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DAVID R. OWENS, State BarNo. 180829dowens @owenstarabichi. comBRUNO W. TARABICHI, State Bar No. 2 1 5 129btarabichi@owenstarabichi. comOWENS TARABICHI LLP111 N. Market St., Suite 730San Jose, California 95113Telephone: 408-298-8200Facsimile: 408-521-2203

Attorneys for RespondentOliver Gobat

St. Lucia Free Press,

Petitioner,

Oliver Gobat,

Respondent.

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COLINTY OF SAN FRANCISCO

Case No. CPF-I3-513220

RESPONDENT OLIVER GOBAT'SoPPOSTTTON TO MOTTON TO QUASHSUBPOENA AIID REQUEST FORSANCTIONS

Date: October 16,2013Time: 9:00 amDept.: 302Judge: Hon. Marla J. Miller

DISCOVERY

Opp. to Mot. to Quash

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owens tarabichi 1lpCounselors At Law

I.

II.

ru.

C.

The U.K. order was validity issued-Petitioner's arguments are based

on afabrication of U.K. rules and inadmissible heresay '...............3

The U.K. court determined that is has jurisdiction over Respondent

Gobat's defomation claim-Petitioner's argument to the contraryis againwithout evidence or merit..... ..........5

Respondent Gobat has a clear prima facie case for defamation and

Petitioner's failure to specifically address the defamatory statements

speala volumes.... .................'.....6

l. Defendant has a primafacie defamation claimunder applicable U.K. law.... .....'...........7

a. The article at issue contains defamatory statements that reduce

Respondent'sesteemandreputationinsociety.'..... .."....'.'.'.8

b. The article containedwrittenwords about Respondent

and was published to those other than Respondent ..............................10

2. Even assuming, arguendo, that U.K law is inapplicable,

Respondent has a primafacie defamation claim under U.S. \a.........'.'..." 10

Petitioner's meritless orguments ore so lacking in credibilityand goodfaith that sanctions against Petitioner and its counsel

are appropriate .......... ..."""""' 13

IV.

A.

B.

D.

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'*.";:":?"Tt^':*"0

TABLE OF AUTHORITIES

Page

Cases

Baker v. Los Angeles Herald Exam'r,42 Ca1.3d254,260 (1986) ......12

ChaplinslE v. New Hampshire,315 U.S. 568,571 (1942)....... ....................10

Ferlauto v. Hamsher,74 Cal. App. 4th 1394,1401 (1999) ..........11

Forsher v. Bugliosi,26 Ca1.3d792,806 (1930) '.....13

Gertz v. Welch,418 U.S. 323,347 (1974)....... ....................11

Jeffers v. Screen Extras Guild, Inc.,134 Cal. App.Zd 622, 623 (1955) ...............1

Krinslcy v. Doe 6,

159 CaL App. 4th ll54,ll72 (2008) ................7,12,13

Letter Carriers v. Austin,418 U.S. 264 (1974) .................11

Mclellan v. Mclellan,23 Cal. App. 3d 343,359 (1972) .................4

Nygard, Inc. v. Uusi-Kerttula,159 Cal. App. 4th 1027 , 1047 (2008) ........1 I

Seelig v. Infinity Broadcasting Corp.,97 CaL App. 4th 798, 809 (2002) ..............11

United States v. Stevens,59 U.S. 460,460 (2010)....... ......................11

Statutes

Cal. Civ. Code $$ 44-45 ......................11

Cal. Civ. Proc. Code S 2029.200(e)............. ............3

Cal. Civ. Proc. Code S 2029.350 .......1, 3

Cal. Evid. Code $ 1200.......... ........-.......4

28 U.S.C. $ 4102 et seq. ......................10

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LRSF 10.0(c)(1).. ."""""""14

U.K. Civil Procedure Rule 40.2(1) and (2)............. ................"'3

Treatises

32 Halsbury's Laws of England $ 510(Lord Mackay of Clashfern ed., 5th ed. 2012) -...'1 ,9, ll

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I. INTRODUCTION

California law permits the issuance of a subpoena based upon a foreign subpoena. Cal.

