Disgraced Georgia Dentist Files Bogus Defamation Lawsuit To Go After Person Who Posted News Report To YouTube

from the dr.-streisand? dept

Years back, Georgia dentist Gordon Austin was indicted on 12 counts "with multiple counts of simple battery, aggravated assault, and cruelty to children." The details of the case were pretty horrifying, involving claims of Medicare fraud, along with multiple claims that Austin hit his patients when they would complain loudly (apparently after the anesthesia did not work properly). When he was indicted, the local news covered the story as you can see below: That video was uploaded by a user named "gordonaustinsacoward," and it was uploaded on March 1, 2009, while the case was still ongoing. Eventually, Austin appeared to have worked out a plea deal, in which he pled guilty to Medicare fraud, while the assault and cruelty to children charges were dropped. His dental license was pulled and he got five years probation, along with $15,000 in fines.

For reasons unknown, apparently Austin is not happy about that news video being online. According to Paul Levy, Austin hired some lawyers to file a highly questionable defamation claim over the video, and (of course) to issue a subpoena to YouTube to try to uncover who uploaded the video.

Everything about this is ridiculous. The statute of limitations (1 year for defamation) is long past. From everything that's been reported, it's not clear that anything in the video is even defamatory anyway. And, of course, in just reposting someone else's video, there are Section 230 protections as well. This seems like Austin deciding he wants to find out who uploaded the video and this is the way he wants to do so. Paul Levy from Public Citizen has filed a motion to quash the subpoena.

It is settled law that, when a subpoena seeks to identify an anonymous Internet speaker so that the speaker can be served as a defendant in a lawsuit, the plaintiff has the burden of showing both that he has filed a valid complaint and that he has admissible evidence establishing the elements of his claims.... No such evidence has been provided here. Moreover, settled law also establishes that the complaint cannot possibly succeed for several reasons, including that the suit was filed six years after the allegedly defamatory statements were made, long after the statute of limitations expired, and that, because Doe only posted a video that somebody else had created, section 230 of the Communications Decency Act immunizes him from being sued.

The motion notes that the defamation complaint has all the hallmarks of someone just trying to censor -- mainly a total lack of calling out any actually defamatory claims:

The complaint repeatedly refers to “false” statements but never specifies what the alleged falsities are and how they are false. And although the complaint alleges actual malice in very conclusory terms, it never explains why an ordinary citizen would not be justified in accepting the word of the prosecution as well as Fox News in repeating the gist of the indictment and republishing the TV story.

Of course, in the end, all this can serve to do is bring Gordon Austin's previous guilty plea and indictment back into the public's attention. And it may end up costing him -- both in bringing the case back into the public's view, but also because California recently made attorneys' fees mandatory on subpoenas that are quashed, something that Paul Levy will now be testing -- including seeking fees from the lawyers who filed the bogus lawsuit and subpoena in the first place:

Several years ago, the California Court of Appeal ruled, in a case we handled involving a subpoena from the so-called “randy rabbi,” Mordecai Tendler, that California’s anti-SLAPP statute cannot be used to strike subpoenas sought in support of litigation in a different state. The California legislature responded by amending its Code of Civil Procedure to provide that, when the target of such a subpoena successfully moves to have the subpoena quashed, the court "shall" award attorney fees. This statutory provision can help encourage lawyers to take subpoena cases as, for example, the inclusion of a “special motion to quash” in DC’s anti-SLAPP law has encouraged lawyers to take on such motions pro bono. And equally important, it can create a disincentive for the issuance of groundless subpoenas to the California ISP’s that can only be subpoenaed in California. But, so far as I have been able to determine, that statute has not yet been applied. In order to fortify the disincentive, we intend to argue that, like any other attorney fee award under the discovery rules, that the lawyer can be held responsible along with the client.

As Levy notes, it appears that Austin's lawyer, John Autry, refused to withdraw the subpoena when asked, and appeared to know that he was filing a lawsuit well after the statute of limitations had run out:

I personally urged the lawyer who signed the subpoena, John Autry (whose name does not appear on his firm’s web site), to withdraw the subpoena. I am willing to assume that, given the nature of the legal practice described on the Coles Barton web site, their research might never have brought section 230 immunity to their attention, but Mr. Autry certainly knew that the defamation action was time-barred; he was defensive about that aspect of the case when I first spoke to him. Moreover, however much Mr. Autry might be willing to let his client proclaim his innocence when not speaking under oath, he cannot possibly doubt that the anonymous poster had at least some reason to believe that Austin was guilty of the charges for which he was indicted, and which were described in detail during the television broadcast. I don't see how he can possibly expect to make out a prima facie case in support of his client’s causes of action, and he can fairly be held responsible for not having noticed that California requires the plaintiff to present sufficient evidence to make out a prima facie case before an online poster can be outed. Thus Austin’s lawsuit has no realistic chance of success, and Mr. Autry can be faulted for lending his position as an officer of the court to obtain issuance of a subpoena that represents pure bullying, perhaps undertaken in the hope that the anonymous user might be unable to find and afford counsel to have it quashed in California.

It is a shame that Austin’s lawyer was neither able to persuade his client to drop the subpoena, nor willing to withdraw his own participation in this travesty. At this point, however, it seems likely that the lawyer will have to join his client in paying a financial price for that bullying.

Filed Under: anonymity, defamation, dentist, free speech, gordon austin, intimidation
Companies: youtube