response to motion to quash.wpd jan 12
TRANSCRIPT
Ross A. Day, OSB #002395 [email protected] Day Law Group, P.C. 12755 S.W. 69'" Ave., Ste. 200 Portland, OR 97223 Phone: 503.747.2705 Facsimile: 503.747.2951
Of Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION
AMY J. ROLOFF and MATTHEW No.10-cv-1487-MO J. ROLOFF,
PLAINTIFFS' RESPONSE TO JOHN Plaintiffs, DOE'S MOTION TO QUASH
SUBPOENA v.
WASHINGTON COUNTY, a political subdivision of the State of Oregon, JOHN WHEELER and JA Y WINCHESTER,
Defendants.
Plaintiffs, by and through their attorney, Ross Day of Day Law Group, P.c. ,
submit the following points and authorities in response to John Doe's (herein
"Doe") motion to quash subpoena (herein "Motion").
I - PLAINTIFFS' RESPONSE TO JOHN DOE'S MOTION TO QUASH SUBPOENA
MOTI
1, The Motion fai ls to com I with FR P 26
FRCP 26(g)( I) requ ires a party objecting to a discovery request to sign the
objection either through an attorney, or persona lly by the party object ing to the
discovery request. The Motion is not signed by an attorney. Ins tead, the Motion
is s igned us ing the anonymous euphem ism "John Doe", Un less the person
responsible for filing the Motion is ac tua lly named "John Doe", the Motion fai ls to
comply wi th the requirements of FRCP 26(g)( I).
Further, FRCP 26(g)( I) requi res the person signing the objection to state the
signer's address, emai l address, and telephone number. Again, the Motion does
not contain this information.
The purpose of the requ irement that a signatory to an objecti on provide an
address, emai l address and telephone number is so that responsive documents
(such as thi s memorandum) can be served on the mov ing party. With thi s mOL ion,
without the informati on requ ired by PRCP 26(g)( I), it is impossible for the
Plainti ITs to serve their response on D oe.
FRCP 26(g)(2) provides the remedy fo r an un signed plead ing. Unti l the
fil ing party signs the pleading (in thi s case, the Moti on), the respond ing party (in
this case the Pla intiffs) is under no obligation to respond to the Motion. Further,
2 - PLAINTIFFS' RESPONSE TO JOHN DOE'S MOTION TO QUAS H SUB POENA
fai lure of the moving party (i n thi s case, Doc) to immediately sign the pleading
upon request by the Court, means the Motion must be sticken .
2. The Motion fails to comply with Loca l Rul e 7-1
Local Rule 7- 1 requires the first paragraph of every motion to contai n a
certifi cation that the parti es made a good fa ith effort through personal or telephone
con ferences to reso lve the d ispute whi ch is the subject of the mot ion.
In this case, the M otion does not conta in such a certification. In fact, the
Motion cannot contain such a certificati on because Doe has never even attempted
to contact the Pl ai ntiffs' counse l.
Local Rule 7-1 (2) al lows this Court to deny any moti on that fa il s to contain
the certifi cation required by the local rule. In this case deni al is appropriate
because, at a bare minimum , Doe could have easi ly sent an email to Plaintiffs '
counsel to discuss the Motion. It is very li kely that a resoluti on could have been
reached that would have avo ided the filin g ofa motion to quash. Instead, Doe
chose to file this "anonymous" moti on to quash.
Practit ioners in the Oregon federal judicial di strict take great pride in their
coll aborative attitudes towards resolving these lypes of disputes. As the Court
knows, in thi s case, counsel for the Pla inti ffs and the Defendants have worked
very hard at reso lving discovery disputes wi thout invo lving the COLIn . Resol ving
3 - PLAINTIFFS' RES PONSE TO JOHN DOE' S MOTION TO QUAS H SUBPOENA
disputes requires the parties to pick up the telephone, or draft an emai l, to
communicate w ith each other about the issues involved in the di scovery di spute.
Doe shou ld be held to the same standard as counsel for the parties, or any
other practit ioner in Oregon federal court . The fact that Doe did not take five
minutes out ofhi s/her day and send an email to Plaintiff's counsel demonstrates
that Doe is not interested in resolvi ng this di spute, but is instead trying to play
games with the discovery process. The Court should exerci se its discretionary
authority and strike the Moti on.
POINTS AND AUTHORITIES
On December 7"', 20 I I, Plai ntiffs Matt and Amy Rolo ff (here in "Roloffs" or
(( the Roloffs") served a subpoena duces fecum on Google, Inc., seeki ng cen ain
identi fY ing information about the person(s) who "own" the web log with the
following URL address: http://blogspot.spiritswandcr.com (here in "Blog" or "the
Blog").
