Freshwater: The defense goes fishing

I should add that David Daubenmire also received a subpoena from the defendants. He has moved in federal court to quash it. The subpoena is here and the motion is here.

Daubenmire is arguably a legitimate target--he was a public spokesman for Freshwater in the early stages of the affair, wrote the statement Freshwater read at a public rally in town, and taught the Mt. Vernon Nazarene University course on 'Religion in the Classroom' that Freshwater cited in the administrative hearing as justification for some of his decisions and actions.

I don't see how they are fishing, Sam Stickle is a local supporter of Freshwater's, it seems perfectly reasonable to suspect they may have more in their possession. After all, they didn't subpoena you also, did they?

Hieronymus Fortesque Lickspittle said: I don't see how they are fishing, Sam Stickle is a local supporter of Freshwater's, it seems perfectly reasonable to suspect they may have more in their possession. After all, they didn't subpoena you also, did they?

RBH said: And no, I haven't been subpoenaed. Yet. If I receive one with as broad a remit as the one the Stickles' got I'll more than likely fight it.

Let me add a bit. Read through the original complaint (1.4M pdf) and the amended complaint (104K pdf) and try to imagine what information the Stickles might have that's relevant to defending against that complaint. I could make something up if I thought hard enough and conspiratorially enough, but I can't realistically see what they might have that's relevant to defending the suit.

Thanks Richard, as always. This seems to be a very weird move by the defense as they would probably win anyway without resorting to this shotgun approach. While I in no way agree with the Stickles or Daubenmire on this whole Freshwater affair (and would probably agree with them on very little outside of the Freshwater issue), they certainly have the right to their opinions and to voice those opinions.
The move by the defense attorney is exactly the kind of thing
I would expect Hamilton to pull.

Thank you for this information. It is
sincerely appreciated.

Mike Elzinga said: But you seem to have nothing more than what they would already have in the minutes of their meetings or what has already been made public and is up on the NCSE website. Simply acting as a reporter, you don’t come across as a coconspirator of Freshwater’s. :-) Otherwise they would also have to go after all reporters who have been covering the case.

I would say they are justified. I would assume that in depositions or discovery they have learned something that justifies the subpoenas.
IANAL but I would say we will never learn what that is.

Then again, Freshwater's suit seems to be filed against a whole bunch of people, half of whom are unknown even to Freshwater, but who may have played a role in the conspiracy to, well, the accusations sound like a general grab bag of wishful thinking. These include religious discrimination, defamation, conspiracy, breach of contract, and loss of consortium. Whatever Freshwater (and Hamilton?) could think of to throw at the wall hoping something sticks.

So it seems altogether in character, in this whole mess, for the defense to proceed pretty much the way the plaintiff did - by accusing everyone of somehow conspiring to do, well, something conspirational. That's the thing about these conspiracies, of course. Sounds to me like a pure peevish nuisance suit, provoking a peevish nuisance defense.

When I think of all the people in the US who have been fired, perhaps none of whom have had the opportunity to cause trouble at Freshwater levels, I wonder exactly what's responsible for this waste of time, money, resources, and lives. And what's different about Freshwater's firing, that everyone else ever fired for cause couldn't do the same thing.

Test of nook access.

RBH said: Test of nook access.

It should be noted that, according to the documents up on the NCSE site, all parties have agreed to the dismissal of the Loss-of-Consortium Complaint (apologies if somebody has already noted this & I missed it).

Hrafn said: It should be noted that, according to the documents up on the NCSE site, all parties have agreed to the dismissal of the Loss-of-Consortium Complaint (apologies if somebody has already noted this & I missed it).

RBH said:

RBH said: Test of nook access.

I'll be damned! It works, albeit clumsily.

Having followed SCO vs. Everybody for some years, the form of these subpoenas doesn't surprise me.

What the lawyers do is ask for *everything* in a form that, if something is missing, they can go to the judge and point to some part of it to prove they did ask. Thus--very broadly worded discovery. In addition, if they don't ask for something now, they probably don't get to ask for it later, so they ask for everything. They will also ask for everything in hopes that, if it is opposed, they'll still get what they really want once all the dust settles.

So, yeah, they're asking for the kitchen sink. They probably won't get it, but they may get something that they want or can work with.

