Freshwater: The defense goes fishing

| 122 Comments

And it’s not Freshwater or Hamilton holding the rod and reel.

The defense in Freshwater v. Mount Vernon Board of Education, the federal suit John Freshwater brought against the Board of Education, several administrators, and several Board members, recently issued a series of subpoenas to people ranging from Nancy Freshwater’s physicians to a couple of private citizens. While the former is arguably relevant to the case, the latter are not. Part of Freshwater’s claim in his suit is the adverse effect on his wife and loss of consortium, so her medical records are potentially pertinent. However, in at least two cases, the defense is clearly on a fishing expedition that among other things has chilling implications for the First Amendment rights of the recipients.

More below the fold

Sam and Levi Stickle are local residents who have followed the Freshwater case with more persistence than even I have. They are firm Freshwater supporters, and Sam maintains a web site called Accountability in the Media on which he publishes material he sees as supportive of Freshwater, along with video clips of Board meetings and other material. Levi is a recent high school graduate, a young earth creationist and fan of Kent Hovind, who attended as many of the administrative hearing sessions as I did.

Both Sam and Levi received subpoenas for material from attorneys for the defendants in the case, the Board of Education and several administrators and current and former Board members. Those subpoenas are wide-ranging. Sam’s is here; Levi’s is identical to Sam’s.

Read the range of materials demanded: “Any and all documents, tape recordings, audio recordings, or objects, inclusive of all electronically stored information and metadata, that reflect, evidence, or otherwise concern:”, and then there’s a list of 17 more or less specific areas about which information is demanded including information about correspondence with one individual, Don Matolyak, who is arguably also not a principal in the case. That is, the subpoena demands information about correspondence between two private persons, neither of whom is a principal in the lawsuit.

The list is breath-taking in its breadth. For example, the subpoena demands

14. Postings, statements, remarks, or any other published statement, whether private or public, on social networks for which Sam Stickle or http://www.accountabilityinthemedia.com has an account or password, including but not limited to Facebook, Myspace, Twitter, blogs or other posting networks of which Sam Stickle or http://www.accountabilityinthemedia.com is a member or has otherwise visited. (Italics added)

Essentially the defense is asking for everything Sam has ever written on the web, whether public or in private, about Freshwater, Hamilton, and the Freshwater hearing. That’s a remarkable demand. It has the effect of bringing everything a private citizen has written about this affair into a federal court proceeding for no discernible reason beyond the defense’s hope that something, anything, will turn up. It is a chilling affront to the First Amendment rights of the Stickle brothers and to anyone else (what, who me?) who might have commented somewhere on the web about this specific affair or who might write a blog post or even comment on a discussion board about any legal proceeding.

IANAL, but I know the state of law concerning bloggers and participants in internet discussions of cases like the Freshwater affair is unsettled. The First Amendment Center has an overview of that unsettled state. The Electronic Freedom Foundation has material on bloggers’ rights, though it doesn’t directly address the kind of issue raised by the subpoenas issued by the defendants in this case.

It seems clear to me that the defendants are out there fishing, energetically casting their subpoenas into marginally related pools in hopes of catching something, anything, but they know not what. I’ve read all the documents filed with the federal court in this case, and I see no hint of justification for it.

122 Comments

I should add that David Daubenmire also received a subpoena from the defendants. He has moved in federal court to quash it. The subpoena is here and the motion is here.

Daubenmire is arguably a legitimate target–he was a public spokesman for Freshwater in the early stages of the affair, wrote the statement Freshwater read at a public rally in town, and taught the Mt. Vernon Nazarene University course on ‘Religion in the Classroom’ that Freshwater cited in the administrative hearing as justification for some of his decisions and actions.

I don’t see how they are fishing, Sam Stickle is a local supporter of Freshwater’s, it seems perfectly reasonable to suspect they may have more in their possession. After all, they didn’t subpoena you also, did they?

Hieronymus Fortesque Lickspittle said:

I don’t see how they are fishing, Sam Stickle is a local supporter of Freshwater’s, it seems perfectly reasonable to suspect they may have more in their possession. After all, they didn’t subpoena you also, did they?

If they knew or suspected something was in the Stickles’ possession they would have been more specific in their demands. But they asked for everything including the kitchen sink, which suggests to me they’re merely fishing in the hope of snagging something.

