Motion To Quash Assault By Long-Distance Tweet

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1/11/2017 Update: Eichenwald has withdrawn his lawsuit in Texas because……..

He claims to know the identity of the “assailant.” See the Notice of Nonsuit filed with the court. No indication of where (or if) he will file now.

Very curious as to where this information might have come from.

1/10/2017 Update: Game is afoot.1Procedurally, under TRCP 120a, bringing up matters other than personal jurisdiction in a special appearance could waive claims of lack of personal jurisdiction. In Lawyer Slack we were debating this heavily, but I never discussed it here

Thanks to a tip from a Twitter Egg, we’ve got Doe’s special appearance. Read Doe’s Special Appearance filing here.

  • Doe only disputes personal jurisdiction in his special appearance, but brings up other issues in his Motion To Quash, analyzed below in the original post.
  • Doe’s affidavit is included (p. 18).
  • The special appearance completely skirts the question: “Can the mechanics of an internet medium serve as means of committing assault?” (as it should, but!)
  • The court might have to adopt some type of hybrid approach when addressing this mess. Why?
    • If the answer to the above question is yes, then a court will likely have personal jurisdiction over Doe.
    • If the answer is no, then a court will likely not have personal jurisdiction over Doe.
  • I continue to maintain that such a question should be heard by a jury.
  • There is a Status Conference Hearing set for Thursday, January 12. That will be the next time we get any more information on the case.

1/10/2017 Update 2: Steven Lieberman has pro hac’ed in for Eichenwald. Lieberman has some serious privacy/1A chops. Eichenwald isn’t playing around.

Original Post below:

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This is Part IV of the ongoing coverage of Assault With A Deadly Twitter. Previous entries:

The saga continues! (((Ari Goldstein))) makes an appearance! Free speech! New torts! And more!

Appearing To Not Appear

Thus far this has been a fairly one-sided affair, with Eichenwald being the one sharing information, talking about the case, and filing legal documents. But yesterday the user who went by the Twitter name, (((Ari Goldstein))), a/k/a @jew_goldstein, filed a John Doe Petition in Dallas District Court.

This special appearance “John Doe” petition is a special type of motion that allows someone to appear before a court and dispute a legal claim, without actually subjecting themselves to jurisdiction of the court. Right now non-lawyers2Yes, I used the term “non-lawyer.” Suck it #legaltech people. are like…

So let’s talk about jurisdiction for a moment.

Jurisdiction is the practical authority granted to a legal body to administer justice within a defined area of responsibility. For example, a state court in New York has jurisdiction over matters that occur within its jurisdiction (often a defined geographic area) that arise under New York state law. But the same NY state court wouldn’t have jurisdiction over something that happened in Wyoming.

The same NY state court also wouldn’t have jurisdiction over a matter that involved Federal law/crimes, even if the underlying claim arose in the State court’s geographic area. The proper jurisdiction would be Federal court. This is all regarding the specific jurisdiction over the subject matter.

There is a second type of jurisdiction referred to as in personam, which refers jurisdiction over the person. This type of jurisdiction is the authority a court has over a respondent/defendant in legal proceedings. In personam jurisdiction is obtained when the respondent/ defendant is properly served with a summons and complaint either by certified mail, appearance, personal service, publication, etc.

Note in the middle of that last sentence is appearance. Say (((Ari Goldstein))), a/k/a @jew_goldstein (who I will now refer to as “Doe”), physically showed up in Dallas Court and said, “This is all a bunch of BS! I live in Oregon, this Court ain’t got no power over me!” That might be true, but by appearing in Court, he will have consented to the Court’s jurisdiction by being physically present. He’s there, the Judge can reach out and touch him.

The same holds true if Doe just started responding to Eichenwald’s legal filings on the issues of assault, free speech, etc. Without Doe’s special appearance objecting to the Dallas Court’s jurisdiction over him in the lawsuit, the law would recognize Doe as “appearing” before the court. Doe would have lost the ability to dispute jurisdiction.

Motion To Quash “Assault By Long-Distance Tweet”

Motion To Quash "Assault By Long-Distance Tweet"

Click To Go To Copy Of Motion

I went through all that because the first issue Doe raises is one of jurisdiction. Doe cites In re John DOE a/k/a “Trooper”, Relator, 444 S.W.3d 603 (Tex. 2014), noting that discovery is put on hold until a determination of personal jurisdiction is met (the case I predicted Doe would rely on in Part II). Twitter can’t divulge anything requested by Eichenwald until the court rules on Doe’s motion.

