Autoadmit Lititgation Update, a Continuing Series
posted by Dave Hoffman
In May, I blogged about a motion to quash a subpoena seeking information about an anonymous poster’s identity in the Autoadmit litigation. Although it briefly looked like Judge Droney might throw out the case on SMJ grounds, last week he denied the motion to quash, and let the lawsuit proceed (while denying defendant’s petition to continue to proceed anonymously). The decision makes all of the expected moves. I do think it odd that posters’ expectation of privacy could be vitiated by AT&T’s Internet Services Privacy Policy (which states that they will comply with discovery requests). This argument would suggest that there is never an expectation of privacy online – a result that I imagine Solove would find somewhat objectionable.
Curiously, in a motion filed Friday to extend the time to file their amended complaint to August 7, plaintiffs state that they “recently learned that the subscriber disclosed by AT&T is not John Doe 21 (“AK47″) but likely knows his identity.” In light the admissions in AK47′s pro se motion to quash, I’m left a little confused as to what is going on in the litigation. Also of interest, plaintiffs state that they are “close to identifying five additional pseudonymous defendants in the case. Specifically, Plaintiffs are in the process of scheduling a deposition with one pseudonymous defendant . . . Plaintiffs have discovered the identities of three additional pseudonymous defendants, and are very close to deciding whether to name these individuals as defendants.”
June 23, 2008 at 1:06 pm
Posted in: Law Student Discussions
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Responses (23)
Howard Wasserman - June 23, 2008 at 2:30 pm
No matter how weak the copyright claim is and no matter the motive for including it, as long as it remains in the case, there is federal jurisdiction. If the defendants want out of federal court, they need to get rid of that claim on the merits, after which I would guess the court will decline jurisdiction over all those state-law claims.
Marc J. Randazza - June 23, 2008 at 4:26 pm
A few things about this confuse me, now that I’m not counsel of record to anyone in this case:
1) Why is Droney allowing the plaintiffs to continue anonymously? It seems like their arguments against AK47′s motion to do so would apply to them as well. It isn’t as if the entire world doesn’t know who they are. More importantly, it seems like their lawyers even bungled the issue of who was who in trying to keep the “Doe I” and “Doe II” straight. Finally, they seem to be using the “Doe” moniker to mislead the court. For example, AK47 writes something to the effect of “Women named Heide should be raped.” Nasty, awful, and brutish… but then the Plaintiffs say he wrote “women named DOE II should be raped,” it creates the misleading impression that he provided her whole name.
2) Even if the copyright claim wasn’t bogus, which it appears to be, only one plaintiff has a copyright claim. Why does one plaintiff with a copyright claim create SMJ for another plaintiff with a defamation claim? That seems to be stretching supplemental jurisdiction to its snapping point.
Howard Wasserman - June 23, 2008 at 5:24 pm
This is what used to be called “pendent party jurisdiction” (claims bootstrapped onto an anchor claim, brought by a separate party). One purpose behind § 1367 was to re-establish this form of jurisdiction, at least where the anchor claim is based on § 1331 and the claims form part of the same case-or-controversy. Now, the fact that it is different plaintiffs perhaps makes this a more-compelling argument for declining jurisdiction under § 1367(c). But the judge does not seem inclined to do so, at least so long as the copyright claim remains in the case.
Marc J. Randazza - June 23, 2008 at 6:54 pm
I guess I’m just having trouble seeing this as “the same case or controversy.”
Copyrighted material owned (perhaps) by Iravani appears on T10 website – posted by some unknown defendant.
Other unknown defendants say defamatory things about Heller on another website.
I guess they are “related” the same way all vertebrates are related, but I believe that “same case or controversy” should be a little closely related than that.
(BTW – I see nothing wrong with using the IRL names, since they are named defendants in the E.D. Pennsylvania now, but if you feel a desire to edit them out, I’ll not be offended)
Jack Jackson - June 24, 2008 at 8:05 am
Common nucleus of fact.
disgusted - June 24, 2008 at 9:57 am
Judge Droney is allowing the plaintiffs to continue anonymously, but Ciolli and Randazza are doing everything possible to name them, shame them, and shepherd more abuse their way.
Marc J. Randazza - June 24, 2008 at 12:14 pm
Disgusted,
As I’ve noted before, I don’t have a dog in this fight anymore. And, as I noted above, if the blog publisher has any reason to think that the names should be removed, I have no problem with that.
However, using this Doe I and Doe II nomenclature has already confused their very own attorneys. T,.hey’ve been named in another action. They willingly, voluntarily, and joyfully engaged the press. I feel no obligation to cloud a discussion of the case with more of this Doe I and Doe II nonsense.
I’m certainly not doing *everything possible* to name or shame them. I’ve not pulled a Leiter, making sure that I use their names in post titles. I’ve only used their names when it was instrumental to a point I was making. At all other times, I respect their desire for anonymity by referring to them as “the Plaintiffs” or “the Does.”
