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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.

To our attackers: you should probably stop before you get into a lot of legal trouble.
As Levy notes, this use of the broad order to intimidate other commenters is quite problematic:
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.



Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Anonymous Coward, Jul 21st, 2014 @ 2:32pm

    It's a shame, but it seems that online retailers are going to have to display a large legal disclaimer saying "All reviews posted here are the OPINION of customers unless it is specifically stated otherwise" just to protect dissatisfied customers from legal actions.

     

    reply to this | link to this | view in thread ]

  2.  
    identicon
    Matthew A. Sawtell, Jul 21st, 2014 @ 2:40pm

    Hm... giving another 'good example' for African Jurists to Follow?

    For someone that is supposedly teaching trial skills to Jurists in various nations in Africa...

    http://www.wawd.uscourts.gov/judges/pechman-bio

    ... this example is coming off as '3rd World Justice' at its 'best'.

     

    reply to this | link to this | view in thread ]

  3.  
    identicon
    S. T. Stone, Jul 21st, 2014 @ 2:42pm

    you also have to wonder how good its products can be if success in the marketplace depends on suppression of criticism.

    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.

     

    reply to this | link to this | view in thread ]

  4.  
    identicon
    Anonymous Anonymous Coward, Jul 21st, 2014 @ 2:44pm

    Definition

    Ubervita: verb; meaning to intentionally and fraudulently intimidate an Internetz user for correctly claiming your product sucks. Can be used interchangeably with 'Trademark Troll', 'Marketplace Failure', 'Prenda Law', and 'CHP'.

    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.

     

    reply to this | link to this | view in thread ]

  5. This comment has been flagged by the community. Click here to show it
     
    identicon
    Clipping Path Outsource, Jul 21st, 2014 @ 2:45pm

    Good writing

    I think it will be hard to charged.

     

    reply to this | link to this | view in thread ]

  6.  
    icon
    That Anonymous Coward (profile), Jul 21st, 2014 @ 3:21pm

    Re: Good writing

    fail 1 - if you are going to spam, spelling .com correctly is a boon.
    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.

     

    reply to this | link to this | view in thread ]

  7.  
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    mR. gramer! (profile), Jul 21st, 2014 @ 3:35pm

    Re: Good writing

    yew know it be hard gharged!

     

    reply to this | link to this | view in thread ]

  8.  
    icon
    That Anonymous Coward (profile), Jul 21st, 2014 @ 3:36pm

    So I have a really uneasy feeling about all of this.
    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.

     

    reply to this | link to this | view in thread ]

  9.  
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    Kronomex, Jul 21st, 2014 @ 4:02pm

    Next step will be the legal requirement that all reviews and critiques of any company or product must be forwarded to the business so they make a decision as to whether or not they will allow posting/publication.

     

    reply to this | link to this | view in thread ]

  10.  
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    That One Guy (profile), Jul 21st, 2014 @ 4:20pm

    Please let this backfire

    So I seem to remember not too long ago another story where a company was harassing a reviewer on Amazon, and in response Amazon kicked the company in question clean off their service. Pretty sure Ubervita's actions here goes way beyond mere 'harassment', so hopefully Amazon treats them the same way.

    '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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  11.  
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    Uriel-238 (profile), Jul 21st, 2014 @ 4:26pm

    ¤¤½

    And I was just commenting about a similar issue over at the Gmail warrant overreach article.

    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.

     

    reply to this | link to this | view in thread ]

  12.  
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    Padpaw (profile), Jul 21st, 2014 @ 4:38pm

    wonder how much this judge is selling his impartiality for.

     

    reply to this | link to this | view in thread ]

  13.  
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    BentFranklin (profile), Jul 21st, 2014 @ 4:46pm

    It might not be all bad if the subpoena does go through because then we can see who all of Ubervita's sock puppets giving 5-star reviews are.

     

    reply to this | link to this | view in thread ]

  14.  
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    That One Guy (profile), Jul 21st, 2014 @ 4:53pm

    Re:

    I imagine, in the interests of 'protecting customer privacy', they'll try and keep the data to themselves to avoid just that happening.

