Sanctioned · 2008-06-23 22:00

The following Order was issued this afternoon by Magistrate Judge James R. Muirhead of the United States District Court for the District of New Hampshire in Case No. 1:08-mc-00013-JM.

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
1:08-MC-13

Lisa Sykes, et al., Plaintiffs,
v.
Bayer Corporation, Defendant

ORDER

Clifford J. Shoemaker, Shoemaker & Associates, 9711 Meadowlark Road, Vienna, Virginia was ordered to show cause why he should not be sanctioned under Fed. R. Civ. P. 11 with respect to a subpoena duces tecum served on a non-party to a case then pending in the Eastern District of Virginia. 1 The time allotted to Shoemaker to show cause expired but he was subsequently given additional time.

Background

Clifford Shoemaker, Esq. was counsel to the plaintiff in the underlying case. In the underlying case the claim was that the plaintiff-child developed neuro-developmental disorders from high mercury exposure as a result of exposure to defendant’s medicine in utero. Shoemaker is a 1973 law school graduate who indicates on his website that he has focused his attention on an alleged mercury-created autism epidemic. He claims to have “tried cases in federal district courts all over the country.”

Ms. Seidel was a non-party to the Sykes’ suit. Ms. Seidel maintains a website, www.neurodiversity.com, on which she posts articles she and others have written about the controversy about whether mercury has or has not created an autism epidemic.

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
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 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.

Discussion

(T)he risks attendant to the misuse of the subpoena power are great . . .. “Moreover, the injury resulting from attorney misuse of the subpoena power is not limited to the harm it inflicts upon the parties. Rather, misuse of the subpoena power also compromises the integrity of the court’s processes.”

(citation omitted). Spencer v. Steinman, 1999 WL 33957391, *2 (E.D.Pa.). Fed. R. Civ. P. 45(a)(1) requires an attorney to take steps to avoid imposing an undue burden or expense on a subpoenaed non-party. Fed. R. Civ. P. 11(b) requires an attorney who signs or later advocates a court paper to refrain from presenting it for any improper purpose such as to harass.

The subpoena which I have attached to this order is breathtakingly broad. Mr. Shoemaker made no attempt to avoid imposing an undue burden or expense on Ms. Seidel. To the contrary, I find that he sought to burden her by requiring production of every scrap of paper related to autism, her web site, her tax returns, and her communications with the government. He improperly imposes a requirement to create documents, e.g., a list of “names of persons helping, paying or facilitating . . . these endeavors.” The documentation sought is exhaustive.

Shoemaker seeks to justify the subpoena by allegations that Seidel is not “a mere mother of an autistic child and housewife,” but a co-conspirator under 42 U.S.C. §1985 with her husband or “the defendant (Bayer) or by some organization dedicated to harassing this plaintiff (Ms. Sykes) and her witness . . .” Shoemaker’s claim that Ms. Seidel was the “leader of a conspiracy to obstruct justice . . .” is unsupported by any facts. It is clear that she has openly and extensively exercised her First Amendment right to speak out on the issue. Shoemaker certainly has the right to disagree with her, but he has no right to misuse the process to abuse her.

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.

Clearly the litigants are passionate about the causative issues surrounding autism. Nothing in this order is intended to indicate that this court has any view as to who is right on the autism issues. What the court does have views about is the impropriety of misuse of a subpoena. 2 Shoemaker could make an argument for discovery from Seidel to attempt to establish that his defendants improperly used her and her web site to impact witnesses in the underlying case. That might meet Rule 26‘s smell test. However, he has no right: (1) to serve a grossly overly broad subpoena intended to harass; (2) to go on a “fishing trip” for anything to support a new suit for defamation or for a §1985(3) conspiracy; and (3) to fail his duties under Rule 45(c)(1). Most of the documents sought have no arguable relevance to the underlying case and were not likely to lead to admissible evidence.

If Ms. Sykes or the Geiers believe they have a cause of action against Ms. Seidel, they have an avenue to pursue such a claim. What they and Shoemaker can not do is abuse the subpoena power in the Sykes v. Bayer case.

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.