(Now we needs comments from some of the folks with legal training. At the very least to find out if they are at all surprised.)

--W. H. Heydt

Old Used Programmer

RBH: this might be a good thing as a good twist in the story of any book that you may write once this is over. It would be fun (an maybe ground-braking) to see all cases interlaced in one book :) ...Also here you are, showing great character in sticking up for people that have a difference of opinion and are suspected (at least by me) of dishonesty. Your sense of justice and fairness is one of the reasons why I have been taken your word without checking other sources; thank you.

I don't understand this. Why isn't a judge acting as an intermediary? Of course the lawyers want access to any and all information. They have no interest in preserving the individual liberties of the subpoenaed; their job is to win. Shouldn't a judge should decide what information is relevant and fair to ask for?

Ryan Cunningham said: I don't understand this. Why isn't a judge acting as an intermediary? Of course the lawyers want access to any and all information. They have no interest in preserving the individual liberties of the subpoenaed; their job is to win. Shouldn't a judge should decide what information is relevant and fair to ask for?

Admirable, but certainly not how the opposition plays. I don't believe you are naieve RBH, merely too honest; you are an atheist? The Tea Party and certainly Hamilton, don't care about the Constitution, or freedom, or the Bill of Rights. It is a useful document they use to protect their tiny lives when truth invades their closetted existance: Evolution, AIDS, Global Warming, Tainted Vaccinations, Area 51, and all their other wingnut conspiracy theories. Like all conservative loons they care about winning, because they are right and you are wrong; the means of winning are immaterial. Your handwringing over the First Ammendment are commendable RBH, but ultimately futile, as the Tea Partiers and Hamilton, and the god farting Freshwater win, and collectively wipe their arses with the Constitution.

I claim no particular virtue in this. As a blogger and commenter I have some self interest in the protections conferred by the First Amendment. Those protections, if they are to mean anything at all, have to extend even to the Tea Partiers and wingnuts and loons. Otherwise they're merely suggestions to be disregarded at whim.

(can't resist...)

A fishing expedition?

They might catch his friend somehow, but then they might eventually have to throw Stickle back to Freshwater...It always was a fishy business.

More seriously, how long has this saga gone on? How much has it cost? When realistically might it finish?

I find it unbelievable that it has dragged on so long, but then I am not a lawyer. I'll bet the lawyers do best out of it.

Depressing to think that this is the tactics of the BOE side. It does not appear to say much for their case. Let's hope W.H. Heydt is right and they did this because (i) there is something they want but (ii) this is the only request they are likely to get. So they are covering future bases.

Could this be a tentative, if slightly over the top, shenanigan to confirm the mind set of Freshwater and his supporters in the back ground to this affair.

If a certain flavour of comment was uncovered which was made ostensibly in private between supporters, say whining to each other that the secular hob goblins are stomping on their delusion because although all the god botherers knew proselyting occurred in freshwaters class and was a given, and although it was against the law, it was with their tacit approval and a valiant attempt to indoctrinate young minds/fight the good fight?

So maybe, just maybe...xian black ops were in progress during the hearings?
And this is a move to uncover that black op conspiracy?

I am not sure what other reason they would go after that stuff.
What is even weirder is that it does seem that Freshwater is screwed fairly tightly in this affair.
Why would they feel the necessity to turn that screw....unless maybe to insure that Freshwater and Hamilton get blown so far out of the water they will still be orbiting the Earth when the sun goes red giant on our ass!

Of course it might be something else entirely...but distinctly odd for sure!

I wonder if this legal action is somehow related to the mysterious black bag situation and some of the other "odd shenanigans" that have plagued this fiasco. It has appeared to me throughout that there have been some blurring of boundaries by the Freshwater camp throughout this saga. I mean, Hamilton is using the church to make copies of documents and as his temporary office while taking depositions. Matolyak has been the "spokesperson" for John on both the Bob Burney and Open Debate radio shows. He (and I believe at times the Stickles, primarily Levi) have helped load and unload all the "traveling documents" that Hamilton brings to the hearing. Matolyak went to get the "black bag" in the night, gave the contents to Hamilton without contacting law enforcement...they go through them for several days and then report to the police, Hamilton provides documents to Levi for Accountability in the Media several days before anyone else gets them and before they are released by the referee. It has always appeared to me that there may be something "going on behind the scenes" and that's usually the case when you see "blurred boundaries" like that going on.