     

    reply to this | link to this | view in thread ]

  15.  
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    That One Guy (profile), Jul 21st, 2014 @ 4:58pm

    Re: ¤¤½

    Indeed, that's why Amazon, or any company in their position, absolutely has to fight orders like this, because as soon as one company gets away with hassling critics/reviewers, then all reviews come into question and become useless.

    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?

     

    reply to this | link to this | view in thread ]

  16.  
    identicon
    Anonymous Coward, Jul 21st, 2014 @ 5:01pm

    Welcome, Ubervita

    Do enjoy your permanent stay in the same blacklist I use for spammers, pedophiles, phishers, and other filth that are just like you.

     

    reply to this | link to this | view in thread ]

  17.  
    identicon
    Anonymous Coward, Jul 21st, 2014 @ 6:11pm

    Maybe Amazon and others need to include in their ToS a statement along the lines of goods and services sold on our sites are subject to reviews good and bad , If you choose to use our services you will accept the good the bad and the ugly reviews, that is free speech ,on our American Website accept it

     

    reply to this | link to this | view in thread ]

  18.  
    icon
    That Anonymous Coward (profile), Jul 21st, 2014 @ 8:06pm

    Re:

    Only if the response is filed with the court.
    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."

     

    reply to this | link to this | view in thread ]

  19.  
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    That One Guy (profile), Jul 21st, 2014 @ 8:44pm

    Missed a word

    '...including CC #'s, very little good will come of this.'

    I imagine there will be plenty to come from such an insanely broad order, it's just none of it will be good.

     

    reply to this | link to this | view in thread ]

  20.  
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    Eldakka (profile), Jul 21st, 2014 @ 9:53pm

    And you believed him?

    I give credit to Atkins for promptly responding to my expression of concern by agreeing to limit his initial discovery efforts directed to Amazon;

    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."

     

    reply to this | link to this | view in thread ]

  21.  
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    That One Guy (profile), Jul 22nd, 2014 @ 12:04am

    Re: And you believed him?

    With how incredibly broad the warrant is, they could 'limit' it to just what's in there, and still scoop up an enormous amount of sensitive, personal information, so yeah, saying that they'll 'limit the initial discovery efforts' isn't really saying much, and given how they're apparently using the ruling to intimidate other critical reviewers, such an assurance is beyond useless.

     

    reply to this | link to this | view in thread ]

  22.  
    identicon
    Anonymous Coward, Jul 22nd, 2014 @ 12:16am

    Re:

    He's just doin' it for the gavulz.

     

    reply to this | link to this | view in thread ]

  23.  
    icon
    G Thompson (profile), Jul 22nd, 2014 @ 1:53am

    Re: Re: ¤¤½

    Here's an idea... change your defamation laws so that corporations cannot take suit for alleged defamation. Other western countries do this..

    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! ;)

     

    reply to this | link to this | view in thread ]

  24.  
    icon
    That One Guy (profile), Jul 22nd, 2014 @ 3:50am

    Re: Re: Re: ¤¤½

    A nice federal anti-SLAPP law would probably go a long way towards fixing that problem, and make companies like this one hesitate, if only for a moment, before bringing out the lawyers.

     

    reply to this | link to this | view in thread ]

  25.  
    icon
    John85851 (profile), Jul 22nd, 2014 @ 6:54am

    Re:

    That's a good idea in theory, but how many people read a TOS?
    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?

     

    reply to this | link to this | view in thread ]

  26.  
    identicon
    Anonymous Coward, Jul 22nd, 2014 @ 11:53am

    If a competitor is systematically hurting your reputation by employing folks to write fake negative reviews, what should/can you do?

     

    reply to this | link to this | view in thread ]

  27.  
    icon
    John Fenderson (profile), Jul 22nd, 2014 @ 11:58am

    Re:

    Two things:

    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.

     

    reply to this | link to this | view in thread ]


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