Intervention to Provide Oppty for Publishers and Creators to Object to Subpoenas Meant to Unmask Identities and Personal Communications

Earlier today I asked a federal court in Utah to pause efforts by a private litigant to intrude on the privacy of journalists covering an interesting story about a national toy chain that is mired in various controversies.

See additional explainers below.

What happened. On September 25, Bricks and Minifigs ("BAM"), a franchisor of LEGO retail stores which as been embroiled in high profile disputes involving consignment sales and franchise agreements, sued ten unnamed defendants for breach of contract and trade-secret misappropriation. BAM says internal documents were leaked to websites, including thebammap.com, which reports on the company. Because the defendants are unknown, BAM asked the court, without notice to anyone, for permission to subpoena the sites' hosting providers. The court granted that on September 30. The order doesn't require notice to the people whose records are sought, and it gives them no chance to object before their private communication records are shared with this private company.

What the subpoenas ask for. BAM told the court it needs this discovery to identify and serve the defendants, whom it describes as current or former franchisees, employees, or others bound by confidentiality obligations. The subpoenas, though, ask for the identity, contact information, billing records, and administration and posting logs of anyone who operates, edits, or writes for the website, plus its communications with its host and its takedown records. None asks, by its terms, for a franchisee's identity. BAM's own complaint says Google and Slack hold records that may identify who took the documents, but BAM's motion attached subpoenas only for the website's hosting providers. I can't know why BAM framed the requests this way, and I'm not asking the court to decide that. I'm asking it to compare what was requested with what BAM said it needed. BAM also pointed to the site's report of its owners' conference location as a security concern, without any supporting declaration, and the court's order didn't rely on it.

What the intervention ask for.  Like many others, I regularly visit thebammap.com/updates and consume content from a host of creators and publishers who cover the various controversies related to BAM and who may be subject to the company's intrusive data quest.  Objections were raised to the subpoenas and the court has been asked that any identifying records BAM receives stay unopened with its lawyers until the judge has opportunity to consider whether the subpoenas process should be curtailed or terminated.  If the court lets me participate, the next step is to seek broader relief: a stay, restrictions, and/or reversal of the order. Nothing in the filing is meant to stop BAM from pursuing people who broke confidentiality obligations so long as the first amendment rights of publishers and readers are not violated and that people affected get notice and a chance to speak before identities are disclosed.

Not the first time. In May, BAM and its co-plaintiffs were able to obtain an ex parte restraining order in Utah state court which gagged a documentary journalist known as Reckless Ben Schneider. It restricted what he could publish and ordered his existing videos taken down.  He had no chance to object. Legal commentators widely criticized the TRO as an extreme First Amendment insult. Schneider's lawyers have since asked the federal court to dismiss part of BAM's case under anti-SLAPP law and to award attorney fees.  Anti-SLAPP laws let a defendant who believes they were sued to be kept silent to ask a court to dismiss a lawsuit that targets speech on a public issue. The aim is to keep the cost of being sued from doing the silencing.

Why I'm following this. It's an interesting story. A business in crisis over a consignment dispute has turned into a human-interest story about toys, small-business owners, police misconduct, and a lot of legal analysis. I want to keep reading about it.

Other hot buttons. Two other interests also shape how I think about these issues. First, journalists and publishers of every kind should be able to report on matters of public interest, even aggressively, without a private party using the force of government to block them or identify their sources before they have a chance to protect their rights. Second, access to justice. Ex parte orders and expensive litigation produce uneven results, and most people affected by an order like this can't afford a lawyer to ask to be heard. I hope processes for them to do becomes easier.  And that processes for business owners who are aggrieved by contract disputes can also seek remedies more efficiently.

Explainers

Law Blog Techdirt also reports relying on reporting by thebammap.com which it describes as "an invaluable journalistic goldmine" and shares a view that the BAM v. Does 1-10 lawsuit constitutes "new censorial bit of SLAPP litigation and general lawfare against The BAM Map".

"This case is marginally stronger than the lawsuit against Reckless Ben, but only barely. Even if the documents are coming from an insider, it’s hard to see how BAM can credibly claim that its crisis PR talking points about Reckless Ben qualify as “trade secrets” that “derive economic value” from being kept secret. The entire point of this lawsuit just seems focused on creating massive chilling effects for whoever is operating the site to silence them. To me, that makes it a pretty clear SLAPP suit.

The key point of the lawsuit is BAM trying to unmask who is behind The BAM Map... While magistrates granting subpoenas like this isn’t uncommon, it’s a bit worrisome that it was done with no supporting declaration, and the order has no notice provision or period to object."

"Bricks & Minifigs’ continued efforts to abuse the legal system to suppress reporting by critics says an awful lot about the McNeff family, both in how they run their business and in how they treat the people who call out their practices. It’s an attack on First Amendment protected speech and an attempt to create a chilling effect to scare off future reports or whistleblowers."

Litigator and legal commentator BBQ Counsellor breaks down why the discovery process in this litigation is offensive to those who consume news, publish news, or otherwise care about the rights of publishers and listeners to be free of government mandated intrusions on privacy and sources.  (This three day old video has already been viewed over 100,00 times, demonstrating significant interest in these issues.)

"Bricks & Minifigs Is Using a Federal Judge to Hunt Its Critics. Is the Judge Being Told the Truth"
[D]iscovery at this stage of the litigation is not a right. It's something you have to ask the court for and you have to prove that you absolutely need it. And here they've said that they absolutely need to identify the franchises. But not a single one of their requests actually targets the identity of the franchises. The problem with what they're doing is that they are using emergency discovery procedures to get it information purely to target and possibly silence the BAM map and the BAM ops manual website operators. They want to silence opposition. They are not trying to figure out who the franchises are with this motion. If I was advising the operator of the BAM map website or the operator of the BAM ops manual website, I would advise them to get a lawyer as soon as possible and file an emergency request to intervene and oppose this early discovery because it is not targeted to the relief that Bricks and Minifig claims it needs. It is trying to do something totally different and possibly improper by trying to unmask citizen journalists. And under the first amendment, this is where Bricks and Minifigs attempts to chill free speech happen. They need to constrain themselves to the allegations in their lawsuit. They sued their franchises, not the BAM map and not the BAM ops manual. and their their discovery should be focused on those things alone. So, is Bricks and Minifigs being completely candid with the court? I don't think so. While they claim that they are trying to conduct discovery into figuring out who the franchises are that they are suing, their subpoenas tell a different story. (Starting at 12:26.)

Quoted passages represent opinions of respective writer/speaker.