Civ. Proc. Code g 2029.350. Respondent obtained a valid order from a U.K. court entitling him

to seek identifying information about a person who defamed him on a website and through the

sending of emails. A subpoena based upon the U.K. court order was properly served on

Automattic, Inc., the entity with the identifying information. But, Petitioner, in an ill-advised and

desperate attempt to avoid identification and liability for defamation, has, without any sufficient

legal basis, moved to quash this subpoena. Petitioner's motion should be denied and monetary

sanctions awarded to Respondent.

II. BACKGROTIND

Respondent, Oliver Gobat, a national of both St. Lucia and the United Kingdom, has been

defamed by the publication of completely false statements made in connection with a Wordpress

blog on a website having a URL of http://stluciafreepress.wordpress.com, which is hosted by

Automattic, Inc., and by emails, which also reference this website. (Gobat Decl. flfl 14,16,17 )r

Specifically, these publications state, among other things, that Mr. Gobat (i) is a "pirate" who

rips-off investors, St. Lucian banks, and exploits the St. Lucian government and its people; (ii)

has caused the insolvency of a resort known as the Landings Resort; and (iii) has exploited his

position as a sales agent to sell properties at artificially high prices and sell at artificially low

prices causing significant losses to others. These defamatory statements, as discussed further

below, relate to Mr. Gobat's reputation as a businessman in his professional endeavors in St.

Lucia and the U.K. and have caused significant damage to Mr. Gobat financially and emotionally.

The author of the blog, however, remain anonymous. (Id. at fl 18.) Accordingly, Mr.

Gobat has been forced to file a claim for defamation against "Person(s) LJnknown" in the High

Court of Justice, Queen's Bench Division in the U.K. (Hurst Decl. l2; see Mot. to Quash Ex. A

(copy of the Claim Form).) To facilitate the identification of those responsible for the defamatory

I The Declaration of Oliver Gobat in support of Respondent Oliver Gobat's Opposition to Motionto Quash Subpoena and Request for Sanctions is filed concurrently with this Opposition and isreferred to herein as "Gobat Decl. fl_." Respondent invites the Court to review Mr. Gobat'sDeclaration as it contains a recitation of the surrounding facts regarding the defamation that hasoccurred.

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statements, Mr. Gobat also obtained a validly issued order from the High Court of Justice,

Queen's Bench Division, in U.K. permitting him to obtain information from Automattic relating

to the blog, including registration data and contact details for the blog and website (the "U.K.

Order"). (Hurst Decl. !} 2; see Mot. to Quash Ex. A (copy of the U.K. Order).)

Service of the U.K. Order on Automattic was effected through a California subpoena

issued by Mr. Gobat's California counsel.2 (See Mot. to Quash Ex. A (copy of the subpoena).)

Service of the California subpoena was accepted by counsel for Automattic. (Owens Decl. !f _.)3

However, prior to Automattic's compliance with the subpoena, St. Lucia Free Press, the

Petitioner and an individual who admits to owning and operating the subject website and blog,

(seePet. To Quash Invalid Subpoena fl 1) filed the instant Motion to quash this subpoena.a

ilI. ANALYSIS

Petitioner, without evidence and without legal merit, attacks the subpoena in question with

three arguments. First, Petitioner argues that the U.K. Order is invalid-it is not. Second,

Petitioner argues that the U.K. court did not have jurisdiction to issue the U.K. Order-it did.

Third, Petitioner argues that Respondent did not make a prima facie case for defamation-he has.

Petitioner's arguments for quashing this subpoena are facially unfounded and a clear attempt to

simply pitch any argument that might work. The lack of merit in each of Petitioner's arguments,

as identified separately below, make it undeniable that Petitioner has no problem misusing the

U.S. legal system to achieve but one objective: avoid being identiJied and held responsiblefor

his defamatory acts. Petitioner has now caused Respondent even greater expense in seeking his

identity, which is necessary for Respondent to pursue his defamation claim. Such conduct should

2 Although a previous subpoena had been served on Automattic to effect the U.K. Order, such isnot the subpoena at issue here and is irrelevant.3 The Declaration of David R. Owens in support of Respondent Oliver Gobat's Opposition toMotion to Quash Subpoena and Request for Sanctions is filed concurrently with this Oppositionand is referred to herein as "Owens Decl. fl _."a Petitioner attempts to cast stones at Respbndent and its counsel for not extending the retum datefor the subpoen4 but such has not caused any harm to Petitioner in the least. Respondent did notfile a motion to compel a response from Automattic, thereby essentially providing Petitioner withplenty of time to prepare and file its Motion to Quash. Moreover, Respondent put forth noexplanation as to why it needed additional time.

