Death Squad Defamation Email Subpoenas Survive

     (CN) – A federal judge refused to quash email-account subpoenas for a defamation suit in which the mining company Drummond says it was falsely linked to Colombian death squads.
     Drummond claimed in a 2011 complaint that attorney Terrence Collingsworth wrote three letters to Dutch officials and a Japanese CEO accusing it of committing severe human rights abuses by hiring Autodefense Unidas de Colombia (AUC) to assassinate Drummond union leaders.
     Collingsworth, a partner at Conrad & Scherer LLP, has also been lead counsel in several lawsuits accusing Drummond of human rights abuses in Colombia.
     Drummond believes that Conrad & Scherer paid witnesses in Colombia more than $90,000 to testify against it in these cases. The law firm claims these payments were necessary for the security of the witnesses, who were at risk of retaliation.
     To support its libel case against Collingsworth and the law firm, Drummond issued subpoenas to Google and Yahoo targeting email accounts that were allegedly used to discuss improper payments to witnesses.
     Drummond is not seeking the actual content of the emails sent or received through the addresses, but instead seeks identifying information regarding the users of the email addresses, as well as the IP address information and computer usage logs.
     Such IP information can reveal the dates and times a user logs in, how long the session lasts, and the physical location of the user at the time of the log in.
     Drummond “contends that each of the four email addresses listed in the subpoenas has, at some point, discussed payments that defendants provided to witnesses,” U.S. District Judge Joseph Spero wrote. “While Drummond does not explain why the IP address and logs associated with the email addresses are relevant to its libel claim, the court finds that such information could ‘lead to the discovery of admissible evidence.'”
     Spero gave the defense a mixed bag Monday, quashing the subpoena only as it pertains to American citizen Lorraine Leete, the admitted owner of the email address lorrainemleete@gmail.com. Spero found that IP information relating this account would violate Leete’s First Amendment rights.
     Leete, who is based in Colombia, has been working as a contract attorney for International Rights Advocates as a member of Collingsworth’s litigation team. Leete has spent the last three years meeting with threatened Colombia union leaders and human rights defenders who face persecution and assassination for their organizing efforts. During these meetings Leete often logged into her email.
     “Thus, Leete believes that disclosure of her IP logs could also disclose the location of threatened union leaders and human rights defenders, which unnecessarily subjects them to danger,” Spero wrote. “Since receiving notice of the subpoenas, Leete has altered her use of her email accounts. She no longer logs in to her email during meetings with threatened individuals in Colombia, as that would risk revealing their exact geographic location, as well as the fact that they had met with her, which puts them at greater risk for retaliation.”
     Leete’s belief that the individuals with whom she meets are at risk of persecution is corroborated by human-rights reports documenting a high number of threats against and assassinations of human-rights advocates.
     Spero found that Leete was engaged in “expressive association,” as protected by the First Amendment, during her meetings.
     “Leete does not claim a right to merely associate with other individuals for a non-expressive purpose such as social dancing,” Spero wrote. “Rather, she claims a right to associate with other individuals so they may collectively further their common goal of promoting human rights in Colombia by holding human rights abusers accountable.”
     Although Leete is not actually engaging in this activity by logging into her email, the disclosure of IP log data would let Drummond find out where Leete logged into her email and could lead to reasonable inferences as to Leete’s associates.
     Drummond’s interest in the email data is not relevant enough to the company’s libel case to outweigh Leete’s rights, according to the ruling. Drummond will not be able to prove whether Collingsworth and his law firm paid witnesses as security measures or as bribes based on the location of Leete’s log-ins, Spero found.
     Drummond can, however, proceed with its subpoenas for the other three addresses: libardoduart@gmail.com, jojopidi@yahoo.com and halcon85@yahoo.com. The users of these three emails are located in Colombia and at least one of them is detained in a Colombian prison.
     Libardo Duarte, an ex-member of the AUC, provided deposition testimony for one of the underlying cases against Drummond, stating that Drummond paid other AUC member to assassinate Drummond union leaders and to kill property owners who did not want to sell their land to Drummond where the company’s railroad would be built. Drummond believes Duarte was paid at least $7,084 for his testimony.
     “Halcon,” whose real name is unknown, was listed as a witness with facts regarding a connection between the AUC and Drummond. Collingsworth and Conrad & Scherer made payments to Halcon through Jose Joaquin Pinzon Diaquiz, which Drummond believes amount to $50,000.
     Spero finds that these three men, the holders of the other three email accounts, cannot sustain a First Amendment challenge. Their participation in the lawsuits against Drummond did not require them to “assume the complete range of obligations” imposed on United States citizens.
     Additionally, Collingsworth and Conrad & Scherer do not have third-party standing to protect the rights of these three account holders as they do not have a “close relationship,” according to the ruling. The men’s status as witnesses in the cases against Drummond is insufficient.
     Spero thus let the subpoenas against these three email addresses proceed. Because disclosure of the information may pose a safety risk to the holders of the email accounts and their families, however, Spero found that a protective order was justified.

%d bloggers like this: