously-posted comments were “tawdry, sophomoric, and spiteful.” But there is no allegation of libel, right? On what conceivable basis, then, could this subpoena be justified?

  11. From the filing:

    Plaintiff is seeking to determine the extent to whichThe
    Hookand its employees or agents made comments on Mr. Jaquith’s web site that demonstrate
    The Hook’s animus and malice toward Plaintifi as well as the identities of third parties whose
    comments were based upon the version of events published by The Hook and who therefore are
    potential witnesses as to the effect of The Hook’s defamatory articles upon Plaintiff s
    reputation. The identity information relating to these comments is central to Plaintiffls case,
    and accordingly Mr. Jaquith’s Motion to Quash should be denied with respect to Paragraph 1 of
    the Subpoena.

    So are they going to call on every friend and family member of every employee of The Hook to see how much they’ve spoken of this case and how horribly they spoke of the Plaintiff?

    And you have to prove you’re a journalist? Is there a decoder ring?

    Good luck getting this destroyed, Waldo.

  12. Waldo, it would seem it is finally starting to dawn on you that ‘Chloe’ is NOT Tommy Garrett and NEVER WAS! You and your gung-ho groupies made a lot of comments against Tommy Garrett, stupidly assuming that ‘Chloe’ was him when he had nothing to do with the comments on your amazingly ego-centric blogs. That’s just DUMB. When ‘Chloe’ left the comment ‘admitting’ to being Tommy Garrett, surely you could NOT have actually believed such a thing, given the OBVIOUS sarcasm with which it was coated. If you DID actually take it as an admission, you’re far sillier than even I could have imagined. Tommy has never said or done a thing against you, but YOU have certainly gone all out against HIM. All that awesome power you believe you have as a blogger has gone to your head. All the huffing and puffing about Tommy Garrett being a self-promoter (and worse) pales into insignificance compared the relentless self-promoting of Waldo Jaquith online.

  13. So this third person—who is not “Chloe,” by virtue of a space in the name and referring to “Chloe” in the third person—knows all about “Chloe” and Tommy Garrett. Kind of like how “Chloe” knows all about Garrett, but isn’t actually Garrett, except when admitting to be Garrett.


  14. Who in the world cares enough about this to go out of their way to visit here and comment in such a manner as to attack Waldo? Either someone that doesn’t like Waldo or that loves Garrett, I guess.

    That said, this whole thing reeks of a Google search with negative results and an effort to purge the virtual record of any bad news. By doing this, more bad news has been created. If Garrett lost business and a house deal because of the fraud charges (which are a matter of PUBLIC record and does make him a PUBLIC figure), how many more problems is he going to have if a search now turns up results that shows he’s eager with legal filings to uninvolved parties? At a certain point you’re just hurting yourself…

  15. ‘Chloe’,

    We can all see that this is the same writing style as the stuff that you have written elsewhere on the internet under your own name (Tommy Garrett). Also note that you have SUBPOENAED THE IP ADDRESSES of everyone who comments here. Meaning that if your motion succeeds, it will be demonstrated in a court of law that you are BSing everyone with this ‘Chloe’ business. So even if you win, you lose.

    Jesus. Do you and this attorney you found have the slightest clue as to what you’ve gotten yourselves into? Some local paper reported on the facts of a lawsuit you were involved in and now your hissy fit has gotten you dragged into playing Darth Vader in what would be a landmark anti-First Amendment case if it actually got anywhere. The more that you pursue this attack against freedom of the press, the more attention that this case will draw. Because you know who is going to be really angry at you? Reporters. Thus before long, this thing will end up getting written about in newspapers all over America. And in the course of explaining this whole thing in their articles, they are all going to have to take a few paragraphs to describe this weird chicken guy with the fake magazine cover and the whole world is going to be staring and pointing and laughing at Tommy Garrett.

    You lose. No matter what, you lose. The more you try to force people to stop writing about your legal troubles, the more that everyone will write about your legal troubles.

    Don’t start an argument with people who buy ink by the barrel.

  16. Just came over here from Overlawyered. I just wanted to throw my support behind you man. You are also up over at Citizen Media Law. If you need legal advice, you might want to hit up their comment section. I bet you could gleam more legal knowledge from half a comment at one of those sites than Tommy Garrett’s lawyer got from all 20 years in that prison in Mexico.

