Judge's Overly Broad Discovery Order About Online Critics Allows Ubervita To Bully More Authors Of Critical Reviews
from the free-speech-bullies dept
Earlier this month, David Kravets over at Ars Technica, wrote about a questionable order from Judge Marsha Pechman, allowing nutritional supplement firm Ubervita to issue a subpoena to identify a bunch of negative reviewers on Amazon and Craigslist. The order was not only premature, but incredibly broad:Ubervita may serve subpoenas on Amazon, Inc. (or other appropriate Amazon entity) and Craiglist, Inc. (or other Craigslist entity) intended to learn the John Doe defendants’ identities, including their names, addresses, telephone numbers, e-mail addresses, IP addresses, Web hosts, credit card information, bank account information, and any other identifying information.Yikes! Paul Levy at Public Citizen took note of this ruling, and contacted Ubervita's lawyer to note his intention to ask Judge Pechman to reconsider the order. As Levy notes, there were a variety of problems with the order:
We were concerned, however, because the early discovery had been authorized even though the motion was exceptionally bareboned, without any showing of legal and evidentiary merit, as required by the Dendrite rule, and because Ubervita’s moving papers, and Judge Pechman’s early discovery order, had been maddeningly unspecific about which critical comments were the subject of Ubervita’s claims of product disparagement and unfair competition. The complaint itself cited a couple of adverse comments but went on to allege that there were many other criticisms, unspecified, whose authors were Doe defendants. This unspecificity violated the prong of the Dendrite test that requires the precise actionable words to be spelled out.Even more troubling was the fact that Ubervita was using the ruling to intimidate any new negative reviewers, posting comments in response to negative reviews, claiming that the reviews were libelous, that it had already filed a lawsuit about other commenters and that the court had allowed the names to be subpoenaed. One comment notes:
On July 2nd, 2014, we filed suit in Federal Court in Washington State to subpoena various websites for the identities of our attackers. The attacks have gone far beyond these anonymous bad-mouthings and 1-star reviews. While we won't elaborate on that issue here, you can Google it or search the Justia.com legal search engine website to see it. It was just filed today, so it may take a few days to propagate those search engines.As Levy notes, this use of the broad order to intimidate other commenters is quite problematic:
To our attackers: you should probably stop before you get into a lot of legal trouble.
Even worse, Ubervita had started invoking Judge Pechman’s decision to post responses to critical comments, including comments made AFTER the lawsuit was filed which therefore could not have been alleged in the lawsuit to be false and defamatory, warning that Ubervita was suing its critics and inviting commenters to conduct a Google search to learn about the case – presumably, directing them to the Ars Technica article that warned of the supposed “unmasking” order. (I have linked above to PDF's of the threatening comments, not to the comments on Amazon's site, because Amazon has been removing them).Once Levy contacted Ubervita's lawyer, Mike Atkins, the company promised to limit the subpoena being sent to Amazon to just trying to target those that the company believes are really from an Ubervita competitor. Still, Levy is reasonably troubled both by the court order and the ability of Ubervita to use such a ruling to stifle critical speech.
I give credit to Atkins for promptly responding to my expression of concern by agreeing to limit his initial discovery efforts directed to Amazon; in my own mind I remain uncertain on whether he deliberately sought an overbroad order. It is apparent from his client's to use the early discovery order to bully its online critics, however, that Ubervita itself has the evil intent of suppressing all criticism.
Not only does it deserve condemnation for this conduct; you also have to wonder how good its products can be if success in the marketplace depends on suppression of criticism.
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Filed Under: anonymity, critics, discovery, marsha pechman, reviews, subpoena, supplements
Companies: amazon, craigslist, ubervita
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Hm... giving another 'good example' for African Jurists to Follow?
http://www.wawd.uscourts.gov/judges/pechman-bio
... this example is coming off as '3rd World Justice' at its 'best'.
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To quote from an earlier Techdirt story: ‘If bloggers do not have the freedom to write negative reviews, positive reviews make no sense either.’
Replace ‘bloggers’ with ‘writers’ or just ‘we’ as necessary.
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Definition
Known cures include product boycotts and trashing bullies in forums, email, and by phone until the Streisand Effect crumbles the bullies servers and phone systems.
