The legal case pitting former Crispin Porter & Bogusky chief creative officer Ralph Watson against the entity known as Diet Madison Avenue has taken another step forward. The judge in the case, first filed against two Jane Does and the DMA group at large in California last May, has denied a motion to quash the plaintiff’s request to subpoena Facebook/Instagram and Alphabet/Google for information regarding the identities of these two individuals.
AdAge first reported on the decision, which came down last Friday. The full document recording the minutes of the hearing is embedded at the end of this post.
“We respond to valid legal requests but don’t comment on specific cases,” wrote an Instagram spokesperson. Google has not yet responded to a related email.
Last week’s decision states that the plaintiff is entitled to “confirm the names of the individual or individuals” in question, though his lawsuit claimed that he already knows their identities. However, it also clarifies that he “is only entitled to identification of the individual or individuals that posted the alleged defamatory stories.”
The decision is therefore limited in scope as the judge allowed for a protective order and stated that the subpoena, which concerned the “Production of Business Records to Facebook, Instagram and Alphabet (Gmail),” would be modified “to seek only information of users who published the allegedly defamatory content, i.e., information limited to account access on January 19 and January 25, 2018,” or the days that Diet Madison Avenue posted messages naming Watson on Instagram.
“The judge’s decision to grant our protective order emphasizes the important protections that the First Amendment provides for the right to associate,” said defense attorney A. Louis Dorny of Gordon Rees Scully Mansukhani. “It’s an important decision that gives much needed protection to social movements of all types.”
He continued, “For the portions of the subpoenas that remain, to the extent necessary, we will consider all options that protect the anonymity of the people or person behind the Diet Madison Avenue Instagram account, given Mr. Watson’s history of harassing litigation tactics.”
Watson’s lawyer has not responded to requests for comment.
Honorable Judge Monica Bachner also denied the plaintiff’s request for an order stating that a Jane Doe 3 and DMA as a group had made general appearances before the court as well as the latter parties’ requests for attorneys’ fees and costs, finding that the act of filing motions did not amount to an appearance.
The document further reveals that Jane Doe 3 has retained the services of Arnold & Porter Kaye Scholer, a Washington, D.C.-based law firm specializing in areas of employment, discrimination, intellectual property and the media and advertising industries. While speaking to Adweek last year, Dorny said that the defendants in the initial suit had hired another law firm, and today he confirmed that Arnold & Porter was that firm.
The two lawyers defending Jane Doe 3 have not responded to an email.
Last week’s document describes Jane Doe 3 as “Specially Appearing Movant Defendant,” indicating that she is challenging the State of California’s legal jurisdiction over herself in this case. In summarizing Jane Doe 3’s objection, it goes on to state that “Doe 3 argues the Court should quash the subpoenas as overbroad and harassing, in that they seek the identities of dozens of people, including Doe 3, who are not even alleged to have published the alleged defamatory content.”
Doe 3 claims that “she did not write the stories or have any role in writing or posting them,” and the judge agrees that Watson and his lawyer “did not submit evidence challenging Doe 3’s declaration.” According to the minutes, however, he did “meet his burden of stating a legally sufficient cause of action for, at the very least, defamation against DMA.”
At this time, it is unclear how the case will proceed and how, exactly, the modified subpoena would be used to help confirm the identities of the Jane Does. The next hearings are scheduled for later this month.
This case was separate from the wrongful termination suit Watson later filed against CPB and parent company MDC Partners, which issued a statement last week defending its decision to terminate his employment.
“We remain highly confident that we will ultimately prevail in this matter,” a spokesperson wrote.