Nobody is trying to “shepherd more abuse their way”. Nor to “shame them”. They are being made to account for their actions in the E.D. Pennsylvania, and Mr. Ciolli’s case has merit — which is far more than can be said for their case against him.
They are worthy of being shamed. They filed a patently frivolous lawsuit against Mr. Ciolli and Mrr. Mariner (pseudonym, “a horse walks into a bar association”). They comported themselves in a shameful manner.
Naturally, I am certain you’ll respond with a “well what about (insert name of defendant here)”. I don’t care about the other defendants. If someone crashes into me with a car, I don’t sue everyone in a three mile radius.
With respect to their anonymity, Droney has not yet been asked if they can continue anonymously. I think that if a defendant requested that anonymity be stripped away — using nothing but the arguments that they presented to challenge AK47′s request, Droney would likely grant it. As they close in on other defendants, at least one of them will think of it.
careful there - June 24, 2008 at 4:53 pm
MJR – I think you’ve crossed the line. You say “They are worthy of being shamed” and then use their names, which you consider to be justified by the fact that they were named in a lawsuit. I know you’re not involved in the E.D Pennsylvania suit, but you’re beginning to make it sound like a SLAPP. You can’t just expose an anonymous plaintiff because of a pending lawsuit like this and then excuse your actions by saying “they deserve it.” That kind of thinking belongs over on AutoAdmit, no?
zbk - June 24, 2008 at 9:48 pm
Careful,
I think you misconstrue Mr. Randazza’s comments. I don’t think he is fully advocating that we go out and do anything we can to publicly shame the girls.
However, he is implying that this type of shaming is a comeuppance that they should’ve expected when filing lawsuits against one of the original D’s in teh Autoadmit litigation (namely the one they summarily dropped after publicly shaming him).
12XU - June 24, 2008 at 11:01 pm
I have the utmost sympathy for “the does.” However, I also deeply sympathize with Mr. Cioli. He did nothing tortious, nothing even remotely immoral to either of the does, yet they name him as a defendant, refuse to serve him, refuse to negotiate with him or his attorney, and allegedly offer to dismiss him if Mr. Cohen (an unrelated third party, not named in the litigation) meets their demands. I therefore hardly think it’s at all fair or accurate to accuse Mr. Cioli of attempting to name and shame the does.
Tim Smith - June 25, 2008 at 12:03 pm
The real “bad guy” in all of this is Reputation Defender; without their publicity-seeking and escalating behaviors these two girls would not have had a hard time getting the material removed. Many people have been “outed” or mocked on Autoadmit and other sites and, at least in the case of Autoadmit, all the other ones manage to get the material removed within a matter of weeks and move on with life. Virtually all of the complaints the Does have came after Reputation Defender actively sought publicity for the girls’ cause and then encouraged them to file a suit in Federal Court. As a result of listening to RD, they’re stuck in another court case where they are defendants.
Randazza's groupies are here - June 25, 2008 at 12:28 pm
See http://www.biglawboard.com/blb/viewThread.jsp?threadId=22934&x=8
http://www.biglawboard.com/blb/viewThread.jsp?threadId=21413&x=3
Marc J. Randazza - June 25, 2008 at 12:53 pm
Careful There,
I’m not sure what “line,” you think I crossed. I’m willing to listen to any discussion of it though.
With respect to Ciolli’s E.D. Pa. suit being a SLAPP suit, I fail to see the logic in such a claim. A SLAPP is an unjustified suit filed in order to punish someone for exercising their First Amendment rights (to speech or petition).
But, if there is a justification for the suit, by definition, it can not be a SLAPP. If you read Mr. Ciolli’s complaint, and you find charges in there that are unjustified, please discuss.
anony - June 25, 2008 at 1:14 pm
Randazza – I’m sympathetic to “careful there” as well. While Ciolli’s case is not a SLAPP, both it and the Doe’s case are nothing more than unanswered briefs. None of us are in a position to make a judgment on the merits, seeing how there hasn’t even been a response yet. Yet you can see the danger here. Party A is granted anonymity to sue Party B. Party B turns around and sues A in another district and then others go online and broadcast the real name of A. Certainly you can’t believe that a mere allegation of wrongdoing in another court can serve as justification to remove court-ordered anonymity. Imagine if Droney had quashed the subpoena. Could the Does just turn around and sue AK47 under his real name for something frivolous and then broadcast it everywhere?
Until Ciolli wins anything, I think there’s no justification in “outting” the Does. You may think that Ciolli has a good suit, but you’re not an unbiased individual.
Nonymo - June 25, 2008 at 1:21 pm
Heide Iravani and Brittan Heller are abusing the legal system for their own ends.
