Frederic Eshelman, a pharmaceutical magnate, resents being criticized by an anonymous gmail user who called him a “piece of shit” and urged companies to stop collaborating with Eshelman for, among other things, “abusing police resources” when he used his political influence to secure the arrest and prosecution of hunters who “corner-crossed” his hunting reserve to get from one bit of public land to another. To move forward a defamation claim, he would have to get a subpoena to Google enforced in a California court, and those courts have protected the First Amendment right to speak anonymously by requiring plaintiffs to present complaints that state valid defamation claims, and to present evidence in support of that claim. And Eshelman’s supposed defamation claim is more than a little bit fanciful.
So, instead of just filing a suit for defamation in his home state of North Carolina and domesticating a subpoena to Google in California, he went straight to the federal court there, invoking 28 U.S.C. § 1782, a procedure enacted to enable litigants in proceedings outside the United States to obtain needed discovery from US courts. Eshelman doesn’t actually have any lawsuits pending abroad – his excuse for using this procedure is that, among the recipients of the critical email was a company in India (SEE UPDATE BELOW) and a company in Germany (although as far as I can tell, the company he claims is in Germany is really in California). Does he really intend to sue there, or is he just throwing his weight around, and at the same time sending a warning to future critics?
The section 1782 issue was one of which I had never heard before, but it turns out that, for the past few years, quite a number of defamation claimants have been resorting to section 1782 and managing to persuade some judges in the Northern District of California that they need not worry about First Amendment niceties in such cases. Eshelman’s counsel, from the well-known libel litigation boutique Clare Locke, told me that he has used the section 1782 procedure several times before, always successfully. So, although the judge-made law about the standard for adjudicating subpoenas to identify online speakers whose speech is allegedly wrongful has been fairly well-settled for some time, this is potentially a precedential case presenting a new wrinkle on the problem.
Today, in concert with the ACLU of Northern California, which like Public Citizen has a long history of litigating anonymous speech cases, we have filed a motion to quash on behalf of the anonymous emailed, making two main points. First, under the well-established Dendrite test, routinely followed by federal judges in Northern California, Eshelman’s purported defamation claim is weak at best and, in any event, the balancing test weighs overwhelming in the Doe’s favor. In addition, the motion argues that Eshelman’s resort to section 1782 to enable an American plaintiff to seek to identify an American prospective defendant should be rejected, possibly without even reaching the First Amendment issues. We have not been able to find any cases in which a U.S. plaintiff has evaded First Amendment scrutiny by a section 1782 subpoena seeking to identify a US critic. It is disturbing that Eshelman’s subpoena application has got even this far.
Whether a foreign defendant should be able to bypass the First Amendment when asking a U.S. court to compel identification of a Doe who is allegedly NOT in the United States is not an issue to be decided in this case, although we hint at the problem in a long footnote. In the meantime, we can expect Eshelman to learn about the Streisand Effect.
Many thanks to the three great colleagues at the ACLU of Northern California for the excellent collaboration that produced this motion and the supporting papers. We understand that Google will also be filing its own motion to quash the subpoena.
In the course of our investigation of the companies to which our client sent emails, I did not look hard enough. Had I clicked on hyperlinks on the website of the company 6 Degrees PR, I would have discovered, as counsel for Google did, that the CEO of the company, who got the allegedly defamatory email, lives in the Philadelphia area, and indeed that all of the principal staff live in or near Philadelphia, or in Tennessee. So it is hard to imagine how Eshelman could justify suing in EITHER Germany or India. Google’s motion to quash complements ours and focuses solely on the application of section 1782.