23 February 2015
Today’s Ellora’s Cave legal update includes the defense’s objections to @pubnt’s Motion to Quash the Twitter subpoena.
To recap where we are: in their initial disclosures, defense in the Ellora’s Cave v. Dear Author case filed their witness list, listing Twitter account @pubnt as one of the witnesses:
The Pub Net Twitter account has made a series of statements on Twitter since the outset of this case, that are with obvious knowledge of the case at hand. The author behind this Twitter account will have additional information as to the operations of Ellora’s Cave.
@pubnt filed a response with the court, which the Court interpreted as a Motion to Quash. My blog post and Courtney Milan’s blog post on the subject.
Perhaps the most amusing of @pubnt’s reasons in her letter to the court is this (note: I substituted Jane Litte’s pseudonym for her legal name):
The Defendant, (Jane Litte), calling us as a witness for the Defense is perverse. If you peruse our Twitter account you will be able to verify every legal argument and statement we have put forward is against the Defendant’s case. You will see clearly that there is nothing we have stated that will support the Defense’s case and everything we have said defeats the Defendant’s case. Thus the Defendant has no right to call us as a defense witness and her attempt is perverse. Thus you further have proof that the Defendant’s only ulterior motive in calling us as a witness is to use your court to seek out our identities in order to victimize, harass, stalk, defame, and libel us as she has done many times before, purely for daring to say positive things about her target, the Claimant.
I can’t even begin to tease apart all the false assumptions here, but let’s start with why I believe @pubnt’s testimony is of interest to defense:
As I see it, @pubnt breaks down to at least one of four classes of people:
To be clear, my belief is that, in fact, all four are strong possibilities, though I think it’s mostly # 1. #3 and #4 would not lead to discoverable information, so I think that’s part of why @pubnt tried so heavily to look like #4 in her letter to the court.
It is in fact the “asymmetric information” part that makes @pubnt an interesting witness for the defense.
While I was hoping for some glittering Randazza prose like the glorious letter he wrote for 8chan vs. Julien Blanc’s takedown letter, sadly our esteemed esquire was busy with a trial last week and so the task fell to Victoria Serrani, the local (Ohio) counsel for defense.
Also, in paragraph 2 of the Motion @pubnt claim that “[i]f you peruse our Twitter account you will be able to verify every legal argument and statement we have put forward is against the Defendant’s case. You will see clearly that there is nothing we have stated that will support the Defense’s case and everything we have said defeats the Defendants’ case.” See ¶2 of Motion. Again, these anonymous authors are not mere spectators. Either @pubnt are insiders at Ellora’s Cave Publishing, Inc. or have received inside, nonprivileged, information.
The filings also included a copy of the Twitter subpoena, dated January 27th, with a response due by February 6th, and a selection of @pubnt’s tweets.
Note that @pubnt’s letter to the court was dated February 7th, the day after Twitter’s response was due.
I’d been saving this information from another case I ran into recently. Two Twitter accounts, @FakeUli and @NotUliBeringer, were Does (as in John Doe) in a case filed by MUSIC Group, who wanted to uncover their identities.
Like the Ellora’s Cave case, the primary subject matter is defamation.
The Music Group v. Does case was brought in Washington state, which is still in the same appeals circuit (9th) as Twitter’s home turf. Yet, Twitter insisted that their local district court (California’s Northern District, based in San Francisco) rule on the subpoena.
Here are the three most relevant documents:
So, six weeks beginning-to-end.
The last document is worth reading because it talks about the right to anonymity vs. the right to serve defendants in a lawsuit. One of the reasons the motion succeeded was the narrowness of the request (the identity needed to be known to serve the defendants in a lawsuit).
I’m not sure DA’s Opposition Motion needed to be drafted that narrowly, given the @pubnt’s claims of knowledge about EC’s inner workings, though.
I’d personally have picked different tweets to highlight:
Apparent inside knowledge of the alleged accounting system crash, e.g.:
— Pub Net (@pubnt) February 16, 2015
Discussion of EC’s current cash situation (search @pubnt’s tweets on surplus), e.g.:
— Pub Net (@pubnt) February 16, 2015
Discussion of merger (search @pubnt’s tweets on merger), e.g.:
— Pub Net (@pubnt) January 17, 2015
— Pub Net (@pubnt) January 16, 2015
Discussion of when certain people would be paid and when certain lawsuits would be filed, e.g.:
— Pub Net (@pubnt) January 31, 2015
Also, I’ve added an updated PDF of @pubnt’s tweets through Feb 19th.