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.