And no, I haven’t been subpoenaed. Yet. If I receive one with as broad a remit as the one the Stickles’ got I’ll more than likely fight it.

RBH said:

And no, I haven’t been subpoenaed. Yet. If I receive one with as broad a remit as the one the Stickles’ got I’ll more than likely fight it.

But you seem to have nothing more than what they would already have in the minutes of their meetings or what has already been made public and is up on the NCSE website.

Simply acting as a reporter, you don’t come across as a coconspirator of Freshwater’s. :-) Otherwise they would also have to go after all reporters who have been covering the case.

Let me add a bit. Read through the original complaint (1.4M pdf) and the amended complaint (104K pdf) and try to imagine what information the Stickles might have that’s relevant to defending against that complaint. I could make something up if I thought hard enough and conspiratorially enough, but I can’t realistically see what they might have that’s relevant to defending the suit.

Thanks Richard, as always. This seems to be a very weird move by the defense as they would probably win anyway without resorting to this shotgun approach. While I in no way agree with the Stickles or Daubenmire on this whole Freshwater affair (and would probably agree with them on very little outside of the Freshwater issue), they certainly have the right to their opinions and to voice those opinions. The move by the defense attorney is exactly the kind of thing I would expect Hamilton to pull.

Thank you for this information. It is sincerely appreciated.

Mike Elzinga said: But you seem to have nothing more than what they would already have in the minutes of their meetings or what has already been made public and is up on the NCSE website.

Simply acting as a reporter, you don’t come across as a coconspirator of Freshwater’s. :-) Otherwise they would also have to go after all reporters who have been covering the case.

I have nothing germane to either the defense or plaintiff that’s not publicly known and accessible to anyone who can use Google but that doesn’t guarantee I won’t be subpoenaed by fishermen on one or the either side.

I would say they are justified. I would assume that in depositions or discovery they have learned something that justifies the subpoenas. IANAL but I would say we will never learn what that is.

Then again, Freshwater’s suit seems to be filed against a whole bunch of people, half of whom are unknown even to Freshwater, but who may have played a role in the conspiracy to, well, the accusations sound like a general grab bag of wishful thinking. These include religious discrimination, defamation, conspiracy, breach of contract, and loss of consortium. Whatever Freshwater (and Hamilton?) could think of to throw at the wall hoping something sticks.

So it seems altogether in character, in this whole mess, for the defense to proceed pretty much the way the plaintiff did - by accusing everyone of somehow conspiring to do, well, something conspirational. That’s the thing about these conspiracies, of course. Sounds to me like a pure peevish nuisance suit, provoking a peevish nuisance defense.

When I think of all the people in the US who have been fired, perhaps none of whom have had the opportunity to cause trouble at Freshwater levels, I wonder exactly what’s responsible for this waste of time, money, resources, and lives. And what’s different about Freshwater’s firing, that everyone else ever fired for cause couldn’t do the same thing.

Test of nook access.

RBH said:

Test of nook access.

I’ll be damned! It works, albeit clumsily.

It should be noted that, according to the documents up on the NCSE site, all parties have agreed to the dismissal of the Loss-of-Consortium Complaint (apologies if somebody has already noted this & I missed it).

Hrafn said:

It should be noted that, according to the documents up on the NCSE site, all parties have agreed to the dismissal of the Loss-of-Consortium Complaint (apologies if somebody has already noted this & I missed it).

Your’re right–I’d forgotten that.

RBH said:

RBH said:

Test of nook access.

I’ll be damned! It works, albeit clumsily.

Test of Palm Pre Plus access - but it’s probably more trouble than it’s worth.

Having followed SCO vs. Everybody for some years, the form of these subpoenas doesn’t surprise me.

What the lawyers do is ask for *everything* in a form that, if something is missing, they can go to the judge and point to some part of it to prove they did ask. Thus–very broadly worded discovery. In addition, if they don’t ask for something now, they probably don’t get to ask for it later, so they ask for everything. They will also ask for everything in hopes that, if it is opposed, they’ll still get what they really want once all the dust settles.

So, yeah, they’re asking for the kitchen sink. They probably won’t get it, but they may get something that they want or can work with.

(Now we needs comments from some of the folks with legal training. At the very least to find out if they are at all surprised.)

