by Paul Alan Levy
The litigation reported last month in which Thomas Cooley Law School sought to stanch adverse publicity by suing anonymous critics has taken a couple of odd turns. At the outset, the case presented the enticing possibility of having the Dendrite rule adopted in Michigan, whereby, as often discussed on this blog, a party trying to use a subpoena to identify anonymous speakers has to meet procedural and substantive standards designed to ensure that the First Amendment right to speak anonymously is not needlessly lost.
However, some sharp practices by the plaintiff’s lawyer, whose zealous advocacy for his client took him close to the ethical edge in my view, and a weak surrender by the Doe’s web hosting service, brought some other issues to the fore, and combined to put an anonymous blogger at risk. Both Internet posters with trenchant criticisms to advance and lawyers who seek to defend them can learn some lessons from these developments. The developments may also show a need for California to add some protections to its perhaps too-easy method for lawyers to obtain California subpoenas in support of discovery to identify anonymous posters
Representing the creator of the blog, Michigan lawyer John Hermann filed a motion to quash the subpoena to Weebly, the California company that hosted his client’s anonymous blog. That motion was dated August 5, 2011, and was filed in the Michigan state court where the case was pending. Because no appellate court in Michigan has yet addressed the applicability of the Dendrite standard, the case raised a potentially important issue. The same day, Hermann contacted Weebly’s staff to let it know that he had filed such a motion; on August 9, Weebly told Hermann that he could safely “consider the subpoena squashed at this point,” promising that Weebly would “keep you informed of the situation.”
Plaintiff Gets Tough — and the ISP Caves In
Playing hardball, the next day Cooley’s lawyer, Michael Coakley from Miller Canfield, notified Hermann that he had served a California subpoena on Weebly, seeking production of documents on August 25. For the first time, he provided Hermann with a copy of the subpoena. That afternoon, Weebly wrote back to Hermann explaining that it had received a subpoena, asking how long he needed to get a court order, and suggesting that he needed to get an actual order quashing the subpoena by August 22. Hermann promptly responded that a California subpoena could be quashed and suggesting that Weebly might want to contact EFF to find the name of a lawyer who could represent it about the subpoena.
Hermann was thus quite surprised to get an August 18 letter from Coakley announcing that Weebly had produced identifying information concerning his Doe client. Coakley had the gall to announce that this disclosure made the motion to quash moot, to threaten sanctions if Hermann failed to withdraw it, and to threaten to file an amended complaint publicly identifying Hermann’s client if the Doe did not retract his complaints about Cooley, identify the anonymous individuals who had posted comments on his blog, and comply with other, as-yet-unspecified conditions.
The Court Protects the Blogger – at Least for Now
In fact, because Coakley knew that he had obtained this information in the face of a pending motion to quash the subpoena asserting that the Doe had a First Amendment privilege to speak anonymously, he not only had no right to obtain had no right to use the information against Doe, but he had an obligation to return the information pending a resolution of the discovery dispute. That is because Michigan, like most jurisdictions, has a discovery rule protecting against the misuse of information that has been obtained despite a claim of privilege. In Michigan, Rule 2.302(B)(7) provides that
- If information that is subject to a claim of privilege or of protection as trial-preparation material is produced in discovery, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved. A receiving party may promptly present the information to the court under seal for a determination of the claim. If the receiving party disclosed the information before being notified, it must take reasonable steps to retrieve it. The producing party must preserve the information until the claim is resolved.
Because Coakley is the head of the litigation department at a prominent Detroit law firm, he must have been aware of this rule. In fact, his letter could be read as expressing some defensiveness about his obligations, because he began by emphasizing that the disclosure really wasn’t his fault: the disclosure had occurred, he said, “without direction from us (other than the subpoena itself).” But the California subpoena was served after the motion to quash was filed in Michigan, and the threat to use the privileged information to exact concessions from Doe, and the subsequent filing of an amended complaint and other papers prominently displaying Doe’s name, seem to have been deliberate violations of the rule. Coakley has not responded to my requests for information and for comment on my concerns.
