IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA CIVIL DIVISION

JOAN ORIE MELVIN,

v.

No.: GD 99-10264

AMENDED MOTION TO QUASH SUBPOENAS OR, ALTERNATIVELY, OBJECTIONS TO SUBPOENAS PURSUANT TO RULE 4009.21, AND MOTION FOR PROTECTIVE ORDER

Code:

Filed on behalf of Defendant, JOHN DOE

Counsel of record for this party:

WITOLD WALCZAK
PA ID. No.: 62976
AMERICAN CIVIL LIBERTIES FOUND. OF PENNSYLVANIA
313 Atwood Street
Pittsburgh, PA 15213
(412) 681-7864  

IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA CIVIL DIVISION

v.

AMENDED MOTION TO QUASH SUBPOENAS OR, ALTERNATIVELY, OBJECTIONS TO SUBPOENAS PURSUANT TO RULE 4009.21, AND MOTION FOR PROTECTIVE ORDER

Defendant John Doe, by and through his attorneys, Witold J. Walczak and the American Civil Liberties Foundation of Pennsylvania, hereby files this motion to quash any and all subpoenas for production of documents or duces tecum served by the Plaintiff in the above-captioned case, and to secure a protective order to safeguard Defendant's Constitutional First Amendment right to engage in pseudonymous political speech, and as grounds therefor avers as follows:

1. This case involves the repeated attempts of a sitting Pennsylvania Superior Court judge to use court process to discover the identity of a pseudonymous political website operator who, allegedly, published defamatory material about the judge. Defendant herein argues that the most recent attempt to force non-parties to divulge information revealing Doe's identity is procedurally defective and should, therefore, be quashed. Furthermore, the danger to Doe's First Amendment rights posed by the judge's continued use of process requires an appropriate protective order. 

2. Plaintiff Joan Orie Melvin is, and at all relevant times hereinafter mentioned was, a judge sitting on the Superior Court of Pennsylvania.

3. John Doe is a pseudonym for the webmaster of "Grant Street 99," an Internet website which at all relevant times hereinafter mentioned was located at http://members.col.com/grantst99/ politics/. The site was moved in February 1999 to http://www2. crosswinds.net/pittsburgh/~grantst99/.

4. On March 15, 1999, Plaintiff Melvin filed a three paragraph defamation action in the Circuit Court of Loudoun County, Virginia. Joan Orie Melvin v. John Doe, Law No. 21942. A copy of the Motion for Judgment is attached hereto as Exhibit 1. Attached to the Motion for Judgment is a copy of the allegedly defamatory web page. Id. The allegedly defamatory statement claims that Plaintiff Melvin improperly lobbied Governor Tom Ridge to appoint an unnamed lawyer to a judicial vacancy in Allegheny County. Id. 

5. Pursuant to the Loudoun County action, Plaintiff Melvin served a subpoena on America Online ("AOL"), the Internet Service Provider where Doe's web page was located. The subpoena sought information identifying Doe. 

6. Attorneys from the American Civil Liberties Foundation of Virginia entered a special appearance on behalf of Doe in the Loudoun County Circuit Court to challenge the Court's jurisdiction over the matter and to prevent AOL from disclosing documents identifying the Grant Street 99 webmaster.

7. On June 24, 1999, the Honorable Thomas D. Horne of the Twentieth Judicial Circuit Court of Virginia granted Doe's motion, thereby dismissing Plaintiff Melvin's action for lack of jurisdiction. A copy of the opinion is attached hereto as Exhibit 2.

8. On July 2, 1999, Melvin filed in the Allegheny County Court of Common Pleas a Praecipe for Writ of Summons in a Civil Action, which was issued on the same date. To this day, that writ has not been served on Doe's counsel.

9. Melvin and her attorneys are fully aware of the identity and location of Doe's counsel at the ACLU, who entered their appearance on his behalf in the Virginia proceedings. 

10. On July 23, 1999, Plaintiff Melvin's attorneys presented to this Court, ex parte, a Petition for Issuance of a Commission to authorize the Virginia courts to issue subpoenas to AOL and the Clerk of the Loudoun County Circuit Court for documents identifying John Doe.⁽¹⁾ This Court granted the ex parte application, signing an Order Directing Issuance of Commission to Issue Subpoena. 