–W. H. Heydt

Old Used Programmer

RBH: this might be a good thing as a good twist in the story of any book that you may write once this is over. It would be fun (an maybe ground-braking) to see all cases interlaced in one book :) …Also here you are, showing great character in sticking up for people that have a difference of opinion and are suspected (at least by me) of dishonesty. Your sense of justice and fairness is one of the reasons why I have been taken your word without checking other sources; thank you.

I don’t understand this. Why isn’t a judge acting as an intermediary? Of course the lawyers want access to any and all information. They have no interest in preserving the individual liberties of the subpoenaed; their job is to win. Shouldn’t a judge should decide what information is relevant and fair to ask for?

Ryan Cunningham said:

I don’t understand this. Why isn’t a judge acting as an intermediary? Of course the lawyers want access to any and all information. They have no interest in preserving the individual liberties of the subpoenaed; their job is to win. Shouldn’t a judge should decide what information is relevant and fair to ask for?

That’s what happens when the recipient of the subpoena files a mothion to quash the subpoena. The judge gets to decide if it’s overbroad or even if the person getting subpoenaed should have been served at all.

The judge doesn’t get to decide anything until two people bring a contested matter before her.

(At least, that’s how this decidedly non-lawyer understands it.)

–W. H. Heydt

Old Used Programmer

Admirable, but certainly not how the opposition plays. I don’t believe you are naieve RBH, merely too honest; you are an atheist? The Tea Party and certainly Hamilton, don’t care about the Constitution, or freedom, or the Bill of Rights. It is a useful document they use to protect their tiny lives when truth invades their closetted existance: Evolution, AIDS, Global Warming, Tainted Vaccinations, Area 51, and all their other wingnut conspiracy theories. Like all conservative loons they care about winning, because they are right and you are wrong; the means of winning are immaterial. Your handwringing over the First Ammendment are commendable RBH, but ultimately futile, as the Tea Partiers and Hamilton, and the god farting Freshwater win, and collectively wipe their arses with the Constitution.

I claim no particular virtue in this. As a blogger and commenter I have some self interest in the protections conferred by the First Amendment. Those protections, if they are to mean anything at all, have to extend even to the Tea Partiers and wingnuts and loons. Otherwise they’re merely suggestions to be disregarded at whim.

(can’t resist…)

A fishing expedition?

They might catch his friend somehow, but then they might eventually have to throw Stickle back to Freshwater…It always was a fishy business.

More seriously, how long has this saga gone on? How much has it cost? When realistically might it finish?

I find it unbelievable that it has dragged on so long, but then I am not a lawyer. I’ll bet the lawyers do best out of it.

Depressing to think that this is the tactics of the BOE side. It does not appear to say much for their case. Let’s hope W.H. Heydt is right and they did this because (i) there is something they want but (ii) this is the only request they are likely to get. So they are covering future bases.

Could this be a tentative, if slightly over the top, shenanigan to confirm the mind set of Freshwater and his supporters in the back ground to this affair.

If a certain flavour of comment was uncovered which was made ostensibly in private between supporters, say whining to each other that the secular hob goblins are stomping on their delusion because although all the god botherers knew proselyting occurred in freshwaters class and was a given, and although it was against the law, it was with their tacit approval and a valiant attempt to indoctrinate young minds/fight the good fight?

So maybe, just maybe…xian black ops were in progress during the hearings? And this is a move to uncover that black op conspiracy?

I am not sure what other reason they would go after that stuff. What is even weirder is that it does seem that Freshwater is screwed fairly tightly in this affair. Why would they feel the necessity to turn that screw.…unless maybe to insure that Freshwater and Hamilton get blown so far out of the water they will still be orbiting the Earth when the sun goes red giant on our ass!

Of course it might be something else entirely…but distinctly odd for sure!

I wonder if this legal action is somehow related to the mysterious black bag situation and some of the other “odd shenanigans” that have plagued this fiasco. It has appeared to me throughout that there have been some blurring of boundaries by the Freshwater camp throughout this saga. I mean, Hamilton is using the church to make copies of documents and as his temporary office while taking depositions. Matolyak has been the “spokesperson” for John on both the Bob Burney and Open Debate radio shows. He (and I believe at times the Stickles, primarily Levi) have helped load and unload all the “traveling documents” that Hamilton brings to the hearing. Matolyak went to get the “black bag” in the night, gave the contents to Hamilton without contacting law enforcement…they go through them for several days and then report to the police, Hamilton provides documents to Levi for Accountability in the Media several days before anyone else gets them and before they are released by the referee. It has always appeared to me that there may be something “going on behind the scenes” and that’s usually the case when you see “blurred boundaries” like that going on.

