Motion to Quash & Gag Orders #notchilled

Disclaimer: I make this post on behalf of myself, and not any other entity.

Brief recap of where we are in the litigation: As you may recall, Ellora’s Cave sued Jane Litte, claiming that Jane had defamed the company. Jane removed the case to federal court, and Ellora’s Cave, after a little dithering, tossed their motion for a temporary restraining order, leaving us with the long slog of discovery (the phase where each side gets evidence to support their case from various sources) and various dispositive motions ahead of us.

Right now, the court has pending before it a motion regarding discovery–specifically, a motion to quash a subpoena that was served on the @pubnt account on Twitter.

Yesterday, the DA team filed an opposition to this motion. Here are the pieces: the subpoena served on Twitter, a selection of @pubnt’s tweets, and the actual opposition.

There is really nothing exciting in here. In fact, it’s relatively anticlimactic. The opposition to quash wasn’t written by Randazza, and it shows–it’s sloppy and badly written. But the actual opposition does what an opposition to a motion does–namely, it cites the relevant law and applies it. The relevant law is Federal Rule of Civil Procedure 45(d)(3), which says:

On timely motion, the court for the district where compliance is required must quash or modify a subpoena that:

(i) fails to allow a reasonable time to comply;

(ii) requires a person to comply beyond the geographical limits specified in Rule 45(c);

(iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or

(iv) subjects a person to undue burden.

The first few paragraphs of the opposition are all that matters. The defendants state:

“@pubnt incorrectly assert that Defendants’ issued the Subpoena to Twitter, Inc. (the “Subpoena”) to harass, defame and punish the persons known as @pubnt. In reality, Defendants’ seek the identities of @pubnt to pursue the discovery of admissible evidence.”

And then they go on to explain that admissible evidence includes evidence that makes the plaintiffs’ case (yes, this is true! It’s not perverse! It’s the way litigation works!), and also, that the identity of @pubnt is of specific interest because if @pubnt is acting at the behest of the plaintiffs, it would certainly bolster defendant’s counterclaim.

Almost done.

Then the opposition states: “@pubnt fail to reference a reason under Fed.R.Civ.P. 45 (d)(3) for which the Court could quash a subpoena.”

This seems to be an unfair reading of @pubnt’s motion to quash. No, @pubnt didn’t cite the relevant law, but “Jane Litte is a vicious troll, and if my identity is made known to her through a subpoena, she and her gang of violent gangbangers will put me in fear of my life for exercising my constitutional right to free speech” sounds like an undue burden to me. There’s no question that @pubnt has argued that it will be subjected to an undue burden. There’s no factual basis for that argument, but it has, in fact, made that completely unsupportable argument.

More puzzling still is the selection of tweets the defense chose to present from @pubnt, all from February 13th and 14th, none of which predate the subpoena (!!!), and which miss @pubnt’s most delightful assertions of insider knowledge. It’s like whoever grabbed this randomly printed the first few pages of tweets and didn’t bother scrolling past that. The opposition doesn’t even reference or quote any particular tweet claiming insider knowledge. Like I said, it’s sloppy.

That being said, the point being made–that @pubnt has claimed to have discoverable information–doesn’t depend on even a minorly capable scan of the account in question, particularly since @pubnt admitting to having discoverable information in its motion to the court.

But the opposition doesn’t at all respond directly to the assertion that @pubnt is in danger, except as quoted above, which was to say, “We want to know this information because it’s legally relevant, not because we want to chop up @pubnt and devour it.”

I don’t think that a lot needed to be said about that assertion. It’s like @pubnt said, “Jane Litte eats twitter accounts for breakfast.” It’s such a bizarre and baffling assertion that (a) literally nobody has ever said that Jane Litte does not eat twitter accounts for breakfast, for the same reason that nobody has said that Jane Litte is not a space alien with an armada of bee-drones, and (b) it’s flatly unbelievable and wildly paranoid.

But I always believe in making the court’s job easier, especially when the court’s job is to figure out how to make sense of several pages of complaints. A single sentence to the effect that @pubnt’s fears are so outlandish that they are not even supported by the ravings of the anonymous gossip blog that it cites would have been useful.

In any event, we will see if @pubnt uses the opportunity to reply. Or maybe even get a lawyer. (Have I mentioned that @pubnt should have a lawyer? Yes, it would be nice to have someone who knew the relevant law! Especially since the remedy @pubnt probably wants is not the one @pubnt is asking for, but whatever, who needs lawyers, amirite?)

But this all basically changes nothing: we still have a wildly unsourced letter to the court from @pubnt, and a response from the defendants that basically amounts to “LOL wut?”

