James McGibney & Jay Censorman, Atty @LOL

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#      http://cyqlttvwqbtfai26.onion          #
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The truth about James McGibney will not be suppressed by some cockroach
of a lawyer and a few incoherent court filings.

http://pastebin.com/Nf903wgS

http://imgur.com/a/ya0Xx


Hayley L. Berlin
Perkins Cole
April 3, 2014

VIA EMAIL AND FACSIMILE
Jason Liederman
5740 Ralston St. #300
Ventura, CA 93003
jay@criminal-lawyer.me
Fax: 805-654-0280

Re: Subpoena to Twitter in McGibney v. Retzlaff, No. 114CH005460, Santa Clara Superior Court

Dear Mr. Liederman:

We represent Twitter, Inc. ("Twitter"), and write regarding your subpoena to Twitter dated March 20, 2014, seeking basic subscriber information, tweets, and direct messages for eleven user accounts. For the reasons set forth below, Twitter objects to your subpoena. Please contact me directly to meet and confer if you disagree with any of our objections.

First, your request for the content of a Twitter user's communications-tweets and direct messages- is barred by federal law. The federal Stored Communications Act, 18 U.S.C. §§ 2701, et seq. ("SCA"), does not authorize private parties to obtain the content of a user's electronic communications from service providers such as Twitter via a subpoena or court order. 18 U.S.C. § 2702(a)(l), (2); 18 U.S.C. § 2702(b)(1)-(8). There is no exception under the SCA for civil discovery demands, and courts have therefore uniformly held that the SCA does not permit civil litigants to compel service providers such as Twitter to produce the contents of electronic communications in response to civil discovery demands. See, e.g., Suzlon Energy Ltd. v. Microsoft Corp., 671 F.3d 726, 730 (9th Cir. 2011) (non-governmental entities may not obtain the content of communications with a civil discovery demand because it would invade "the specific interests that the [SCA] seeks to protect"); Theofel v. Farey-Jones, 359 F.3d 1066, 1073- 74 (9th Cir. 2004) (civil discovery demand for content is not valid legal process under the SCA); O'Grady v. Superior Court, 139 Cal. App. 4th 1423, 1441-47 (2006) (civil demand for content is unenforceable under the SCA).

Second, your subpoena is overbroad. All discovery requests must be reasonably calculated to lead to the discovery of admissible evidence. See, e.g., Fed. R. Civ. P. 26. Twitter objects to your request for basic subscriber information, tweets, and direct messages for eleven Twitter user accounts as overbroad because it is unlimited in scope and not tailored in any way to relate to an alleged injury or claim for recovery. See, e.g., Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387, 388- 89 (E.D. Mich. 2012) (denying request for content of Facebook account and emphasizing that a litigant "does not have a generalized right to rummage at will through information that [another party] has limited from public view"); McCann v. Harleysville Ins. Co. ofNew York, 78 A.D.3d 1524, 1525,910 N.Y.S.2d 614,615 (N.Y. App. Div. 2010) (denying motion for production of content ofFacebook account where movant "essentially sought permission to conduct 'a fishing expedition' into plaintiffs Facebook account based on the mere hope of finding relevant evidence").

Third, your subpoena presents an undue burden on non-party Twitter because it requests information publicly available or available via discovery directly from the users, who you allege are parties to the action. See, e.g., Calcar Space Facility, Inc. v. Super. Ct., 53 Cal. App. 4th 216, 224-25 (Cal. Ct. App. 1997) (defining improper "fishing" as an "attempt to place the burden and cost of supplying information equally available to [a party] solely upon the [nonparty]").

Fourth, Twitter is concerned with the procedural aspects of this matter. As we understand it, there are three lawsuits currently pending in three different fora involving similar claims against the same defendant(s) (or various subsets thereof): (1) McGibney v. Retzlaff et al., No. 067-270669-14, Tarrant County District Court, Texas, filed February 19, 2014; (2) McGibney v. Retzlaff, et al., No. 14-cv-0 1 059-HRL, U.S. District Court for the Northern District of California, tiled March 6, 2014; and (3) Via View v. Retzlaff, No. 1-14-CH-005460, Santa Clara County District Court, California, filed March 17,2014. You have confirmed that an anti-SLAPP motion to dismiss was filed by one of the defendants in the Texas lawsuit, thereby staying discovery in that matter. You have also informed me that the Texas lawsuit has been "abandoned" in favor of the two California lawsuits and, in fact, your subpoena to Twitter in the California state court lawsuit was issued the same day that discovery was automatically stayed in the Texas lawsuit.

Finally, your subpoena implicates the First Amendment rights of anonymous speakers. Therefore, before producing any basic identifying information in response to your subpoena, Twitter will provide notice to the affected user(s) and allow the user(s) 21 days to file an objection with the court or affirmatively authorize disclosure. Cf Krinsky v. Doe, 72 Cal. Rptr. 3d 231, 239, 244-46 (Cal. Ct. App. 2008) (noting that "[s]peech on the Internet is ... accorded First Amendment protection," and providing that, "[ o ]nee notified of a lawsuit by the website host or ISP, a defendant may then assert his or her First Amendment right to speak anonymouslycounts.

Twitter preserves and does not waive any other available objections or rights.

Very truly yours,

Hayley L. Berlin