Deirdre Saoirse Moen

Sounds Like Weird

Ellora's Cave: Judge Denies @pubnt's Motion to Quash

26 May 2015

Today, Judge Adams issued a ruling in the Ellora’s Cave v. Dear Author case relating to @pubnt’s letter to the court in February that the judge interpreted as a Motion to Quash (the defense subpoena to Twitter to determine the identity/identities of the @pubnt account).
From the ruling (note: I’ve replaced Jane Litte’s legal name with her Dear Author pseudonym; other square brackets are from the Court):

In their letter – let alone the actual tweets on the account – the @pubnt “owners” confirm that they have knowledge about the underlying allegations and defenses, such as claims for defamation/libel and the defenses of truth, substantial truth, and lack of malice. For example, the “owners” state:

  • “The Defendant in this case is a vicious troll who leads a gang defaming and harassing successful people and anyone who supports them.” Doc. 31 at 1.
  • “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.” Doc. 31 at 2.
  • “This is added proof of Malice [sic] against the Claimant [i.e. Plaintiffs].” Doc. 31 at 2.
  • “We present evidence below that the Defendant, [Jane Litte], is a vicious troll who runs a gang and maliciously attacks, runs smear campaigns against, libels, stalks, and criminally harasses successful businesses and individuals in the publishing industry.” Doc. 31 at 3.
  • “Some years ago [Defendant] [Jane Litte] and [sic] a similar smear campaign against a small publisher, libeling and defaming the publisher, similar to her current smear campaign she has started against [Plaintiff] Ellora’s Cave.” Doc. 31 at 3 (@pubnt then provides a web address purporting to support this allegation).

The judge was unimpressed. From the ruling (bracketed text mine):

Simply reading the [@pubnt] “owners’” letter demonstrates that they have relevant information that is discoverable in this case. Merely because the Defendants may be able to obtain certain information from other sources does not render the subpoena unnecessary. Furthermore, Defendants are entitled to pursue discoverable evidence from the primary source, instead of merely accepting statements by the “owners” that information they have can be procured by other means (especially considering the tenor of their letter shows an almost venomous disregard for Defendants).

Let’s Talk About the Subpoena

I want to reiterate here: a few things about this side issue are important:

  1. @pubnt kept taking plaintiff’s side in tweets.
  2. Despite various claims by @pubnt about EC’s business practices, including tweets about EC’s future legal strategy, Ellora’s Cave does not subpoena Twitter for @pubnt’s identity.
  3. Despite the fact that @pubnt claims to have evidence that would harm Dear Author’s defense, defense does subpoena Twitter for @pubnt’s identity.
  4. Ellora’s Cave neither supported or opposed defense’s effort.

These, taken together, are very curious indeed. The only concept that makes sense to me is that Ellora’s Cave knew perfectly well who @pubnt was and already had them on their persons with discoverable information list. To reiterate, This list consists of five people:

  1. Patty Marks (Ellora’s Cave CEO)
  2. Tina Engler (EC’s Founder)
  3. Courtney Thomas (EC’s CFO)
  4. Jane Litte (defendant)
  5. Raylene Gorlinsky (EC’s publisher). (For those who don’t know, publisher is a job title.)

Defense’s list is longer:

  1. @pubnt
  2. Tina Engler (EC’s Founder)
  3. Patty Marks (EC’s CEO)
  4. Susan Edwards (EC’s COO)
  5. Raylene Gorlinksy (EC’s Publisher)
  6. Whitney Mahlik (EC’s Managing Editor)
  7. Courtney Thomas (EC’s CFO)

So why, if, as @pubnt claimed, the only information they have is to help plaintiff’s case, would the defense subpoena Twitter? Taken at face value, that would only seem to hurt defense’s case, right?
Well, if @pubnt is someone(s) who’s not already on the existing defense list, they also may have unprivileged information that can help make defense’s case—or disprove plaintiff’s.
Meanwhile, time for popcorn!

  1. @pubnt’s letter to the court from February.
  2. A PDF of all @pubnt’s tweets.
  3. There won’t be a Romanticon this year, but there will be next year. (See next item for source.)
  4. Amergina reports on the Ellora’s Cave publisher spotlight event at the recent RT Booklovers convention. I’m gobsmacked at not being able to answer royalty rates or manuscript length questions. Those are…kinda basic. I don’t know who was leading the presentation, but I know Axl Goode, one of the EC cover models who’s also an EC author, was at RT.
  5. Speaking of Axl, a few months back I read his first novel, Primal Desire, which is erotic romantic suspense. It suffered from many of the “written by a man” kinds of problems of men’s adventure novels of olde, including having the woman wait in the car (way) while Mr. Alpha Male went in to wail on some Dangerous People. Once, just once, I’d like to see a plotline like that where the evil geniuses go after the woman in the car as the presumably easier target, and have her beat the crap out of them. Mr. Alpha Male returns to the car, vexed he can’t find the people he was expecting to beat up, and Herself is touching up her makeup after the fight, never saying a word about what actually happened.

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