  17. Golly gosh, Waldo… can’t a person hit the spacebar by accident without being flamed? What an ‘anal’ fellow you are.
    Well folks, Sherlock Landers has nailed it! Same writing style. There’s the clincher. I MUST be Tommy Garrett. No other explanation is possible. Lock me up boys and throw away the key. Jackson was sitting there in his grassy knoll, checking the action of his bolt when DING! suddenly he had me all figured out. Luckily this time he wasn’t staring at a bird’s ass when his gut instinct kicked in. I heard a guy singing like Elvis today. It MUST have really been him. Tell me, Mr 303, do I sound like a person who is worried about the result of an IP discovery? There’s a very good reason for that but you’re too damned pig-headed to accept it. You haven’t changed a bit.
    And you, Waldo… pretending you’re a victim, defending your Right to spread lies about a person and making out you didn’t know a thing until you were provoked. You’re the Joker of Spin. Where’s the part in your blogs where you tell everyone (who doesn’t already know) that your mommy is well-connected at The Hook… the very same posse who started the attack on Tommy in the first place? I have the photo of them all standing there together guzzling grog, and many others. A gossip rag where the staff don’t gossip? Inconceivable! You have an opinion on EVERY little thing in Cville, yet you never heard of the guy who had been the target of several Hook stories created by your mom’s buddies? Curiouser and curiouser.

    Naturally all your no-life blogger buddies have to band together on this. Heaven forbid that a precedent should be set that makes it illegal for all of you to defame, denounce and ridicule people online without fear of consequences. Demopublican seems to be the only sensible and fair one around. Anyone can be a smartass blogger when they think there are no consequences for the things they write. There are ALWAYS consequences… one way or another.
    ‘…weird chicken guy’.. ha-ha.
    “He’s everywhere! He’s everywhere!”

  18. Waldo,
    I only read your blog from time to time, and am jumping into this saga almost a month after you were served with the subpoena.
    Waldo, your motion to quash has a few nuggets in it that may win you some or all of your motion. I don’t want to point them out, as opposing counsel appears to read your blog. You should consult with a litigator that practices in Buckingham County regularly. You need legal advice form someone with which privilege applies. Your focus should be on what is allowed or not allowed under the rules.
    Judge’s tend to be deferential to third parties, but they won’t bend over backwards. Always be extremely respectful to the Judge (even if you lose, or appear to be losing), this may not be your last court appearance as long as you keep posting.
    Good luck

  19. I thought Steve Miller was the Joker of Spin. He surely isn’t the real Space Cowboy though.

    I sure hope neither Jackson Lander nor Waldo, who have been defamed, denounced, and ridiculed above decide to file lawsuits, then things would get very surreal… ;) I would certainly hate to be subpoenaed and have to state for the record how their stature in my eyes had been diminished by some statements that had been made here.

    When someone like Chloe, who’s laying down of the truth is clearly indisputable, insinuates that Waldo is both a “flamer” and anally fixated, well then I know where Waldo’s been so to speak. No telling what he’s been up to with the murderous Jackson Landers. It must involve bestiality of some sort though.

    I am disgusted and revolted! We should all be, and we should give thanks to Chloe for bringing that truth to light. Gosh durn though, I just hope they aren’t the litigious sort, if I were subpoenaed for reading this, not only would my own filthy association with this business be revealed, but I’d have to breath the same courthouse air as those disgusting miscreants. Yuck I say!

  20. There you go again Waldo, jumping on someone for a typo. Ok, so I meant “whose.” You are just trying to “suck” me into your “anal” world, but I’m not “biting.” …this time

  21. Waldo, you PC wiz, you. The old XFF in the header trick… If only I had installed an XFF spoofer a long time ago… oh wait… I DID! I hope you aren’t going to harass my oblivious IP donor now. I’d hate to spend nanoseconds finding a new one.
    Good times? Are you INSANE? Look at the economy!

  22. I ain’t no lawyer or nothing but…

    I think the subpeona has less to do with Waldo than it has to do with proving defamation or whatever it is Mr. Garrett is trying prove against the Hook. If they can prove that Hook people posted nasty comments on Waldo’s site, they can prove malice on the part of the Hook.

    In this case, they’re trying to say that Waldo’s blog is simply talk among the populace where one’s reputation can be destroyed by slander.

    The argument that Waldo is not a journalist is designed to prove that cvillenews is not a news organization, but a forum for what might be considered public gossip and therefore not protected by any Virginia shield law, which is extremely weak anyway.

  23. OMG!
    Mac, I hope you’re not toying with my emotions because THAT was beautiful.

    And it would have been just that simple if Waldo’s mom wasn’t part of the lynch mob at the Hook.
    Still, you’ve given me hope that there are decent and sensible people in the region.

  24. Mac – then the burden of proof is on Garrett to prove that any statements were defamatory before he can seek their information. Instead, his lawyers make a blanket demand not just for ALL comment info but the IP addresses of EVERYONE who even read the posts – not just cville news but here as well.

