Owner of Neurodiversity.com Subpoenaed in Autism Suit.

April 4, 2008 9:37 AM

Kathleen is the owner of neurodiversity.com, one of the most comprehensive resources online in the topic of Autism Spectrum Disorders. Neurodiversity is just one person with a domain name and a computer, not a corporation, or a money-making enterprise, but apparently having good research skills and a willingness to share what you know is becoming legally problematic. Last week, Kathleen has received a subpoena commanding her to appear for deposition and document production in Rev. Lisa Sykes and Seth Sykes’ $20,000,000 personal injury lawsuit, Sykes v. Bayer.

That subpoena request, that she turn over every piece of autism-related correspondence and/or contact she has ever had with any company, government agency, religious group, or any other person with any interest in autism, which includes all contact and correspondence with other autism bloggers. They are also asking for all of her financial records.

Neurodiversity.com has posted about the Sykes ongoing litigation previously, and Kathleen has been outspoken against Sykes use of her church as a platform for her lawsuit, but this subpoena smacks of intimidation, given that Kathleen is not an expert, a scientist, has never met Sykes, nor been employed by Bayer. In her motion to quash the subpoena, Kathleen writes, in part:

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.

Attempting to drag Kathleen in as a third party witness seems a pretty clear form of intimidation, given that she possesses no special third-party knowledge. Is this the future of niche-market blogging?

posted by kristin (26 comments total)

Is this the future of niche-market blogging?

Probably not, if future suits are as seemingly frivolous and likely-to-be-quashed as this one.
posted by Blazecock Pileon at 9:47 AM on April 4, 2008

WTF methodist preacher?

From the "church" link above:

I urge the United Methodist Church and Women’s Division to consider the possibility that Rev. Lisa Sykes and her team's... quest for multi-million-dollar money damages and assumption of bad faith on the part of many specific and nonspecific targets of blame, may have impaired their judgment and capacity for objectivity...

Absolutely Amen to that. How completely revolting - a team of lawyers somewhere cooked up a scheme whereby they can offer the parents of autistic children a financially lucrative target - some money to make up for a "crime" committed against them and their children.

I think the worst part of all was Rev. Sykes reference to Bayer having "robbed our children of the future God intended for them," or some such nonsense. It's this sort of theological hogwash that prevents people from living a life of blessing, rather than miring themselves in victimhood. Your child is autistic - perhaps it would be better or easier or simpler were it not so - but your child is a blessed member of the beloved community. Not a mistake or the result of a crime or something like that.

Ugh... using autistic children (and a church, ffs) to win money, and at the end of the day, the children are still regarded as the result of a medical error, forever tainted by their autism, rather than as whole persons deserving of love and respect.
posted by Baby_Balrog at 10:13 AM on April 4, 2008 [4 favorites]

Doesn't the good reverend understand that God gave the child autism to punish him for being secretly sinly?

Sheesh.

Next up: the Lord subpoenaed!
posted by CheeseburgerBrown at 10:15 AM on April 4, 2008

Neurodiversity Previously on Metafilter
posted by anastasiav at 10:37 AM on April 4, 2008

God gave the child autism to punish him for being secretly sinly

what
posted by Baby_Balrog at 10:39 AM on April 4, 2008

Many times I find it hard to pragmatically justify lawyers. Laws I understand. Lawyers, not so much. In many cases like this I think we'd be better served by settling legal differences with fights in the streets. Yes, people would be beaten and bloody, but it would still be better. I have this unsettled feeling that "lawyers" is some sort of underworld scam rather than a cornerstone of justice.

I was listening to some lawyer last night lament that the Yoo "torture memo" was a source of shame for all lawyers since they as a community shouldn't be doing things like that, and they didn't do anything to stop it. I think we need more of that - Lawyers embracing the great shame they rightly deserve.

And when the hell did we stop literally spitting on lawyer just on general principle? Wasn't "lawyer" an accepted term of derision a couple hundred years ago? Didn't these morally bankrupt scum used to be social outcasts?

