Doe 1 et al v. Ciolli et al

Filing 30

AFFIDAVIT re 25 Motion to quash subpoena. Signed By Steve Mitra filed by Doe 1, Doe 2. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Supplement 4, # 5 Exhibit 5, # 6 Exhibit 6)(Ramani, Ashok) Modified on 3/19/2008 to correct linkage (Grady, B.). (Additional attachment(s) added on 4/11/2008: # 7 Exhibit 1) (Grady, B.).

Doe 1 et al v. Ciolli et al

Doc. 30 Att. 4

EXHIBIT 4
Dockets.Justia.com

c/o Yale Law School 127 Wall Street New Haven, CT 0651 1

(DOE II)

(DOE I)
c/o Yale Law School 127 Wall Street New Haven, CT 0651 1
Steve Mitra, Esq.
Keker Van Nest, LLP

710 Sansome Street San Francisco, CA 94111
Mark Lemley, Esq. Keker Van Nest, LLP 710 Sansome Street San Francisco, CA 94111
Dorothy Mclaughlin, Esq.
Keker Van Nest, LLP

710 Sansome Street
San Francisco, CA 941 i 1

Rose Darling, Esq. Keker Van Nest, LLP 710 Sansome Street San Francisco, CA 94111 Ashok Ramani, Esq. Keker Van Nest, LLP
7 I 0 Sansome Street San Francisco, CA 941 I I

Benjamin Berkowitz, Esq. Keker Van Nest, LLP 710 Sansome Street
San Francisco, CA 9411 I

David Rosen, Esq. 400 Orange Street New Haven, CT 06511

To the above named individuals:

As a preliminar matter, be advised that a Motion to Quash Subpoena Civil Subpoena re: IP 75.1 8.1 98.98 has been filed in Doe I and Doe II vs. Individuals Whose True Names
Connecticut/Case this motion has also been served upon AT&T Internet Services, the Internet provider that assigned IP address 75.18.198.98. A copy of this motion and other materials is now hereby served upon you.
Number 07-CV-00909-CFD. A copy of Are Unkown, E1. AI. in the U.S. District Cour for the Distrct of

Ą. r i

Doe Litigation & Autoadmit.com
I recently received a subpoena from AT&T services, apparently in connection with the

lawsuit brought by (DOE II and (DOE III against certain posters on the
Autoadmit website. The subpoena threatens to disclose all information pertaining to my identity unless a motion or other measure is fied before Februar 25, 2008. At considerable expense to myself and family, a motion to quash has been prepared. For the reasons mentioned below, I am begging you to release, me from this unortunate case. First, I'd like to express my deepest regret for being associated with Autoadmit.com, a

site which has apparently recently caused (DOE III and (DOE II much stress.
Autoadmit is a fantastic waste oftime, and indeed ought to be shut down, lest this sort of thng happen again.

That said, I canot and wil not be dragged into this huge mess simply because I made an
inane, non-theatening and certainly non-actionable comment on the site. The comment is
"Women named Jil and /DOElll should be raped." No one, least of all like(DOE II

lawyers and persons and (DOE II. who are versed in the basic fudamentals oftort law, would ever consider this an injurous or actionable comment. It's a suggestion, not a threat; it's a
stupid opinion, not a harful assertion of fact or "description of sexual violence,"

whatever that means. Worse yet, it's the only thing I've ever said on the site that includes
rDOE iii's name. I simply find it amazing that ths nonsensical comment could ever be
lumped together and equated with the "T14 contest" site or the barage of

horrble emails

sent to YLS faculty and students by certain other posters. I did not take par in any of that
nonsense. I never insulted (DOE iiior (DOE II. I never attacked (DOE iiior (DOE I) ,. I never
theatened (DOE I1Jor (DOE I) . Indeed, under my other monikers, I actually defended (DOE II)

and (DOE II and severely berated and attacked the YLS email idiots as well as the "T14"

site morons for their conduct. All this prompts me to ask: Why am I a defendant in this suit?
Unfortunately, I will not be able to keep my curent

job ifit is revealed that I once posted on, or am in any way affliated or associated with, Autoadmit.com. As I've revealed on

the Autoadmit.com site, I'm not a lawyer. Obviously I canot give you the precise detals
of my job duties, but I do support many, many people in numerous ways. Therefore, ifI lose my job, many people, including my famly, wil suffer personally for it.