I would conjecture that the purpose of the subpeona is to try to discover the "behind the scenes" links between individuals which in the context of what's going on makes complete sense.

Subpeonaing everything from tw rabid supports seems a very smart and reasonable request from the defense lawyes. If Freshwater is ging to claim the kitchen sink in his complaint, then the defense has an obligation to make sure that the kitchen sink is justifiable. This smells like a bad case of insurance fraud, and the defense is about to find out that the man claiming payment for a back injury is still a full-time dead-lifter at an underground boxing club, except intead of boxing, its chuch groups. (Fist rule of undeground church groups: you do not talk about underground church groups.)

Avid supporters will be a reasonable and justified target in the defense's net. What might have ben said, in pubic and private conversation, is of reasonable interest to the defense and to the court. These comunications are not any general speech, they are speech that might shed some light on the case.

...Sam and Levi Stickle are local residents who have followed the Freshwater case with more persistence than even I have. They are firm Freshwater supporters, and Sam maintains a web site called Accountability in the Media on which he publishes material he sees as supportive of Freshwater, along with video clips of Board meetings and other material. Levi is a recent high school graduate, a young earth creationist and fan of Kent Hovind, who attended as many of the administrative hearing sessions as I did.

Dale Husband said: I strongly favor them going to court and having that subpeona quashed for violating First Amendment rights. Freshwater was already defeated, so this is just plain maliciousness on the part of the Board of Education and gives more credibility to Freshwater's side. Idiots!

I truly understand the argument about First Amendment rights and I don't disagree with it.

I'm equating this request with a request by a prosecuting atty to subpeona phone records, credit card statements, etc. to get a chronology of events and see if there are any links to a crime.

I hope I'm wrong but I've always wondered who knew or had anything to do with the Black Bag incident, other than what has been stated (Matolyak writing the police report and picking up the bag). Having those records may show links to or dissolve any connection between that incident and any known individuals.

seabiscuit said: I'm equating this request with a request by a prosecuting atty to subpeona phone records, credit card statements, etc. to get a chronology of events and see if there are any links to a crime.

Do the have to say what it is?

eric said: Of course not. Most reasonable people are going to say that before you go invading someone's privacy, you have to have more than just a hunch that the person did something wrong. And you have to tell a court what your "more than a hunch" involves. The defense does not seem to have anything more than a hunch, and even if they do, they aren't saying what it is.

eric said:

seabiscuit said: I'm equating this request with a request by a prosecuting atty to subpeona phone records, credit card statements, etc. to get a chronology of events and see if there are any links to a crime.

Here's the problem with your equivalency: prosecuters do that after they have some evidence a crime occurred - not before. There's simply no evidence (that I know about) that the Stickles were anything other than bystanders reporting on the case. There's no evidence they committed any crime in the first place. That is what makes it fishing. Sure, we can speculate that they did something nefarious for Freshwater. Of course, practically everyone in town is in that same boat: they might have been involved in the black bag episode. Does that mean the defense is justified in pulling every person's records? Of course not. Most reasonable people are going to say that before you go invading someone's privacy, you have to have more than just a hunch that the person did something wrong. And you have to tell a court what your "more than a hunch" involves. The defense does not seem to have anything more than a hunch, and even if they do, they aren't saying what it is.

W. H. Heydt said: In addition, these subpoenas don't indicate that the Board, through it's lawyers necessarily think that Sam, Levi, etc. did something wrong against the Board, but rather they possess information that will aid in their defense against the claims by Freshwater. If I were a betting man, I'd bet that the lawyers have a reasonable suspicion that there are communications with Freshwater that will undermine Freshwater's case and/or impeach his witnesses.

I find it interesting that we godless atheists, lacking a fixed moral compass, are still able to discuss on an intelligent level, the viewpoints of the opposition and how in some areas they may be correct. Do we think our opponents in this case are capable of the same. Using their supposed fixed moral compass to objectively evaluate their opponent's claims of right and wrong.

Nah, I did not think so either.

Since this is regarding the federal case, no hearing dates have yet taken place. Basically, it could be argued that evidence is still being collected, couldn't it?

