You be the Judge

[greedy__malone]

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
IN RE: )
)
SUBPOENA ISSUED TO )
INVESTORSHUB.COM )
on behalf of the United States District )
Court for the Northern District of )
Indiana in the case of Michiana Dairy )
Processors, LLC v. All Star Beverages, Inc. )
Case No. 2:09-CV-0039-PRC )
MOTION TO QUASH,
OR IN THE ALTERNATIVE TO STAY SUBPOENA
John Doe (identified in the subpoena as “Risicare”), Jack Doe (identified in the subpoena
as “wicke”), Jim Doe (identified in the subpoena as “greedy_malone”), Jason Doe (identified in the
subpoena as “dollarwize”), and Jed Doe (identified in the subpoena as “LVTruthseeker”) by
counsel, move pursuant to Fed.R.Civ.P. 45(c) to quash a certain subpoena issued on March 18,
2010 on behalf of Donna Mohlman. For the reason set forth below, the subpoena should be
quashed.
Alternatively, this Court may choose to stay the subpoena as to the five Doe movants while
they seek a protective order from the United States District Court for the Northern District of
Indiana. This Court should also be aware that, by agreement with counsel issuing the
subpoena, this motion is also being filed with the United States District Court for the
Northern District of Indiana, where the underlying lawsuit is pending.
FACTS
1. John Doe, Jack Doe, Jim Doe, Jason Doe and Jed Doe are members of an Internet
web site known as InvestorsHub.com. A feature of this web site is a forum where members may
engage in discussion and debate about investment opportunities, stocks, and other topics of interest
to them (see http://investorshub.advfn.com/boards/hubstocks.aspx). The members commonly use
“screen names” to identify themselves to other members of the forums.
2. John Doe uses the alias “Risicare” when he posts messages to the forums at
InvestorsHub.com.
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3. Jim Doe uses the alias “greedy_malone” when he posts messages to the forums at
InvestorsHub.com.
4. Jack Doe uses the alias “wicke” when he posts messages to the forums at
InvestorsHub.com.
5. Jason Doe uses the alias “dollarwize” when he posts messages to the forums at
InvestorsHub.com.
6. Jed Doe uses the alias “LVTruthseeker” when he posts messages to the forums at
InvestorsHub.com.
7. Messrs. Doe, among others, have participated in a discussion regarding a certain
stock, Prime Star Group, Inc. (PSGI). In this discussion, they have raised questions of legitimate
concern to investors and potential investors concerning the business operations of Prime Star
Group, Inc. These questions include whether regulatory authorities are investigating the company,
the backgrounds of the company’s leadership, and possible ties to other companies that have been
the target of investigations. This information, if true, would be of concern to potential investors in
that the value of the stock of Prime Star Group, Inc. could be adversely affected.
8. The discussions of Prime Star Group, Inc. have been very critical of the company.
Not surprisingly, the company’s leadership is unhappy about the negative comments.
9. The company’s leadership has embarked upon a scheme to silence its critics at
InvestorsHub. The company has used various means in an effort to unmask the identities of its
critics for the purpose of filing lawsuits against them or seeking other forms of punishment.
10. In one instance, the company’s leadership identified one of its critics as an
individual employed in a government position. The company’s leadership complained, and the
critic was disciplined. See http://www.marketwire.com/press-release/Prime-Star-Group-
Uncovers-Identity-of-Anonymous-Basher-1096791.htm; http://abclocal.go.com/wls/story?
section=news/iteam&id=7227821 [both last visited March 31, 2010].
11. Donna Mohlman is, on information and belief, the former spouse of Roger
Mohlman, the chief executive officer, chairman and president of Prime Star Group, Inc.