    Forum or no, public or no, what is at stake here is a recognition of whether or not bloggers can be journalists and have the benifits that carried (like Free Ice Cream Fridays).

  25. Waldo,

    So when you mom files a subpoena demanding the list of IP addresses for her defamation suit against “Chloe,” are you going fight just as hard?

  26. Kaveh, that’s just dumb.
    Waldo’s mommy has not been defamed in any way. Stop sucking up to Waldo. You’re not helping. His blog is an extension of the Hook articles and Janis is connected by her work. He cannot claim to be an unbiased separate entity commenting about something in the news.

  27. This would be funny if it weren’t so sad.

    Thomas, you should have a word with your attorney about the effect that your behavior could have on your case. You do understand that these discussions are going before a judge, don’t you? Your own attorney has submitted them as evidence. Trust me, this is not the sort of thing that will be helpful to you.

    There’s some free legal advice for you. You can thank me later.

  28. I think the subpeona has less to do with Waldo than it has to do with proving defamation or whatever it is Mr. Garrett is trying prove against the Hook. If they can prove that Hook people posted nasty comments on Waldo’s site, they can prove malice on the part of the Hook.

    In which case they should have subpoenaed a listing of all comments by employees of the newspaper. Instead they subpoenaed a listing of all comments posted.

    In this case, they’re trying to say that Waldo’s blog is simply talk among the populace where one’s reputation can be destroyed by slander.

    But they’re not. No such accusation is made in the subpoena.

    The argument that Waldo is not a journalist is designed to prove that cvillenews is not a news organization, but a forum for what might be considered public gossip and therefore not protected by any Virginia shield law, which is extremely weak anyway.

    By any state or federal criteria, I qualify as a journalist for the purpose of the law. This is well-established. In fact, I qualify as a journalist by the criteria laid out by Garrett’s own attorney in this motion, presumably because he didn’t take the time to research my blogs.

  29. All the Tommy’s in the house say ey-oh… ???
    hmmm crickets.
    I don’t think ‘Thomas’ is in the audience, Waldo. There’s nobody here but us chickens. Oops.. did I say that?
    I’m sorry that you’re sad, Waldo. How’s your foot?. You could have been doing much more enjoyable things with your life if you didn’t start this by jumping (or hopping in your case) on the Hook’s bandwagon to attack a really decent guy who WHOSE only goal in life is to please and help others. The only people who have something against Tommy Garrett are those who tried to abuse his friendship for their own gains and were bitterly disappointed. It would have been a simple thing for you to email Tommy in the beginning and get the scoop yourself but you chose to repeat a fabricated version of events. I understand that you would be biased by your mom’s buddies but if you were half the real journalist you appear to want to be, you would have done your own investigation rather than take the easy path.

    Then to add insult to injury, you joined forces with MediaMook, another blogger DownUnder as if he is some kind of authority. A quick search reveals he is a miserable Scotsman who couldn’t cut it in his own country and took off to Australia to make smartass comments about all and sundry over there instead. It’s Neil(MM)Walker’s job to whine about everything in the media, deserved or not. He’d be out of work, otherwise. His only claim to fame is that his blog is often quoted by an apparently brain-dead radio anchor named Derryn Hinch who is currently facing criminal charges himself. All that stuff is online. I know you ONLY believe things that are online so you can check that out at least.
    You really need to get over this ‘Chloe IS Tommy’ fixation. We established that you are some kind of computer wiz but every time you insist that ‘Chloe’ is Tommy, you are damaging your street cred… not right now, but it will become apparent. Your blogger buddies have so much faith in your abilities but you are proving to me at least that you ARE fallible. You hunted a guy down once before and denounced him, same way you are doing with me, but I see now that you were most likely wrong about him too. It looks good in a blog though to make out you dealt with him once and for all. Your handful of loyal fans lap that stuff right up. Justice done – all thanks to the incredible Waldo.

    Yeah right.

  30. There’s nobody here but us chickens. Oops.. did I say that?

    You cannot simultaneously continue to demonstrate that you really, really want everybody to know that you are Thomas Garrett and while claiming that you are not, especially given that you confessed and then recanted. You apparently believe that judges are mildly mentally retarded, or otherwise lack the mental faculties to understand these not-particularly-subtle references. I can’t imagine that they take kindly to that.

    But, hey, go for it. Here’s a little more rope.