Opp. to Mot. to Quash

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not be condoned. Petitioner's Motion should be denied and he and his counsel should be

sanctioned.s

A. The U.K Order was validity issued-Petitioner's arguments are bssed

on afabrication of U.K. rules and inadmissible heresay.

Under California law, if a party to a foreign proceeding retains a licensed California

attorney, that attorney may issue a subpoena if he or she "receives the original or a true and

correct copy of a foreign subpoena." Cal. Civ. Proc. Code 5 2029.350. A "subpoena" is a

document "however denominated, issued under authority of a court of record" requiring a person

to, among other actions, "produce and permit inspection" of various types of records. 1d. at $

2029.200(e)(2).6 Respondent's subpoena is valid because it is based on a properly issued order

from a U.K. court.

Petitioner attempts to attack the validity of the underlying U.K. Order by arguing that the

U.K. Order did not bear the "signature and seal of a judge," as required by U.K. procedural rules.

(Mot. to Quash at 3.) Petitioner, however, not only misreads these rules but is fabricating rules to

suit his purpose. Under U.K. Civil Procedure Rule 40.2(1) and (2), the standard requirements of a

UK court order are that it (i) state the name and judicial title of the person who made it, (ii) bear

the date on which it is given or made, and (iii) be sealed by the court. (see Mot. to Quash Ex D

(copy of U.K. rules).) All of these requirements are met by the U.K. Order: it was made by Mr.

Justice Collins on June 12,2Ol3 and sealed in the High Court of Justice, Queen's Bench

5 Respondent notes that Petitioner's Motion is based_upon Cal. Civ. Proc. Code $ 19.87 .1.

Specifically, Petitioner relies upon the prqmile .thp!1!e_s^u!goena is_s_eeking personallyi,t'irntinrUt6 information p,rsuant to Cii,. Code $ 1798.79.8(9) @-ee_Mot. to Quash 4.) Petitionermust believ e thathe faili within Cal. Civ. Proc. Code $ 1987.1(b)(5) as a person whosepersonally identifying information is sought in connection with an action involving that person's'exercise of fr"" sfeeJt . Further, it is clear that Petitioner is a third.party-with respect to thesubpoena in question. Accordingly, Respondent submits that Petitioner lacks standing to move toqrurh this su6poena on any basiJother than one related to free speech. In other words,Respondent requests this Court to disregard_P_elitioner's algume_nts.based 9n P1l1gly procedural

-uti.rr (i.e.,the validity of the underlying U.K. order and jurisdiction of the U.K. court), since

Petitiondr isnot the subpoenaed party and as a third party to this subpoen4 does not have

standing to assert such objection-s, which belong strictly to Automattic as the subpoenaed p?rty.6 It doeJ not matter that the U.K. court issued an "order" instead of a "foreign subpoena." InCalifornia, any subpoena consists of a document, oohowever denominated issued underauthorityof a court of record." Cal. Civ. Proc. Code g 2029.200(e). Since the U.K. court properly issuedan order, that order forms the basis for a valid California subpoena. See id. at (e)(2).

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Division. A seal is defined as "a mark which the court puts on a document to indicate that the

document has been issued by the court." (Owens Decl. !f 2,Ex. A.) Here, the U.K. court

properly stamped the order with the seal of the Queen's Bench Division. (See Mot. to Quash Ex.

A (copy of the U.K. Order).) There is no signature requirement in the Rul*Petitioner is

simply fabricating this requirement.T Further, the transcript from the hearing before the U.K.

court clearly evidences the proper granting of the U.K. Order. (Hurst Decl. fl 3, Ex. A, p. 6, 11.