As a sanction from this court, Clifford J. Shoemaker is ordered to attend within three months, a continuing legal education program on ethics and on the discovery rules in the Federal Rules of Civil Procedure. He is ordered to file a certification of completion of the programs.

SO ORDERED.

James R. Muirhead
United States Magistrate Judge

June 23, 2008

Footnotes

1. The case, Sykes v. Bayer Pharmaceuticals Corporation, et al., 3:07 cv 660 (E.d. Va. 2007) was dismissed with prejudice upon a voluntary stipulation of dismissal.

2. Shoemaker also issued a simultaneous abusive subpoena to a Massachusetts physician with views contrary to his effort.

Comments


  1. Go, Judge Muirhead!

    — Mary (MPJ)    2008-06-23 23:16    #

  2. just finished a post mentioning this——

    — kristina    2008-06-23 23:20    #

  3. Sweet.

    — Skeptico    2008-06-23 23:21    #

  4. Sound jurisprudence.

    — Phil Schwarz    2008-06-23 23:39    #

  5. I get the feeling that, if he could have, Judge Muirhead would have sanctioned the Geiers too. This was a good reality check, or rather, ethics check, courtesy of Kathleen, librarian and mom.

    — Anne    2008-06-23 23:52    #

  6. “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.”

    Toxic with competency.

    — Do'C    2008-06-24 01:19    #

  7. i can haz shampane nau, plz?

    (Congratulations, on a job very, very well done!)

    :-)

    — dkmnow    2008-06-24 02:38    #

  8. Excellent news. Might stop other scumsuckers abusing the legal process to intimidate people with whom they disagree.

    — JQH    2008-06-24 02:46    #

  9. That was a fine, robust ruling.

    — dvnutrix    2008-06-24 04:59    #

  10. Huzzah! Yet again. :)

    — Ralph    2008-06-24 05:38    #

  11. My faith in the justice system is renewed!

    — Ed    2008-06-24 05:50    #

  12. applause….

    — jypsy    2008-06-24 05:55    #

  13. The Lasso of Truth prevails! I’m ecstatic!

    — isles    2008-06-24 06:42    #

  14. Do not upset your local librarian.

    — TheProbe    2008-06-24 08:00    #

  15. Way to go Mrs. Siedel.

    — Danny Melvin    2008-06-24 08:25    #

  16. My favourite line:

    “Clearly he is unfamiliar with the extent of the information which a highly-competent librarian like Ms. Seidel can, and did, accumulate.”

    And an ethics course for lawyers? I’ll bet he sulks the whole way through and gripes about the homework.

    — Alyric    2008-06-24 08:47    #

  17. what an excellently written synopsis and result.

    — Mark    2008-06-24 10:10    #

  18. Kathleen’s victory is a victory for all bloggers.

    Also a victory for those of us who post comments in blogs, or correspond with bloggers via E-mail. All of us were targets of Shoemaker’s illicit subpoena.

    — _Arthur    2008-06-24 10:22    #

  19. “Kathleen’s victory is a victory for all bloggers.”

    Absolutely! This has reach far beyond the auitsm/vaccine debate.

    — Matt    2008-06-24 11:28    #

  20. Kudos to judge Muirhead, Kathleen and Public Citizen. This should become a key precedent.

    — Joseph    2008-06-24 11:43    #

  21. Judge Muirhead is my new favorite judge. I hope all the folks involved in this silly blame-game mess have the good fortune to contend with authority figures of similarly keen logic.

    — Evonne    2008-06-24 13:26    #

  22. Concur! and What They Said! and Amen! You and Breda, who blogs at http://thebredafallacy.blogspot.com are my favorite librarians after Adele Mundy, and she’s just a character in SF novels anyway. You might want to look up the novels, though. They’re written by David Drake.

    — Justthisguy    2008-06-24 13:28    #

  23. “As a sanction from this court, Clifford J. Shoemaker is ordered to attend within three months, a continuing legal education program on ethics and on the discovery rules in the Federal Rules of Civil Procedure. He is ordered to file a certification of completion of the programs.”

    I’m hoping that those are actually two separate continuing education courses. One on ethics and one on rules of discovery. I hope the courses require him to travel far from home and that they are expensive and time consuming… maybe he’ll flunk and have to do it over?

