I just drafted a Motion to Quash for Bear Down, and am posting it here so that he can put and paste it and send it out himself, pro se, and so that others can cut and paste it and use it for themselves with some editing. The formatting isn't as nice as it comes out on my word processor, but hey, this is generic, which is good. We are looking for counsel in Seattle to handle these cases in the future on a low cost - high volume basis -g-
This is pro bono. Comments and criticisms welcomed.
Please note that there are two signature blocks, which must be signed in black ink. Unfortunately, since you are pro se, you need to put your address and phone number so the Court can get in touch with you. The original copy goes to the Court.
Clerk's Office
United States District Court
Western District of Washington
1010 Fifth Avenue
Seattle, WA 98104
Fax and Fedex a copy to Silicon Investor/Infospace.
2801 Alaskan Way, Suite 200
Seattle WA 98121
(206)287-9046 legal department fax
Mail a courtesy copy to all counsel.
IN THE
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
IN RE: 2THEMART.COM INC, SECURITIES: MISC.
US.D.C. (C.D. Cal.)
Case No. SACV-99-1127
MOTION OF JOHN DOE, ALIAS "BEAR DOWN"
TO QUASH DISCOVERY SUBPOENA
NOW INTO COURT COMES John Doe, alias "Bear Down" (hereinafter "Bear Down" or "Movant"), pro se, and moves this Honorable Court to quash the discovery subpoena issued by counsel for 2TheMart.com to Silicon Investor, pursuant to Rule 45 of the Federal Rules of Evidence, and in support of which states as follows:
1. Movant, Bear Down, is a resident of the state of __________.
2. 2TheMart.com is the defendant in a number of class action suits pending in theCentral District of California (Southern Div), including the case of Mary E Harrington v. 2TheMart.Com Inc, et al, Civil Case #: 99-CV-1127, which seeks damages for violations of United States securities laws and fraud.
3. Bear Down is not a party to that action, neither as plaintiff nor defendant.
4. On information and belief, Bear Down has not been identified as a potential witness in that action.
5. 2TheMart.com has issued a discovery subpoena to Silicon Investor, seeking, inter alia, "all identifying information and documents, including, but not limited to, computerized or computer-stored records and logs, electronic mail (e-mail), and postings on your message boards, which concern" a number of anonymous individuals, including Bear Down
6. Silicon Investor, to whom the discovery request was sent, is also not a party to that action, neither as plaintiff nor defendant.
7. Silicon Investor operates an Internet web site which provides to its subscribers many different forms of information services for investors, including information on publicly traded stocks, stock quotes, stock screeners and other research tools, advice columns, etc.
8. Silicon Investor's URL is siliconinvestor.com
9. One of the information services which Silicon Investor provides to subscribers are so-called "threads" or "message boards," concerning individual stocks, as well as the stock market in general, and other related topics.
10. These threads or message boards are set up and run by the individual subscribers, the vast majority of whom post anonymously.
11. All individual subscriber activity takes place under the supervision of Silicon Investor staff who intervene with respect to messages posted solely to ensure that the messages posted on the message boards do not violate the Silicon Investor contractual Terms of Use.
12. Silicon Investor's contractual Terms of Use for its subscribers are provided at siliconinvestor.com
13. One of the provisions of the contract between Silicon Investor and its subscribers is that all personal information concerning subscribers is confidential and will be kept confidential.
14. Silicon Investor's contractual Privacy Policy for its subscribers is provided at siliconinvestor.com
15. Silicon Investor's Privacy Policy assures its subscribers that individually identifiable information will not be revealed without that individual's prior consent; however, Silicon Investor "reserves the right" to "disclose individually identifiable information to comply with applicable laws and lawful government requests, to operate its systems properly or to protect itself or its users."
16. Movant, Bear Down, has been a subscriber to Silicon Investor since September 11, 1996.
17. During the course of his membership in Silicon Investor, Bear Down has posted 3,136 public messages on Silicon Investor message boards, and an indeterminate number of private messages between himself and other members.