15-23.) For Petitioner to argue that such a stamped order is a "naked document drafted by

Gobat's local counsel in England but reflects no authority of any court," (Mot. to Quash at 3) is

complete nonsense and without merit.

Petitioner also bases its mistaken assessment of the validity of the U.K. Order on an

alleged phone conversation with an unnamed court clerk that allegedly informed Plaintiff s

counsel that no such order existed. (See Mot. to Quash at 3; Decl. of Catherine Gellis tT3.) AnV

conversation that occurred between a court clerk and Petitioner's counsel is hearsay, see Cal.

Evid. Code $ 1200, and cannot be considered by this Court. See McLellan v. Mclellan,23 CaL

App. 3d 343,359 (1972) (declarations or affldavits in support of a motion "must be tested by the

same rules as those applicable to oral testimony") and Jeffers v. Screen Extras Guild, Inc., 134

Cal. App. 2d 622,623 (1955) (holding that affidavits in support of a motion that were based on

hearsay were "devoid of any evidentiary value"). Petitioner's use of an alleged phone call as a

basis for concluding that the U.K. order is invalid is meritless. Again, the properly issued and

sealed U.K. Order was attached to the operative subpoena. Petitioner has put forth no evidence

whatsoever to support its ridiculous suggestion that the U.K. Order is somehow fake.

Simply put, the U.K. Order is valid. Petitioner's basis for suggesting its invalidity is

based upon a fabrication of a signature requirement and heresay. The utter lack of merit behind

7 Petitioner also suggests that the stamp only means that the Order has been ?Pplied for and reliesupon a comparison to the placement of the st?mp on the U.K. Claim Form. Does the Petitioners6riously base its position on the location of the stamp as giving the U.K. Order validity? An

.

order is only stamped by the U.K. court after it is signed by a judge; howevet, the signed copy ismaintainedby the court, and the application for order is simply stamped/sealed and returned tothe requestin! party without the jfdge's signature. (Hurst Decl_. tT 4.) Moreover,lhe subpoenaserved on Automattic included an electronic copy of the U.K. Order, which clearly displays thered colored seal, a copy of which is also attached hereto. (Owens Decl. ti4, Ex. B.)

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these arguments is clearly supportive of an ill-advised attempt to misuse the U'S. legal system to

ultimately avoid Petitioner's liability for defamation. Such should not be condoned and provides

a clear basis for sanctions against Petitioner and its counsel.

B. The [1.K. court determined that is has jurisdiction over Respondent

Gobat's defamation claim-Petitioner's argument to the contraryis again without evidence or meril

Petitioner asserts that aU.K. court would lack jurisdiction to hear Respondent's

defamation claim, despite the fact that Respondent has numerous business and personal

connections to the U.K. (Mot. to Quash at 4.) Also, Petitioner, without any evidence whatsoever,

improperly suggests that Respondent is merely ooforum shopping" in the U.K. because

Respondent "is a resident of . . . St. Lucia attempting to sue over speech made by a St. Lucia[n]

journalist concerning St. Lucian matters intended for a St. Lucian audience." (1d.)

As an initial matter, a U.K. court, not a California court, is in the best position to decide

whether that country has jurisdiction over Respondent's defamation claim. If Petitioner wishes to

assert that the U.K. is an improper venue, it should do so in the appropriate U.K. court, rather

than asking a California court to analyze foreign jurisdictional law.

Nonetheles s, the U.K. court, in issuing the (1.K. Order, has already decided that it has

jarisd.iction. (Hurst Decl. fl 3, Ex. A,p.4,11. 1-4. (Mr. Justice Collins: o'As I say this is one

where I do not think there could be any doubt. . . that it is . , . an entirely appropriate casefor

bringing proceedings in this jurisdiction.") (emphasis added).) Moreover, Respondent is rrot

merely a resident of St. Lucia; he is also a U.K. national. (Gobat Decl. fl 2.) Respondent also

maintains numerous other ties to the U.K. For example, Respondent's family resides in the U.K.,

and Respondent spends between 30-40 days in the U.K. each year. (Id. atlJ 3.) Importantly, with

respect to Respondent's defamation claim, Respondent's business largely consists of acting as a

sales agent for English property owners and marketing St. Lucian properties to English tourists.

