Jenkins et al v. Miller

Filing 6

ORDER by Judge Thomas S. Hixson granting 1 Motion to Compel. (cdnS, COURT STAFF) (Filed on 1/14/2019)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JANET JENKINS, et al.,

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Plaintiffs,

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ORDER COMPELLING PRODUCTION

v.

Re: Dkt. No. 1
KENNETH L. MILLER, et al.,
Defendants.

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United States District Court
Northern District of California

Case No. 18-mc-80213-TSH

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This motion to compel compliance with a subpoena arises out of an underlying action

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pending in the District of Vermont, Jenkins v. Miller, No. 2:12-cv-184 (D. Vt.). Plaintiff Janet

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Jenkins alleges that she entered into a civil union with Lisa Miller in Vermont and Isabella Miller-

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Jenkins is their daughter. When Isabella was 17 months old, Miller moved with Isabella to

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Virginia and petitioned the Vermont family court to dissolve the union. Around the same time,

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Miller converted to fundamental Christianity and asserted her new-found belief that

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homosexuality is sinful and that her daughter should be shielded from it. The complaint alleges

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that following dissolution of the civil union, custody over Isabella was initially joint but that

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Miller interfered with Jenkins’ lawful entitlement to see Isabella. Since January 1, 2010, Jenkins

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has had sole legal custody of Isabella. However, Jenkins has not seen her daughter in 10 years

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because in September 2009, Miller kidnapped Isabella and took her to Nicaragua, where the two

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had been living in hiding among the Beachy Amish-Mennonite Community. Jenkins alleges there

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were a number of co-conspirators in the kidnapping, including Miller’s lawyers, the law firm

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Liberty Counsel.

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According to Jenkins’ counsel’s declaration, Liberty Counsel posts an array of information
on its various websites, including information about its cases and legal positions. J. Tyler

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Clemons Decl., ¶ 2, ECF No. 3. He states that Liberty Counsel frequently posted on its websites

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regarding its involvement in the custody battle between Jenkins and Miller and regarding the

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underlying lawsuit. Id. ¶ 3. In June 2018, a researcher at the Southern Poverty Law Center, which

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represents Jenkins, noticed that Liberty Counsel’s websites had been removed from the Internet

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Archive’s Wayback Machine. Id. ¶ 5.

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By way of background, the Internet Archive is a nonprofit organization seeking to build a

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digital library of the Internet by creating and maintaining an archive of all websites in their current

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and past forms. See https://archive.org/about/. As part of this mission, the Internet Archive

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operates the “Wayback Machine,” a search engine-like service that allows members of the public
to visit archived versions of websites. See

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United States District Court
Northern District of California

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https://archive.org/about/faqs.php#The_Wayback_Machine.

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Jenkins served the subpoena at issue on the Internet Archive. Request 1 seeks “[a]ll

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websites made available by Liberty Counsel, including all documents concerning the domains

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http://www.lc.org and http://www.libertycounsel.com.” During meet and confer, the Internet

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Archive represented that it could not access the archived copies of Liberty Counsel’s websites

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without restoring them to the Wayback Machine, thereby making them publicly accessible.

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Clemons Decl., ¶ 8. It also stated that its policy is not restore removed websites to the Wayback

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Machine without permission from the party that requested removal or a court order. Id. The

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restoration can be temporary, and once the documents are produced, the archives can again be

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excluded from the Wayback Machine in the normal manner. ECF No. 2, Ex. 4.

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Jenkins now brings this motion to compel compliance with Request 1 of the subpoena.

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Jenkins filed the motion on December 17, 2018, and the certificate of service states that on

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December 14, 2018, it was served on Liberty Counsel and other Defendants in the underlying

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lawsuit and on the Internet Archive. ECF No. 1. The deadline to oppose the motion has long

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since passed, see Local Rule 7-3(a), and no opposition has been filed.

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The Court GRANTS Jenkins’ motion. The archived copies of Liberty Counsel’s websites

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can be expected to contain statements about issues central to the underlying lawsuit, such as

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references to the custody battle between Miller and Jenkins. The archived websites may also
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contain evidence of Liberty Counsel’s animus toward LGBT people, which is an element of

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Jenkins’ second claim for relief under 42 U.S.C. § 1985(3). Request 1 of the subpoena does not

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appear to be burdensome for the Internet Archive to comply with. Liberty Counsel has not

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opposed the motion to compel or provided any explanation how the temporary public access to the

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archived websites necessary to effectuate their production would cause undue prejudice to its

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intellectual property rights in that content. Accordingly, the Court ORDERS the Internet Archive

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to produce documents responsive to Request 1 of the subpoena to Jenkins within 30 days. The

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Court also ORDERS Jenkins to serve this order on the Internet Archive and Defendants in the

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underlying action promptly.

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IT IS SO ORDERED.

United States District Court
Northern District of California

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Dated: January 14, 2019

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THOMAS S. HIXSON
United States Magistrate Judge

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