18. On information and belief, Bear Down has posted one (1) message which may be relevant to the class action against 2TheMart.com, a public message which can be accessed at Message 9637294 and the full text of which is as follows:
Just watching the manipulation when the stock started trading was a very bright red flag. They brought this POS out with a 25/50 bid/ask. They walked the ask down, selling all the way, till they got to 25 when the bid finally dropped to 23. I also tried putting shares up between the bid/ask but could not find a borrow, go figure.
19. Bear Down is not aware of any other reason that 2TheMart.com is seeking "all identifying information and documents, including, but not limited to, computerized or computer-stored logs, electronic mail (e-mail), and postings on " Silicon Investor concerning him.
20. Rule 45(c)(1) of the Federal Rules of Evidence provides that "a party or attorney responsible for the issuance or service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena."
21. The production of the information sought would impose an undue burden on Movant for the following reasons:
a. because the information sought is not relevant to the action, nor is it reasonably calculated to lead to the production of relevant information;
b. because production of the information sought would invade his privacy;
c. because production of the information sought would violate his First Amendment rights of anonymous free speech and freedom of association between himself and his fellow subscribers to Silicon Investor; and
d. because production of the information sought would violate the privacy interests protected by the Electronic Communications Privacy Act of 1986 ("ECPA"), 18 U.S.C. sec. 2701, et. seq.
21. Bear Down has a right to engage in anonymous speech on the Internet, which protected by the First Amendment. Reno v. ACLU, 521 U.S. 844, 117 S.Ct. 2329 (1997).
22. Absent a showing of some compelling interest, which has not been made, Bear Down's First Amendment rights must be protected, and 2TheMart.com's discovery subpoena should be quashed.
23. 2TheMart.com and Silicon Investor have failed to comply with the requirements of the Electronic Communications Privacy Act ("ECPA"), 18 U.S.C. 2510 et seq. which protects the information sought.
24. Pursuant to 18 U.S.C. sec. 2511, it is unlawful for any person to intentionally disclose or endeavor to disclose, or to use, or endeavor to use, the contents of any electronic communication, except as specifically provided by the ECPA.
25. There is no exception to the provisions of the Electronic Communications Privacy Act which allows Silicon Investor to provide the information sought to 2TheMart.com in response to a discovery subpoena.
WHEREFORE, Movant John Doe, alias "Bear Down", moves this Honorable Court to quash the discovery subpoena directed by 2TheMart.com to Silicon Investor for disclosure of "all identifying information and documents, including, but not limited to, computerized or computer-stored records and logs, electronic mail (e-mail), and postings on [Silicon Investor's] message boards, which concern" him, and for such other relief as the Court may deem appropriate.
Respectfully submitted,
John Doe, alias "Bear Down"
Pro se
______________________________
John Doe, alias "Bear Down"
________________________
________________________
________________________
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this _____ day of __________, 2001, I served, via first class mail, a true copy of this pleading on:
Michael D Braun
FAX 310-209-2087
Stull Stull & Brody
10940 Wilshire Blvd, Ste 2300
Los Angeles, CA 90024
310-209-2468
Counsel for Plaintiffs
Kevin J Yourman
FAX 310-209-2348
Weiss & Yourman
10940 Wilshire Blvd, 24th Fl
Los Angeles, CA 90024
310-208-2800
Counsel for Plaintiffs
Lynn L Sarko
Elizabeth A. Leland
FAX 206-623-3384
Keller Rohrback Law Offices
1201 3rd Ave, Ste 3200
Seattle, WA 98101
206-623-1900
Counsel for Defendants
Keith B Bardellini
Erin A Owen
FAX 213-896-0400
Donald S Lee
FAX 213-896-0400
Buchalter Nemer Fields & Younger
601 S Figueroa St, Ste 2400
Los Angeles, CA 90017-5704
213-891-0700
______________________________________
John Doe, alias "Bear Down"
Pro se |