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Good writing
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Re: Good writing
fail 2 - trying to land even vaguely near the topic at hand with your comment might let it not be noticed.
fail 3 - don't come crying back when you get punished for the SEO failure and get downranked into oblivion.
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Re: Good writing
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As the scourge of copyright trolling hit the country and kept morphing into lucrative areas there were a few who tried new spins. Porn is the best spin, but you run into people like me who will tear your filings apart and educate people about the lies told to obtain a settlement.
I am starting to think someone morphed the model for reputation services. The unsupported (cause as far as I know there was no evidence presented to the court) claims in the filing are just as "real" as those used in copyright trolling.
They went big with the discovery, and the Judge forgot there was this thing called the 1st Amendment and a shit ton of case law that should have been followed... and then granted them the credit card information of people who just reviewed the product. Read that again, you review a product online and a judge ordered your credit card information to be handed over.
Courts are far to willing, or the law is so far out of touch, to believe everything a lawyer puts in writing as gospel. Ethics are pretty much dead and the penalties when you are caught doing this have been meager. Even the alleged oversight boards won't move until long after the body has cooled, been buried, dug back up, and the lawyer screws it one more time... they might take it under advisement.
I expect that we are moving into an age where the precursor to the scary letter will be a hand wringing filing making claims with no actual evidence or merit to them, and a Judge blithely handing over the subpoena. Missives will be sent, and the case will be kept open pursing Does for as long as the court will allow. If anyone tries to fight back, they were never named so there is no reason for plaintiffs to pay for the lawyer the Doe hired while plaintiffs wasted the courts time.
In an age when we no longer have privacy, the rules and laws to protect us are superseded by secret laws and secret interpretations, we can no long count on the courts protecting citizens rights.
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Please let this backfire
'We may have been ordered by the judge to hand over a bunch of very private information on people who use our service, but as you are presenting a hostile environment for our customers, and using it to intimidate potential negative reviewers of your product, you are no longer welcome to sell via our service, and will be blocked and removed shortly. Enjoy.'
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¤¤½
I cannot imagine Amazon letting this go through without resistance. Certainly if they do I will opine about every product:
This may or may not be a good product, but as I can be held legally liable for expressing my opinion, it is for my own protection that I do not.
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Re: ¤¤½
Is someone focusing on the positives of a product because it's legitimately good, or because they're afraid of what will happen if they focus on, or comment on, the negative?
Are most reviews of a product positive because the product is good, or because people are afraid to leave a negative, but honest, review?
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Re: Re: ¤¤½
For example since I'm Australian.
Ubervita IS a bunch of misinformed malicious assholes that prey on consumers with false and misleading advertising of their useless product(s).
Simple! ;)
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Re: Re: Re: ¤¤½
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Normally the data goes just to the lawyer, so they can "investogate" (read send threatening letters demanding compliance with some terms or they will name you in a real live lawsuit).
As there is no one representing the rights of the Does, and the Judge threw common sense to the wind and authorized EVERYTHING they asked for, including CC #'s, very little will come of this.
If not for them stupidly and publicly going after reviewers using the lawsuit as a stick to frighten them for daring to leave a bad review, not much would have happened. While it is nice someone stood up, I am saddened he did not go before the Judge and instead accepted a pink swear that they would do no wrong with the information they are seeking. This is dangerous simply because a Judge ignored all of the case law surrounding unmasking anonymous posters based on the very compelling evidence of... "We said so."
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Missed a word
I imagine there will be plenty to come from such an insanely broad order, it's just none of it will be good.
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Welcome, Ubervita
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Re:
Ah, but a TOS could be used as a legal "cover our butt" by Amazon. But how much money is Ubervita bringing in for Amazon and how much money does it take for Amazon to overlook any TOS violations?
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And you believed him?
He is under no obligation to do so. He has a broad warrant that doesn't require him to do this. Therefore why would he?
Also, even if he does limit his initial discovery efforts, what about tomorrow? This is like the NSA doublespeak, "under this order we have not done so."
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Re: And you believed him?
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Re:
Most sites that allow reviews have a mechanism that you can use to get shill reviews taken down. Use that mechanism. Also, you publicly call out the shills (with evidence) so everyone knows who they are. Most people understand that there are fake reviewers out there and appreciate help knowing which ones to ignore.
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