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12. On March 18, 2010, Ms. Mohlman caused a subpoena to be issued by an officer of
this Court to InvestorsHub.com. The subpoena requires InvestorsHub.com to produce
information, including the names, email addresses, and Internet protocol (IP) addresses of seven
individuals, including Messrs. Doe. The subpoena was signed by J. Craig Knox, Andrews, Crabtree,
Knox & Andrews, 1558 Village Square Boulevard, Tallahassee, FL, 32309. It was not signed by the
Clerk of this Court. A copy of this subpoena and its exhibits is attached to this motion as Exhbit
A.
13. The subpoena was issued by this Court because its recipient, InvestorsHub.com, is a
business located in the Northern District of Florida. The subpoena was issued under the auspices
of a case pending before the United States District Court for the Northern District of Indiana,
Michiana Dairy Processors, LLC v. All Star Beverages, Inc., et al. Case No. 2:09-CV-0039-PRC. In that
case, Donna Mohlman alleges that Michiana Dairy Processors and its attorneys have conspired
with others to “ruin the names” of Roger Mohlman, Donna Mohlman and the defendant
companies through a series of postings at InvestorHub.com. Presumably, Ms. Mohlman believes
Messrs. Doe are part of the conspiracy.
14. The underlying lawsuit involves a claim by Michiana Dairy Processors that various
defendants breached a contract, fraudulently transferred assets, and that Donna Mohlman
committed fraudulent acts. Donna Mohlman has filed a counter claim against Michiana Dairy
Processors, LLC, alleging that it and its attorneys have conspired with others to “ruin the names”
of Donna Mohlman, her former spouse, Roger Mohlman, and the various companies involved in
the lawsuit.
15. Messrs. Doe request that the Court quash the subpoena, or in the alternative, to
stay the subpoena while Messrs. Doe seek a protective order from the U.S. District Court for the
Northern District of Indiana.
16. This subpoena is not the first effort Ms. Mohlman has made to reveal the identity
of her critics. As shown by the affidavit of Sonya Branstine, the president of InvestorsHub.com,
Ms. Mohlman has tried to have other subpoenas issued for this information, using different courts
and a different lawsuit. [See Exhibit B.]
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17. Messrs. Doe have had no communications with Michiana Dairy Processors, LLC or
its counsel concerning the issues in this litigation or any messages that they may have posted to
discussion forums on the Internet. [See Exhibits C, D, E, F and G.]
ARGUMENT
I. Legal Standard
Under the Federal Rules of Civil Procedure, this Court may quash a subpoena if it
“requires disclosure of privileged or other protected matter” or “subjects a person to undue
burden.” Fed.R.Civ.P. 45(c)(3)(A)(iii) and (iv). This Court is the appropriate venue for this motion
because subpoenas must be challenged before the issuing court. Fed.R.Civ.P. (c)(3)(A) (“On timely
motion, the issuing court must quash or modify a subpoena…”) (emphasis added).
II. Anonymous speech is protected by the First Amendment
The First Amendment to the Constitution provides broad protection to persons engaged in
speech. The protection is broad enough that it encompasses anonymous speech. The Supreme
Court of the United States has consistently defended the right to engage in anonymous speech in
many situations, noting that “[a]nonymity is a shield from the tyranny of the majority…[that]
exemplifies the purpose [of the First Amendment] to protect unpopular individuals from
retaliation…at the hand of an intolerant society.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334,
357 (1995). The Court in McIntyre also stated that, “an author’s decision to remain anonymous, like
other decisions concerning omissions or additions to the content of a publication, is an aspect of
the freedom of speech protected by the First Amendment.” 514 U.S. at 342. This protection of
anonymous speech is hardly new; in 1960 the Supreme Court struck down an ordinance requiring
identifying information on handbills as a violation of the First Amendment. The Court observed,
“[a]nonymous pamphlets, leaflets, brochures and even books have played an important role in the
progress of mankind.” Talley v. California, 362 U.S. 60, 64 (1960).
Anonymous speech receives the same constitutional protection regardless of the means of
communication. Speech on the Internet does not receive a different level of protection. Reno v.
ACLU, 521 U.S. 844, 870 (1997). As the U.S. District Court for the Western District of
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Washington noted in 2001, “The right to speak anonymously extends to speech via the Internet.