(1d.) Therefore, Respondent's business success depends on "the goodwill that he has generated

amongst homeowners and tourists in England." Qd.)

Furthermore, the defamatory content published by this unknown'Joumalist" was not

merely a St. Lucian matter only intended for consumption by a St. Lucian audience. Respondent

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has business relationships with St. Lucian property owners that are U.K. residents (Gobat Decl. !l!f

25-27), some of whom received an e-mail directing them to the offending article (1d.). Since

people outside of St. Lucia received an invitation to view the article, the content at issue

inherently consisted of more than St. Lucian matters intended for a St. Lucian audience. These

facts are more than enough to provide a "nexus" to the U.K. and to justifu jurisdiction by a U.K.

court, as has already been determined.

Petitioner's lack of investigation into this issue evidences again that Petitioner is simply

tossing up any arguments that could seemingly be made in an attempt to avoid being held liable

for his defamatory acts.8 Such misuse of the U.S. legal system and attempts to avoid a validly

issued subpoena should not be condoned but should be sanctioned.

C. Respondent Gobat has a clear primafacie casefor defamation andPetitioner's failure to sp e ciftc ally address th e defomato ry statementsspeaks volumes.

Petitioner has published an article on his website and through emails sent to numerous

people that Mr. Gobat (i) is a "pirate" who rips-off investors, St. Lucian banks, and exploits the

St. Lucian government and its people; (ii) has caused the insolvency of a resort known as the

Landings Resort; and (iii) has exploited his position as a sales agent to sell properties at

artifrcially high prices and sell at artificially low prices causing significant losses to others.

(Gobat Decl. flfl 14-20,26.) These defamatory statements relate to Mr. Gobat's reputation as a

businessman in his professional endeavors in St. Lucia and the U.K. and have caused significant

damage to Mr. Gobat financially and emotionally. (d. at n29.) Such is a clear case of

defamation under either U.K. or U.S. law.

I Petitioner evens goes to the extent of erroneously and distractingly drawing the Court's attentionto U.K. rules regarding service. Petitioner states that Respondent was obligated to seek the U.K.court's permission to "serve" the claim form and order outside of the U.K. (Mot. to Quash at 4.)Service of the claim form or order are not an issue here, as Respondent is not attempting to servePetitioner at all. The only service that occurred in this matter is service of the subpoena onAutomattic, about which there is no issue. Petitioner has not challenged, nor does it havestanding to challenge, service, per se, of the subpoena on Automattic. Petitioner is again simplythrowing unfounded and misplaced arguments against the wall to see what sticks or to confoundthe issues thereby distracting from the overall issue-Petitioner's desire to avoid identificationand being held accountable for his defamatory acts.

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1. Defendant has a primafacie defomation claimunder applicable U.K. law,

When an unknown party makes a motion to quash a subpoena seeking his or her identity

from an Internet service provider (ISP), California courts require that the party opposing the

motion make a prima facie showing of defamation.e KrinslE v. Doe 6,159 Cal. App. 4thll54,

ll72 (2008). The facts of ,Krinslcy are similar to the facts of the instant case. In Krinslqt, arr

unknown Doe posted allegedly libelous messages on a message board owned by Yahoo! Inc. Id.

at 1158-59. The plaintiff, one of the persons attacked by the posts, sued for defamation and

served a subpoena on Yahoo! Inc. to determine the anonymous poster's identity. Id. The

unknown Doe then filed a motion to quash. Id. The court of appeal held that, if "discovery of the

defendant's identity is necessary to pursue the plaintiffs claim, the court may refuse to quash a

third party subpoena if the plaintiff succeeds in setting forth evidence that a libelous statement has

been made." Id. at 1172. To determine whether a defamatory statement has occurred, a

California court will look to the substantive law of the jurisdiction in which the defamation claim

arose. See id. at ll73-74 (setting forth Florida's defamation standard). Petitioner agrees with this

proposition. (Mot to Quash at 6.)

Since Defendant's defamation claim is being pursued in the U.K., that country's laws

control for purposes of determining whether Respondent can make the requisite prima facie

showing. Under U.K. law, a defamatory statement is one "which tends to lower a person in the

estimation of right thinking members of society generally or . . . to expose him to hatred,

contempt or ridicule, or to disparage him in his office, profession, calling, trade or business."

