Thursday, July 03, 2008

Blogger Wins Legal Action

A while back, I posted a quick blurb on the legal action taken against a blogger, Kathleen Seidel, who had an excellent blog on neuroscience. Some lawyer had subpoenaed her with a shockingly overbroad document request (she was a non-party to the suit and the courts generally take a disfavorable view of broad documents request served on a non-party to the suit). Well, the lawyer has been sanctioned and I think rightfully so.

The order imposing sanctions is direct and to the point. The highlights:
Shortly after posting an article on several fees Mr. Shoemaker obtained in various Vaccine Injury Compensation Program claims, Shoemaker served Ms. Seidel with the subpoena at issue.

The subpoena, as Ms. Seidel correctly summarizes:

commands production of “all documents pertaining to the setup, financing, running, research, maintaining the website” – 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 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.”

The subpoena is very broad. Ms. Seidel filed a timely and well-prepared motion to quash. Shoemaker interposed no objection. The record provides no information as to whether Shoemaker provided notice of the subpoenaed deposition to counsel for defendants.

I quashed the subpoena and ordered Mr. Shoemaker to show cause why he should not be sanctioned under Fed. R. Civ. P. 11. He has responded to that Order. Ms. Seidel has responded to his response.


Shoemaker has not offered a shred of evidence to support his speculations. He has, he says, had his suspicions aroused because she has so much information. Clearly he is unfamiliar with the extent of the information which a highly-competent librarian like Ms. Seidel can, and did, accumulate. If Shoemaker wanted to know if Ms. Seidel was in part supported by or provided information by Bayer, he could have inquired of Bayer or limited the Seidel subpoena to that information. Instead he issued the subpoena calling for production of documents and a deposition on the day before he stipulated to dismiss the underlying suit with prejudice. His failure to withdraw the subpoena when he clearly knew that suit was over is telling about his motives. His efforts to vilify and demean Ms. Seidel are unwarranted and unseemly.


I find that Clifford Shoemaker violated Fed. R. Civ. P. 11(b)(1) and Rule 45(c)(1). The 11(b)(1) violation may also violate Virginia’s Rules of Professional Conduct which provide in part:

(1) Preamble: A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others.

(2) Rule 3.1: A lawyer shall not assert or controvert an issue therein unless there is a basis for doing so which is not frivolous . . .

Comment [1]. The advocate has a duty to use legal procedure for the fullest benefit of the client’s cause, but also a duty not to abuse legal procedure. (emphasis added).

Clifford J. Shoemaker’s action is an abuse of legal process, a waste of judicial resources and an unnecessary waste of the time and expense to the purported deponent.

The Clerk of Court is directed to forward a certified copy of this order, the motion to quash, the show cause order, and the response of Shoemaker and Seidel to the appropriate professional conduct committee of the Virginia State Bar in order that it may be made aware of Clifford J. Shoemaker’s conduct and so that those authorities may take whatever action they deem appropriate.
The judge issuing this order is Magistrate Judge James Muirhead of the United States District Court for the District of New Hampshire.

I would have liked to see some financial penalties, but that would be my only quibble.

1 comment:

Liz Ditz said...

I was one of the bloggers named in Shoemaker's subpoena, which is my dog in the hunt.

You may find Seidel's two latest posts of interest.

Billing the Adversary

Numerous decisions issued over the twenty year history of the Vaccine Injury Compensation Program (VICP) document the extent to which the limits on attorney compensation have been tested by practitioners seeking remuneration from its taxpayer-financed coffers. The following review summarizes decisions involving the recently-sanctioned VICP specialist Clifford Shoemaker, Esq. -- a central instigator of the campaign to convince the public of the speculative, scientifically unsupported hypothesis that a significant number of cases of autism result from vaccine injury, co-founder of the Institute for Chronic Illnesses, and a founding member its Institutional Review Board, which sponsors and provides ethical oversight of medical research and experimentation on autistic children and adolescents conducted by his long-time colleague Dr. Mark Geier.

Inspecting the Outstretched Palm

The potential for procedural and billing improprieties by Vaccine Injury Compensation Program petitioners’ attorneys — especially those representing numerous clients with similar, speculative claims — is made painfully evident in Special Master Denise Vowell’s recent fee and cost decision in Carrington v. HHS, Case 99-495V (Fed.Cl.Spec.Mstr., June 18, 2008) (unpublished), posted to the U.S. Court of Federal Claims website three days ago.