11. Neither Doe nor his counsel were notified of this application or served in advance with the relevant court documents.

12. Melvin's counsel did not mail copies of the Praecipe for Summons and the Order Directing Issuance of Commission to Issue Subpoena until August 4, 1999. A copy of the certificates of service is attached hereto as Exhibit 3. Doe's counsel in Virginia received, by first class mail on August 6, 1999, a copy of the Petition for Issuance of a Commission, a signed Order Directing Issuance of a Commission to Issue Subpoena, and Praecipe for Subpoena Duces Tecum for both AOL and the Loudoun County Court Clerk. Melvin has not served Doe's counsel with any other papers in this action.

13. On August 6, 1999, Melvin served a subpoena on the Clerk of Courts in Loudoun County, Virginia. 

14. On August 13, 1999, John Doe's attorney filed a Motion to Quash Subpoenas and Request For Stay Pending Hearing.

15. On August 17, 1999, Melvin served a subpoena on AOL.

16. On August 19, 1999, Allegheny County Judge Ronald W. Folino granted Doe's motion to quash the subpoenas until September 3, 1999, at which time the matter was set down for hearing before this Court.

17. As of August 31, 1999, Melvin had not filed with the Prothonotary any of the foregoing documents. The only document filed as of that date with the court is the Praecipe for Writ of Summons in a Civil Action.

18. Both the application for, and the service of, the subpoenas for AOL and the Loudoun County Clerk were procedurally defective under the Pennsylvania Rules of Civil Procedure. Accordingly, the subpoenas should be quashed.

19. The 1997 amendments to the Rules of Civil Procedure added rules governing the application for, and service of, subpoenas upon non-parties. Pa. R.C.P. 4009.21, et seq. Plaintiff Melvin's attempt to subpoena information from AOL and the Loudoun Court Clerk to produce documents identifying John Doe has violated the relevant rules at each and every turn. In essence, the rules prohibit ex parte applications for subpoenas against non-parties. They mandate prior notice to, and an opportunity to object by, the other parties.

20. First, the application itself was faulty. Plaintiff Melvin did not give prior notice to Doe's counsel, with whom she was familiar from the Virginia proceedings, of the application for the subpoena. Rule 4009.21. The form of this notice is prescribed by Rule 4009.24. Doe's lawyers did not receive any papers until August 6th, when they received a copy of the signed orders, long after the application had been presented. 

21. Plaintiff Melvin also appeared in court, via counsel, to advocate for the subpoenas without first giving notice to John Doe's lawyers. Plaintiff Melvin's failure to give notice undermines the very purpose of the rule, which is to allow other parties 20 days to object to the proposed discovery. 

22. Plaintiff Melvin also failed to comply with the service requirements when she served the subpoenas on AOL and the Clerk. Rule 4009.22 establishes conditions precedent to service of the subpoenas, namely, giving 20 days notice of the intent to serve the subpoenas on all other parties and filing an appropriate certificate with the court. The form of the certificate is prescribed by Rule 4009.25. Plaintiff Melvin has neither given 20 days notice nor filed the requisite certificate.⁽²⁾

23. In fact, Plaintiff Melvin served a subpoena for the sealed affidavit on the Loudoun Court on August 6, the same day Doe's counsel received a copy of the Petition for Commission. Fortunately, the Loudoun Court did not release the document to Melvin, but rather contacted Doe's counsel to inquire about possible legal action to keep the document sealed.

24. These serious procedural flaws in the application for, and service of, the subpoenas, require that this Court quash the subpoenas. Accordingly, John Doe respectfully requests herein that the Court quash the subpoenas served on AOL and the Loudoun County Circuit Court Clerk.

25. Although the foregoing procedural argument should be dispositive, there are three reasons for addressing herein the constitutional interests at stake: 1) any doubts about the propriety of quashing the subpoenas based on the procedural defects must be resolved in favor of Doe because of the constitutional privacy and free speech issues; 2) if the Court does not agree that the procedural defects require granting this motion to quash, the constitutional issues must be addressed; and 3) in light of repeated and arguably improper attempts by Plaintiff Melvin to secure Doe's identity through court process, this Court can and should issue an appropriate protective order to safeguard Doe's First Amendment rights. Doe first elaborates on the third point before turning to the constitutional issues. 