Al though not entirely clear, Doe filed the Moti on with the Court on or about
December 29th, 20 11 . Doe claims to be the creator and admin istrator of the Blog.
Sff Declaration of John Doe in Support of Motion to Quash Subpoena, 1J1. In the
M otion, Doe claims that ifGooglc, Inc. is required to provide the information
4 - PLAI NTIF FS ' RESPONSE TO JOI-IN DOE'S MOTION TO QUASI-I SU BPOENA
requested by the subpoena, Doe's first amendment ri ght to speak anonymously
will somehow be infringed.
In the Motion, Doe points to a number of cases he/she describes as Urecent"
which, accord ing to Doe, supports hislher argument that Doe's identity, to the
extent it will require Doc's anonymity to be destroyed and therefore Doe's right to
anonymous speech evaporated, require this Court to quash the Pl ai ntiffs '
subpoena.
Although the case law on thi s issue in the Ninth Circuit is sparse, one
leading case in the Ninth Circuit is In re Anonymous Online Speakers, No. 09-
7 1625, _ F.3d __ , 20 II U.S. App. LEXIS 487 (Jan. 7"' 20 I I). In Anonymous
Online Speakers , the Ninth Circuit observed that the level ofprotcction
anonymous speech is entitled to under the First Amendment is largely
determinative of the type of speech that is anonymous. Anony maus Online
Speakers, 2011 U.S. App. LEX IS at 17-18. While political speech is entitled to
the highest and strictest protection , commercia l speech is entitled to lesser
protection. lei. ciling Lefkoe v. Jos. A. Bank C/othiers. Inc., 577 F.3d 240 (4 '" Cir.
2009).
Doe is asking the Court to app ly the highest level ofprotcction under the
Delaware Supreme Court's deci sion in Doe v. Cahill, 884 A.2d 451 (Del. 2005).
5 - PLAfNTIFFS ' RESPONSE TO JOHN DOE' S MOTION TO QUASH SUBPOENA
However, the Facts in Cahill are significantly distinguishab le from the Facts in thi s
case: the target of the speech in Cahill was a politician, making the anonymous
speech in Cahill political speech, subject to the highest protections.
In this case, the target of the speech - that is the subject matter oflhe Blog-
are the Plaintiffs and their Family. Nei ther Matt or Amy Roloff are politicians in
any sense of the word, nor are they identified with any particular politi cal
movement or political message. It cannot reasonably be claimed that speech about
the Roloffs is political in nature.
Instead, the overwhe lming majority of the content of the Blog focuses on
the RolofFs, their fami ly, and the family 's commercial enterprises (pumpkin farm,
reality television show, real estale dealings). Much of the Blog makes
announcements about the Roloffs and their fami ly, as much as anything else.
Because the Blog does not contain "'core" pol itical or religious speech,
which is entitled to the most exacting protection, Doe's anonymous speech is
entitled to a lesser level of protection fTOm di scovery. Cornelius v. Deluca, __
F.Supp. __ , 20 11 U.S. Dist LEX IS 27213 (20 II, D. Id.). In order for the Roloffs
to prevail, and obtain the information sought in the subpoena, the Ralofrs must
demonstrate that the need for discovery in this case outweighs the alleged harms
that may resu lt if discovery is allowed.
6 - PLAINTIFFS' RESPONSE TO JOHN DOE'S MOTION TO QUASH SUBPOENA
The Roloffs' complaint al leges a number of claims against Washington
County. One of the c laims against Washington County a lleges that the act ions of
the individual defendants violated the basic civ il rights of the Rolo ffs protected by
the 14'h Amendment to the United States Constitution. ~ Complaint, ~ 14.
One of the Rol offs' theories of the case is that they were specifically
targeted by Wash ington County for unequal treatment. During the di scovery
process, the Roloffs have learned that the reaction to the initial comp laint by
Washington County (which led to the events which are the foundation of this
cause of action) was far and above how Washington County would normall y react
to a complai nt of this nature.
Based upon learning this new information, and wary orthe faCllhat
information has appeared on the Blog that the Roloffs believe would only be
known to employees of Washington County, the Ro loffs seek di scovery in order to
determine whether employees of Washington County have, in fact, published
detrimenta l or erroneous information on the Blog. I f in fact it can be detennined
through di scovery that employees of Washington County publi shed such
statements on the Blog, that ev idence wou ld support the Roloffs 14'" Amendment
claim against Washington County.
7 - PLAINTIFFS ' RES PONSE TO JOHN DOE'S MOT ION TO QUASH SUBPOENA
The Roloffs' suspicions are supponed by statements publ ished on the Blog.