The other thing that happened is this article about Ellora’s Cave. This morning, twitter was asking: Why don’t Tina Engler’s statements here violate the gag order? Why isn’t anyone doing anything about it?

Reminder: the gag order in question was entered in state court when the parties agreed to delay the hearing on the Temporary Restraining Order. The substance of that order is this:

In the interim, all parties agree that neither they, nor anyone under their direct control, shall post on the Internet any comments specifically and directly related to the factual allegations that form the basis of Ellora Cave’s defamation complaint; further, they agree not to comment online, directly or indirectly, on the allegations that form the basis of the defamation complaint. Nothing herein shall prohibit Plaintiffs from responding to defamatory posts or re-posts made by third parties related to the issues raised in this litigation.

Joint Motion for Continuance.

“The interim” referred to above is the time between the filing of the joint motion for continuance and the scheduled hearing on the temporary restraining order. The gag order, then, was firmly tied to the outcome of the TRO hearing. And this makes sense: The point of a TRO is to maintain the status quo, and so until a TRO hearing can be had regarding defamation, it would make sense to have an order in place making sure that the TRO hearing isn’t completely defeated.

The literal date given for that hearing, and the end of the gag order, was October 27th, 2014. Plaintiffs informed defendants that they were dropping the TRO in late October. I suspect that a mid-November conversation isn’t a problem on simple date grounds: at that point, it was clear to all parties that the TRO was not going to be pursued.

Further, speaking to a reporter is not in violation of the gag order, which refers only to “post[ing] on the Internet” and “not comment[ing] online, directly or indirectly” — even if speaking to a reporter who posts a story is indirect commentary, speaking to a reporter who doesn’t post a story until after the TRO has officially been denied and the gag order explicitly expires is not a problem, either.

It’s also not clear to me from the article that Tina Engler actually did comment on the case. She said she did not know the identity of @pubnt, but that is not a comment specifically or directly related to the factual allegations forming the basis of the defamation complaint. And while the article refers to “Ellora’s Cave’s perspective,” it does not directly quote Engler, something that the author of the story does not hesitate to do.

Instead, everything the article says about EC’s perspective could have been gleaned from EC’s filings to the court. It’s quite possible that Engler said, “I’ll talk about Amazon and @pubnt, but if you want to know what EC’s perspective is on the substance of the pending litigation, you can read our briefs to the court, which I’ll send you.”

So in short, I don’t think there’s anything to see here.

Finally, for those who are saying, “Why doesn’t anything happen in response to the violation of the gag order?” the answer in addition to all of the above is because the court doesn’t have Google alerts set. The court is not an enforcer. If a party wants the court to enforce a gag order, it has to ask to do so. Nobody has asked, therefore nothing has happened.

8 thoughts on “Motion to Quash & Gag Orders #notchilled

  1. A question: if the gag order was valid/in effect until sometime in late October, and *if* it’s proven that the dear legume happens to be intimately associated with EC and/or JB, and considering the account was created on October 4th…would *that* effectively violate the gag order? And if so, should the violation be pointed out to the court, would there be consequences/sanctions for that party?

  2. @azteclady: Well, yes, but also I think that witness intimidation will be a larger argument.

    The only prediction I am willing to make is that if it turns out that @pubnt is affiliated intimately with Ellora’s Cave, we will need more popcorn. Lots more.

  3. @Courtney Milan:Thank you!

    Witness intimidation: yes, particularly considering the insistence that EC would be doing ‘the right and legal’ thing (paraphrasing from multiple tweets) if it stopped payment to authors/editors participating in #notchilled.

    I foresee a shortage of popcorn in the foreseeable future (Randazza is also dealing with Roca Labs these days, after all)

  4. Is the “the subpoena served on Twitter” link and “the actual opposition” link supposed to point to the same PDF?

  5. From the article: For a best-selling author like Laurann Dohner, whose popular “New Species” series explores lust amid nefarious scientific experimentation, this could mean revenue in the ballpark of $100,000 per month.

    Do they mean revenue for EC or earnings of Laurann Dohner?

  6. There have been a few anon commentator cases and, unfortunately, the current case law, at least in the 9th (only circuit I watch) suggests that defense provided too weak an argument to prevail, in part because their request was quite broad (necessarily, I believe) and the supporting detail was too poor. This filing does have the last minute feel about it, though.

    As I mentioned yesterday, in a recent case, Twitter insisted that the attempt to enforce a subpoena be heard in San Francisco in a case based in Washington state. Unlike many other similar cases, the motion was successful because it was narrow. I have had the docs sitting, expecting that I’d need them. Et voila. The Order Enforcing Subpoena is of particular interest, as it cites the standard expected when outing anons for legal cases.

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