Given how marginal his client's defamation claims against the Doe are, Coakley may have felt he had no choice but to skirt the ethical edge by violating this rule. (The linked complaint is the original; by the time it filed the amended complaint, Cooley had used the disclosure to identify the Doe and put that name in the complaint). Coakley markets himself to potential clients by proclaiming his reputation as “a scrapper in protecting their interests.” As I see it, Coakley’s scrappiness took him a few steps too far in this case.
Cooley responded to the motion to quash by arguing, among other things, that the motion to quash was moot; Hermann’s responsive brief focused on the disclosure rule and the trial judge agreed, ordering that the disclosed information was to be sequestered and delivered only to the Court for in camera examination, and that plaintiff’s papers naming the defendant were to be stricken from the record. The transcript of his ruling is here.
This ruling is important because it makes clear that the concept of rescindable disclosure extends beyond the situation when a party just provides privileged information in discovery because of its own carelessness, and includes deliberate disclosure by third parties who themselves may know that there is a possible claim of privilege but decide to produce anyway. In the Dendrite context, the ruling means that all is not lost if the ISP discloses pursuant to a subpoena because the Doe has not been able to obtain a definitive ruling by the deadline in the subpoena. In effect, the rule becomes that the subpoena deadline sets only the deadline for raising the First Amendment privilege objection, not the deadline for obtaining a ruling.
The Dendrite issue remains to be decided, of course, and because the case illustrates so well the need for Dendrite protections, we are preparing an amicus brief to express Public Citizen’s views on that subject.
Why Did Weebly Disclose So Readily?
Still, given the dangers of extra-judicial self-help that form one of the important reasons for the Dendrite rule, the fact that the judge in the Cooley case has clawed back the disclosure so that he can make the Dendrite determination does not eliminate concerns about Weebly’s premature disclosure. I contacted Weebly’s leadership to try to understand their reasoning, and I give Richard Huffaker credit for being willing to discuss the matter with me — unlike Michael Coakley, who refused to respond to questions — and for providing some pretty candid reactions to the situation. However, I found Weebly’s explanations contradictory, and its assurances about its supposed commitment to protect its customers unconvincing. My bottom line — Weebly is another web host that customers should avoid if confidentiality matters.
Weebly’s first point to me was that its email to Hermann saying that he could consider the subpoena “squashed at this point” really wasn’t intended to make any commitments — Hermann has been writing “over and over” about keeping his client’s identity private, and “I had no idea what he was talking about, so I said it’s ‘squashed for now’ just so he’d leave me alone.”
Weebly also said that after it got the California subpoena, it told Hermann that he would actually need to get a ruling from the judge quashing that subpoena no later than August 22, or it would have to obey the subpoena. I have two problems with that — first, even the subpoena did not require compliance until August 25, and the information was furnished on August 17. But more important, Weebly’s stance falls well short of the industry standard. In our experience, responsible ISP’s, such as Google, and Yahoo!, and Twitter, will simply insist to parties sending them subpoenas that they won’t comply with subpoenas to identify users if a motion to quash is filed within a given period, normally about two weeks.
Weebly also told me that the disclosure was made in part because Hermann gave shifting stories about whether the subpoena would be issued by a Michigan court or a California court. I found that argument unconvincing. Hermann was plainly uncertain about the actual subpoena documents, but I could not find the shifting accounts. And in any event, should discomfort with the Doe’s lawyer be a reason to shed the Doe’s privacy?
Next, Weebly said that its disclosures didn’t really matter because it did not provide the customer’s actual name, just an email address and various IP addresses. This is not the first ISP that has rationalized subpoena compliance on such grounds. I have got that line from Wikipedia twice, for example. But this case shows why the argument is delusional. The Doe was a former student at plaintiff law school, and the same email address that he gave Weebly was one that he has used while in law school. Thus, when plaintiff got the email address it was able to identify the Doe, and in fact it named the Doe in its amended complaint and cited his name throughout its opposition to the motion to quash.