Internet anonymity facilitates the rich, diverse, and far ranging exchange of ideas.” Doe v.
2theMart.com, 140 F.Supp.2d 1088, 1093 (W.D. Wash. 2001).
The courts have also held that state action is implicated in cases involving subpoenas and
other court orders. See New York Times v. Sullivan, 376 U.S. 254 (1964). Thus, First Amendment
protections are triggered, and this Court must ensure those protections are enjoyed by Messrs.
Doe.
III. Anonymous speakers enjoy a qualified privilege under the First
Amendment.
It is well settled that not all speech is protected by the First Amendment. Material that is
obscene does not enjoy protection, nor does speech that is defamatory. See, e.g., Columbia Ins. Co. v.
Seescandy.com, 185 F.R.D. 573, 578 (N.D. Cal. 1999). The courts have taken an approach to cases
where a party desires to unmask an anonymous critic that balances the First Amendment interests
of the speaker with the rights of the allegedly aggrieved party. Sony Music Entm’t, Inc. v. Does 1–40,
326 F.Supp.2d 556, 565 (S.D.N.Y. 2004). This approach fulfills the caution raised by the Supreme
Court in Buckley v. American Constitutional Law Foundation: Courts must “be vigilant…[and] guard
against undue hindrances to…the exchange of ideas.” 525 U.S. 182, 192 (1999). Thus, even while
certain classes of speech do not receive any protection from the First Amendment, litigants may
not use a court’s discovery powers to uncover the identities of people who have simply made
statements the litigants dislike.
IV. The law imposes a high burden on those seeking to unmask critics.
The first state case to analyze the issues present in this motion—a litigant’s ability to
compel a provider of Internet services to reveal an anonymous speaker’s identity— is Dendrite
Int’l, Inc. v. Doe No. 3, 775 A.2d 756 (N.J. App. 2001). The New Jersey Court of Appeals fashioned a
set of factors that has been used by courts around the country. 1 The factors are as follows:
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1 See, e.g., Independent Newspapers, Inc. v. Brodie, 966 A.2d 432 (Md. 2009); Doe I v. Individuals, 561
F.Supp.2d 249 (D.Conn. 2008); Quixtar, Inc. v. Signature Management Team, LLC, 566 F.Supp. 1205
(D.Nev. 2008); Mobilisa, Inc. v. John Doe 1, 170 P.3d 712 (Ariz. App. 2007); Greenbaum v. Google, Inc.,
845 N.Y.S.2d 695 (N.Y.Sup.Ct. 2007); Highfields Capital Management, L.P. v. Doe, 385 F.Supp.2d 969
(N.D.Cal. 2005).
(a) Has the litigant made reasonable efforts to notify the accused Internet user
of the pendency of the identification proceeding and explain how to present a defense?
(b) Has the litigant set forth the exact statements that she contends constitutes
actionable speech?
(c) Has the litigant alleged all elements of the cause of action and introduced
prima facie evidence within her control sufficient to survive a motion for summary
judgment; and
(d) If the court concludes the litigant has made a prima facie case, what is the
balance between the speaker’s First Amendment right to speak anonymously and the
strength of the prima facie case, along with the necessity for the disclosure of the
anonymous defendant’s identity to allow the litigant to properly proceed?
This approach balances the First Amendment rights of the speaker with the interests of a litigant
who may have a legitimate cause of action.
One of the early federal decisions to examine the issues presented by this motion is Doe v.
2themart.com, Inc., 140 F.Supp.2d 1088 (W.D. Wash. 2001). In that case, the court addressed a set of
facts that is almost identical to this case. A corporation was sued by some of its shareholders in a
derivative action. The corporation issued a subpoena to an Internet service provider seeking the
identification of people who had posted anonymous messages critical of the corporation. The
anonymous critics sought to quash the subpoena on the grounds that their messages and identities
were protected by the First Amendment. The District Court agreed and quashed the subpoena.
