Your Friday Dose of Woo has been interrupted to bring you an important rant. The previously scheduled installment will be delayed and will appear later on in the day.
This is more important.
A common characteristic of cranks and denialists, be they antivaccinationists or large corporations or whatever, is an intolerance of criticism for their views. All too frequently, this has taken the form of the abuse of the legal system in order to try to silence their opponents. The Society of Homeopaths did it to a blogger a while back. A quack by the name of Joseph Chikelue Obi did it to the same blogger earlier this year. I had written those examples off as not completely applicable to the U.S. because U.K. libel laws are so plaintiff-friendly as to make it almost impossible for anyone who isn’t already wealthy to successfully defend a libel suit. However, the U.S. legal system lends itself to such abuses as well, just in different ways.
That’s what we’re seeing as two litigants seeking compensation for “vaccine” damage, Rev. Lisa Sykes and Seth Sykes have abused the legal system when they subpoenaed autism blogger Kathleen Seidel, a blogger who has done work every bit as detailed and well-researched as any journalist and posted it at her Neurodiversity weblog.
The subpoena itself is clearly nothing more than a fishing expedition designed to intimidate Kathleen into silence after she did a series of posts about the antivaccination views of the Sykes and their lawsuits against Bayer, a series that most recently concluded with a post called the Commerce of Causation, which listed the numerous dubious lawsuits that the Sykes’ lawyer, Clifford Shoemaker, has been involved in against vaccine manufacturers (just look at all the vaccine misinformation and pseudoscience on his website!). I can’t for the life of me figure out the legal justification for this subpoena. That’s because there doesn’t appear to be one, other than to go on a vendetta of a fishing expedition by trying to drag Kathleen as a third party witness into the Sykes’ lawsuit. It doesn’t matter, as Overlawyered has pointed out, that Kathleen possesses no specialized knowledge that can’t be obtained any other way or that she is not a party in any way to the lawsuit, or that she has not been accused of defaming anyone. Reading the subpoena makes it mind-numbingly obvious that Shoemaker hopes to turn up evidence that Kathleen has accepted support from the federal government or vaccine manufacturers, which, I’m guessing, he hopes to use to slime her and destroy her credibility. There’s nothing there, but Shoemaker thinks there is, and that’s enough.
The demands of the subpoena are amazingly broad and particularly chilling. Shoemaker wants to rummage through Kathleen’s financial records, correspondence, Freedom of Information requests, and much, much more. Just read the text of the subpoena. Most chilling of all, from the point of view of a blogger, is that the subpoena demands all correspondence with fellow bloggers (see #5 in the subpoena; it’s a scanned document, and I couldn’t just cut and paste the text).
Kathleen has drafted a motion to quash this frivolous and vindictive subpoena. Her text points out just how much of a blatantly obvious fishing expedition the subpoena is:
9. The subpoena commands production of “all documents pertaining to the setup, financing, running, research, maintaining the website http://www.neurodiversity.com” – including but not limited to material mentioning the plaintiffs – and the names of all persons “helping, paying or facilitating in any fashion” my endeavors. The subpoena demands bank statements, cancelled checks, donation records, tax returns, Freedom of Information Act requests, LexisNexis® and PACER usage records. The subpoena demands copies of all of my communications concerning any issue which is included on my website, including communications with representatives of the federal government, the pharmaceutical industry, advocacy groups, non-governmental organizations, political action groups, profit or non-profit entities, journals, editorial boards, scientific boards, academic boards, medical licensing boards, any “religious groups (Muslim or otherwise), or individuals with religious affiliations,” and any other “concerned individuals.”
10. The subpoena violates my First Amendment right to freedom of religion by demanding information about my religious beliefs.
11. The subpoena violates my Fourth Amendment right to freedom from unreasonable search and seizure because it is overbroad and general in character.
12. The subpoena is impermissible under Rule 26(b)(1) of the Federal Rules of Civil Procedure, which allows discovery of only those matters that are relevant to the subject of the action. None of the information requested in the subpoena can reasonably be anticipated to assist the court in determining the cause of Wesley Sykes’ neurodevelopmental disorders, the truth of the plaintiffs’ factual allegations, or the liability of Bayer Corporation for negligence, design defect, or breach of warranties. The subpoena therefore serves no legitimate evidentiary or investigatory function.