26. Plaintiff Melvin first tried, unsuccessfully, to secure Doe's identity through discovery commenced pursuant to a frivolous action filed in Virginia. Not only was that action dismissed by the Virginia court for lack of jurisdiction, but the complaint, containing conclusory allegations and not verified by Melvin, could not under the pleading rules of this Commonwealth withstand preliminary objections. 

27. Moreover, John Doe has been advised by counsel for AOL that Plaintiff Melvin's attorney candidly informed her shortly after filing the Virginia action in March of 1999 that he simply wanted Doe's identity, and upon securing that identity would dismiss the Virginia suit. 

28. Furthermore, Melvin's lawyer, who happens to be her brother, was reported to have told a news reporter in January of 1999 that he would "get [Doe] in the long run." A copy of the article is attached as Exhibit 4. 

29. Finally, the stealth proceedings utilized by Melvin in this action and as described above, raise serious concerns about her true motivation in this litigation. The Writ of Summons has to date never been served on Doe's counsel. By law, that writ expired thirty days after issuance. Second, the surreptitious and improper manner in which Melvin has attempted to procure identifying information from AOL and the Loudoun County Clerk further supports the specter of an improper motive and improper use of judicial process.

30. In light of Plaintiff Melvin's attempts to use the courts of Virginia and this Commonwealth to identify John Doe, a protective order should be entered to prevent further discovery, at least until such time as Melvin files a complaint, under oath, with specific allegations and it is subjected to, and survives, an appropriate level of judicial scrutiny. Doe suggests an appropriate standard after discussing the relevant constitutional issues.

31. The subpoenas must be quashed and a protective order entered because Plaintiff Melvin's use of court process implicates important constitutional interests, namely, freedom of expression about political matters and public officials, and the right of anonymous political advocacy and dissent.

32. John Doe's website contains political speech, which commands the highest level of constitutional protection:

Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order "to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people."

McIntyre v. Ohio Elections Com'n, 514 U.S. 334, 346 (1995) (citations omitted). 

33. People elected to public office, such as Judge Melvin, must expect harsh criticism. This country's "profound national commitment to debate on public issues" means that the discussion "may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." New York Times v. Sullivan, 376 U.S. 254, 270 (1964) (citations omitted). See also, Id., at 269 ("[I]t is a prized American privilege to speak one's mind, although not always in perfectly good state, on all public institutions, and this opportunity is to be afforded 'vigorous advocacy' no less than 'abstract discussion.'") (Citations omitted). Judges are entitled to no special protection against criticism. Id. at 273; Bridges v. State of California, 314 U.S. 252, 270 (1941).

34. In order to provide the necessary "breathing space" for debate about government affairs, New York Times, 376 U.S. at 271-72, the Supreme Court has erected constitutional limits on defamation actions by public officials, such as Plaintiff Melvin. Neither factual error nor injury to official reputation suffices to establish liability. Id. at 273. In other words, speech about public officials that is false and/or injurious to reputation is still constitutionally protected. Id. New York Times and its progeny require that public officials who sue for defamation must prove by clear and convincing evidence not only that the speech was false and caused actual injury, but also fault, i.e., that the defendant published with malice or in reckless disregard of the truth. This extremely high constitutional standard purposely presents a formidable obstacle to defamation lawsuits by public figures, such as Judge Melvin, in order to nourish frank and open discussion about public affairs and public officials.

35. Furthermore, the broad First Amendment protection for political speech extends to anonymous and pseudonymous expression as well. McIntyre, 514 U.S. at 357. "Under our Constitution, anonymous [political speech] is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and dissent." McIntyre, 514 U.S. at 357. As the McIntyre Court noted, "Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind," in both literature and politics. Id. at 341-42. The tradition of anonymity in the advocacy of political causes is "most famously embodied in the Federalist Papers, authored by James Madison, Alexander Hamilton and John Jay, but signed 'Publius.'" Id. at 343 n.6.

36. "The decision in favor of anonymity may be motivated by fear of economic or official retaliation by concern about social ostracism, or merely by a desire to preserve as much of one's privacy as possible." Id. at 341-42. Indeed, "[p]ersecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all." Id. at 342 (citation omitted).

37. A speaker's decision whether to identify him or herself "is no different from other components of the document's content that the author is free to include or exclude." Id. at 348.