Notably, the critical statements posted by the anonymous users were very harsh:
Some of the messages posted on the [2themart] site have been less than flattering to
the company. In fact, some have been downright nasty. For example, a user calling
himself “Truthseeker” posted a message stating “[2themart] is a Ponzi scam that Charles
Ponzi would be proud of…. The company’s CEO, Magliarditi, has defrauded employees
in the past. The company’s other large shareholder, Rebeil, defrauded customers in the
past.” Another poster named “Cuemaster” indicated that “they were dumped by their
accountants…these guys are friggin liars…why haven’t they told the public this yet???
Liars and criminals!!!!!” Another user, not identified in the exhibits, wrote “Lying,
cheating, thieving, stealing, lowlife criminals!!!!” Other postings advised [2themart]
investors to sell their stock. “Look out below!!!! This stock has had it…get short or sell
your positions now while you still can.” “They [2themart] are not building anything,
except extensions on their homes…bail out now.”
140 F.Supp.2d at 1090. Although counsel for Messrs. Doe has not reviewed every message
identified in Ms. Mohlman’s subpoena, there is no dispute that some of the messages she has
pointed to are equally harsh in their criticism of PSGI and those affiliated with it.
In 2themart.com, the court used a balancing test that differs somewhat from the Dendrite
test. The court analyzed four factors:
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1. Whether the subpoena was issued in good faith and not for any improper purpose;
2. Whether the information sought relates to a core claim or defense;
3. Whether the identifying information is directly and materially relevant to that
claim or defense; and
4. Whether the information sufficient to establish or to disprove that claim or defense
is unavailable from any other source.
140 F.Supp.2d at 1095. The court explained it adopted this test because:
This test provides a flexible framework for balancing the First Amendment rights of
anonymous speakers with the right of civil litigants to protect their interests through
the litigation discovery process. The Court shall give weight to each of these factors as
the court determines is appropriate under the circumstances of each case. This Court is
mindful that it is imposing a high burden. “But the First Amendment requires us to be
vigilant in making [these] judgments, to guard against undue hindrances to political
conversations and the exchange of ideas.” Buckley, 525 U.S. at 192, 119 S.Ct. 636.
Id. Whether this Court adopts the Dendrite test or the 2themart.com test, the inescapable conclusion
is that this subpoena must be quashed.
V. Ms. Mohlman’s subpoena fails the Dendrite balancing test.
1. Ms. Mohlman has not made reasonable efforts to alert Messrs. Doe of the pendency
of the identification proceeding nor explained how to present a defense.
In this instance, Ms. Mohlman has not made reasonable efforts to alert the anonymous
Internet users that she intends to discover their identities. Nevertheless, Messrs. Doe acknowledge
they were aware of Ms. Mohlman’s efforts in light of the fact that this is the third attempt she has
made—with each attempt using some other lawsuit as a tool to attempt to discover the identities
of these individuals.
Ms. Mohlman first attempted to unmask her critics (none of whom have filed this motion
to quash) by having a subpoena issued on July 23, 2008 by the California Superior Court in the
case of Mohlman, et al. v. Mary Miller Kervosh, et al., Case No. 37-2008-86707-CU-PO-CTL. In
that instance, InvestorsHub.com refused to produce the subpoenaed records because the California
court lacked jurisdiction. Several weeks later, on September 5, 2008, Ms. Mohlman’s attorneys had
another subpoena issued in a difference case: Michiana Dairy Processors, LLC v. Roger Howard
Mohlman, Case No. 08-03780-7, pending in the United States District Court for the Southern
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District of California. InvestorsHub.com again refused to comply with the subpoena based upon
the fact that the subpoena violated the 100-mile limit. Now, Ms. Mohlman again seeks to discover
the identity of her critics, and again she uses a lawsuit that is unrelated to the criticism leveled by
Messrs. Doe. In each instance, the service provider—InvestorsHub.com—has received the
subpoenas without any advance notice to Messrs. Doe. It is only because the service provider has
advised its subscribers targeted by the subpoena that they have any direct knowledge at all.