Doe then raises a number of initial issues. The issues are in bold, my commentary follows:

  • Rule 202 Requirement of 15 Days’ Notice and an Opportunity to be Heard not met – Order Must be Vacated and Deposition Quashed
    • Doe claims he wasn’t given 15 days notice and lacked an opportunity to be heard so the Order compelling Twitter to hand over the goods should be vacated. Given that the entire point of Eichenwald’s pre-suit discovery is to determine Doe’s identity, that objection is questionable.
  • No Basis for Expedited Discovery and Ex Parte Ruling – Order Must be Vacated due to lack of Due Process and the Deposition Quashed
    • Doe states “There are no facts provided as to any attempt by Doe or Twitter, Inc. to ‘destroy’ any evidence.” This is true. Eichenwald didn’t provide any facts as to why any electronically stored information (“ESI”) might be in jeopardy of being destroyed. But given that Twitter is a black box and who knows what their ESI retention policies are, I think expedited discovery was likely reasonable.
  • Petitioner has Failed in Burden of Proof – No Findings Justifying Rule 202 Order – Order Must be Vacated and Deposition Quashed
    • Doe says that the Court’s Order is defective on its face. Always goes well when you tell a judge their Order is crap.
  • Petitioner has not Served John Doe – Order Must be Vacated due to Lack of Due Process and Deposition Quashed
    • Doe claims that “Petitioner (Eichenwald) could easily have obtained an order allowing service on Doe through means designed to notify him/her” and that “Petitioner knew how to contact Doe.” Eh, no. The whole point of Eichenwald’s Rule 202 Petition is because needs the identity of Doe to properly serve them. By “knew how to contact” we’ve got to assume Doe means their Twitter account. Service of legal process via Twitter is new and unusual, but not without precedent (see St. Francis Assisi v. Kuwait Fin. House, 2016 U.S. Dist. LEXIS 136152 (N.D. Ca. Sept. 30, 2016)). Courts have been reluctant to allow service via social media in the past, but given social media’s pervasiveness, that’s likely going to change. It’s shaky ground, but Doe does have some precedent to rely upon. But this is just a delaying, procedural tactic and does not go to the foundational issues of Eichenwald’s claim.
  • The likely benefit of allowing the deposition outweighs the burden or expense of the procedure.
    • Doe claims that the benefit Eichenwald “may receive is minimal because any suit for assault or other tort will fail,” and then goes on to reference various Texas case law regarding assault. The case law referenced is conflicting, and does not address the particular, unique aspects regarding the Eichenwald Scenario.

The manner in which the offending Tweet is classified, either as Assault or Speech, is the crux of this entire matter.

But What About Free Speech?!

As discussed in Part I of this series, the central issue at the heart of the Eichenwald Scenario is:

Can the mechanics of an internet medium serve as means of committing assault?

Doe brushes off this question and jumps straight into free speech defenses and analysis. But Doe’s free speech assertions are irrelevant until the above question is answered. I didn’t find any of the case law referenced by Doe in their motion on this point to be so persuasive as to preclude presenting it to a jury. The situation between Doe and Eichenwald would seem to be one of first impression and worthy of trial.

Doe Also Raises §230 Protection – What?

Doe also raised 47 U.S.C. § 230 (Section 230):

Doe merely republished a GIF (with its internal wording untouched)…

As Doe cannot be treated as the publisher or speaker of this re-posted and unaltered GIF, then he cannot be held liable for the alleged effects of its content, as a matter of law.

  1. Again, this is jumping ahead and presuming that Doe’s Tweet qualifies as speech.
  2. So Twitter is a publisher, then Doe…is a user of the service, who somehow becomes a publisher, republishing things?

Just…, no dude.

What’s Next?

In the Certificate of Service, Doe’s lawyer indicates that he hasn’t been able to get in touch with Eichenwald’s lawyer. Given the holidays, that’s not too unusual. Doe’s lawyer has been in contact with Twitter’s general counsel and they have agreed to put everything on hold pending a ruling on Doe’s Motion.

So at this point, we’re waiting on ruling on the Motion from the Dallas Court. I wouldn’t be surprised if Eichenwald’s lawyer files a responding motion either. Given the complexity of the issues at hand, I’d expect the judge to set a hearing  to address the motions before the court in the coming weeks.

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