I have now received a nonparty subpoena in Eric Albritton's defamation case against Cisco and the Patent Troll Tracker. The requests are quite broad. Blog commentators may want to check Request Number 2 that could require disclosure of their information.
|
2. All DOCUMENTS REFERRING or RELATING to comments, emails, COMMUNICATIONS or responses to THE BLOGS regarding (1) the integrity, reputation or ability of ERIC M. ALBRITTON; (2) the filing of Civil Action No. 5:07-CV-00156, styled ESN, LLC v. Cisco Systems, Inc., in the United States District Court for the Eastern District of Texas; or (3) the October 16-17, 2007 postings on www.trolltracker.blogspot.com. [File Attachment: albrittonsubpoena.pdf (109 KB)] |
In part, this request is seeking information about the identity of anonymous blog commentators and those who have sent me private emails regarding this case. As I have mentioned previously, my blogging service retains additional information regarding the identity of commentators (such as IP address, etc.), and a full response to the subpoena request could include that information. In a letter to Albritton's attorney, I objected to the subpoena requests for several reasons including the following specific objection to Request Number 2:
|
Request Number 2 asks about comments on THE BLOGS. Comments are posted on Patently-O and are publicly available at no charge to you. Because these comments are already available online, this request is likewise unduly burdensome and overbroad. Furthermore, most commentators post anonymously with a strong expectation of privacy in their identity. Similarly, I often receive communications sent under the condition and/or expectation of privacy and anonymity. This happens with any reporter – but is especially common in law and politics where we often find negative retribution for speaking out. I strongly support this right of anonymity and do not plan to reveal particular information that could lead to the identity of those sources without a specific court order on the topic. As the Supreme Court recently held, "Anonymity is a shield from the tyranny of the majority. . . . It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation . . . at the hand of an intolerant society." McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 357 (1995). Eighth Circuit law supports this ideal – especially as regard to reporters and their sources. In Continental Cablevision, Inc. v. Storer Broadcasting Co., 583 F. Supp. 427, 435 (E.D. Mo. 1984), for instance, the district court held that "news reporters enjoy a qualified privilege, derived from the first amendment guarantee of a free press, to withhold from discovery in a civil case confidential or non-confidential sources, materials, or other information where such discovery would impinge on the ability of the media to gather and disseminate news. Said privilege may be defeated in a particular case where the party seeking discovery can demonstrate that the testimony, material or information sought is relevant enough, and otherwise unavailable, to outweigh the first amendment interest of the media. A balancing analysis is the benchmark." You have provided no such balancing. |
Time will tell whether a motion to quash will be necessary.
