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

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35 Responses

  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. John Kutzman says:

    "LamentationsOfTheirWomenOrder.pdf."

    What a great line that was. I love this blog so much.

  3. pharniel says:

    That brought my day right up. Thanks Ken.

  4. Darryl 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.

  5. Matt says:

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

    Nice.

  6. Joel says:

    As with the previous article, I can't help but read "Oliver Golbat" and the mental image it adds to the article is priceless.

    For the unfamiliar: http://cdn.bulbagarden.net/upload/2/23/Spr_1b_042.png

  7. Matt says:

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

  8. 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.

  9. 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?

  10. Ron Coleman 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.

  11. Cathy 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).

  12. Ron Coleman 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.

  13. 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…

  14. 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.'

  15. Anon says:

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

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

  16. 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".

  17. 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.

  18. 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".

  19. 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.

  20. Jeff Dickey 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".

  21. 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?

  22. 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.

  23. 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…

  24. 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.

  25. 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.

  26. 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.)

  27. 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.

  28. 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.

  29. 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.

  30. 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.

  31. 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.

  32. 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.

  33. 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

  34. 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?

  35. 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.