I do find it interesting that Hamilton gave out subpoenas to a wide variety of people, from my perspective, that appeared to me to be outside the scope of the employment hearing and did his very best to "fish" for information. The first one that comes to my mind is John Fair who in no way had anything whatsoever to do with John Freshwater.

I don't agree with a "tit for a tat" but unfortunately I do know that "what goes around comes around". I think this will have to play itself out a little further before judgments can actually be made about the intention.

the innkeeper said: At this point, the defense is going to paint them as co-conspirators in any way that might be shown to disprove Freshwaters allegations. These peoples own words are all that's needed to show the truth will out. The defense might have gotten wind that there is more to what they have done out in the open. Once that happens, whatever they have said, public and private, becomes fodder for the defense.

RBH might find himself on the business end of a plaintiff subpoena, due to his interactions with people at the courthouse, and, free association and first amendment rights considered, he will still have to disentangle himself from whoever he has talked to.

Richard,

I usually agree with you, but here I think you are missing an important detail.

The defense, and anyone who watches this blog knows, the defense does have reason to suspect Freshwater or an agent of his had supplied accountabilityinthemedia.com with private material.

Remember, you linked to that website with documents regarding the Board of Education hearing? You said accountabilityinthemedia.com released the documents, but the Board hadn't.

So let's think about this:
1) The Board/ref. didn't release the documents.
2) The documents weren't publicly available.
3) The website supportive of Freshwater made them available.

Hence, the logical conclusion is someone sympathetic to Freshwater gave the private documents to the website. (If I am missing something here please let me know.)

If that happened, it's likely there are other things happening between those parties. If that is the case, the demand for documents/emails is not out of question. Especially, if that contact reveals violating gag orders or supplying evidence to the website to portray Freshwater in a favorable light.

Anubis bloodsin said: I think they are going after specific bunnies and RBH ain't in the frame at all...they know who is involved in any xian Black ops. Otherwise he would have already been subpoenaed, and as far as I am aware, that has not happened! But whatever it is it is fairly hard core stuff otherwise why bother. In the Kitzmiller v Dover fiasco there was evidence of lying on oath...it went no further. So what does that leave in this debacle...witness intimidation?...evidence shenanigans?...conspiracy to 'summat or other? Who knows but they are after something and someone pertinent with possibly devastating consequences to Freshwater et al. They would not risk the ire of any judge when actually winning the match, not after all this time in litigation!

IANAL but I am active on the web.

While I don't agree with the closing of Sam's letter to the Board (to instruct the attorney how to handle the case), I am firmly on the side of Sam and Levi in this situation.

In over two years, there has never been any indication (to me, at least) that these two young men are anything other than passionate supporters of what they believe to be right. The "black bag incident" speculation and the feeding of the documents from Hamilton to Sam aside, they have blogged about the cases from their point of view and present their opinions.

Fishing expeditions can turn into harassment. I've had my screen-name on a subpoena for expressing my opinion on a forum. It, too, was a fishing expedition that went nowhere and amounted to attempted intimidation.

Evidence is being collected, but the wide net indicates that the district's attorney has nothing concrete. As much as I hate to use the phrase, it appears as though the defense may be turning into the Chewbacca defense.

I'm only inferring here; the inside of the head of an insurance-defense lawyer is a strange place foreign to me.

I think they're hoping there's nothing there... because that would support sanctions against Hamilton, Freshwater, et al. under Fed. R. Civ. P. 11 and 28 U.S.C. § 1927, which even if never collected would act as a deterrent against anyone else filing a lawsuit that might be covered by these insurance companies. I don't defend this mindset; it's just the way it is (I almost never defend the mindset of what the insurance industry has become). In short, I don't think this set of discovery requests is about this case; I think it's about the next one(s).

C.E. Petit said: I'm only inferring here; the inside of the head of an insurance-defense lawyer is a strange place foreign to me. I think they're hoping there's nothing there... because that would support sanctions against Hamilton, Freshwater, et al. under Fed. R. Civ. P. 11 and 28 U.S.C. § 1927, which even if never collected would act as a deterrent against anyone else filing a lawsuit that might be covered by these insurance companies. I don't defend this mindset; it's just the way it is (I almost never defend the mindset of what the insurance industry has become). In short, I don't think this set of discovery requests is about this case; I think it's about the next one(s).

the innkeeper said: Point of Clarification: Plaintiff in this case is Freshwater. BOE are the defendants.