I've been advised to protect myself from (DOE III) (DOE Ii, and their cadre of elite lawyers

by using the Internet. Thus, I am curently in the process of creating a website that I wil use to track the litigation, step by step, until its resolution. The website wil detail all the allegations and allegedly harful comments in the case, and will featue the actual names

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of (DOE III and lDOE II . as well as information pertaining to why they are
the allegations, accusations, or allegedly harful suing me, and so on. Since none of comments have been tested yet in cour or otherwise proven false, I will ask for comments on whether such allegedly harful comments are tre or have any merit. The website wil be publicly viewable, obviously, and in order to reach a maximally large audience, I will send a link to Yale students as well as other unversity students. A link to

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the site will also be posted on Autoadmit.com, the site that stared this whole mess. A mirror site will be created, too, as is customar when a site achieves too much traffic. (Autoadmit's mirror site is Xoxohth.com.) A blog will also be established for the site. As any person familiar with the operation and creation of web sites will attest, blogs are very easy to create and maintain, and there are hundreds of free blog providers and free website providers for persons interested in airing their views to the public. Two obvious provides are Google, which provides GooglePages (which, incidentally, is where certain
posters attacked (DOE III and ĄDOE lion the "T14 contest" site, which led (DOE III and ĄDOE II

to fie this suit - note that the website I intend to create wil not intentionally disparage
(DOE III or (DOE II ,in any way, but wil rather ask the public for comment into whether any

the comments posted by the anonymous defendants are true or have any merit, as well as accept general comments and opinions of the girls from classmates, frends, and other
of

observers in an effort to build any possible defense to (DOE 111' s and ĄDOE ii 's claims), and

blogger.com, which provides a free blog-creation service. Again, I was not involved in any way with the websites or emails created or sent by the anonymous defendants.

Efforts to Intimidate or Silence Me
Creating and managing the site is well withi my First Amendment rights. Any action to silence, harass or coerce me into taing the site down will be met by an appropriate antiSLAPP motion which, as I'm sure you know, protects speakers from "strategic" suits designed to silence criticism and/or public speech. The protections provided by the antiSLAPP laws are especially strong where the speech pertins to a matter curently under review in a judicial proceeding, and thus applies to speech pertaining to suit brought by

(DOE III and (DOE II . Such a motion also entitles me to attorney's fees
incured in the process. An anti-SLAPP suit may also be pursued to recover attorney's
fees already incurred as a result of

ths suit. As you know, Connecticut doesn't curently

have Anti-SLAPP legislation, but Californa - i.e., where the Subpoena was executeddoes, as do many other states. To date, this horrible case has cost me several thousand dollars in legal fees and related costs.
My intent is not to fuher har ĄDOE H) and (DOE II . As I stated above, I recognize that

these women have experienced some emotional diffculty as a result of their lives being publicly scrutinized and criticized on Autoadmit.com and other websites. However, ifI am going to be sued by these young women for making a frivolous, non-threatening, nonactionable, innocuous and constitutionally protected comment on a website -- i.e., "Women named Jil and ĄDOE lIishould be raped," then I think it fair to create a site that details all the claims put fort against me and my co-defendants. I have no way of
knowing whether the anonymous defendants' comments concernngrDoElilS and (DOEll'S

criminality and sexual deviancy are accurate, and a site that details all the allegations and
accepts comments from persons that know (DOE III or (DOE II would be a good place to examine those comments.
There is also another reason for the site. Since ĄDOE iil s and ĄDOE ii's suit puts forth all

sorts of extraordinar claims, and since I have no idea whether (DOE II) and ĄDOE II . are as

sexually loose or bigoted as the anonymous Defendants' claimed on the site, I wil need