    On the other hand I suppose Lisa Sykes might just do his homework for him…

    — Ms. Clark    2008-06-24 13:29    #

  24. Shoemaker has obviously forgotten — if he ever knew— that moms are NOT MERE!

    — Shay    2008-06-24 13:52    #

  25. Thank You Public Citizen!!!!

    — Matt    2008-06-24 14:41    #

  26. Alyric wrote:

    And an ethics course for lawyers? I’ll bet he sulks the whole way through and gripes about the homework.

    There probably won’t be any homework, alas, but I expect he’ll gripe anyway.

    Yay for Judge Muirhead!

    — abfh    2008-06-24 16:20    #

  27. Wonderful! I don’t think there was much doubt that Shoemaker would be sanctioned for filing a subpoena as patently frivolous as this, but it’s still very nice to see him get his deserved comeuppance. Well done, Kathleen! The next bully is going to think twice before going after you. :)

    — Ebonmuse    2008-06-24 17:33    #

  28. “The subpoena is very broad. Ms. Seidel filed a timely and well-prepared motion to quash. Shoemaker interposed no objection.”

    Of course not, blatant harrassment and just reward for misuse of the justice system.

    Congradulations

    — Uncle Dave    2008-06-24 17:46    #

  29. Mr. Shoemaker should seriously consider whether he wants to continue with his autism-mercury specialty, now that he’s been so humiliated as to be sent back for classes on ethics and discovery rules. Or he may want to find a new line of work entirely after the Virginia State Bar has had its say. More sanctions to come !

    — Clay    2008-06-24 18:07    #

  30. That’s an unqualified win. It’s a ROUT.

    — Ken    2008-06-24 19:46    #

  31. Congratulations!

    — LW    2008-06-24 20:04    #

  32. Well done! Even if there isn’t a lot of work involved in the sentence, I hope it eats up plenty of his time, as that will take time away from his practice.

    — Heraclides    2008-06-25 08:13    #

  33. Bravo judge! Now that’s what a judge is supposed to do: Cut through the cr—.

    Mr. Shoemaker, unfortunately, reminds me of many of the lawyers I have worked with. Pity we can’t send him to a class called “Respect”.

    — Kris    2008-06-25 12:41    #

  34. Is it possible to email the judge and thank him for such a fine ruling?

    — dvnutrix    2008-06-25 13:04    #

  35. Finally.

    So how will Kathleen Seidel and her allies be reimbursed for the time and money they spent defending her from this nuisance subpoena?

    — Gary Hladik    2008-06-25 14:55    #

  36. What a shame Kathleen missed out on a presidential nomination this time round.

    Seidel for 2012!

    — DT    2008-06-26 03:20    #

  37. Coming late to the party,

    but congratulations anyway!!

    — mike stanton    2008-06-26 15:39    #

  38. I gratefully accept your congratulations, and everyone else’s, too. Wouldn’t you know it — I was late to my own party in the first place. The ruling was issued on the ONE day in recent history that I wasn’t within reach of my computer and refreshing my docket page every few hours; I was traveling, and didn’t even learn about it until late Monday evening when I called home. Bless his speedy heart, David Ardia at the Citizen Media Law Project blogged the decision before I even knew it existed.

    — Kathleen Seidel    2008-06-26 15:47    #

  39. Kathleen, If I’m not mistaken you were interrupted by the Sykes/Shoemaker subpoena, weren’t you going to post more information about how much these people are getting paid for bringing what look like unsupportable cases to vaccine court?

    I know you are very busy, but some day, when you have the time, if you have some more facts about Cliffy and folks like him, I’d like to read about them. :-)

    — Ms. Clark    2008-06-27 00:01    #

  40. Wow, that is one of the most blistering judgments I have ever read; admittedly, I am not a lawyer, and don’t read judgments for fun, but still, pretty strong wording from a court.

    Sadly, I have to disagree with some of the comments posted here. I expect the experience will not result in Mr. Shoemaker changing his ways. In fact, I would hazard to predict that he will become even more extreme and convinced of a grand conspiracy against him :(

    Meanwhile, however, savour your victory and accept my congratulations.