What happened to them was terrible–they were maliciously Google-bombed and had their reputations smeared. But that doesn’t give them license to do the same thing to other innocent people. Ciolli did nothing tortious, and went out of his way to help Iravani and Heller. Nonetheless, they frivolously named him as a defendant, along with several other AutoAdmit posters who did nothing tortious.
It was obvious that Ciolli and several others had committed no tort, but the “Does” dragged their names through the mud in an act of revenge. In so doing, they lowered themselves to the level of their harassers, and abused the justice system to do it.
Like AK47, pauliewalnuts, and the other truly culpable defendants, the “Does” and their attorneys are a disgrace.
Nonymo - June 25, 2008 at 1:30 pm
anony,
I think your suggestion that Ciolli (or anyone else) is currently “outing” the “Does” is a little off.
The “Does” had already been Google-bombed, which is largely the basis for their lawsuit. Their names are widely known. And they have publicized their case through interviews with major newspapers. It’s a stretch to suggest that anyone is currently “outing” them.
zbk - June 25, 2008 at 2:01 pm
To Randazza’s groupies are here,
We’re not his groupies. We are a mix of Lawyers, law students, future law students, and others (I fall into a mix of categories). I think it’s fair to say that most of us on BigLawBoard.com are fairly young though.
We enjoy the fact that we can have serious to semi-serious conversation with him. He’s willing to discuss a breadth of current legal issues issues with us and is accessible. Instead of criticizing us as his groupies, you are more than welcome to join us in debate over at BigLawBoard. If you don’t like some of the more asinine and sophomoric things that many of our posters, myself included, like to debate, you can simply block them. We’ll usually have them tagged as NSFW.
When we invited Mr. Randazza back in the day to join our group, he didn’t even think twice about it, seeing it as an opportunity to reach out. We also appreciate his input greatly in many of our discussions there, but to say that we are his groupies is more than a bit misleading.
zbk
Marc J. Randazza - June 25, 2008 at 2:31 pm
No, you’re my groupies! (Just kidding)
And anon is right… I *am* a little biased. My bias does come from personally observing the evidence and facts, but it is true that the Ciolli case in E.D. Pa. is just an unanswered complaint at this time.
Nevertheless, there has not been “court ordered anonymity.” The “two does” filed as “Doe I” and “Doe II.” Droney had no part in that, and as of yet, no defendant has challenged it.
My guess is that Droney would remove the anonymity if asked to. All a defendant would need to do is use the memorandum of law that defeated AK47′s request and add in a little discussion of how even the Does attorneys didn’t know which Doe was which through two revisions of their complaint.
And finally, nobody has “outed” the Does. Everyone knew who they were. Their quest for “privacy” is belied by their rush to the spotlight. Just as the pseudonymous defendants in their action should be identified and forced to answer for their words, the Does should be required to answer for their bad faith litigation.
“You break it, you buy it” applies to everyone.
careful there - June 25, 2008 at 2:59 pm
Well MJR – your guess is as good as anyone’s, but until Droney actually removes their anonymity, I think it should be respected. It’s just basic courtesy and smart practice in situations like this. Once there is action on either case, then you can shame these women however you want. Until then, however, just chill a bit.
careful there - June 25, 2008 at 3:02 pm
and if everyone knows who they are, then why do you need to keep bringing up their names?
Nonymo - June 25, 2008 at 4:12 pm
careful there,
To discuss specific individuals, we have to call them something. “Plaintiffs” is imprecise here, because there are now two AutoAdmit suits, and Heller and Iravani are defendants in one. And you can’t call them “Does” without implying that you buy into their entitlement to anonymity.
The best way to refer to them is the same way you refer to anyone else–by name.
Marc J. Randazza - June 25, 2008 at 4:41 pm
Careful there,
I have thought this out:
When I refer to both of them collectively, I refer to them as either Plaintiffs, Does, or if I need to differentiate which “plaintiffs” I am talking about, I use the term Hellervani, which wont show up on google for a search for either individual.
When I must refer to one or the other, without creating confusion, then (and only then) I use their names. Like I said above, I do respect their desire for privacy.
I guess I try and use the rules I would have used as a journalist regarding a crime victim. If there is a need and a reason to use the name, do so. If the story can be told without it, then don’t.
As far as “shaming” them goes, would you care to cite examples of how I have “shamed” them or examples of when I could have “chilled” a bit? Publicly or in a confidential private email, either way. I’m extremely open minded on this subject, would truly appreciate feedback, and would even take remedial measures if I’ve done something to increase anyone’s pain.
12XU - June 25, 2008 at 7:08 pm
I usually use ‘HI’ or ‘BH’ if I need to refer to either of them individually. I am inclined to respect their desire to remain anonymous.
However, I don’t see a huge problem with others using their full names. After all, they are both named defendants in a PA lawsuit that, on its face, appears to have merit.
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