Zwebner v John Does
Dear Mr. Zwebner:
I am writing to object to the subpoenas that you sent in the above-referenced case. Among other reasons for the objection is the fact that the subpoenas ave overbroad. You have referred to one username in your complaint but demanded information about 75 usernames. This not only creates an undue burden on us, but sestroys the anonymity of 74 users who apparently have no connection to your claims. In addition, you subpoenas contain a number of procedural defects. I have tried to reach you by telephone to discuss this matter but I have not received any response to my messages. Accordingly, I have no choice but to object to the subpoenas. As a result, Lycos will not be providing you with any documents. Please contact me if you would like to discuss this matter further.
Very Trul Yours,
Eric Solowey
Associate General Counsel
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ragingbull.lycos.com
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U.S District Court Southern District of Florida
Civil Action, Case #:03-CV-22328
Michael J. Zwebner, Plaintiff
v.
JOHN DOES, 1-100, Defendants
Summary of the Argument
The Motion to Compel should be denied for three reasons. First, the Subpoenas are improper because the Plaintiff has failed to show a need for the information sought which outweighs the right to anonymity of the Lycos subscribers' who are not named in the Complaint. Second, at least two of the subpoenas are, on their face, overbroad, unduly burdensome, and seek information relevant to Plaintiff's claims. Finally, the Subpoenas are invalid on their face. For any of these reasons, standing alone, this Court should deny the Motion to Compel.
ragingbull.lycos.com
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UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 03-22328-CIV-MOORE/O'SULLIVAN
MICHAEL J ZWEBNER, pro se, Plaintiff, vs.a JOHN DOES - Alias "Tobias95", and, John Does 1-100, Defendant )))))))))))) Case No.: 03-22328-CIVNON-PARTY RESPONSE TO MOTION TO COMPEL
NON-PARTY RESPONSE IN OPPOSITION TO MOTION TO COMPEL
Out of state, non-party Hohenhouse has properly refused to respond to pro se Plaintiff Michael J. Zwebner’s invalid subpoena duces tecum. Furthermore, Zwebner has deliberately attempted to mislead this court by intentionally, knowingly and willfully making false statements to this Honorable court. Pursuant to FRCP 11(c)(1)(B), this court has within its power the ability to sanction Mr. Zwebner and Hohenhouse urges this Court to exercise its discretion in this matter and sua sponte sanction Mr. Zwebner to prevent any further such misconduct.
BACKGROUND
Plaintiff, Michael Zwebner has brought an action naming one single defendant (Tobias95) and unspecified Doe defendants yet he is seeking discovery on 85 pseudonyms that have no connection with this lawsuit whatsoever. He is using the reservation of unspecified Doe defendants for the improper purpose of conducting a fishing expedition to violate the privacy and constitutional rights of at least eighty-plus persons against whom he has not even plead any allegations, other than conclusory in nature.
I. Plaintiff’s First Subpoena Duces Tecum was invalid.
In plaintiff’s certification to this Court “Notice of Compliance with
Rule 7.1”, specifically paragraph #3, Zwebner states the following:
“On October 29th 2003, and on November 10th 2003, and finally on November 18th 2003 the plaintiff served a subpoena on Ms. Carla Hohenhouse. A true copy of the subpoena and the official stamped receipts are submitted here as evidence as Exhibit A”
Zwebner, in his certification to this Court, asserts that he has served Hohenhouse on three separate occasions and cites three separate dates. Zwebner alleges the first subpoena was served on “October 29th 2003”. Hohenhouse disputes this date for the reasons set forth herein.
Contrary to the statements made by Zwebner, and as evidenced by Zwebner’s own submission to this Court, this statement is absolutely false. Attached hereto and marked as Exhibit A, is the Plaintiff’s submission to this court which is likewise marked as “Exhibit A”. However, I draw the court’s attention to the “Article Number” on Items 1 and 2 of Exhibit A. Note, the “Article Number” on Items 1 and 2 are the exact same numbers (70032260000243318436). Item number 2 is postmarked October 29, 2003 and is merely a receipt for payment, not a delivery confirmation. Item number 1, dated November 10, 2003 is a return receipt for certified mail which was in fact the first subpoena received by Hohenhouse.
Although Hohenhouse does not dispute the receipt of a subpoena on November 10, 2003, Hohenhouse does dispute the purported “true copy” Zwebner claims to have served on November 10, 2003 and the validity of said subpoena.