If this was a mob boss skimming pension funds, or a CEO doing some insider trading, we'd be throwing him is jail. But it's a lawyer, so he gets away with it.

This shit is broken. And lawyers made it that way.
posted by Ragma at 10:42 AM on April 4, 2008

Ragma. I'm a lawyer. You could replace the word "lawyer" in your comments with "snarky mefites" and it would make just as much sense. Now shut up.
posted by tiny crocodile at 10:54 AM on April 4, 2008 [6 favorites]

Many times I find it hard to pragmatically justify clergy. Faith I understand. Clergy, not so much. In many cases like this I think we'd be better served by settling theological differences with fights in the streets. Yes, people would be beaten and bloody, but it would still be better. I have this unsettled feeling that "religion" is some sort of underworld scam rather than a cornerstone of truth.

I was listening to some preacher last night lament that the Jim Bakker was a source of shame for all clergy since they as a community shouldn't be doing things like that, and they didn't do anything to stop it. I think we need more of that - preachers embracing the great shame they rightly deserve.

And when the hell did we stop literally spitting on priests just on general principle? Wasn't "Bible-thumper" an accepted term of derision a couple hundred years ago? Didn't these morally bankrupt scum used to be social outcasts?

If this was a mob boss skimming pension funds, or a CEO doing some insider trading, we'd be throwing him is jail. But it's a preacher, so he gets away with it.

This shit is broken. And clergy made it that way.
posted by notsnot at 11:01 AM on April 4, 2008 [1 favorite]

By which I meant to say: These people are all lawyers.

Blaming lawyers for legal problems is like blaming sanitation workers for the existence of garbage.
posted by tiny crocodile at 11:05 AM on April 4, 2008 [4 favorites]

Attempting to drag Kathleen in as a third party witness seems a pretty clear form of intimidation, given that she possesses no special third-party knowledge. Is this the future of niche-market blogging?

Lawyers pull this shit from time to time. Yes, it's usually intended to silence awkward voices who might be damaging the PR campaign you're running alongside your law suit. (a la SCO vs Groklaw). The courts will usually quash this stuff when it's brought to their attention.
posted by PeterMcDermott at 11:19 AM on April 4, 2008

If only that people was so persistant and tenacious in pursuing and sustaining scientific research, against all the greed and ignorance that keep suffocating it , the world would turn into their illusory paradise.
posted by elpapacito at 11:31 AM on April 4, 2008 [1 favorite]

Also, she's been fairly robust in her enquiries into the lawyer in this case, Shoemaker, documenting the half mil or so in fees he's had simply for presenting claims to the Dept. of Health and Human Services, presumably regarding vaccine damage cases.

It looks like the lawyer has at least as much invested in shutting her up as the Jebus freak does:

http://neurodiversity.com/weblog/article/149/
posted by PeterMcDermott at 11:34 AM on April 4, 2008

Hey Ragma, I spent just about all of my time defending people who are completely destitute. To fund this activity, I have to go around with my hat in hand begging for grants. So shaddup yo' face.
posted by 1adam12 at 12:00 PM on April 4, 2008 [1 favorite]

On preview: the subpoena is a real doozy. I don't see how this conforms with FRCP 26(b)(1). I know we have very liberal discovery rules, but demanding all correspondence between the site owner and any Muslim clergy? Really? How is ANY of this stuff supposed to lead to admissible evidence at trial?

Let her make a 45(2)(b) objection and force Shoemaker to justify himself. She's a nonparty, he's asking for a shitload of data, this is an extremely burdensome request for a list unlikely to reveal any admissible evidence, and SOME of it might even be privileged (the clergy stuff). Abusive lawyering like this disgusts me.
posted by 1adam12 at 12:18 PM on April 4, 2008

"Hey Ragma, I spent just about all of my time defending people who are completely destitute. To fund this activity, I have to go around with my hat in hand begging for grants."

1) Good for you. Sounds like you are doing good work, even while you perpetuate an unfixable system.

