Lawyers For Thomas Cooley Law School Skirt Legal & Ethical Questions In Uncovering Anonymous Blogger They're Suing
from the maybe-they-don't-teach-ethics-at-thomas-cooley-law-school dept
Anyway, the lawyer representing Cooley, Michael Coakley, who attended the (according to Cooley itself) far inferior law school of the University of Michigan, apparently decided to take some questionable steps in identifying one of the bloggers in question. Initially, he had filed a subpoena on the ISP via the Michigan state court where the case is pending, demanding identifying info. The blogger's lawyer, John Hermann, filed a motion to quash the subpoena. While the court was still considering that, Coakley went and had another subpoena for info served via California. While the ISP (more on that in another post) had promised Hermann that it would not divulge the info while the motion to quash was being considered, and then told him it wouldn't do anything before August 22nd, it apparently handed over the info on August 17th.
Coakley then sent Hermann a letter saying that since the ISP had already identified the blogger from the second subpoena, Hermann's motion to quash the original subpoena was moot, and threatened to ask for sanctions against Hermann if he didn't drop it. He also threatened to reveal the blogger's name in a public court filing, if Hermann and the blogger did not agree to certain conditions and provide certain info.
Of course, all of this is of dubious ethics and legality. As Paul Alan Levy explains via the link above:
In fact, because Coakley knew that he had obtained this information in the face of a pending motion to quash the subpoena asserting that the Doe had a First Amendment privilege to speak anonymously, he not only had no right to obtain had no right to use the information against Doe, but he had an obligation to return the information pending a resolution of the discovery dispute. That is because Michigan, like most jurisdictions, has a discovery rule protecting against the misuse of information that has been obtained despite a claim of privilege. In Michigan, Rule 2.302(B)(7) provides thatThankfully, the court seems to recognize this somewhat questionable activity on the part of Coakley, and has ruled that the disclosed information should be sequestered, and the papers filed in the case naming the blogger should be stricken from the record. Still, even if this lawyer isn't a Cooley grad, these actions certainly don't reflect well on Cooley as a law school.
- If information that is subject to a claim of privilege or of protection as trial-preparation material is produced in discovery, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved. A receiving party may promptly present the information to the court under seal for a determination of the claim. If the receiving party disclosed the information before being notified, it must take reasonable steps to retrieve it. The producing party must preserve the information until the claim is resolved.
Because Coakley is the head of the litigation department at a prominent Detroit law firm, he must have been aware of this rule. In fact, his letter could be read as expressing some defensiveness about his obligations, because he began by emphasizing that the disclosure really wasn’t his fault: the disclosure had occurred, he said, “without direction from us (other than the subpoena itself).” But the California subpoena was served after the motion to quash was filed in Michigan, and the threat to use the privileged information to exact concessions from Doe, and the subsequent filing of an amended complaint and other papers prominently displaying Doe’s name, seem to have been deliberate violations of the rule. Coakley has not responded to my requests for information and for comment on my concerns.
Given how marginal his client's defamation claims against the Doe are, Coakley may have felt he had no choice but to skirt the ethical edge by violating this rule. (The linked complaint, which was a draft attached to Coakley's demand letter, reflects a false name; by the time it filed the amended complaint, it had used the disclosure to identify the Doe and put that name in the complaint). Coakley markets himself to potential clients by proclaiming his reputation as “a scrapper in protecting their interests.” As I see it, Coakley’s scrappiness took him a few steps too far in this case.