A Quick Note Regarding Prenda Law's Subpoena To WordPress
I've now added a Prenda Law tag to collect my posts about them.
Earlier I mentioned that Prenda Law and its principals had reacted to ongoing criticism by filing three lawsuits. Attorney John Steele — one of the attorneys affiliated with Prenda Law — has now dismissed his suit. The other two remain — including a lawsuit by Prenda Law in Illinois.
Alan Cooper and his lawyer Paul Godfread (who, you may recall, filed documents asserting that Prenda Law stole Mr. Cooper's identity) have removed the case to federal court in the Southern District of Illinois. Removal is a process that allows defendants to move a case filed in state court to the local federal court if certain jurisdictional prerequisites are met. The federal court in Illinois has ordered them to establish certain grounds for removal.
Meanwhile, however, many people are talking about a remarkable subpoena that Prenda Law served before Cooper and Godfread removed the case. That subpoena is directed at WordPress and purports to demand the IP address of everyone who visited the blogs www.dietrolldie.com or www.fightcopyrighttrolls.com between January 1, 2011 and the present. Those blogs, of course, are two of the Prenda critic sites that Prenda Law is suing.
There are a number of problems with this subpoena.
First, once Cooper and Godfread filed their notice of removal, the state court lost all jurisdiction over the matter (at least unless or until the case is sent back) and all proceedings in state court halted by operation of law — including the obligation to respond to outstanding discovery. Prenda Law would need to re-issue the subpoena in the federal proceeding.
Second, though I am looking into it, it's not clear to me whether Prenda Law followed the requisite procedure under the Uniform Interstate Discovery Act required for them to serve a subpoena on a California company in an Illinois case. We'll see.
Third, the subpoena is ridiculously overbroad. It asks for the IP addresses of everyone who visited the sites, not just people who made specified comments — let alone comments that could plausibly be deemed defamatory. Moreover, it demands IP addresses for a period in 2011 before Prenda Law existed, and therefore before it plausibly could have been defamed or wronged.
Fourth, under emerging doctrines governing attempts to discover the identity of anonymous commenters, it is doubtful that Prenda Law can justify its broad subpoena. Prenda's lawsuit, as I earlier pointed out, is a mish-mash of complaints about statements of fact (which could conceivably be defamatory) and statements of opinion (which cannot). Under these circumstances a court should quash the overbroad subpoena under the increasingly prevalent rule that a plaintiff must make some sort of preliminary showing to discover information about the identities of anonymous speakers.
I'm informed that WordPress has the subpoena, and has notified the blogs that they have seven days to respond. It's not clear to me that anyone is obligated to respond at all, including WordPress — the subpoena was voided by operation of law upon removal. But WordPress, and attorneys representing the blogs, may proceed cautiously and file something to challenge it. It is my hope that WordPress, for the sake of free expression and their own reputation, takes a strong stand in its own name against the subpoena — the whole internet is watching.
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