38. The right of anonymous or pseudonymous speech applies with equal force to discussions on the Internet. American Civil Liberties Union v. Johnson, 4 F.Supp.2d 1029, 1033 (D. N.M. 1998) (statute requiring personal identification information impermissibly "prevents people from communicating and accessing information anonymously"); American Civil Liberties Union v. Miller, 977 F. Supp. 1228, 1233 (N.D. Ga. 1997) (law making it illegal to use false name "prohibits such protected speech as the use of false identification to avoid social ostracism, to prevent discrimination and harassment, and to protect privacy ... -- a prohibition with well-recognized first amendment problems." 

39. The foregoing First Amendment interests also apply with full force to the discovery process. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 34-35 (1984); Herbert v. Lando, 441 U.S. 153, 178 (1979) (Powell, J., concurring) ("In supervising discovery ... a district court has a duty to consider First Amendment interests as well as the private interest of the plaintiff"); Stenger v. Lehigh Valley Hospital Center, 530 Pa. 426, 435 n.8 (1992) ("It is acknowledged that court orders which compel, restrict or prohibit discovery constitute state action which is subject to constitutional limitations....", citing Rhinehart, supra.). 

40. Consequently, the compelled disclosure of the identity of an anonymous or pseudonymous speaker violates the First Amendment if such disclosure does not satisfy a heightened standard of scrutiny. See, 6 Standard Pennsylvania Practice 2d, ß34.30 (1994) ("Once a litigant shows that a discovery request is directed at the heart of a group's protected [First Amendment] activities, the court must subject the request to a higher level of scrutiny.").

41. Doe does not argue herein that the First Amendment privilege is absolute. See, 6 Standard Pennsylvania Practice 2d, ß34.30 (1994) ("The privilege involving First Amendment rights of free association, free speech, and privacy applies to discovery between private litigants; however, the privilege is qualified and cannot be used as a blanket bar to discovery."). A plaintiff could conceivably justify piercing the veil of anonymity, but the proponent must bear a heavy burden to justify such an infringement of a First Amendment right. The trial court, in its role as the superintendent of discovery, must be vigilant in safeguarding the privilege. Otherwise, plaintiffs will be able to punish protected speech indirectly despite New York Times v. Sullivan's prohibition against direct punishment.

42. Given the compelling First Amendment interest at stake when a speaker's anonymity is threatened by a subpoena of this nature, the Constitution demands a stringent standard. Doe suggests that a minimum the determination whether the court will permit discovery of confidential identifying information from a third-party is comprised of the following elements: 1) the plaintiff must first establish a significant likelihood of success on the merits of her defamation claim; 2) the plaintiff must establish that a balance of hardships tips in her favor; and 3) the plaintiff must establish that the subpoena is the least intrusive alternative available. This factors, while mindful of the right to recover for legitimate defamation claims, ensure that a plaintiff will not be able to compel disclosure of confidential identifying information when disclosure is neither necessary nor fair to defendant.

43. The first element prevents unnecessary disclosure of an anonymous speaker's identity by requiring plaintiff to show that she is likely to succeed on the merits of her defamation claim before disclosure can be compelled. As discussed above, New York Times v. Sullivan imposes numerous hurdles before a plaintiff may punish speech through a defamation action. The falsity of the speech and whether it caused actual injury to reputation can be tested without disclosing the identity of the defendant. Unless the plaintiff can demonstrate a likelihood of success on the merits of these two elements of a defamation claim, there is no need to probe by oral deposition the defendant's mental process for purposes of establishing malice.

44. The second element allows a plaintiff to compel disclosure only when the balance of hardships tips in her favor. In determining whether plaintiff has satisfied this prong, the court should consider the harm caused to plaintiff by denying her access to the identity of the defendant. The court should balance this against the harm caused to defendant by the unnecessary revelation of defendant's identity. Because disclosure cannot be reversed once it is compelled, a plaintiff would only be able to demonstrate that the balance of hardships tips in her favor if she shows that identifying information is essential to proving her defamation claim, that is, if compelled disclosure is the last remaining piece of evidence preventing plaintiff from recovery.