Steve said: Remember, you linked to that website with documents regarding the Board of Education hearing? You said accountabilityinthemedia.com released the documents, but the Board hadn't. So let's think about this: 1) The Board/ref. didn't release the documents. 2) The documents weren't publicly available. 3) The website supportive of Freshwater made them available. Hence, the logical conclusion is someone sympathetic to Freshwater gave the private documents to the website. (If I am missing something here please let me know.) If that happened, it's likely there are other things happening between those parties. If that is the case, the demand for documents/emails is not out of question. Especially, if that contact reveals violating gag orders or supplying evidence to the website to portray Freshwater in a favorable light.

RBH,

I appreciate your stance on this issue. The subpoenas attorney Moore issued are “a chilling affront to the First Amendment rights” of those that have written or commented on the Freshwater controversy.

If one of the attorneys were to send you a subpoena, like the one sent to me, I hope you are successful in fighting it.

-Sam Stickle

Richard, would a subpoena aimed at you have any impact on your continued, excellent coverage of this (and/or) related cases?

To put it another way, is Sam Stickle's blog about to maintain an enforced silence on these matters?

I'm afraid I don't know enough of the legal details, but I have a feeling there's something about potential witnesses not being allowed to run their mouths off about cases they are directly involved in.

I just want to point out Sam Stickle's accountabilityinthemedia.com posts point out they received material from Freshwater's lawyers:

On September 22, 2010:

"Freshwater’s 'closing statement brief' was released Thursday by attorney Hamilton."

Also as Richard Hoppe wrote on September 20, 2010:

"I was misled by a posting on Accountability in the Media which said Hamilton’s brief 'was released Thursday' (Sep 17). I inferred that it had been released by R. Lee Shepherd, the referee and that all the documents were publishable. It now turns out that’s not the case; Shepherd has not yet released the documents."

What's wrong with subpoenaing a third party who is sympathetic to Freshwater and has posted documents from his lawyer that hadn't been made public?

If this person had material from Freshwater's lawyer then they might know something that is useful for the defense.

Remember, you linked to that website with documents regarding the Board of Education hearing? You said accountabilityinthemedia.com released the documents, but the Board hadn’t. So let’s think about this: 1) The Board/ref. didn’t release the documents. 2) The documents weren’t publicly available. 3) The website supportive of Freshwater made them available. Hence, the logical conclusion is someone sympathetic to Freshwater gave the private documents to the website. (If I am missing something here please let me know.)

mountvernon1805 said: RBH, I appreciate your stance on this issue. The subpoenas attorney Moore issued are “a chilling affront to the First Amendment rights” of those that have written or commented on the Freshwater controversy. If one of the attorneys were to send you a subpoena, like the one sent to me, I hope you are successful in fighting it. -Sam Stickle

I'm not quite as bothered by this as RBH although he does have the point. I've been subpoenaed before in civil, IP cases. They always ask for the kitchen sink and they want it in a few days. They try to rush you and pressure you so you don't have time to think about it and tell them to get lost.

I've found asking the lawyers "who pays for my time searching the files and witness fees slows them down."

1. The lawyers aren't paid to worry about the First Amendment. They are employed to win the case.

2. So they asked. So what. One can always say no. Just file a Motion to Quash and if the requests fall outside of the rules of court procedure, it will be granted. The judges see this every day and they know the law.

In general, fishing expeditions aren't legal. I don't know what is legal for a subpoena in a case like this but I'm sure there are rules. One might be to clearly indicate what material one is trying to subpoena and why it is important and relevant to the case. Someone who is a real lawyer should know more than me.

(Deleted duplicate comment--RBH)

I'll add here for RBH, Pandas, and others that journalists are covered against subpoena by a lot of rules. This is part of the free press laws, the shield of the press.

It is very hard to make a subpoena against a journalist stick.

It's not clear whether bloggers and internet journalists are covered by these laws. There have been a few court cases but I don't know what the outcomes were.

If worse comes to worse, claim journalist status and let the lawyers prove that you aren't.