Similarly, Ms. Mohlman has not provided any of her targets with information on how to
resist or object to the subpoena, as established by the affidavits of Messrs. Doe.
With these facts, the first factor weighs in favor of Messrs. Doe.
2. Ms. Mohlman has not identified the specific statements that she claims constitute
actionable speech.
The Court should bear in mind that Ms. Mohlman has not filed a claim before any state or
federal court that pleads a proper cause of action for defamation against Messrs. Doe or any other
individuals. The sum total of her “claim” for defamation is found in four short paragraphs Ms.
Mohlman filed as a counterclaim against Michiana Dairy Processors, LLC in the underlying
litigation.
Most notably, Ms. Mohlman has not identified any statements attributed to Messrs. Doe
that allegedly form the basis for her counterclaim. She merely asserts that she “has had her name
defamed on the Internet.” Indeed, Ms. Mohlman does not even state whether Michiana Dairy
Processors, LLC made the purportedly defamatory statements.
The only information Ms. Mohlman has provided that could be interpreted as identifying
the allegedly defamatory statements is found on the exhibit to her subpoena: the message numbers
of literally hundreds of messages posted to the discussion forums at InvestorsHub.com. She has
provided these message numbers, according to her subpoena, for the purpose of obtaining the
name, email address, and Internet protocol addresses for each of the posts. She has not, so far as
anyone can tell, claimed that any of these messages are defamatory. Indeed a most cursory review
of the messages reveals that some of them simply quote or link to online news reports of criminal
charges being filed against Roger Mohlman and do not mention Ms. Mohlman at all. Even if there
are allegedly defamatory statements buried somewhere within all of those messages identified in
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the subpoena, the burden is on Ms. Mohlman to identify specific defamatory statements allegedly
made by Messrs. Doe. The Court is not required to sift through her offering to determine whether
Ms. Mohlman has met her burden, nor should the Court require Messrs. Doe to sift through every
message to determine whether any of them could constitute defamatory speech under Indiana law.
For these reasons, the second factor weighs in favor of Messrs. Doe.
3. Ms. Mohlman has not set forth the elements of a defamation claim or come forward
with admissible evidence to establish a prima facie case.
In this case, as noted above, Ms. Mohlman has not provided this Court (or any other court)
with any evidence at all to establish a prima facie case. Again, she has merely said that her name has
been ruined. She has not alleged that the individuals she seeks to unmask (specifically Messrs. Doe)
made any statements, she has not alleged that any such statements were untrue or made with
reckless disregard to their falsity, that the statements were published, and that she has been damaged
as a result. The lack of specific evidence requires that this factor weigh in favor of Messrs. Doe.
4. The Court need not review the fourth factor because Ms. Mohlman has not
established a prima facie case.
The Dendrite test requires the Court to balance the interests of the litigant with the
interests of the anonymous critics only if the litigant has established a prima facie case. Ms.
Mohlman has not met this standard, so the Court’s analysis ends here. Assuming for the sake of
argument that Ms. Mohlman did establish a prima facie case, the balancing test still weighs in favor
of Messrs. Doe, as will be explained in the analysis of the 2themart.com balancing test.
VI. Ms. Mohlman’s subpoena fails the 2themart.com balancing test.
1. Ms. Mohlman’s subpoena was not issued in good faith.
The question concerning the good faith of Ms. Mohlman is a close one, but the Court
should still conclude that the subpoena was not issued in good faith. In this underlying lawsuit, the
plaintiff has charged Mr. Mohlman and his companies with breach of contract and fraud. Ms.
Mohlman was also named as a defendant, and she asserted a counter counterclaim against
Michiana Dairy Processors, LLC. In her claim, Ms. Mohlman charges that Michiana Dairy
Processors, LLC conspired “with others” to ruin her name.