45. The third element ensures that a plaintiff pursues the least intrusive means possible before the court permits the compelled disclosure of an anonymous speaker's identity. Specifically, before a plaintiff will be allowed to compel defendant's identity from a third-party, she must show that no discovery short of disclosure will be sufficient to meet her legitimate ends. See, e.g., Hatchard v. Westinghouse Broadcasting, 516 Pa. 184, 192-93 (1987) (discussing restrictions on discovery to protect confidential news informants). Thus, for example, if plaintiff sought discovery of the facts known to the speaker, she would have to show why these facts could not initially be obtained by interrogatories to the pseudonymous defendant.

46. Doe notes that two cases have addressed this issue, and both have held that a subpoena disclosing defendant's identity should not be issued lightly.⁽³⁾ Both cases, however, adopted standards less protective of speech than that proposed by Defendant in this case. A higher standard in this case is justified because it involves a defamation claim by a public figure. 

47. In sum, the constitutional implications in this case buttress the Defendant's procedural argument that the subpoenas should be quashed and that a protective order should issue. In light of the Plaintiff's conduct thus far in both the Virginia and Pennsylvania courts, this Court should enjoin any and all discovery by Plaintiff at least until Plaintiff Melvin files a complaint, under oath, with sufficient factual allegations to withstand preliminary objections. See, SEESCANDY.com, 185 F.R.D. at 579 ("A conclusory pleading will never be sufficient...."). Moreover, any discovery that might occur after that point should be superintended closely by this Court.

WHEREFORE, Defendant John Doe respectfully requests that this honorable Court quash Plaintiff Melvin's subpoenas to AOL and the Loudoun County Clerk of Courts and that a protective order be entered enjoining additional discovery until further order of this Court.

Respectfully submitted,

Dated: ______________ 

Witold J. Walczak
Pa. I.D. No. 62976
ACLF of PA
237 Oakland Ave.
Pittsburgh, PA. 15213-4090
(412) 681-7864

Attorney for Defendant John Doe 

 

VERIFICATION

I, Witold J. Walczak, HEREBY VERIFY that I am the attorney for Defendant John Doe and that the factual allegations in the foregoing Amended Motion to Quash Subpoenas Or, Alternatively, Objections to Subpoenas Pursuant to Rule 4009.21, and Motion for Protective Order are, to the best of my information and belief, true and correct. I understand that false statements made herein are subject to the penalties of set forth in 18 Pa.C.S.A. ß4904.

______________ __________________

Witold J. Walczak

IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA CIVIL DIVISION

v.

PROTECTIVE ORDER AND ORDER QUASHING SUBPOENAS

Having read and considered Defendant's arguments, having entertained oral argument thereon, and for good cause shown, it is on this ______ day of September, 1999, hereby ORDERED,

1. That the subpoenas served by Plaintiff on non-parties America On Line and the Loudoun County Court Clerk for documents identifying John Doe be, and hereby are QUASHED; and

2. That Plaintiff is hereby ENJOINED from engaging in any discovery in this action until such time as a Complaint has been filed; and 

3. That thereafter any discovery attempted by Plaintiff on non-parties shall be served on Defendant's counsel at least twenty (20) days in advance of service and shall otherwise conform to with Pennsylvania Rules of Civil Procedure 4009.21, et seq.

________________________

Hon. R. Stanton Wettick, Jr.

CERTIFICATE OF SERVICE

I, WITOLD J. WALCZAK, HEREBY CERTIFY that on this _____ day of September, 1999, a copy of the foregoing Amended Motion to Quash Subpoenas Or, Alternatively, Objections to Subpoenas Pursuant to Rule 4009.21, and Motion for Protective Order was hand-delivered to:

John R. Orie, Jr., Esq.
Orie & Zivic
25^th Floor, Lawyers' Building
428 Forbes Avenue
Pittsburgh, PA 15219

__________________________

Witold J. Walczak

_______________________________________________________

1. The subpoena to the Loudoun County Court Clerk requests, "A sealed envelope in the office of Clerk of Courts of Loudoun County, Virginia, containing John Doe's true identy [sic] filed at Law No. 2194 in the Circuit Court of Loudoun County, Virginia." Defendant notes parenthetically that the issuance of an order by a judge of a foreign jurisdiction to unseal a document in a Virginia court proceeding that was sealed by a Virginia judge raises serious concerns regarding comity. For reasons explained below, this Court need not resolve this i