Sykes v. Seidel

On March 28, 2008, Clifford Shoemaker, acting on behalf of Lisa and Seth Sykes, subpoenaed blogger Kathleen Seidel. Seidel publishes the blog Neurodiversity, where she writes about autism issues. In February 2008, she wrote about the Sykes' lawsuit against various vaccine manufacturers, Sykes v. Bayer, in which they seek to link exposure to mercury to their son's autism.

Seidel's post mainly focused on developments in the lawsuit, but some of her language was critical of the Sykes and their case. For example, she indicated that the Sykes have "aggressively promoted the overwhelmingly discredited scientific hypothesis that autism is a consequence of mercury poisoning" and called their lawsuit "a hydra-headed quest for revenge, for compensation, and for judicial validation of autism causation theories roundly rejected by the greater scientific community, by numerous courts, and by a great number of individuals and families whose interests they purport to represent." Apparently as a result of this post, the Sykes served her with a subpoena in connection with the Sykes v. Bayer lawsuit. The subpoena demands that Seidel appear for a deposition on April 30, 2008 and that she produce a breathtaking array of documents.

Seidel summarizes the subpoena's demands as follows:

The subpoena commands production of "all documents pertaining to the setup, financing, running, research, maintaining the website http://www.neurodiversity.com" -- including but not limited to material mentioning the plaintiffs -- and the names of all persons "helping, paying or facilitating in any fashion" my endeavors. The subpoena demands bank statements, cancelled checks, donation records, tax returns, Freedom of Information Act requests, LexisNexis® and PACER usage records. The subpoena demands copies of all of my communications concerning any issue which is included on my website, including communications with representatives of the federal government, the pharmaceutical industry, advocacy groups, non-governmental organizations, political action groups, profit or non-profit entities, journals, editorial boards, scientific boards, academic boards, medical licensing boards, any "religious groups (Muslim or otherwise), or individuals with religious affiliations," and any other "concerned individuals."

On March 31, 2008, Seidel filed a motion to quash the subpoena in federal district court in New Hampshire. (The underlying lawsuit, Sykes v. Bayer, is taking place in federal court in Virginia, but the Sykes obtained the subpoena from the district court in New Hampshire because that court has jurisdiction over Seidel, a New Hampshire resident.) The motion to quash, which Seidel wrote herself, argues that the Sykes' subpoena infringes her constitutional rights, seeks material irrelevant to the Sykes v. Bayer lawsuit, and was not issued in good faith. Of particular interest, the motion argues that the subpoena requests material protected by the "journalist's privilege":

Although I am unaffiliated with a traditional news organization, and am not compensated for my work except to the extent described above, I am a de facto citizen-journalist regularly engaged in the public dissemination of news and information, and the promotion of discourse and advocacy regarding issues of national importance. See Von Bulow v. Von Bulow, 811 F.2d 136 (“[A]n individual successfully may assert the journalist’s privilege if he is involved in activities traditionally associated with the gathering and dissemination of news, even though he may not ordinarily be a member of the institutionalized press.”). As such, I am entitled to maintain the confidentiality of my work product and information sources.

On April 21, 2008, the federal district court granted Seidel's motion to quash. The court ordered plaintiffs' attorney Clifford Shoemaker to show cause as to why he should not be sanctioned for bringing the subpoena.

Update:

5/1/08 - The parties in Sykes v. Bayer filed a Voluntary Stipulation of Dismissal With Prejudice in the U.S. District Court for the Eastern District of Virginia.

5/6/08 - Attorney for Clifford Shoemaker filed a motion to extend the time for Shoemaker to respond to the order to show cause

5/7/08 - Court granted motion to extend time; response due May 15, 2008

5/14/08 - Shoemaker filed opposition to potential sanctions

5/27/08 - Seidel filed a response to Shoemaker's opposition to sanctions

6/23/08 - Court sanctioned Shoemaker for abusing the legal process by issuing the subpoena

6/24/08 - Court clerk sent letter to Virginia State Bar requesting notification of any action taken by bar counsel.