[IP] Company and law firm misused John Doe subpoena to enable retaliation

[David Farber <dave@farber.net>]

Begin forwarded message:

From: Paul Levy <plevy@citizen.org>
Date: October 31, 2005 12:16:49 PM EST
To: dave@farber.net
Subject: Company and law firm misused John Doe subpoena to enable  
retaliation


I want to call your attention to the newest Internet free speech case
that we have filed.

The case, in which my new colleague Greg Beck will be lead counsel,
involves a large company that misused legal process to obtain a subpoena
to identify and retaliate against one of its employees.  The company,
Allegheny Electric, through its attorneys at the well-known firm of
Morgan Lewis & Bockius, filed a John Doe action in Pennsylvania state
court against a poster on a Yahoo! message board who identified himself
as an employee and criticized various actions of management that was
driving its stock value down, including, according to the employee, the
company's racial sensitivity training which he felt was wasteful.  The
company claimed that the use of racially offensive language to
characterize the program violated company policies.  However, after the
company used the lawsuit to subpoena Yahoo! and obtained the
employee's identity, it dismissed the lawsuit but fired the
employee.

This case typifies the nightmare scenario the underlies much or our
work in the Internet anonymity area * we worry that companies and
politicians are bringing John Doe suits more to find out who their
critics are than for a real purpose of pursuing such cases to judgment.
A few years ago, lawyers like Bruce Fischman and others, trolling for
business on behalf of those offended by online criticism made no bones
about the reasons for bringing these cases, but since we started
pointing to the public statements they have become much more
circumspect.   This case shows that the problem of bad faith use of Doe
subpoenas is a continuing problem.

That is why, despite our distress at the offensive way that our client
expressed himself, we have filed suit in his behalf against both
Allegheny and Morgan Lewis, seeking compensatory and punitive damages
for abuse of process and related torts.  We may not approve of our
client's language, but the First Amendment protected his right to say
it and his right to say it anonymously, and the misuse of the courts by
filing baseless lawsuits for the purpose to economic retaliation is one
that requires a remedy.

Our press statement follows:

Paul Alan Levy
Public Citizen Litigation Group
1600 - 20th Street, N.W.
Washington, D.C. 20009
(202) 588-1000
http://www.citizen.org/litigation


> > > Angela Bradbery 10/31/2005 11:07 AM >>>
PUBLIC CITIZEN PRESS RELEASE

NEWS  RELEASE

For Immediate Release:                          Contact: Greg Beck
(202) 588-1000
Oct. 31, 2005
            Valerie Collins (202) 588-7742

Allegheny Energy and Attorneys Abused Legal Process
to Uncover Identity of Internet Critic

Company Subpoenaed Yahoo! to Identify Anonymous
Poster and then Fired Him

WASHINGTON, D.C. * Allegheny Energy and its attorneys from Morgan,
Lewis & Bockius improperly used the courts to learn the identity of an
Internet message board poster critical of the company and then fired
him, Public Citizen said in a lawsuit filed in federal court in
Philadelphia late Friday.

In July 2003, an Allegheny employee * Fairview, W.Va., resident
Clifton Swiger * posted anonymous criticisms of the company in a
Yahoo! message board room dedicated to discussion of the company. Swiger
accused Allegheny, which is based in Greensburg, Pa., of poor management
and used a racist term to describe the company's diversity program,
which he called a waste of money.

Three months later, the company, represented by Morgan, Lewis, filed
suit against "John Doe" in Philadelphia as an excuse to subpoena
Yahoo! to disclose information about the poster of the critical remarks.
Allegheny claimed the poster had violated a "duty of loyalty" by
criticizing the company in the message board posting. The company then
filed an emergency motion to rush the subpoena from Yahoo!, claiming the
need to prevent the poster from posting additional messages that would
breach the employee's duty to the company. Allegheny claimed the
writer could be a "high-ranking" employee but did not inform the
court that the poster had identified himself in the message as a
"non-exempt" employee ("non-exempt" generally refers to a
relatively low-level employee, paid by the hour). Because he was never
notified of the lawsuit against him, Swiger could not defend himself
against Allegheny's claims. Yahoo! complied with the subpoena and
disclosed Swiger's information to Allegheny. After learning the
employee's identity, Allegheny and Morgan, Lewis discontinued the
lawsuit.

On Dec. 10, 2003, Swiger was fired for "placing racially derogatory
postings on the Yahoo! message board in violation of Allegheny
Energy's Positive Work Environment expectations," even though the
posted comments were not made at work or posted during work hours. It
took Swiger more than a year to find a new job, and then for a salary
well below the salary he received while employed by Allegheny.

In the civil complaint, Swiger claims that Allegheny and Morgan, Lewis
knowingly abused the court's processes by filing civil proceedings to
identify the poster of the critical remarks and then fire him, not to
proceed with a legitimate legal action. Additionally, Allegheny violated
Swiger's right to speak anonymously on the Internet and wrongfully
discharged him from his position after more than 16 years on the job.

"Although Swiger's use of racist language is abhorrent, the First
Amendment nevertheless protects it, and should protect it in a free
society," said Public Citizen attorney Greg Beck. "But the real harm
to our democracy is that the company and its law firm abused the
court's processes to get information for their private use,
employing discovery procedures that should be available only to support
litigation."

Mark Cuker from the Philadelphia firm Williams, Cuker & Berezofsky
serves as local counsel for Swiger.

To read Public Citizen's complaint, visit
http://www.citizen.org/documents/ACF2398.pdf.

###

Public Citizen is a national, nonprofit consumer advocacy organization
based in Washington, D.C. For more information, please visit
www.citizen.org.




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