by Paul Alan Levy
A few years ago, Gordon Austin, a Georgia dentist from the small town of Carrollton, about 50 miles west of Atlanta, was indicted on multiple charges stemming in part from Medicare fraud and in part for a series of incidents in which he beat patients with a dental instrument. According to several witnesses, he sometimes did not sufficiently anesthetize his patients, which led them to cry out while he was operating on them. He would them tell the patients to be quiet so they would not disturb others in his waiting room. And when patients were not quiet, it was charged, he would hit them, even children, with a dental instrument. In the end, Austin was allowed to plead guilty to the Medicare fraud charges while the charges of assault and cruelty to children were dismissed. Austin was placed on five years’ probation which forbade him from practicing dentistry for a period of years, except in the federal service; and paid roughly $15,000 in fines, fees and reimbursements to Medicaid. Georgia's dental board pulled his dental license; and he was pushed out of the Naval Reserves.
Back in 2009, there were a spate of news stories about Austin, including a two-part newscast on the Atlanta local Fox station, which had two of Austin’s victims, as well as a former employee, on camera relating their experiences. Most of the news stories can now be accessed only on the Wayback Machine, and the TV program can no longer be found on the Fox station’s own web site. However, back in 2009, an anonymous individual using the pseudonym GordonAustinsaCoward posted the TV series to YouTube, where it can be viewed today. Here is a transcript of the video.
This fall, out of the blue, Austin, represented by a pair of lawyers from the firm of Coles Barton, filed a defamation against the anonymous poster. It is not at all clear why Austin suddenly revived his interest in the adverse story; a Carrollton lawyer to whom I spoke speculated that Austin might have retained that same firm to help him get his license back. Perhaps the suit might have been intended to exercise the “right to be forgotten” by pushing a compelling account of the previous charges against him out of the public eye. Apparently, Austin and his lawyers have no understanding of the Streisand effect.
I became involved because Austin has subpoenaed Google to produced identifying information about the poster. Yesterday afternoon, with the assistance of Phil Malone at Stanford Law School’s IP clinic, I filed a motion to quash the subpoena, pointing out that the lawsuit that the subpoena purports to advance was filed more than five years after the statute of limitations expired. Another problem with the subpoena is that California follows the Cahill variant of the well-known Dendrite standard governing subpoenas to identify anonymous Internet users, and thus Austin will be required to show that the video contains false statements about him. In the course of investigating the case, I have tracked down a set of interviews with the victims, and although I did not receive them in time to file those with the court, I expect to have them in hand shortly for filing at the reply stage.
The Fees Aspect of the Litigation
Ordinarily, I would not take one of these subpoena cases to litigate at the trial court level in California because the law is so well settled there, but there is an aspect of the case that is more interesting. Several years ago, the California Court of Appeal ruled, in a case we handled involving a subpoena from the so-called “randy rabbi,” Mordecai Tendler, that California’s anti-SLAPP statute cannot be used to strike subpoenas sought in support of litigation in a different state. The California legislature responded by amending its Code of Civil Procedure to provide that, when the target of such a subpoena successfully moves to have the subpoena quashed, the court "shall" award attorney fees. This statutory provision can help encourage lawyers to take subpoena cases as, for example, the inclusion of a “special motion to quash” in DC’s anti-SLAPP law has encouraged lawyers to take on such motions pro bono. And equally important, it can create a disincentive for the issuance of groundless subpoenas to the California ISP’s that can only be subpoenaed in California. But, so far as I have been able to determine, that statute has not yet been applied. In order to fortify the disincentive, we intend to argue that, like any other attorney fee award under the discovery rules, that the lawyer can be held responsible along with the client.
I personally urged the lawyer who signed the subpoena, John Autry (whose name does not appear on his firm’s web site), to withdraw the subpoena. I am willing to assume that, given the nature of the legal practice described on the Coles Barton web site, their research might never have brought section 230 immunity to their attention, but Mr. Autry certainly knew that the defamation action was time-barred; he was defensive about that aspect of the case when I first spoke to him. Moreover, however much Mr. Autry might be willing to let his client proclaim his innocence when not speaking under oath, he cannot possibly doubt that the anonymous poster had at least some reason to believe that Austin was guilty of the charges for which he was indicted, and which were described in detail during the television broadcast. I don't see how he can possibly expect to make out a prima facie case in support of his client’s causes of action, and he can fairly be held responsible for not having noticed that California requires the plaintiff to present sufficient evidence to make out a prima facie case before an online poster can be outed. Thus Austin’s lawsuit has no realistic chance of success, and Mr. Autry can be faulted for lending his position as an officer of the court to obtain issuance of a subpoena that represents pure bullying, perhaps undertaken in the hope that the anonymous user might be unable to find and afford counsel to have it quashed in California.
It is a shame that Austin’s lawyer was neither able to persuade his client to drop the subpoena, nor willing to withdraw his own participation in this travesty. At this point, however, it seems likely that the lawyer will have to join his client in paying a financial price for that bullying.