(Owens Decl !f 5, Ex. C (32 Halsbury's Laws of England $ 510 (Lord Mackay of Clashfern ed.,

e Petitioner states that Respondent did not provide allegations to sustain a cause of action fordefamation in either the subpoena or the U.K. Order or Claim Form. (Mot. to Quash at 4-5.)That is because Respondent is not required to do so. Respondent is only required to make a primafacie showing of defamation in response to a motion to quash. See KrinslE-v. Doe 6,159 CaLApp. 4th 1154,1172 Q008) ("We therefore agree with those courts that have compelled theplaintiff to make a prima facie showing of the elements of libel in order to overcome adefendant's motion to quash a subpoena seeking his or her identity.") Petitioner eroneously restsits entire argument on this premise: that because Respondent has not made a prima facie case inthe documents of the subpoena, such should be quashed. This again is a misreading of the law.However, as described herein, Respondent has clearly made the requisite prima facie case.

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5th ed. 2012)).) Libel, a subset of defamation, occurs when a defamatory statement is "made . . .

by written or printed words or in some other permanent form, published of and concerning the

claimant, to a person other than the claimant ." Id. at $ 51 1 . If a plaintiff establishes the elements

of a libel, U.K. law "presumes that some damage will flow in the ordinary course of events." 1d.

at $ 516. That is, a libel plaintiff need not prove damage to his reputation or any actual loss or

danage. Id.

lnanalyzing a defamation claim, a U.K. court first examines the meaning of the words

based on a reasonable person standard. Id. at $ 544. Next, a court determines whether, 'ounder

the circumstances in which the words were published, the reasonable person would be likely to

understand them in a defamatory sense." 1d.

a. The article at issue contains defamatory statements thatreduce Respondent's esteem and reputation in society.

Petitioner's article about Respondent contained defamatory statements and is libelous.

First, the article calls Respondent Gobat a"pirate," not in any comical sense but undeniably

calling Respondent Gobat's honesty into question and basically stating that Respondent Gobat is

a thief. (Gobat Decl. fl 14.) The article further implies that Respondent, along with others, was

responsible for causing "The Landings" resort in St. Lucia to be "financial[1y] defunct." (Gobat

Decl. fl 16.) However, the resort, which both locals and foreigners understand to be synonymous

with the luxury condominiums on the property, is profitable. (See id. atll12, 13.) While the

Bank of St. Lucia did take charge of the commercial areas of the property due to a loan default by

The Landings Limited (TLL) (see id. at lffl 5, 9, 10), Defendant was never involved in managing

TLL. (See id. atlll5-10, 21.) Additionally, the resort is understood to mean the condominiums

on the property, not the additional commercial areas. (See id. at lffl 12-13.) lndeed, after TLL

defaulted, Respondent and others formed a separate organization in order to take control of

governance of the resort and have "significantly improved the value of homeowner assets" since

that time. (See id. atl12.) The article thus damaged Respondent's esteem and reputation

amongst "right thinking members of society" and also disparaged him in his trade or business.

Indeed, a person's reputation is not confined to his general character but includes his "knowledge,

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skill, capacity, judgment or efficiency in the conduct of his trade, business or professional

activity." (Owens Decl fl 5, Ex. C (32 Halsbury's Laws of England $ 543).) In reading the

article, a reasonable person would clearly understand it to be factual statements that the Petitioner

is dishonest and that Respondent caused the resort's bankruptcy. In so doing, Petitioner has

clearly attacked Respondent's honesty, reputation, skill, and capacity in conducting a business.

Next, Petitioner falsely accuses Respondent of abusing his position as a sales agent in

order to buy resort condominiums at artificially low prices and sell them to prospective

homeowners at artificially high prices. (Gobat Decl. fl 16.) Respondent, however, does not

control the price of condominiums at the resort. (Id. at fl 21.) Furthermore, individual

homeowners are free to choose which sales agent will represent them and what price to sell their

property. (1d.) Respondent has no monopoly on sales with respect to resort condominiums and

does not have the power to artificially adjust home prices. Again, Petitioner has disparaged

Respondent in his calling or profession by implying that he is dishonest and has abused his

position as a sales agent.

