New York Personal Injury Law Blog » Attorney Ethics


May 6th, 2008

Blogger v. Attorney (Seidel v. Shoemaker), And Today’s Very Strange Motion

This is one of the weirder legal arguments I have seen. And it comes today on top of the very weird subpoena that had been issued by Virginia attorney Clifford Shoemaker to New Hampshire blogger Kathleen Seidel a few weeks ago.

The brief background is that Shoemaker represents Lisa and Seth Sykes in a Virginia suit over whether mercury in vaccines causing autism. Seidel isn’t part of that recently discontinued suit; she is just a blogger (albeit a very knowledgeable one) in New Hampshire who writes on the subject at her blog, Neurodiversity.

Now Weird Move #1 came when Shoemaker served a subpoena on Seidel asking for all kinds of crazy stuff that has nothing to do with his suit, including production of “all documents pertaining to the setup, financing, running, research, maintaining the website” This included the out-of-this-world crazy demand regarding “religious groups (Muslim or otherwise), or individuals with religious affiliations”(See: Abuse of Process: Blogger, Unrelated to Action, Hit With Subpoena).

I, and many others, suggested sanctions might be in order and, lo and behold, the judge agreed. (See: Subponea on Blogger Seidel Quashed; Attorney Shoemaker May Be Sanctioned) I can’t be the only one waiting to see the justification for what appears to be religious fear mongering, among other issues in a subpoena that seems dedicated to harassing Seidel.

So that brings us to today and Weird Move #2, wherein Shoemaker hires local counsel in New Hampshire to defend him against the potential for sanctions, that he was ordered to do within 10 days. And local counsel, to no great surprise, needs more time to respond due to the press of business. A perfectly reasonable thing to ask, mind you, and an application 99% of judges would grant. Except for some itty, bitty, little details.

In the motion papers, one of the new lawyers (John McHugh, based in New York) decides to take this pot-shot at Seidel instead of just asking for more time:

[Seidel] and her associates have done more than comment on these positions; they have taken action to discredit the Sykes family, Lisa Sykes as a minister of the United Methodist Church, and witnesses who have given support to the family’s positions. They have interfered with these witnesses’ professions, professional relationships, and economic opportunities.

Last time I checked, the First Amendment hadn’t been repealed. Criticism is fair game.

But wait, there’s more! After slamming Seidel, the new counsel then goes on to admit that:

However, your Declarant is new to this case and to Ms. Seidel, and while I have been attempting to gather the information needed, I have been unable to complete that
task due to the press of other work as well as the fact that Mr. Shoemaker has either been in hearings or preparing for imminent hearings, all in other cases, or taking third-party depositions in this action since he received this order. While I have interviewed some victims of Ms. Seidel’s activity, I have not yet been able to gather the material I would need to show the Court the justification for the Subpoena and its scope. (Emphasis added)

So Weird Move #2 actually manages to include a few different issues:

  • Why is it necessary to look for justification for the subpoena after it was issued?
  • Other than talking to Shoemaker, who must have already had justification before the subpoena was issued, why would it be necessary to interview any other witness? It’s only Shoemaker’s rationale that matters to the sanctions motion.
  • If Shoemaker has no time to talk to his counsel about Seidel and the subpoena because Shoemaker is up to his eyeballs in hearings, why is local counsel trash talking Seidel in the motion papers?

Shoemaker seems to be speeding toward a sanction. Here’s the motion: SykesMotion.pdf

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