2) Some might think my suggestion that all lawyers vanish from existence, to be magically replaced by random street fighting, wasn't offered as a fully baked solution to the sorts of litigious unpleasantness hinted at by the FFP. Indeed one might conclude I was really just expressing a general disgust with a system of justice where corrupt, greedy liars are integral to the process.

Perhaps I could be made to understand how lawyers - in their current U.S. incarnation - are a very good thing and are the best possible implementation. Perhaps not. But trying to help me understand that I'm wrong about lawyers being the cause of more bad than good by telling me to shut up and piss off....... Let's just say I find your argument unpersuasive.....

So, now that I'm more in tune with how real lawyers persuade people - No. You. Shut up.
posted by Ragma at 12:44 PM on April 4, 2008 [1 favorite]

The courts will usually quash this stuff when it's brought to their attention.

Yes, after Kathleen has had to spend her own hard earned money to defend herself and get it brought to the court's attention. That, for me, is the most frustrating part - that crap like this can cause people thousands or even tens of thousands of dollars simply on a whim or out of a desire for some kind of revenge.
posted by anastasiav at 1:26 PM on April 4, 2008

I love it when people poke lawyers. They get so defensive.
posted by srboisvert at 1:50 PM on April 4, 2008

Didn't these morally bankrupt scum used to be social outcasts?

But trying to help me understand that I'm wrong about lawyers being the cause of more bad than good by telling me to shut up and piss off....... Let's just say I find your argument unpersuasive.....

Yeah, because you started the argument off so well, in such a reasoned and reasonable manner.

IANAL. IANMarriedtoAL. I worked for a lawyer once, years ago; he was an old guy who'd done nothing but handle school desegregation and civil rights suits for about 40 years. Two of my next door neighbors are lawyers; they handle GLBTQ family law, and have fought city hall/the police (and won!) on the unlawful arrest of protesters.

Without lawyers: No Clean Air Act. No Brown v. Board, Civil Rights Act, Voting Rights Act. Endangered Species Act. Shall I continue?

The judiciary is one of the pillars of our governmental system. Lawyers are part of that. There are good lawyers, and shitty lawyers. Like, there are good doctors and bad doctors. Some parts of the medical establishment are pretty broken - should we toss out all the doctors?

There's a baby here, and some bathwater. If you're going to advocate tossing out both, I suggest that you might want to have a replacement system in mind. And if you've really got an argument against lawyers and the legal system as it stands, try to make your points in such a way that aren't guaranteed to come off like you're flamethrowing, because that's what it sounds like.
posted by rtha at 1:54 PM on April 4, 2008 [4 favorites]

Yes, after Kathleen has had to spend her own hard earned money to defend herself and get it brought to the court's attention.

I have to say, I've never understood why US courts don't award costs against the losing side in these matters. If you're going to have to pay the other side's legal bills when you get it wrong, you're going to be a damn sight more careful who you litigate against.

Also: Although I've looked at that website before, I've just spent a happy few hours reading and being overwhelmingly impressed. That woman deserves a Nobel fucking Prize or something similar. A Webby, or a Bloggy, or whatever this year's online kudos award is seems way too inadequate for her work as a health activist and science reporter.
posted by PeterMcDermott at 4:00 PM on April 4, 2008

PeterMcDermott writes "That woman deserves a Nobel fucking Prize or something similar. A Webby, or a Bloggy, or whatever this year's online kudos award is seems way too inadequate for her work as a health activist and science reporter."

Seconded. While we go trought the Ways & Means departments, I will consider buying some of the Amazon book she's apparently getting some kind of commission from, but I have yet to figure out which ones. Quoting her site:

I receive $50-$100/month in commissions from Amazon.com for the sale of autism-related books and other merchandise. Since the site’s inception in 2004, I have received approximately $600 in miscellaneous contributions from autistic adults and parents of autistic children.

posted by elpapacito at 5:19 PM on April 4, 2008

The courts will usually quash this stuff when it's brought to their attention.

Yes, after Kathleen has had to spend her own hard earned money to defend herself and get it brought to the court's attention. That, for me, is the most frustrating part - that crap like this can cause people thousands or even tens of thousands of dollars simply on a whim or out of a desire for some kind of revenge.

