Cathy Gellis Wins Second Victory Against U.K. Subpoena Seeking To Pierce Blogger Anonymity

Back in October I described how attorney and blogger Cathy Gellis won a significant pro bono victory, quashing Oliver Gobat's subpoena to unmask the blogger behind the St. Lucia Free Press. Gobat, who was suing over blog posts from and about St. Lucia, sued in the United Kingdom, which is to defamation plaintiffs what Walt Disney World is to sticky and demanding children: a fantasy tourism destination. Cathy convinced a California court to quash a subpoena issued here based on the U.K. proceeding; that subpoena to the St. Lucia Free Press's California-based ISP sought the identity of the anonymous blogger. The court quashed the subpoena on the grounds, among others, that the United Kingdom proceedings that generated the subpoena were insufficient and did not comply with domestic free speech or due process requirements. The court even granted Cathy very modest fees and costs — though surely nothing compared to the hours she devoted to the important issues at hand.

But Mr. Gobat and his U.S. attorneys are persistent. They engaged in some rather desultory additional proceedings in the United Kingdom and re-issued the subpoena. Cathy Gellis filed a motion to suppress the subpoena again, and the result is nothing less than an utter rout of Gobat and his attorneys. The California court quashed the subpoena, issued an injunction forbidding Gobat from trying to subpoena the ISP again, and awarded $15,000 in attorney fees to Cathy Gellis, owed jointly by Gobat and his California lawyers.

But why did the court quash the subpoena originating in the U.K.? The court followed California law requiring defamation plaintiffs to make a "prima facie showing" of defamation in order to pierce a defendant's anonymity through discovery. That's not a particularly robust test — unlike the more protective Dendrite test favored in some jurisdictions, it only requires the plaintiff to offer some evidence which, if accepted, would satisfy the elements of defamation. Here, the court found that the statements Gobat complained of appeared to be opinion and hyperbole under American law, not actionable false statements of fact, and that American law controlled in evaluating whether a British subpoena could pierce anonymity in America. In his recommendation to the court, the Judge Pro Tem said this:

Applying the balancing test endorsed by Krinsky v. DOE 6 (2008) 159 Cal.App.4th 1154, 1165, and considering whether a prima facie case of defamation has been stated, the Court finds that the anonymous comments complained of appear to be opinion mixed with sarcasm and hyperbole, rather than objective statements of fact. See discussion in Krinsky v. DOE 6 (2008) 159 Cal.App.4th 1154 at 1175-1178. The Court rules that the 1st Amendment of the U.S. Constitution trumps English law in deciding whether a prima facie case for defamation has been made. Krinsky at 1173, citing Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 347 [states may define their own law of liability for defamation, but must remain within Constitutional limits].

In his recommendation to the court, the Judge Pro Tem highlighted why it would be perilous for American courts to pierce the anonymity of speakers just because a foreign court decided that their speech was defamatory:

My view is that the language in this case is not that far removed from that in the leading case of Krinsky — it is aggressively critical, but so over the top that the typical reader, reading in context, would recognize it as a rant—an opinion, possibly from a disgruntled consumer of the real estate, or simply from a gadly.

Under Krinsky, another issue is whether English law should be applied to determine if there is a prima facie case of defamation. Krinsky involved Florida law, so we may be dealing with a case of first impression in California. The cases cited above say “no” if English law has a looser definition of defamation than the U.S. Constitution. I posed a hypothetical to Gobat counsel: if a foreign country had a law stating that any woman who criticizes a man is liable for defamation, would a U.S. court use that law in deciding if there was a prima facie case of defamation for purposes of ruling on a subpoena just like the one in this case?