[…]
15. Even if the subpoena were not unconstitutional, illegal and barred by the journalist’s privilege, it is excessively intrusive in its terms. Plaintiffs and their counsel seek not only to rummage through records that they suspect pertain to themselves, but also through my family’s bank records, tax returns, autism-related medical and educational records, and every communication concerning all of the issues to which I have devoted my attention and energy in recent years. I have a reasonable expectation of privacy with respect to this material. It would be wholly inappropriate for the court to compel me, a nonparty to this civil action, to subject myself, my family, friends and acquaintances to the hostile scrutiny of plaintiffs in order to enable them to argue some point that would not even help to prove their case.
[…]
17. The subpoena was not issued in good faith because its manifest purpose is not to elicit information relevant to determining Bayer’s liability for Wesley Sykes’ medical and developmental problems, but to indulge his parents’ and their attorney’s curiosity about my motivations and associations; to aggressively communicate their suspicion that I am not merely a fellow citizen who openly, intelligently and conscientiously disagrees with their public statements and actions, but a covert agent of the government, the pharmaceutical industry, or some other hidden force; to disrupt my relationships with my associates and news sources; and to intimidate, harass and retaliate against me for exercising my constitutional right to report and express opinions about matters of widespread public interest in which plaintiffs and plaintiffs’ counsel are involved. These are not legitimate reasons to invoke the judicial subpoena power. Indeed, in so doing, Mr. Shoemaker has engaged in a sanctionable abuse of his authority as an officer of the court.
I agree with Jake and PalMD. Mr. Shoemaker is a despicable scum-sucking piece of excrement. Not only is there no scientific evidence that vaccines cause autism, making Shoemaker’s raison d’être (suing vaccine manufacturers for fantastical “vaccine injury”) of no value to society, but he can’t take the heat when a blogger takes a look at his profiting on scientifically a discredited hypothesis. True, if the Sykes believe that vaccines somehow injured their child, they have the right to sue, but if Kathleen Seidel (or anyone else for that matter) believes that they are engaging in a frivolous lawsuit based on a claim that has no basis in science (as Kathleen and I both do), they have the right to say that, particularly when backed up with evidence and strong arguments. What Shoemaker is doing is nothing short of using legal thuggery to indulge his paranoid beliefs that Kathleen is somehow a “pharma shill” and to intimidate other bloggers who may have communicated with her or helped her. As Walter Olson of Overlawyered put it:
Should the subpoena somehow be upheld and its onerous demands enforced, it could signal chilly legal times ahead for bloggers who expose lawyers and their litigation to critical scrutiny.
That’s clearly what Shoemaker, the Sykes, and the mercury militia want, and that’s almost certainly why Shoemaker issued this subpoena. The antivaccination movement thrives on intimidation. It can’t handle reasoned and science-based criticism because it can’t answer it, having no science to support their increasingly tortured claims of vaccines causing autism. As much as they would normally deserve my sympathy for the difficult task they have raising an autistic child, the Sykes lost most of it through their lawsuits based on vaccine pseudoscience and lost the last of it when they let their shark try to drag Kathleen Seidel into this through the issuance of this subpoena, whose issuance is a lot like a SLAPP-style action. Now they have only my contempt for allowing this legal thuggery to occur in their name, and my contempt goes double for their lawyer, Clifford Shoemaker, who clearly is willing to abuse the subpoena process to try to punish a gadfly who has annoyed him with her commentary. We can only hope that the judge sees through this blatantly obvious legal fishing expedition and its naked intent to intimidate a blogger whose only involvement with the case is to comment on it from the sidelines and to publicize justified criticisms of Shoemaker’s and the Sykes’ handling of the case. We can only hope that the judge agrees with Kathleen Seidel and not only quashes this subpoena but quashes Shoemaker and his abusive tactics–preferably with serious sanctions. We can also hope that the state bar where Shoemaker practices is made aware of his abusive tactics. We can also hope that Shoemaker and the Sykes, like “Dr. Obi” and the Society of Homeopaths before them, discover the Streisand effect.