That's the point isn't it? A person is going to think twice about having a blog like that. There used to be SLAPP suits (Strategic Lawsuits Against Public Participation) by developers against people who would try to fight development in their neighborhoods. The lawsuits would almost always get thrown out, but the person would have to hire a lawyer and spend serious money to defend himself or herself, people got scared, it became easier to just back down and not fight, so it was an effective intimidation tactic. Most states finally passed laws so that it became harder to file suits like that.

Now I guess we've got SSAPPs (Strategic Subpoenas Against Public Participation.)
posted by xetere at 10:25 PM on April 4, 2008

Wow -- there are serious constitutional violations in that subpoena. I'm particularly offended by the request for communications between Seidel and various other web sites and advocacy groups.

* * * * *

In NAACP v. Alabama, 357 U.S. 449 (1958), the NAACP challenged a state court’s discovery order requiring it to produce membership lists and other organizational documents, “claim[ing] that the production order in the state litigation trespasses upon fundamental freedoms protected by the Due Process Clause of the Fourteenth Amendment.” Id. at 460. The Supreme Court agreed, striking down the contempt judgment against the organization for refusing to comply. Id. at 466. Reasoned the Court:

"Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association …. It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the 'liberty' assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech. … [S]tate action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny. …

"It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as the forms of governmental action in the cases above were thought likely to produce upon the particular constitutional rights there involved. This Court has recognized the vital relationship between freedom to associate and privacy in one’s associations. … Compelled disclosure of membership in an organization engaged in advocacy of particular beliefs is of the same order. Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association[.]

Id. at 460-61 (citations omitted).

The Northern District of California has detailed the appropriate analysis to be followed when a litigant seeks materials from a private advocacy organization that are assertedly protected by the First Amendment and analogous state constitutional protections:

"Plaintiffs filed interrogatories in the course of this suit seeking, inter alia, the names of Solidarity's members, the sources of its financial support and the scope of its activities. Solidarity answered the majority of questions propounded, but objected to those seeking information it felt “chilled” its associational privacy or freedom of political expression. …

"[The federal discovery rules] entitle the plaintiffs to the broadest scope of discovery that did not violate the sacrosanct panoply of privileges afforded all citizens – litigants of private anti-trust suits included – by the Constitution. Although not explicitly enumerated in the text of the First Amendment, the right of association and privacy of speech, assembly and petition. Indeed, these rights have been provided both individuals and associations. …

"This certainly does not mean that a private litigant will not be able to obtain civil discovery from another private litigant over that party's constitutional objections. It does require that any tribunal confronted with facts and arguments similar to those presented here undertake a sensitive evaluation in three steps: (1) ascertain whether the precise material sought by discovery is truly “relevant” to the gravamen of the complaint; (2) if “relevant”, the court must balance the rights and interests of each litigant, the particular circumstances of the parties to the controversy, and the public interest in overriding the private litigants' representations as to resultant injury or to unavoidable need; and, (3) a conclusion that the discovery request, as framed, is the means least inclusive and intrusive for gathering the information to which the party has been deemed entitled.

Adolph Coors Co. v. Wallace, 570 F.Supp. at 204, 207-208.
posted by ClaudiaCenter at 11:19 PM on April 4, 2008

This tactic has also been used by the "troubled teen" industry to try to shut up activists they don't like. The ISAC website-- one of the best sites for info about abusive "tough love" programs-- was served with a similar subpoena by a boot camp which didn't like its exposes.

Fortunately, they had a good lawyer-- but people without lawyers and who are unable to write and defend themselves as well as Kathleen Seidel could fall prey to this nonsense.
posted by Maias at 12:05 PM on April 5, 2008

Blogger Successfully Quashes Subpoena
posted by homunculus at 9:37 AM on April 23, 2008

Thanks for the update homunculus. That's great news. And the lawyer who filed it is in all kinds of trouble. Proper order!
posted by tiny crocodile at 1:45 PM on April 23, 2008

Yay!
posted by rtha at 2:18 PM on April 23, 2008