Zwebner submitted to this court a “true copy” of the purported subpoena served on Ms. Hohenhouse on November 10, 2003, attached hereto and marked as Exhibit B. (marked as Exhibit A by the plaintiff, but marked as Exhibit B on the lower right hand of document by Hohenhouse). Keeping in mind that Zwebner states he served this particular subpoena on Hohenhouse on October 29, 2003 and November 10, 2003, I draw the courts attention to the date on the subpoena, represented by Plaintiff, to be a “true copy”. The date stamped on this subpoena is November 18, 2003. The subpoena submitted by Zwebner was not even issued until twenty days after the October 29, 2003 assertion and not until eight days after the November 10, 2003 assertion.
Instead, marked as Exhibit C, Hohenhouse submits a true copy of the subpoena duces tecum which was in fact served on Hohenhouse, via certified mail, on November 10, 2003. However, Hohenhouse disputes the validity of this subpoena for the most fundamental reasons in that, (1) it fails to state a date and time for production of documents; (2) failed to include the proper witness fee and fees for expenses. Hohenhouse also disputes the jurisdiction of this subpoena. Zwebner is fully aware that Hohenhouse resides in Georgia, which is not within the 100-mile limitation imposed by the FRCP.
II. Plaintiff’s second subpoena duces tecum also fails to comply with FRCP and is therefore invalid.
On November 18, 2003, plaintiff purports to have served another
subpoena duces tecum on Hohenhouse, via “priority mail”. See Item 3 of Exhibit A. Hohenhouse is a non-party to the underlying suit and resides in Georgia. Pursuant to FRCP 45(b)(2), priority mail is not an acceptable form of service. Said subpoena also failed to include any witness fees or fees for expenses. Furthermore, Hohenhouse is not a citizen of Florida and disputes the jurisdiction of this court pursuant to the 100-mile limitation imposed by the FRCP. For the reasons set forth above, the second subpoena should also be deemed invalid.
III. Although not obligated to do so, Hohenhouse has shown good faith and attempted to confer with the plaintiff.
Since non-party Hohenhouse has never properly been served with a valid subpoena, Hohenhouse was under no obligation to confer with Zwebner. However, Hohenhouse did make good faith efforts to contact Zwebner on the date and time indicated below, as evidenced by phone records, attached hereto and marked as Exhibit D. (Exhibit D has been altered to protect the privacy of family, friends and business associates. All numbers not relevant hereto have been blackened)
12/06/03 19:47 305-535-1525 Miami Fl 1.0 $.04
Other attempts to contact Mr. Zwebner on his cell phone (617-513-2529) were not recorded on the billing records due to “no answers” and Hohenhouse does not recall the specific dates and times. Hohenhouse also attempted to contact Zwebner one final time, on January 10, 2004 at both his home and on his cell phone. Those phone records are not yet available and Hohenhouse cannot recall the specific times.
Hohenhouse disputes Zwebner’s assertions that he attempted to contact Hohenhouse by phone and considering the deceptive nature of this litigant, I urge this court to compel production of his phone records which will no doubt support Hohenhouse’s contentions of other efforts to contact Zwebner on his cell phone and in all likelihood those same records will indicate that Zwebner never attempted to reach Hohenhouse by phone. Hohenhouse has an answering machine and recording device attached to her phone and Zwebner has left no messages in an effort to contact Hohenhouse.
Furthermore, in previous telephone conversations with plaintiff, Zwebner has stated that he has the ability to send a virus within an email that will track all incoming and outgoing emails. For this reason, Hohenhouse refuses to communicate with Zwebner via email. Plaintiff has also publicly implied that he has access to Carnivore a surveillance tool for data networks. (Exhibits E, F, G and H) If Zwebner persists in his conduct, Hohenhouse will be seeking an Order by this court, limiting communications to phone conversations and seeking authorization by this court to record all said conversations.
IV. Plaintiff’s failure to properly issue and serve a subpoena duces tecum has resulted in delays caused by Zwebner himself.
In the Plaintiff’s motion to compel, Zwebner asserts that Hohenhouse’s “unreasonable actions” have resulted in unnecessary delays and as a “direct result” of those delays “Tobias95” and other John Doe defendants continue to disseminate malicious, false and misleading information about Zwebner purportedly out of some sort of “false sense of security”. Hohenhouse hardly believes that demanding compliance with the Federal Rules of Civil Procedure and the right to due process can be deemed “unreasonable” conduct by any standards.
CONCLUSION
Zwebner, in his motion to compel, has demonstrated a propensity to deceive and has shown total disrespect and disregard for this Honorable court. For all the reasons set forth and stated herein, plaintiff pro se’s motion to compel should be denied and this court should sua sponte sanction Zwebner or in the alternative hold him in contempt of this court. Since Zwebner’s false statements were not merely a part of a discovery request, but instead a part of a “certification” to this court, Hohenhouse believes his actions are sanctionable.
RESPECTFULLY SUBMITTED this 12th day of January, 2004.
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