Steve said: What's wrong with subpoenaing a third party who is sympathetic to Freshwater and has posted documents from his lawyer that hadn't been made public? If this person had material from Freshwater's lawyer then they might know something that is useful for the defense.

mountvernon1805 said: RBH, I appreciate your stance on this issue. The subpoenas attorney Moore issued are “a chilling affront to the First Amendment rights” of those that have written or commented on the Freshwater controversy.

So, you’re arguing that having advanced copies of documents not publicly released is evidence of potential collusion and makes a subpoena reasonable? I hope not.

eric,

It's my understanding from reading what has been posted in this thread, that those documents were posted FIRST on the sites favorable to freshwater's case. RBH/NCSE were NOT the first to post those, they took them from the other sites.

that's why Steve is asking.

Anubis, Kevin B, Inkeeper, W.H. Heydt, I understand your argument but I don't buy it. You're saying that because the Stickles are close followers of the case and supporters of Freshwater, it is reasonable to expect them to have participated in illegal activities.

eric said: So, you're arguing that having advanced copies of documents not publicly released is evidence of potential collusion and makes a subpoena reasonable? I hope not.

Photo provided to www.AccountabilityInTheMedia.com by R. Kelly Hamilton

robert van bakel said: Admirable, but certainly not how the opposition plays. I don't believe you are naieve RBH, merely too honest; you are an atheist? The Tea Party and certainly Hamilton, don't care about the Constitution, or freedom, or the Bill of Rights. It is a useful document they use to protect their tiny lives when truth invades their closetted existance: Evolution, AIDS, Global Warming, Tainted Vaccinations, Area 51, and all their other wingnut conspiracy theories. Like all conservative loons they care about winning, because they are right and you are wrong; the means of winning are immaterial. Your handwringing over the First Ammendment are commendable RBH, but ultimately futile, as the Tea Partiers and Hamilton, and the god farting Freshwater win, and collectively wipe their arses with the Constitution.

Hieronymus Fortesque Lickspittle said: While this isn't specifically a Christian bashing site, I've got to agree with robert van bakel, in my experience, the more religious someone claims to be, the more dishonest they are with themselves and others.

law.cornell.edu: Federal rule 45: (c) Protecting a Person Subject to a Subpoena. (1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The issuing court must enforce this duty and impose an appropriate sanction — which may include lost earnings and reasonable attorney's fees — on a party or attorney who fails to comply. (2) Command to Produce Materials or Permit Inspection. (A) Appearance Not Required. A person commanded to produce documents, electronically stored information, or tangible things, or to permit the inspection of premises, need not appear in person at the place of production or inspection unless also commanded to appear for a deposition, hearing, or trial. (B) Objections. A person commanded to produce documents or tangible things or to permit inspection may serve on the party or attorney designated in the subpoena a written objection to inspecting, copying, testing or sampling any or all of the materials or to inspecting the premises — or to producing electronically stored information in the form or forms requested. The objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served. If an objection is made, the following rules apply: (i) At any time, on notice to the commanded person, the serving party may move the issuing court for an order compelling production or inspection. (ii) These acts may be required only as directed in the order, and the order must protect a person who is neither a party nor a party's officer from significant expense resulting from compliance. (3) Quashing or Modifying a Subpoena. (A) When Required. On timely motion, the issuing court must quash or modify a subpoena that: (i) fails to allow a reasonable time to comply; (ii) requires a person who is neither a party nor a party's officer to travel more than 100 miles from where that person resides, is employed, or regularly transacts business in person — except that, subject to Rule 45(c)(3)(B)(iii), the person may be commanded to attend a trial by traveling from any such place within the state where the trial is held; (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden. (B) When Permitted. To protect a person subject to or affected by a subpoena, the issuing court may, on motion, quash or modify the subpoena if it requires: (i) disclosing a trade secret or other confidential research, development, or commercial information; (ii) disclosing an unretained expert's opinion or information that does not describe specific occurrences in dispute and results from the expert's study that was not requested by a party; or (iii) a person who is neither a party nor a party's officer to incur substantial expense to travel more than 100 miles to attend trial. (C) Specifying Conditions as an Alternative. In the circumstances described in Rule 45(c)(3)(B), the court may, instead of quashing or modifying a subpoena, order appearance or production under specified conditions if the serving party: (i) shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship; and (ii) ensures that the subpoenaed person will be reasonably compensated.

Personally, I find it easier to get along with the people around me if I don’t pay too much attention to what they believe.