  31. Hey ‘Chloe,’

    You know what Waldo and myself both have in common? We post everything under our real names. Comments, blog entries, etc. When I say something, my own name is standing behind it. If someone has a problem with something that I say on the internet then they can easily spend 2 minutes with Google and have my email address. Anyone can contact me personally and discuss something like gentlemen. In fact this has happened before. I’ve even been convinced that I was wrong about certain people and issues and I changed my tune online as a result of the conversation.

    You, however, throw out these words about not being Tommy Garrett but you aren’t really backing anything up. Why don’t you post your real name and be personally accountable for what you have to say? If you aren’t Tommy Garrett then you shouldn’t have anything to lose. Hell, even if you are Tommy Garrett then I think people would respect you a lot more for explaining yourself rather than suing everything in sight. 5 minutes of being a gentleman and asking nicely for something can often accomplish things that years of litigation cannot.

    This attempt to intimidate me and others here by your creepy references to our medical histories and hobbies and social activities is lame and makes you look like a bad guy. And none of it is anything that can’t be found out in 10 minutes with information that we each deliberately allowed onto the internet, so it’s not like I’m even impressed.

    Be a man, use your real name and make your case in a polite way without trying to intimidate people with stalkerish comments and I think you will be better off.

    If you think I’ve not been fair then I encourage you to email me at jack [dot] landers [at] gmail [dot] com and make your case.

  32. Jackson, you make a great point with real names. One excellent thing about blogs like this one or sites like C’Ville News is that not only do random commenters get a platform to speak from but individuals intimately involved in the post can freely come on and speak about the situation as well – whether to correct the record or just say they’re reading. Even their friends have an opportunity to rationally confront any wrongs and say, hey, you guys aren’t right and here’s why and make a case that can really set everyone straight and keep a situation from getting much worse.

    Instead, “Chloe” wants to come on and personally attack individuals who have nothing to do with the story in and of itself, choosing to shoot the messenger instead of debating the issue at hand on its own merits. Is the position of Garrett that indefensible that the conversation must be spun away?

    And here was a prime opportunity to win the court of public opinion…

  33. Waldo, the only time I have ever said I was Tommy Garrett was pretty damned obvious that I was being sarcastic in retort to your insistence that I was him. Even YOU must know by now that I am NOT. Is it because you are enjoying the hit-counts to your pages perhaps that you keep it up? Don’t talk to me about slurring judges. I respect them completely. You are the one who allowed the IQ of 50 comment to remain when it was disrespectful and harmful to your cause. If Tommy finds himself in a corner and must prove that ‘Chloe’ was NEVER him, I will gladly reveal my identity to the Judge. As for revealing my real name right now as JL licks his lips and hopes I am silly enough to do, it’s not going to happen because there’s no debating here, only animosity. This is a Waldo & his buddies vs The World club and I would have NO hope of reversing the tide of opinion. Most of you are so hell-bent on attacking Tommy (and pro-Tommy visitors) for merely trying to defend his name that no amount of debate will change your already made up minds. You only want MY identity so Waldo Inc can do the same to me as you’ve done to him. Waldo is actively using methods to block me from commenting so I expect to be silenced sooner or later. I initially came to this blog to inform Waldo that he was mistaken for assuming the Hook articles were factual but he chose to play the ever-clever wordmeister and was clear that he could not be encouraged to believe that Tommy Garrett is not a fraud. The evidence that Tommy Garrett is out and about in the real world, doing good things is all around you but you want it handed to you on a virtual HTML platter. It’s not for Tommy to prove here that he is not a fraud. We know he’s not. It is for you to prove that he IS but without making bold statements BEFORE you can somehow prove it. By continually saying he is a fraud when he is not will not eventually make it so just because you want it so badly to be true.
    It’s plain that Waldo will not dispute what Hawes has allowed to be printed in The Hook because he is a personal buddy and because of Janis’s involvement at the Hook.

    Jackson, your last comment would almost sound reasonable if you didn’t have a history of mouthing off and spewing forth hatred at a guy you don’t even know. I guarantee you, Tommy has never done a thing to you – but you hate him all the same. You have blamed him for all the comments posted here and he has never done one single thing against you. How can you hate that way?

  34. You are the one who allowed the IQ of 50 comment to remain when it was disrespectful and harmful to your cause.

    Is it your position that I should delete any comments that I don’t agree with?

    Of course, if you answer “yes,” nobody will ever read it. But no fair complaining afterwards.

    Yes or no, Thomas? This is an easy question. I know you can do it.

  35. This may have already been said — I’ve read your post and Garrett’s motion, but haven’t read the entire comments thread — but it was funny that at one point in the motion, Garrett cites a case involving an ISP, discounting the distinction between you and an ISP. At another point, he disparages your citation of a statute specifically referring to ISP. Inconsistent? Self-serving? You decide…

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