Weebly’s final explanation to me struck me as the real reason, and it was perhaps the worst part of the explanation. Huffaker said, the subpoena came in on a day when I was out of the office, we have a small staff, we work long hours, we don’t have a lawyer on staff, we don’t get many subpoenas, and we strongly resist requests to remove material at the request of the targets of its customers’ criticism. All of this is understandable, and much of it praiseworthy, but to my mind, protecting customers’ privacy is also important, and if an ISP doesn’t have a lawyer, it has a responsibility to inform itself of the law governing subpoenas to identify customers and of the industry standard on responding to subpoenas. Moreover, although legal representation can be expensive, Public Citizen often represents smaller ISP’s pro bono in opposing subpoenas when the plaintiff does not meet the Dendrite test. Indeed, California has made it easy to fund the defense against subpoenas in these cases by passing a SLAPP-like law providing for awards of attorney fees; and Hermann made a point of suggesting that angle. Weebly says that it cares about protecting its customers, but it is hard to take those protestations seriously. Potential customers of Weebly, beware.
Does California’s Law on Foreign Subpoenas to Identify Does Need a Tweak?
California took an important step to protect against improper subpoenas in support of cases pending elsewhere by authorizing SLAPP-like attorney fee awards in sections 1987.1 and .2 to its Code of Civil Procedure, but Weebly’s reaction to the Cooley subpoena, and Cooley’s arguments in the case, point up the need for further procedural reform.
Just as California has changed the procedure for obtaining a subpoena in aid of foreign proceedings to make easier for attorneys from other states to come to California to obtain process in aid of their proceedings back home, without even obtaining local counsel, it should consider making it easier for the opponents of such discovery to oppose it if inappropriate. Cooley argued that the motion to quash pending in Michigan was irrelevant because it had obtained a California subpoena and only a California court could quash that. My guess is that a California judge would have rejected that argument — most jurisdictions in which foreign discovery pending are only too happy to let a judge in the forum state do the work of deciding relevance questions, and when I am representing a Doe, I usually find it possible to express my concerns to smaller ISP’s, even those which, like Weebly, do not have lawyers on staff, sufficiently forcefully to get them to give my clients time to get into court even if I cannot get an immediate ruling. However, Does who are represented by solo practitioners need to be able to point out clear language. The statute should make clear that a party opposing discovery is entitled to move to quash in the forum state, just as a party opposing discovery in federal court has the choice of seeking a protective order from the forum district or from the court where the discovery is sought under Rules 26(c)(1) or Rule 45(c)(3)(A).
The statute should also provide that the deadline set by a subpoena to identify an anonymous speaker is automatically extended by such a motion, in either the forum court or the issuing, pending further order of that court. The big ISP’s have the toughness and experience to assume that posture, but smaller ISP’s might benefit from language in the statute. In the alternative, California might consider adopting the approach taken under federal Rule 45(c)(B), under which the service of written objections is enough to cancel the duty to comply with the subpoena, putting the burden on the plaintiff to obtain an order from a judge commanding compliance. It is crucial, however, that the Doe be able to serve such objection, not just the ISP, because experience has shown that most ISP’s regard themselves as no more than stakeholders on the merits of such controversies.
Final note: I tend to think of all the college and law school ratings as a pile of hooey. My own alma mater began refusing to participate in the US News ranking in the mid 1990's, after the Wall Street Journal publicized the ways in which many institutions were manipulating data to change their numerical rankings. Thus, I feel some gratitude to Cooley for taking this nonsense to its logical extreme. In its own way, Cooley’s spurious ranking scheme points out the inherent subjectivity of decisions about what numbers should be counted and calls into question any effort to reduce the relative merit of complex institutions to a numerical ranking. Still, I recognize that potential students pay attention to numerical ratings from supposedly more reputable sources, however foolish they may be, and so I join my colleagues in condemning Cooley’s manipulation of statistics.
Weebly late has apologized for its "blunder" in revealing Doe's identity while a motion to quash was pending. Its email to Hermann indicated that it is putting in place procedures to make sure that the mistake is not repeated.