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evidence to support a "truth" defense to ĄDOE HI'S and (DOE II l s allegations. And since,

apparently, it is extraordinarly easy to obtain a subpoena, I wil be pursuing the following subpoenas (note that one or more of the following items can easily be obtained
through an alternative discovery tool):

1) A subpoena for information pertaining to the size of (DOE IIi'S breasts
and whether such breasts, as alleged by one Defendant, are "fake"
2) Information pertaining to whether ĄDOE II) or (DOE II are indeed

"unversally hated" by their peers
3) Information pertaining to whether lDOE III or (DOEll have any

sexually transmitted diseases, including Herpes
4) Information pertaining to the law firms that interviewed ĄDOE III and

(DOE Ii , and why such firms decided not to hire (DOE III or (DOE II

5) Information pertaining to whether (DOE ii did indeed achieve a score of
159 on the LSAT

6) Information pertainng to ĄDOE III ' s religion - i.e., Islam - and
information from any Muslim peers that may be able to shed any light on this case (this information may be a bit difficult to get, but local mosques would
be a good place to send information requests or, if necessar, subpoenas)

The above information requests and subpoenas wil be sent to YLS students, faculty,
frends and family ofiDOE HI and ĄDOE 11 to the extent they are able to be located, as well as anyone else who knows lDOE III and (DOE II . and would be able to provide such information.

Whenever I make an information request, I will state exactly what the request is for,
whom it concerns, and why I am seeking it. I wil use ĄDOE iiI's and (DOE II d S true names,

for without their true names, the inormation requests will be completely useless. As I
stated above, my purose here is not to hur (DOE II) or (DOE II ; my purose is to defend
myself. However, I think it safe to say some of

the information would be harful to

(DOE ill and lDOE II . This brings to mind the unfortnate situation that Robert Steinbuch

found himself in - i.e., having to deal with numerous embarassing revelations - when he brought a defamation lawsuit against one Jessica Cutler not too long ago.
The critical question, I think, fOflDOE III and (DOE I) ,to consider is whether having to deal

with such a site and blog is wort "uncovering" the identity of a person who merely said
H) should be raped." It is especially unortunate that he thinks "Women named Jil and (DOE that these words were the only negative words I ever wrote concernng either ĄDOE III or (DOE II . Again, I am not a lawyer, and due to my lack of legal expertise, these subpoenas

and other discovery tools are the only things I believe I can do to defend myself against
this lawsuit.

Alternatives
InOE HI. and (DOE i) , I beg you to release me from this lawsuit. If this matter to the extent

that it involves myself or moniker, "AK47," is not resolved very soon, then I will have absolutely no choice but to move forward with the site, blogs and my defense. Please
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amend the complaint to properly reflect that "AK47" is no longer a par of

this litigation,

or rescind or retract the AT&T subpoena, or take other measures, as appropriate, in order to release myself and my moniker from ths lawsuit. I am willng to provide any help I
can to aid you in finding and holding responsible any Defendant that actually hared you.
,

!'

Malicious Prosecution
There is also the issue of malicious prosecution. The lawsuit was filed by your lawyers in Connecticut. After they obtaed my IP address from Anthony Ciolli, an IP address that registered to the bay area of Californa, they executed the Subpoena in the Central Distrct of Californa, which encompasses Los Angeles and nearby areas. Upon receiving ths Subpoena, I had absolutely no idea how to defend against it, and thus had to seek legal help, as well as lose a lot of sleep, time, and money, to figue out a way to stop the revelation of my identity from occurng. I did in fact experience a lot of emotional distress over the prospect oflosing my job, ajob that, as I said above, I use to support many, many people. I've also experienced severe emotional distress due to numerous other consequences of this case. I've been advised that I may have a claim for the emotional distress inflcted by this litigation.
The comment at issue here is "Women named Jil and ĄDOE III should be raped." There is

clearly no probable cause to proceed with this suit against "AK47" or myself. Indeed, I suspect that, thus far, (DOE ill'S and (DOE I) , s desire to pursue this litigation against myself
has been energized by the efforts of their lawyers. It appears, however, that ĄDOE iii s and

her lawyers. IfI or any extent allowable under the law, I am fearful that more har wil visit (DOE ill and (DOE I) . That, of course, would be a rather perverse consequence of this litigation.
(DOEll'S overall objectives may be different than the aims of other defendant chooses to defend ourselves to the full