U.K. courts have held that it is defamatory o'to charge another with fraudulent [or]

dishonest . . . conduct or motives." Id. at $ 550. This is exactly what Petitioner did; he charged

Respondent with being ao'pirate" and with fraudulent and dishonest conduct in buying

condominiums at artificially low prices and selling them at artificially high prices. Again, a

reasonable person reading the article would understand this accusation in a defamatory sense and,

as a result, would hold Respondent in less esteem, especially regarding Respondent's business

conduct.

Finally, Petitioner wrongly suggests that Respondent has a conflict of interest by acting as

both a sales agent and a manager of the resort. (Gobat Decl. fl 20.) To the contrary, individual

homeowners decide which sales agent will represent them. Additionally, any resort profits are

paid to the homeowners themselves; Respondent does not benefit from any profits purely by

participating in resort management. (Id. tT 13.) In fact, Respondent's contract as Executive

Director clearly states that Respondent is permitted to continue his business as a sales agent. (1d.

n22.) There is no evidence that Respondent improperly lined his own pocket or had anything

Opp. to Mot. to Quash

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other than the best interests of the resort in mind. (1d.n22.) By accusing Respondent in such a

manner, Petitioner again charged Respondent with fraudulent and dishonest conduct in

Respondent's business dealings. These defamatory statements are not opinions-they are clearly

statements of alleged facts that simply beg the question of whether they are true or false.

b. The article contained written words about Respondent andwas published to those other than Respondent.

Petitioner's defamatory statements occwred in an article written about Respondent and

published to those other than Respondent, satisfying the remaining U.K. requirements for libel.

Petitioner published an article about Respondent and others to the St. Lucia Free Press website

(Gobat Decl. !f 14,16), and people other than Respondent read the article. (Gobat Decl. fl 23,Tab

4 (showing the number of oohits" the website received).) Petitioner does not contend otherwise.

2. Even assaming, arguendo, that U.K. law is inapplicable,Respondent has a primafacie defamation claim under U,S. law.

Petitioner makes much of its assertion that English law provides less free speech

protection than U.S. law, but Respondent would have a prima facie defamation case even under

U.S. law.10 Although the First Amendment broadly protects freedom of speech, see U.S. Const.

Amend. I, the Supreme Court has held that the "right of free speech is not absolute at all times

and under all circumstances." ChaplinslE v. New Hampshire, 315 U.S. 568,571 (1942). Certain

r0 Petitioner suggests that the SPEECH Act,28 U.S.C. $ 4102 et seq!.,prevents this Court fromenforcing this subpoena at issue. There are two problems with Petitioner's position. First,Petitioner asks this Court to equate a subpoena with a final judgment as identified in the SPEECHAct. (Mot to Quash at 6.) However, Petitioner has no legal support for this proposition. Toreference a case that simply concludes that some foreign jurisdictions have less support for freespeech than the U.S. is of no import in asking this Court to quash a subpoena. Second, Petitionerwrongly asserts that the SPEECH Act would prevent Respondent from enforcing any favorablejudgment granted by a U.K. court because "English law provides less protection for speech thanU.S. law does." (Id.) To the contrary, the SPEECH Act permits U.S. courts to enforce foreignjudgments if the offending parfy "would have been found liable for defamation by a domesticcourt" even if "the defamation law applied in the foreign court's adjudication did not provide asmuch protection for freedom of speech and press" as U.S. law. 28 U.S.C. $ a102(a)(1)(B). AsRespondent illustrates in this brief, a prima facie claim for defamation clearly exists under at leastCalifornia law if not the law of other jurisdictions in the U.S. Furthernore, whether Respondentwould need to enforce any future favorable judgment in the U.S. is (i) questionable given the lackof identity of the Petitioner and (ii) immaterial to whether the subpoena at issue should bequashed. Therefore, Petitioner's position based upon the SPEECH Act are desperate attempts inseeking the order to quash and firrther examples of espousing any position in an attempt to avoidbeing held liable for his defamatory acts.

10 Opp. to Mot. to Quash