    — Chris Roberts    2008-06-27 10:17    #

  41. Well is there any guarantee that slippery Jim will comply?

    I don’t know the US but surely he has escaped over the state line?

    Incidentally would this give me leave to sue him for libel in either the US or UK jurisdiction or both?

    Cos I am very interested in doing it if I could muster the necessary resources.

    — laurentius@rexx.fsbusiness.co.uk    2008-06-27 14:36    #

  42. Congratulations! It’s not a great surprise, but it’s still good that the judge made the right decision.

    — Kristjan Wager    2008-06-28 15:24    #

  43. Just discovered this from the Quackbusters mailing list. I wasted no time blogging about it! Cop that, Cliffy!!

    Wouldn’t it be nice if the Bar in Virginia kicks him to the kerb? Wishful thinking, perhaps?

    — Phil    2008-07-03 07:36    #

  44. I worry that the courses and such mentioned are a relatively minor sanction – don’t lawyers and such need to do some sort of continuing education anyhow just to keep their license? The only restriction in the ruling seems to be that it needs to be on a specific subject this year.

    I hope I’m wrong about that, and it’s more serious than it seems.

    That said, HURRAY for Kathleen in taking on a greedy lawyer: and coming out ahead. And I agree with the judge’s assessment about the highly competent Kathleen!

    — Joel Smith    2008-07-03 16:30    #

  45. There seems to be a comment from Levy (the Public Citizen lawyer) here, addressing the seriousness or lack thereof of the judge’s response, here

    There is also a rather amusing antivax reaction to the ruling here

    — Anthony    2008-07-03 16:35    #

  46. I’m taking the liberty of reproducing here Paul Levy’s comment on Volokh Conspiracy:

    The reason why no attorney fees could be awarded against Shoemaker as part of the Rule 11 sanction is that, under Rule 11, fees can only be awarded if the party seeking the sanctions has not only moved for such sanctions, but has invoked the “safe harbor” provisions of Rule 11 by serving the proposed motion for sanctions 21 days before filing the motion, thus giving an opportunity for the opposing party to avoid sanctions by withdrawing the offending paper. Here, Seidel filed a motion to quash and the judge promptly granted it, while sua sponte directing Shoemaker to show cause why he should not be sanctioned. Had attorney fees have been available as a sanction, the fact that we represent our clients pro bono would not have precluded an award of fees in our favor (nor in favor of our local counsel who is in private practice). No fees can be awarded to pro se parties, however.
    FWIW [...] we took this case NOT because of our position on the scientific dispute, but because we were concerned about the breadth of the subpoena and its possible chilling effect. We wanted to be sure that Seidel was fully protected as well as sending a message to other lawyers tempted to pull what Shoemaker did here. And our representation of Seidel is quite consistent with our long history of defending free speech online in a variety of contexts, as perusal of the “Internet Free Speech” section of our web site will reveal. We have, for example, done much to develop the standards for protecting against discovery to identify anonymous Internet speakers. This is as much a part of our broader consumer protection mission as was the development of the First Amendment doctrine protecting commercial speech (which originated with our Virginia State Board of Pharmacy case in 1976).
    For those who say, Shoemaker should not be slapped because others have done far worse, I would say, we have to start somewhere. And for those who say his sanction was too low (perhaps forgetting that a compensatory sanction was not available in light of the fact that Rule 11 was invoked sua sponte), I am inclined to agree with those who commented that the sanction was just right. It was too low to make an appeal sensible (thus saving Seidel any further bother), yet the public censure will follow Shoemaker for years, and indeed when he seeks pro hac vice admission in the future he may well have to report it. It will, consequently, effectively send a message to others who are tempted to abuse the subpoena process to attack protected speech. We deliberately did not express a view in our papers about what sanctions should be imposed, only that the justifications offered for the subpoena tended to show that sanctions were called for. FWIW, I called Shoemaker’s counsel before filing our papers to urge him to withdraw his accusations against Seidel, suggesting to him that they would prove counterproductive. It is too bad he paid no heed.

    — Kathleen Seidel    2008-07-04 19:14    #