The lawyers in this case, and ĄnOE III and (DOE II , have a duty of good faith independent

factual investigation and legal research sufficient to support a finding of probable cause to sue. In Wiliams v. Coombs (1986) 179 CaL. App. 3d 626, the Californa Cour of Appeal held that attorneys who paricipate in the fiing or maintenance of litigation without probable cause are personally liable for malicious prosecution of a civil action.
Since "Women named Jil and (DOE III should be raped" clearly does not constitute

actionable speech, an action lies against the team of aggressive Keker lawyers that have
orchestrated this lawsuit, as well as agaist (DOE ill and ĄDOE II ) personally.

In Sheldon Appel Co. v. Albert & Oliker (1989) 47 CaL. 3d 863, the Californa Supreme Cour narowed Wiliams, holding that a tral cour may not delegate the ultimate determination of probable cause to the jury; it held that the question was one of law
which must be resolved by the Court. Id. at 876. The Sheldon decision specifically

disapproved of dicta from Tool Research & Engineering Corp. v. Henigson (1975) 46 CaL. App. 3d 675, at 683, that the attorney must have a "subjective belief' in the tenability of his or her client's claim in order to avoid malicious prosecution liability. Sheldon Appel Co. v. Albert & Oliker, supra, 47 CaL. 3d at 881. Nonetheless, it "strongly
i

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emphasized" that its conclusion "does not by any means suggest that an attorney who institutes an action which he does not believe is legally tenable is free from the risk of liability" because the lawyer's subjective belief "would clearly be relevant to the question
of

malice." Id. (emphasis supplied); see also Slater v. Durchfort (1995) 35 CaL. App. 4th

1718,1724.
The Shelton Cour also disapproved of Tool Research dicta suggesting that lack of probable cause may be proven "simply by showing that (the attorney) failed to perform reasonable legal research or factual investigation before filing a claim." Id. at 882. Rather, the Shelton Cour held that such lack of diligence is relevant on the issue of malice. Id. The Shelton Cour specifically disapproved ofthe Wiliams decision's apparent use of lack of investigation to prove lack of probable cause, although it fully endorsed the Wiliams analysis of the tort of malicious prosecution itself. Id. at 882-883

(footnote 9).

There is no possible way elite and extremely-well-educated lawyers such as the Keker lawyers here would think that "Women named Jil and IDOE HI should be raped" is an actionable tort. Even the slightest bit of legal research would reveal that this opinion is not in any way actionable (Doe v. Cahll, holding that mere opinions aren't actionable, is one obvious example) Malice, therefore, is clear here.
The facts in

(DOE IIi'S and (DOE I) " S case against me clearly do not show that any actionable

har was done. They, and their lawyers, therefore, wil have to answer for the horrble

money on this case. Yes, I've experienced emotional distress as a result of realizing that I may lose my job. That is the result of your unfounded suit against me.
predicament they've put me in. Yes, I've spent a lot of

Closing
Than you for your attention in this matter. It is no fu being a litigant in any case, especially one in which you have to defend yourself against completely unfounded
am dropped from this suit, I wil not take any of

attacks. Please respond to with an answer to my pleas. If I
the actions mentioned above. Like I've

repeated numerous times already, I feel sorr for lDOE III and (DOE I) .. But I simply do not

understand why they want to hur me so much for somethig as frivolous as the aimless,
stupid suggestion I posted on Autoadmit. I honestly hope that we can put ths behind us,

and that you eventually hold accountable the defendants that actually hared you.
Than you,
John Doe 21, a.k.a. "AK47."

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