by Paul Alan Levy
A trial judge in Texas has turned down a motion to compel Yelp to comply with a subpoena seeking identifying information about an unhappy consumer who complained about alleged misconduct by a Texas real estate firm, the Rhodes Team, and its agent, one Jeremy Wages, who allegedly did not stay in touch with the consumer or give good information about how much his or her house was worth; the consumer claims that, as a result, the house was sold for too low a price. The complete review is on page 3 of this brief.
Apparently trying to draw on the recent decision of the Virginia Court of Appeals in Yelp v. Hadeed Carpet Cleaning, currently pending on appeal before the Virginia Supreme Court, the complaint tried to set forth a cookie-cutter version of Hadeed’s claim, asserting in an exceptionally nonspecific way that plaintiffs had looked through their database of customers and could not identify the anonymous critic as being a real customer, and on that basis claimed that the review must contain false statements. Representing Yelp, we presented the Dendrite argument, noting both that the plaintiffs had presented no evidence of falsity and that, in any event, they were suing on a criticism that was more than a year old (hence outside the statute of limitations for libel claims). We also argued that plaintiffs had no right to pursue their subpoena in Texas because Yelp is not resident there and the Texas Rules of Civil Procedure, coupled with the Texas version of the Uniform Interstate Deposition and Discovery Act require subpoenas to an out-of-state witness like Yelp to be pursued in California, where it is based. It was, indeed, remarkable the number of procedural rules plaintiffs had violated in bringing their motion to compel.
At the hearing, there was a great deal of bluster from the plaintiffs’ lawyer, Robert Wilson, about the proofs he could mount if the Court were to hold an evidentiary hearing on the sufficiency of his evidence supporting the subpoena. I found myself doubting what he said he could prove because his briefs and correspondence had been so full of hot air and misstatements — and besides, if his clients could prove these things, why didn’t they just submit affidavits? Wilson's briefs are here; readers can judge the quality of the lawyering for themselves.
However, the judge never got to the First Amendment anonymity issue, but went off on the jurisdictional issue, and in an unusual way. The judge noticed that the Texas rule on special appearances allows only “parties” or indeed “defendants” to file a special appearance, and he asked for supplemental briefing on whether a “special appearance” was the proper way for Yelp to object to the Court’s jurisdiction. In the end, the judge went with the literal language of the rule and held that, as a nonparty, Yelp could not use the special appearance process, but at the same time he quashed the subpoena for improper service and denied the motion to compel.
Plaintiffs had the gall to seek sanctions against Yelp for objecting to the subpoena, but it strikes me that it is plaintiffs who ought to be worried, because Wilson made the remarkable claim to me that in Texas, the quashing of a subpoena means that Yelp now has to comply with it and provide evidence. When I asked it he had supporting authority, he exclaimed that I was wasting his time and hung up the phone.