I'm sure that works fine for superficial acquaintances. Not so well for people you actually want to get to know and trust.

Moreover, your behavior has implications for all of us.

if you happen to find yourself living next to a cult invested in human sacrifice, and you decide to play ostrich so you can "get along with them", the rest of us suffer for your playing "see no evil".

I think Martin Niemöller might want to have a word with you.

something to think about, at least.

Ichthyic said: If you happen to find yourself living next to a cult invested in human sacrifice, and you decide to play ostrich so you can "get along with them", the rest of us suffer for your playing "see no evil".

something to think about, at least.

I’ve never had anybody involved in human sacrifices that I knew of around me.

really?

*gasp*

you don't think I meant it as an extreme example?

nawwww.

My assumption is that people are as likely to be crazy as not. If you think I regard you as any different, you think wrong.

but, you'll be happy to ignore it anyway because it's not important, right?

oh, wait.

I smell either ignorance or hypocrisy. Leaning towards the latter.

Not being ideological,

yup, definitely the latter.

Ichthyic said: you don't think I meant it as an extreme example?

but, you'll be happy to ignore it anyway because it's not important, right?

I smell either ignorance or hypocrisy. Leaning towards the latter.

mrg: I’ve never had anybody involved in human sacrifices that I knew of around me. That is a fantasy scenario;

raven said: No it isn't.

raven said:

mrg: I’ve never had anybody involved in human sacrifices that I knew of around me. That is a fantasy scenario;

No it isn't. One of the more charming fundie xian rituals is human child sacrifice. This is also known as faith healing. The parents sit around praying while the kid dies of some easily curable condition. One 11 girl in Wisconsin died after months of agony while her parents prayed. A few dollars worth of insulin would have saved her up until the very end. There are millions of type 1 diabetics alive in the USA because of insulin. The numbers aren't well known because it is borderline legal. Maybe a hundred a year in the USA. One family I'm aware of lost two little kids that way. The adults also practice auto-human sacrifice by medical neglect. That is common enough that many people have seen an older relative with cancer or some other treatable condition pray themselves to death. This is perfectly legal, BTW.

mrg said:

raven said: No it isn't.

Beg pardon? I have never had neighbors who I had any reason to think were performing human sacrifices. I concede the possibility that it might happen, but I'm not expecting it to. If I had reason to believe that my neighbors were performing human sacrifices, believe me, I would call the police. No, really, I would. However, experience suggests to me that neighbors running a meth lab is a much more likely scenario. And I assure you I'd rat on them, too. They burn down their house cooking meth, they might take out mine, too.

mrg changing the subject: I’ve never had anybody involved in human sacrifices that I knew of around me. That is a fantasy scenario; I like fantasy for entertainment, but I don’t take it for anything else.

mrg conveniently forgetting his false statement: Beg pardon? I have never had neighbors who I had any reason to think were performing human sacrifices.

I read the Daubenmire motion to quash. My favorite part is when they suggest the attorneys should be Coach Daves friend on facebook. Well he accepts almost everyone as a friend! hehehe

raven said: mrg conveniently forgetting his false statement ...

mrg said: If I had reason to believe that my neighbors were performing human sacrifices, believe me, I would call the police.

Paul Burnett said: You probably have neighbors who take part in ritual cannibalism every week - see if this sounds familiar: "This is my body - take it and eat it. This is my blood - take it and drink it."

No it isn’t. One of the more charming fundie xian rituals is human child sacrifice.

Steve said: I'll repeat this: 1) Sam wrote that the material he posted was from Hamilton. (See Sam quote.) 2) That material was not publicly available. (See Richard quote.) 3) Therefore, the defense might be interested what other information has been exchanged.

I have no idea the reasons for the lawyers interest in Sam's material.

seabiscuit said: I wonder if this legal action is somehow related to the mysterious black bag situation and some of the other "odd shenanigans" that have plagued this fiasco. ...

eric said: So, you think the defense is going after Hamilton for leaking information to the press? Fair enough. The request still implies fishing to me. If they thought communications between Sam and Hamilton were the smoking gun, they'd ask for the communications between Sam and Hamilton. They didn't. They asked for everything Sam has written.