It's fairly unusual, by the way, for a court to make an attorney fee order jointly and severally payable by a party and the party's lawyer. Why would the court do that here? It might be because the second subpoena still suffered so clearly from the defects of the first. Or perhaps it was because Gobat's counsel implied, in a footnote, that Cathy Gellis might have to start legal proceedings in the U.K. to collect on the modest fees awarded in the prior motion:

Petitioner's apparent suggestion that Gobat's California counsel should be sanctioned so that Petitioner need not "chase down [Gobat] all over the world to recover fees and costs" (Pet.'s Mot. to Quash 9), is an improper one. There is no legal basis for levying expenses against a party's counsel as a proxy for levying those expenses against the party himself. Petitioner cites no statute or case law allowing such a practice. Additionally, Petitioner fails to show how he or she would need to "chase down" Gobat. In the event that Petitioner needs to collect a judgment from Gobat, he or she could easily do so by instituting an appropriate action in the U.K.

That was a tactical error. The right answer was "there is no need to sanction counsel because the party, which is taking advantage of this court's processes, will comply with its orders and pay what it is ordered to pay." This line was a red flag to the judge.

This is a tremendous victory for Cathy, and an important recognition of the state of the law protecting anonymity in California courts. Join me in congratulating her.

Her motion is here, and Gobat's opposition is here, and her reply is here.

Last 5 posts by Ken White

Comments

  1. neverjaunty says

    I suspect the judge was also sending a signal to the California attorneys that he was displeased with their enabling this lawsuit, given the repeated subpoenas. Off the top of my head I don't know how usual this sort of order is for fees, but for civil discovery sanctions, it's not uncommon (and clearly permitted by law) for a court to award those sanctions jointly and severally against a party and its attorneys if requested – generally when it's pretty clear that the improper conduct was a result of, say, a string of bullshit objections.

    ETA: Am I missing the link to the judge pro tem's recommendations? I see the Order from the judge but not the quoted text.

  2. says

    I love the part of the reply where Cathy is responding to the argument that her client is "thumbing his nose" at the English legal system. Her response was it was the Founding Fathers who thumbed their nose at the UK legal system "when they declared independence from the tyranny of a legal system that failed to protect the free speech principles later enshrined in the Bill of Rights."

    Then she goes on to call the English way of doing things "judicial byproducts."

    Priceless.

  3. Matt says

    Petitioner should not now be forced to subsidize Respondent's tutelage in legal practice without recompense.

    Nice.

  4. Matt says

    Looking at the order, I note that it seems they did *not* get the injunction against subpoenaing other entities (i.e., Google)?

  5. tbw says

    Ken:

    Your proposed answer about complying with court orders is surely the best practice, if your client is inclined to follow court orders. Gobat clearly isnt. He failed to pay the first award (at least according to the linked reply brief). That said, your point stands.

  6. Dave Crisp says

    When the fuck is our government actually going to commence the Defamation Act, which would have stopped this nonsense before it even got started?

  7. says

    I posed a hypothetical to Gobat counsel: if a foreign country had a law stating that any woman who criticizes a man is liable for defamation, would a U.S. court use that law in deciding if there was a prima facie case of defamation for purposes of ruling on a subpoena just like the one in this case?

    Is that really a fair hypothetical? I am inclined to say that the outcome on this question — should the First Amendment bow to the defamation laws of countries that don't have a First Amendment — was decided correctly. But I don't think the judge had to, or should have, gone as far as he appears to do in this hypothetical to get there. We can draw a line, and a more useful one, based solely on constitutional interests, without coming up with far-out hypos that arguably obscure the issue.

  8. says

    @Ron, bear in mind this was part of the non-binding recommendation of the pro tem judge to the presiding judge that came out of the "practice" hearing we had when Gobat didn't stipulate to the pro tem's jurisdiction, meaning it was likely of minimal direct effect. The presiding judge had plenty of other bases to determine that English law would not control here, including plenty of briefing on the SPEECH Act and salient examples of procedural and substantive due process failings of the applicable English law and proceeding. (Plus Gobat's counsel also got another chance to argue otherwise before the presiding judge).

  9. says

    Yeah, Cathy, I get that; a given hypothetical question is usually of minimal effect in almost any case. But this is the Internet so you can hardly expect me to restrict discussion to things that matter.

