Church Implores 9th Circuit to Lift Sanction

     (CN) – A conservative church that improperly subpoenaed the email records of activists asked the 9th Circuit to overturn an award of attorneys’ fees.
     A group called Bash Back interrupted the services at Mt. Hope Church in Lansing, Mich., to protest the church’s stance against gay rights in 2009.
     Mt. Hope claimed that the group “blockaded” its entrance and sought an injunction against the activists.
     After filing suit under the Freedom of Access to Clinic Entrances Act, the church subpoenaed Riseup Networks for account information of users associated with the activist group. Mt. Hope said it needed access to the email accounts to identify all members to be named in the injunction.
     U.S. District Judge Richard Jones quashed the subpoena after finding Mt. Hope failed to provide any “non-speculative reason” to believe Riseup’s users had discoverable information. The judge slammed Mt. Hope for repeatedly shifting its justification for the subpoena and resisting First Amendment analysis.
     Mt. Hope’s failure to analyze relevant case law was “inexplicable,” Jones said in a subsequent ruling that ordered sanctions against Mt. Hope under Federal Rule of Civil Procedure 45 requires the subpoenaing party to take reasonable steps to avoid imposing undue burden or expense on the person subjected to the subpoena.
     The judge said Mt. Hope had to pay $28,000 in attorneys’ fees for Riseup and a user who fought the subpoena.
     Last week, Mt. Hope argued before a three-judge panel that the lower court applied the wrong legal standard and the church did not act in “bad faith” in requesting the activists’ email information.
     Dale Schowengerdt, representing Mt. Hope, said that the lower court should not have imposed sanctions because there was a legitimate purpose for the church’s subpoena.
     The subpoena was not a “blind shot in the dark,” but a way to find missing defendants, Schowengerdt said.
     Mt. Hope also disputes that its justification shifted.
     U.S. District Judge Jed Rakoff, sitting on the 9th Circuit by designation from the Sourthern District of New York, asked what made the request “non-speculative.”
     Schowengerdt said that the same number of users who showed up at the protest received planning emails, so the church reasonably concluded that the receivers of the email were either at the protest “or knew who was.”
     Devin Theriot-Orr, representing Riseup, said the church “brazenly asserted” that the seven email users that were subjected to the subpoena had “no First Amendment rights whatsoever.”
     Mt. Hope never provided evidence to support the validity of the underlying case, which is required for the subpoena, Theriot-Orr said.
     “How about a declaration from somebody in the church who said, ‘I was there; I was obstructed; I was trying to get into the church, and I couldn’t get into the church because these protestors were keeping me out’? How about a declaration from someone who was inside the church who felt like they faced a threat of violence, which is what they have to show,” Theriot-Orr said.
     He argued it was “completely appropriate” for the lower court to say Mt. Hope is responsible for bearing the cost of litigation.
     At the conclusion of the contentious debate, Judge Ronald Gould tried to calm the attorneys and said he knew that “emotions can run high in sanctions cases.”
     “At the risk of getting both sides mad at me, why don’t you guys go out and share a beer or a tofu like those Shakespeare lawyers?” Gould asked.

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