Reprinted from:
Citizen Media Law Project http://www.citmedialaw.org
Copyright 2007 Citizen Media Law Project and respective authors.
Judge Sanctions Lawyer for Issuing Subpoena to Blogger Kathleen Seidel
June 23rd, 2008
by David ArdiaA federal magistrate judge in New Hampshire has sanctioned Clifford Shoemaker, a Virginia attorney, for abusing the legal process by issuing a subpoena to Kathleen Seidel. Seidel publishes the blog Neurodiversity, where she writes about autism issues. In February 2008, she wrote about a lawsuit against various vaccine manufacturers, Sykes v. Bayer, in which the plaintiffs Lisa and Seth Sykes sought to link exposure to mercury to their son’s autism. (For more on her statements about the lawsuit, see my previous post: Blogger Kathleen Seidel Fights Subpoena Seeking Information About Vaccine Litigation.)
On March 24, 2008, Shoemaker, an attorney for the Sykes, served Seidel with a subpoena in connection with the Sykes v. Bayer lawsuit. The subpoena demanded that Seidel appear for a deposition on April 30, 2008, and that she produce a shockingly broad collection of information, including her bank statements, tax returns, communications with religious organizations, and personal correspondence with other bloggers.
On April 21, magistrate judge Muirhead granted Seidel’s well argued motion to quash the subpoena. The judge also ordered Shoemaker to show cause why he should not be sanctioned under Federal Rule of Civil Procedure 11 for issuing the subpoena. In response, Shoemaker filed a rambling opposition to potential sanctions in which he asserted that Seidel was engaged in a conspiracy with Bayer and others to harass him, his client, and various witnesses. (With the help of Paul Levy from Public Citizen, Seidel filed a restrained response that made Shoemaker’s outlandish claims seem all the more, well, outlandish.)
Not surprisingly, the judge didn’t buy any of Shoemaker’s conspiracy theories and in a strongly worded opinion, made it clear that the subpoena was an abuse of the legal process:
Mr. Shoemaker made no attempt to avoid imposing an undue burden or expense on Ms. Seidel. To the contrary, I find that he sought to burden her by requiring production of every scrap of paper related to autism, her web site, her tax returns, and her communications with the government. He improperly imposes a requirement to create documents, e.g., a list of “names of persons helping, paying or facilitating . . . these endeavors.” The documentation sought is exhaustive. . . .
Shoemaker has not offered a shred of evidence to support his speculations. He has, he says, had his suspicions aroused because she has so much information. Clearly he is unfamiliar with the extent of the information which a highly-competent librarian like Ms. Seidel can, and did, accumulate. If Shoemaker wanted to know if Ms. Seidel was in part supported by or provided information by Bayer, he could have inquired of Bayer or limited the Seidel subpoena to that information. Instead he issued the subpoena calling for production of documents and a deposition on the day before he stipulated to dismiss the underlying suit with prejudice. His failure to withdraw the subpoena when he clearly knew that suit was over is telling about his motives. His efforts to vilify and demean Ms. Seidel are unwarranted and unseemly.
In the end, the judge didn’t order Shoemaker to pay a monetary sanction, but he did order the Virginia lawyer to attend ethics training and directed his court clerk to notify the Virginia State Bar so that it could consider disciplinary action on its own.
Shoemaker and his client have a right to disagree with Seidel and, if they think they’ve been the victims of a conspiracy, to sue her. But they don’t have a right to misuse the legal system to coerce a critic to “shut up.” As I’ve noted before, we all lose when we allow that to happen.
(You can read more about the case in our Legal Threats Database entry: Sykes v. Seidel.)
This article is reprinted here under a Creative Commons Attribution-Noncommercial-Share Alike 3.0 License. Details on this license can be found on the Creative Commons website.
Left Brain Right Brain 
I hope that ethics classes don’t come cheap.
Mr. Shoemaker should be made to compensate Ms. Seidel for lost time in her efforts to defend herself, in my opinion.
The fact that Mr. Shoemaker has made Ms. Siedel much more famous, has given many more people a chance to read her well written opinions and has left a notable mark on the internet of his own willingness to step outside the bounds of professional conduct are not compensation enough.
This is deliciously awesome.
My favorite paragraph:
“Clifford J. Shoemaker’s action is an abuse of legal process, a waste of judicial resources and an unnecessary waste of the time and expense to the purported deponent.”
Second favorite is the one about Shoemaker’s exploits being reported to the Virginia Bar.
How long will it take for the first accusation from the mercury militia that Judge Muirhead is in on the conspiracy to poison children with vaccines?
Hat’s off to David Ardia for an excellent summary.
I like this part from the judge’s opinion (page 5).
“Shoemaker has not offered a shred of evidence to support his speculations. He has, he says, had his suspicions aroused because she has so much information. Clearly he is unfamiliar with the extent of the information which a highly-competent librarian like Ms. Seidel can, and did, accumulate.”
“Clearly he is unfamiliar with the extent of the information which a highly-competent librarian like Ms. Seidel can, and did, accumulate.”
Even a housewife or whatever the good Rev. Sykes referred to Kathleen as might have been able to do as well given the right motivation.
Classic slap on the wrist. I find professional policing to be a joke.
What I think is a joke is the kind of money that lawyers like Cliffy make on vaccine cases, even those that are likely to lose, and they must know up front have a good chance of losing.
Remember, it was Kathleen’s blogging on a similar topic that seemed to have brought the wrath of Cliffy down upon her.