  10. stavro375 says

    "[California] awarded $15,000 in attorney fees to Cathy Gellis, owed jointly by Gobat and his California lawyers."
    Ouch. Makes me glad I'm not one of those attorneys…

  11. DonaldB says

    Ah, so there was a earlier hearing where Gobat didn't accept that court's jurisdiction, but there was a (tentative) ruling. I see why you would call that a "practice hearing".

    By continuing after that hearing, local counsel went astray. They might have been vigorously advocating a flawed client position, exploring the boundaries of a grey area (albeit only grey to them). Afterward, they were abusing the process.

    As officers of the court they had a duty to inform the client of the boundaries, and to decline new actions. It was proper for the court to make the attorney jointly libel.

    Plus.. what were they thinking with "I reject your jurisdiction, but I still want to use your power to issue a new subpena"? With the footnote 'Go ahead, just try to get money from us.'

  12. Anon says

    Amusing typo in the opposition, page 3, line 16: "avoid being haled into English court"

    Oh no, don't "haled" me, bro!

  13. Shelby says

    I initially thought the last block-quote was from the Judge Pro Tem's recommendation, not from the briefing. You may want to revise the prefatory sentence to something like "in the footnote quoted here".

  14. C. S. P. Schofield says

    Anon;

    Haled is perfectly good, if perhaps slightly archaic, English of the type that is likely to be used in Legal documents.

  15. Sami says

    I don't actually see that that hypothetical is far-out or obscuring the issue.

    The issue fundamentally amounts to this: "Is it or is it not your position that courts in the United States of America should enforce restrictions upon speech enacted by foreign powers that would not be constitutional within these United States?"

    The hypothetical and the situation under litigation are functionally identical – and I say this as, by this blog's standards, a psychotically censorious shrew.

    If US courts undertook to enforce rulings issued by UK courts over libel and/or defamation claims without subjecting them to rigorous scrutiny and tests of constitutional applicability, they would pretty much be undertaking to piss away the entire concept of "freedom of speech".

  16. TBP says

    What Sami said, exactly. It's functionally identical. The example is used exactly because it shows the problem more clearly by using a hypothetical with a larger distance between foreign and stricter local free speech principles.

    Because if you accept the validity of foreign claims for small differences, you will gradually erode those strict principles until that hypothetical itself is only a small difference. You cannot give in to the small without ending up accepting the large in the long run.

  17. says

    @Sami, re "psychotically censorious shrew": damn you, good sir! I will not be able to un-see that mental image for the rest of the day now. (Something along the lines of casting Jason Voorhees as Sonic the Hedgehog.)

    And with regard to your last paragraph: if US courts did so, we would be very lucky if "freedom of speech" was all that was "pissed away".

  18. mcalex says

    "Additionally, Petitioner fails to show how he or she would need to "chase down" Gobat. In the event that Petitioner needs to collect a judgment from Gobat, he or she could easily do so by instituting an appropriate action in the U.K."

    Am i missing something?
    How is starting a court action 'not equal' to chasing him down?

  19. neverjaunty says

    @Ron Coleman, I would eduguess that the context of the hypothetical was an assertion that the US is obliged to allow a definition of libel that wouldn't fly here but does conform with the laws of the country where the action is pending.

  20. NS says

    @neverjaunty

    @Ron Coleman, I would eduguess that the context of the hypothetical was an assertion that the US is obliged to allow a definition of libel that wouldn't fly here but does conform with the laws of the country where the action is pending.

    Or the judge is taking a pot shot at the oft discussed concept of the US adopting blasphemy laws, as Ken has detailed on a number of occasions.
    There is a lot here that is good, and Cathy Gellis has my respect, as does the pro tem judge in this case. Whatever that's worth…

  21. albert says

    Does this mean that Gobats California lawyers will have to sue him in the UK to recover the fees?

    I'm assuming he feels slighted, and won't want to pay out anything.

  22. says

    The lawyer is jointly and severally liable because of the possibility that the client will refuse to pay the judgment? I certainly hope that there was a better ground for liability than that.

