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Another Blogger Gets a Subpoena

So what if Dennis Crouch's highly regarded Patently-O blog narrowly missed being named the ABA's Top Blog on Substantive Law?  Crouch was just pinned with a far more prestigious badge of honor:  a subpoena in lawyer Eric Albritton's defamation action against Cisco and former employee Rick Frenkel, formerly known as the Patent Troll Tracker.  In this post, Crouch discloses that Albritton is seeking all documents relating to "comments, emails, communications" to him or Patently-O related to Albritton's competence or integrity or the Troll Tracker case, as well as information about the identity of anonymous blog commenters and readers who have sent private e-mails. 

For now, Crouch has responded to the subpoena with a letter, objecting to the subpoena requests for the following reasons:

Comments are posted on Patently-O and are publicly available at no charge to you. Because these comments are already available online, this request is likewise unduly burdensome and overbroad. Furthermore, most commentators post anonymously with a strong expectation of privacy in their identity. Similarly, I often receive communications sent under the condition and/or expectation of privacy and anonymity. This happens with any reporter – but is especially common in law and politics where we often find negative retribution for speaking out. I strongly support this right of anonymity and do not plan to reveal particular information that could lead to the identity of those sources without a specific court order on the topic...

The last case we mentioned in which a lawyer tried to subpoena a blogger -- looking for Kathleen Seidel's tax returns and correspondence to determine whether she was being paid by corporate interests to question the link between autism and vaccines (a frequent topic of her blog) -- the court granted the Seidel's motion to quash and sanctioned the lawyer for misusing the subpoena process to "vilify and demean" the blogger.  Crouch's case is different, however, as there's arguably a nexus between the information that Albritton seeks and the subject matter of the case.  Whereas Seidel's connection to vaccine companies had little bearing on the lawsuit against them, here, the identity of commenters could potentially yield material relevant to Albritton's case, such as the source of any defamatory material or the scope of the injury to reputation.

That's not to say that Albritton is automatically entitled to the documents and other information he's subpoenaed.  Rather, as Crouch discusses in his letter, the potential relevance triggers a balancing test -- the importance of the materials to Albritton on one hand versus the commenter's expectation of privacy on the other.  Ultimately, if Albritton doesn't back down, Crouch may find himself at the center of a case that is bound to impact not just Crouch, but his fellow bloggers as well.

Posted by Carolyn Elefant on August 25, 2008 at 10:40 AM | Permalink | Comments (0)


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