For instance, a couple of the comments to an art icle found 0 11 the Blog reference a
concern that the Ark might "topp le over" and hun members or the publ ic. See
Declaration oj Ross Day, Exhibit 4, page 4. This is exactly the concern voiced by
Nadine Smith Cook, the Di rector o r Current Pl anning fo r Washington County,
during her depos ition. See Declaration oJlloss Day, Ex hibit 5, pages 6-9. The
Rolorfs have a ri ght to determ ine ifthc statements made by Ms. Cook, and the
nearly ident ical statements found on the Blog, are mere coincidence or if they arc,
in fact, statements made by a Washington County employee,l
The harm all eged by Doe is that if his/her identity is revealed, he may be
subjected to "harassment, stalki ng and/or other threaten ing behavior." See !vlo/ion
(a Quash Subpoena, page 6. Importantly, Doe does not cla im that revealing
his/her identity wi ll have a chilling efrect on Doe's speech. ee Declaration oj
John Doe in Support oj Motion to Quash Subpoena.
I There arc other statements published on the Blog which raise suspicions lhal employees of Washington County are the authors. See Dec/aralio" of Ross Day, Exhibit 3, page 6 , 10. On page 6, the same cQrnmcntcr ' Brandon ' who mentioned the possibility of the ark toppling also discusses casc·spccific facts that werc not made public. On page 10 of exhibit 3, an anonymous poster comments about the procedures lIsed by Washington County officia ls to inspect nuisances. These are but two comments \\'hich suggest these commenters are from Wash ington County. The Ro loffs arc entitled to discover whether, in facl, these comments came from Washington County officia ls.
8 - PLA INTIFFS' RES PONSE TO 101-1 DOE'S MOTION TO QUASH SUBPOENA
Therefore, the Court needs 10 consider whether Doe 's concern that helshe
may be subjected to "harassment, stalking and/or other threatening behavior" is a
legitimately held concern sufficient for thi s Court to deny the Rol offs discovery
under the Federa l Rules of Civil Procedure.
Doe's alleged concerns are simply without merit. Attached as Exhibit I 10
the Declaration of Ross Day is a printout of an arti cle that appeared on the Blog
dated December 2, 20 11 . The article is authored by "spi ritswander", which is
apparently Doe. Id. In the artic le, Doe talks about hislher desi re to conduct a
face-to-face interview with Amy Roloff about a variety of issues. Id.
If Doe was genuinely concerned about being harassed, stalked or otherwise
subjected to threatening behavior by the Roloffs, why wou ld Doe be willing to
meet with Amy Roloff face-IO-face where helshe would be forced to reveal hislher
identity?
Doe cannot now claim that helshe is concerned for hi slhcr sa fety ifhis/her
identity is revealed to the Roloffs after Doe was all too willing to reveal hislher
identity when it benefitted Doe in the context of an exclusive interview for the
Blog.
9 - PLAI TIFFS ' RESPONSE TO JOHN DOE'S MOTION TO QUASH SUBPOENA
CON L SION
For the reasons di scussed above, the mot ion should be DENIED.
DATED th is 12ili day of January, 2012
lsi Ross Day Ross Day, OSB #002395 Of Attorneys for Matl and Amy Roloff
10 - PLAfNTIFFS ' RESPONSE TO JOI-IN DOE'S MOTION TO QUAS H SUBPOENA
I hereby certi fy that all January 12''',201 2, I served a true and correct copy
of Pla int iffs' Response to Motion to Quash on the parties listed below:
Chris topher A. Gilmore Donald 1. Wi II is
Senior Assistant County Counsel Schwabe Williamson & Wyatt, PC
Office of Washington Cou nty Counsel 360 S. W. Bond St. Ste. 400
155 N. First Ave., Ste. 340 - MS24 Bend, OR 97702
Hillsboro, OR 97 124 Facsim il e: 54 1.330. 1 153
Facsimi le: 503.846.8636 Emai l: [email protected]
Email: Of Attorneys for Pla intiffs chri s _gi I [email protected]
Attorney for Defendants
spiritswander
No Address Given
~p i ri IS wa [email protected]
by depositing it with the US Postal Service, first class mail , postage prepaid,
and bye-mail.
I a lso cert ify that on January 12'" 201 2, I fil ed a true and correct copy of
Plaintiffs' Response to Motion to Quash with the United States Di strict Court of
Oregon e lectron ically.
Dated this 12th day of January, 20 12.
II - CERTIFICATE OF SERVICE
DA Y LA W GROUP, P.c.
/s/ Ross Day
Ross Day, OSB #002395
Of Attorneys for Pia inti ffs