  23. DonaldB says

    The lawyer is jointly and severally liable because of continuing after the court told them "no" the first time.

    My reading is that they are only jointly liable for the actions after the first hearing. Their client is solely liable for costs before that point.

    The client's previous refusal to pay, combined with the attorney adding the note 'you'll have to sue in a remote jurisdiction (where you won't win), but we'll continue costing you money here" adds an additional reason to make the local attorney jointly libel.

    It will be interesting to see if the client pays. You can't block him from suing all over the world. But you can make it hard for him. If he doesn't pay here, he'll have trouble finding local counsel in the future. (Or perhaps not.. they'll just insist on payment up front and perhaps a little extra to cover their risk.)

  24. Penfold says

    I don't practice in Cali, but is Cal. Civil Code s 1987.2 similar to Rule 11 in Federal Practice? If so, based on the arguments made by Godat's counsel, I can see why the judge made the lawyer jointly and severally liable.
    Congrats to Ms. Gellis.

  25. neverjaunty says

    @Penfold, no, there is a different equivalent, but on comparing her brief to the order this was a discovery sanction. Discovery sanctions can be made against on a person abusing the discovery process, their attorney, or both, the attorney generally only when counsel is involved in the discovery abuse. The subpoena provision re fees is technically separate, but the court is authorized to impose the fees on an attorney because it's abuse of discovery.

    I doubt the San Francisco judges were sending a coded message about blasphemy law.

  26. NS says

    @neverjaunty

    Don't get me wrong, I share your doubts, but one can dream…
    Also, the fact that a judge has put in writing that restrictions on speech which are law in foreign jurisdictions but do not meet constitutional standards in the US could and should be disregarded when brought before a US court is a far from disagreeable outcome.

  27. neverjaunty says

    @NS: It's not particularly appropriate for a judge to use a wholly unrelated case as a platform for commentary on social issues, even if they are important issues and the judge is in the right.

  28. jimmythefly says

    Is it possible that the contract between Gobat and his lawyers stipulate that in the event the lawyers are held liable, Godat is on the hook for that amount?

    Not sure if that's the kind of thing that would (could?) be in a contract or not.

  29. anne mouse says

    Jimmy,

    Anything's possible, but it would surprise me. Such a clause would not be easy to enforce, if only because the lawyer would not want to reveal the clause's existence in public, so in his shoes I wouldn't take the risk of putting it in writing. Then again, I don't think I'd lace up those shoes in the first place.

  30. Mark says

    @ DaveCrisp – it came in to force on 1st Jan but I guess as this was in progress before then it doesn't count. Given that many Caribbean countries legal systems are intimately linked with the English & Welssh one, it's worth bearing in mind that the final appeal court for St Lucia is the Privy Council in (you guessed it) the UK.

    The act Dave Crisp mentions

    http://www.legislation.gov.uk/ukpga/2013/26

  31. David Schwartz says

    If suing Gobat in the UK is so easy, then his CA counsel can do it.

    This presents a funny issue though. Having his counsel liable may be to Gobat's advantage but clearly is not to his counsel's advantage. Doesn't the mere threat of making counsel liable create a conflict of interest? Does Gobat's counsel argue in their own defense in the brief they submit on Gobat's behalf? Is Gobat's counsel supposed to argue against their own interests when they write their client's brief? How is this supposed to work?

  32. Patrick Maupin says

    @David Schwartz:

    "Doesn't the mere threat of making counsel liable create a conflict of interest?"

    On the contrary, I think it aligns their interests perfectly. The dynamic changes from "I don't think that's advisable, but I'll be happy to take your money and to it." into "That would probably get us both into trouble."

    Note that immoral practitioners are unlikely to actually utter the first half of that first phrase very loudly, if at all, and truly moral practitioners are unlikely to utter the second half of the first phrase, unless they feel that the court's ruling is perpetrating a severe injustice, so this judgment could have the salutary effects of making it easier for the moral lawyers to stick to their convictions while making the immoral lawyers more likely to act as if they actually have morals.