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Despite the allegations in her counter claim, Ms. Mohlman has not named any of the Doe
recipients that are the subject of the subpoena as third-party defendants. Instead, she has tried for a
third time to strip them of their anonymity. The experience of the Mohlman critic who has
already been unmasked suggests that Ms. Mohlman has no interest at all in seeking redress for any
alleged defamation in a proper court. Rather, the actions of Roger Mohlman and PSGI indicate
that they are more likely to use extra-judicial means to inflict some punishment on Messrs. Doe—
and then issue a press release about it.
2. The subpoenas have nothing to do at all with the underlying litigation.
For purposes of expediency, Messrs. Doe believe the Court can dispense with parts two,
three and four of the 2themart.com test. These factors examine whether the subpoenaed
information is related to a claim or defense in the case, whether the information goes to the core
of the claims or defenses, and whether the information is available from any other source.
In this instance, each of the Doe subpoena recipients has testified through his affidavit that
he has had no communications with counsel for Michiana Dairy Processors, LLC other than to
respond to counsel’s request for a copy of the subpoena or with respect to any issues involved in
the lawsuit. There have been no such communications with the attorneys or anyone otherwise
connected with Michiana Dairy Processors, LLC. In the absence of any connection with that
plaintiff, the Doe subpoena recipients cannot have any information that remotely or directly relates
to any claim or defense in the underlying lawsuit. Therefore, the only reasonable conclusion that
can be reached is that Ms. Mohlman is once again using a lawsuit as an opportunity to issue a
subpoena for her own purposes—purposes that are unrelated to the underlying lawsuit.
Given that the information sought by this subpoena has nothing at all to do with the issues
involved in the federal lawsuit, this Court should quash the subpoena.
VII. Conclusion.
The First Amendment’s protection for free speech erects a high barrier for those who
desire to unmask an anonymous critic. This constitutional privilege, of course, is not absolute, and
plaintiffs may properly seek information necessary to pursue meritorious litigation. See Columbia
Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 578 (N.D.Cal. 1999). Nevertheless, litigants are not entitled
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to use the discovery tools and their power to uncover the identities of people who have simply
made statements that litigants dislike.
In this case, Ms. Mohlman has not come close to clearing the barrier required by the First
Amendment. She has not made any allegation in her counter claim that the people she seeks to
unmask have been working in concert with Michiana Dairy Processors, LLC. She has not alleged
that Messrs. Doe have made any defamatory statements at all. Given that this is Ms. Mohlman’s
third attempt to strip Messrs. Doe of their anonymity, the burden is upon her to satisfy the courts
that her need for this information outweighs the First Amendment rights of Messrs. Doe.
VIII. Certification.
I hereby certify pursuant to N.D. Fla. Loc. R. 7.1(B) that on April 6, 2010, I spoke with
Lyle R. Hardman, Esq., identified on the subpoena in question as the attorney requesting the
issuance of the subpoena, to confer about the possible agreed withdrawal of the subpoena. Mr.
Hardman and I discussed the issues presented by the subpoena, and both sides maintain that this
issue is best resolved by the Court.
Respectfully submitted,
s/ William L. Wilson
William L. Wilson, Indiana Bar No. 16245-71
ANDERSON, AGOSTINO & KELLER, P.C.
131 South Taylor Street
South Bend, IN 46601
[phone] Tel.
[phone] Fax
[e-mail]
Attorney for Messrs. Doe
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CERTIFICATE OF SERVICE
I hereby certify that a copy of the following was served upon:
J. Craig Knox, Esq. Lyle R. Hardman, Esq.
Andrews, Crabtree, Knox & Andrews Hunt Suedhoff Kalamaros, LLP
1558 Village Square Boulevard P.O. Box 4156
Tallahassee, FL 32309 South Bend, IN 46634-4156
[e-mail] [e-mail]
by electronic mail delivery and United States Mail, postage prepaid, on April 6, 2010.
s/ William L. Wilson
William L. Wilson
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