I appreciated that the judge in this case gave very little (that is to say, none) weight to the stuff written by Geier and Sykes trying to paint Kathleen as a bad’un. I wonder if they could be held liable for libeling Kathleen, not to mention for libeling her husband and trying to impugn the reputations of the bloggers listed in her blog-roll. Hey, maybe the Bayer corporation would like to roast Cliffy’s toes over a fire?
Someone ought to be paying out cash to Kathleen for the time this has taken to deal with, at least.
Schwartz said “Classic slap on the wrist. I find professional policing to be a joke.”
Thank you.
“The fact that Mr. Shoemaker has made Ms. Siedel much more famous, has given many more people a chance to read her well written opinions”
—
Now wait a minute, this must mean that Shoemaker is in fact in the thrall of pharmaceutical companies (a double agent if you will) to thwart the anti-vaccine litigation, which is CLEAR evidence of a conspiracy!
—
^
|
Sarcasm, indeed it is.
The judge said: “Clearly he is unfamiliar with the extent of the information which a highly-competent librarian like Ms. Seidel can, and did, accumulate.”
A highly skilled, and motivated, librarian, as Kathleen is, can take information and turn it into a weapon to destroy those who abuse truth.
I can see it now…
Since superhero movies are all the rage, they should come out with one titled “The Librarian” starring Kathleen Seidel in the starring role (picture a flowing cape with bits of information-kind of “Matrix” like- and a big “L” embroidered on the chest of her costume).
“She Dewey Decimates her evil adversaries thru careful research, attention to detail, insightful conclusions, and dogged determination! No one SLAPPS her around.”
Joe
Think “Secret Agent Man”
She’s a li-brar-i-an, a li-brar-i-an
They’ve given her a card-catelogue and taken away her name…
Since this is certainly autism-related news, won’t it be covered by ace reporter Dan Olmsted on Age of Autism?
Albert,
I was wondering the same thing. I thought it was hilarious a few weeks ago at the Autism One conference when Olmsted was discussing a statement he and Kirby had made scolding Shoemaker for his behavior.
It was a noble gesture on their part. But instead of posting that statement online — like, say, at Age of Autism? — the pair had emailed it to the blogger Orac in the form of an open letter.
At the conference, Olmsted scoffed haughtily at some bloggers who had complained that the statement hadn’t been posted in (to use the word i believe Olmsted employed) the “right” places. Actually, their complaint was that Olmsted had not said anything about Shoemaker’s ridiculous antics on HIS OWN WEB SITE. You know, the one he EDITS?
You almost get the sense it’s something he doesn’t really want his regular readers to hear.
(Almost.)
I say cut Olmsted and Kirby some slack on this. They answered the “Open Letter”. They didn’t have to.
Well deserved victory!
Somehow the folks at AOA seem to avoid presenting news when the “nd” word is floating around.
I’ve deleted all Lurker’s stupidness and all responses pertaining to it.
Lurker – if you want to discuss childish conspiracy theories, go somewhere those are enjoyed.
Olmsted and Kirby would do as little as possible to seriously embarrass the plaintiff lawyers. These lawyers are their income.
One of the features of the Shoemaker subpoena that made me the angriest was the assumption that a middle-aged woman couldn’t possibly be capable of the work Seidel produces.
But Joe’s idea made some of the rage subside
HCN,
I’m glad we agree on this one. I find I see the same apathy in Medicine and my own profession of engineering.
I used to read the regularly published cases in my own organizations’ publication, but I became so disgusted, I don’t waste my time anymore.
For those who are cheering this — albeit, it is a public slap and thus a minor victory — you should also be disgusted that unprofessional behaviour like this is ignored by most professional organizations.
Ethics class indeed.
Minor? The real meat in this was the initial quash. Take away the language in that document having to do with Mr. Shoemaker having to show cause why he shouldn’t be sanctioned. Take a look at the response to the motion to quash. The response from the judge was simply “granted”. This in response to the argument that that bloggers are de-facto journalists excercising first ammendment rights.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
In the US, this is a big deal.
That’s why it got so much attention. That’s why Public Citizen got involved.
The fact that Mr Shoemaker got sanctioned is just icing on the cake.
I only wish it applied to the UK as well.
Sullivan,
It is my assumption that ridiculous requests would be quashed summarily by courts — as it appears to have been. It’s the abuse that bothers me.
My disappointment is that punishment without any teeth, isn’t really a punishment and certainly doesn’t make a good deterrent.
This appears to be a repeated theme for many professionals that abuse their professional responsibilities with little to no recourse.
Unless you consider the Ethics class a deterrent…
I consider having a record of abusing his position as an officer of the court to be some deterrent, yes. He knows that should he try this again, the next judge will be informed of his (Mr. Shoemaker’s) history.
Yes, at least that is true. I guess you get at least one strike…
Although not directly related, the Supreme Court of Canada today re-affirmed freedom of expression without fear of libel when discussing items of “public interest”.
““The traditional elements of the tort of defamation may require modification to provide broader accommodation to the value of freedom of expression,” Mr. Justice Ian Binnie said for the majority Friday.
“There is concern that matters of public interest go unreported because publishers fear the ballooning cost and disruption of defending a defamation action. Investigative reports get ‘spiked,’ it is contended, because, while true, they are based on facts that are difficult to establish according to rules of evidence.
“When controversies erupt, statements of claim often follow as night follows day, not only in serious claims (as here) but in actions launched simply for the purpose of intimidation.”
There is nothing wrong with laws that “chill” speech that is false and defamatory, Judge Binnie said. “But chilling debate on matters of legitimate public interest raises issues of inappropriate censorship and self-censorship,” said. “Public controversy can be a rough trade, and the law needs to accommodate its requirements.””
http://www.theglobeandmail.com/servlet/story/RTGAM.20080627.wscocmair0627/BNStory/National/home