I would conjecture that the purpose of the subpeona is to try to discover the “behind the scenes” links between individuals which in the context of what’s going on makes complete sense.

Subpeonaing everything from tw rabid supports seems a very smart and reasonable request from the defense lawyes. If Freshwater is ging to claim the kitchen sink in his complaint, then the defense has an obligation to make sure that the kitchen sink is justifiable. This smells like a bad case of insurance fraud, and the defense is about to find out that the man claiming payment for a back injury is still a full-time dead-lifter at an underground boxing club, except intead of boxing, its chuch groups. (Fist rule of undeground church groups: you do not talk about underground church groups.)

Avid supporters will be a reasonable and justified target in the defense’s net. What might have ben said, in pubic and private conversation, is of reasonable interest to the defense and to the court. These comunications are not any general speech, they are speech that might shed some light on the case.

It doesn’t matter to me that.…

…Sam and Levi Stickle are local residents who have followed the Freshwater case with more persistence than even I have. They are firm Freshwater supporters, and Sam maintains a web site called Accountability in the Media on which he publishes material he sees as supportive of Freshwater, along with video clips of Board meetings and other material. Levi is a recent high school graduate, a young earth creationist and fan of Kent Hovind, who attended as many of the administrative hearing sessions as I did.

I strongly favor them going to court and having that subpeona quashed for violating First Amendment rights. Freshwater was already defeated, so this is just plain maliciousness on the part of the Board of Education and gives more credibility to Freshwater’s side. Idiots!

Dale Husband said: I strongly favor them going to court and having that subpeona quashed for violating First Amendment rights. Freshwater was already defeated, so this is just plain maliciousness on the part of the Board of Education and gives more credibility to Freshwater’s side. Idiots!

In agreement. I am sometimes startled by the willingness of the more extreme partisans on either side of the political fence to say they are willing to cheat on the rules to get their own way. There is a certain inability in such thinking that fails to understand the notion of enlightened self-interest, in that the rules may protect the rights of all impartially, and that cheating on them may backfire badly.

I truly understand the argument about First Amendment rights and I don’t disagree with it.

I’m equating this request with a request by a prosecuting atty to subpeona phone records, credit card statements, etc. to get a chronology of events and see if there are any links to a crime.

I hope I’m wrong but I’ve always wondered who knew or had anything to do with the Black Bag incident, other than what has been stated (Matolyak writing the police report and picking up the bag). Having those records may show links to or dissolve any connection between that incident and any known individuals.

seabiscuit said: I’m equating this request with a request by a prosecuting atty to subpeona phone records, credit card statements, etc. to get a chronology of events and see if there are any links to a crime.

Here’s the problem with your equivalency: prosecuters do that after they have some evidence a crime occurred - not before. There’s simply no evidence (that I know about) that the Stickles were anything other than bystanders reporting on the case. There’s no evidence they committed any crime in the first place. That is what makes it fishing.

Sure, we can speculate that they did something nefarious for Freshwater. Of course, practically everyone in town is in that same boat: they might have been involved in the black bag episode. Does that mean the defense is justified in pulling every person’s records?

Of course not. Most reasonable people are going to say that before you go invading someone’s privacy, you have to have more than just a hunch that the person did something wrong. And you have to tell a court what your “more than a hunch” involves. The defense does not seem to have anything more than a hunch, and even if they do, they aren’t saying what it is.

Steve, I think Eric largely understands and agrees with you now. You guys seem to mostly getting peeved at each other over rhetoric and minor misunderstandings at this point. Take it easy on each other.

The argument you guys had basically kept me from flying off the handle at the lawyers and from going soft on my own side because of personal prejudice. Now our side has been vindicated and won a significant battle. On balance, life is good around these parts.

Ryan Cunningham said:

Steve, I think Eric largely understands and agrees with you now. You guys seem to mostly getting peeved at each other over rhetoric and minor misunderstandings at this point. Take it easy on each other.

The argument you guys had basically kept me from flying off the handle at the lawyers and from going soft on my own side because of personal prejudice. Now our side has been vindicated and won a significant battle. On balance, life is good around these parts.

OK, I see he admitted he was wrong in the other thread.

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This page contains a single entry by Richard B. Hoppe published on October 18, 2010 6:38 PM.

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