A post on Sam Stickle's behavior:

As a third party whose watched this closely, I find Sam Stickle's behavior rather silly. He started a blog to report on the case and labeled himself a "reporter" on the blog to criticize the "media" (whatever that vague term means) reporting on Hamilton.

He posted on his blog about the attorney sanctions and the gag order, and became involved with the case by posting material FROM Hamilton on his blog.

Now he is complaining that the defense might be interested in what he has?

More than that, he wants an attorney whose under a GAG ORDER to explain WHY he received a subpoena. Not only that he went in front of the school board to ask it.

It there is a gag order, you won't receive a reply even if they had the answer.

Sam, if you don't want to be involved then you should stay out of the case. Don't be suprised that after your receive material from a attorney (especially one whose been fined twice in federal court in the last four months), you receive an opposing attorney's subpoena.

Also Sam, if you want to be called a "reporter" or a journalist, you should get credentials for it. Ignoring your lack of understanding on the case (which is very clear on your blog), being a self-described "reporter" on a blog is hardly a way to be taken seriously.

edit:

that should be "reporting on Freshwater and by connection his counsel Hamilton."

"airmax" is spam.

Thanks again to RBH for tracking, and reporting this case so well for so long.

I am rethinking the "black bag" justification for the subpoena. Why would the issuing court care about it?

mrg said:

Paul Burnett said: You probably have neighbors who take part in ritual cannibalism every week - see if this sounds familiar: "This is my body - take it and eat it. This is my blood - take it and drink it."

Are you proposing I call the police? Hmm, maybe I shouldn't phrase that as a question. You might answer.

Steve said: I'll spell it out further: John Freshwater and his attorney Hamilton had been criticized in THREE different cases (two federal cases and the board hearing) for their failure to turn over evidence. In both federal cases, they have been fined tens of thousands of dollars, in one case Freshwater and Hamilton, but in this one just Hamilton. ...In sum, Hamilton/Freshwater have a history not giving all the relevant material to opposing counsel, but have given it to a third party.

Besides which Steve, isn't your explanation the very definition of fishing? Your description of the defense's reasoning is basically this: we don't know what he's hiding, we don't even know if he's hiding anything, but since he's hidden stuff in other cases, we'd best grab everything we can and then sort through it for clues.

If that isn't fishing, what is?

We need to immediately pass a law that makes it illegal to process any foreclosure paperwork through US Courts at a rate any faster than the standards set by this case.

Not holding my breath.

Enjoy.

Because people don’t document events that never occurred.

eric said: Besides which Steve, isn't your explanation the very definition of fishing? Your description of the defense's reasoning is basically this: we don't know what he's hiding, we don't even know if he's hiding anything, but since he's hidden stuff in other cases, we'd best grab everything we can and then sort through it for clues. If that isn't fishing, what is?

eric said:

Steve said: I'll spell it out further: John Freshwater and his attorney Hamilton had been criticized in THREE different cases (two federal cases and the board hearing) for their failure to turn over evidence. In both federal cases, they have been fined tens of thousands of dollars, in one case Freshwater and Hamilton, but in this one just Hamilton. ...In sum, Hamilton/Freshwater have a history not giving all the relevant material to opposing counsel, but have given it to a third party.

You will have to spell it out for me even further. This case is a claim by Freshwater that he was defamed and discriminated against. What evidence of non-discrimination do you think Hamilton could have? Do you think that Freshwater is holding back some lengthly documentation of a defamation that never occurred? Do you think Freshwater kept records of a pattern of non-discriminatory conduct towards him? Do you think Freshwater wrote emails saying "I know I wasn't targeted but I'll make them pay anyway, muhahaha?" The difference between this suit and the other two is, in this suit Freshwater's case is not made stronger by hiding documents - the administration's is. If the administration is right and no such defamatory or discriminatory conduct occcured, we would expect no documentation. Because people don't document events that never occurred.

eric said: You will have to spell it out for me even further. This case is a claim by Freshwater that he was defamed and discriminated against. What evidence of non-discrimination do you think Hamilton could have?

eric said: Do you think that Freshwater is holding back some lengthly documentation of a defamation that never occurred? Do you think Freshwater kept records of a pattern of non-discriminatory conduct towards him? Do you think Freshwater wrote emails saying "I know I wasn't targeted but I'll make them pay anyway, muhahaha?"

The difference between this suit and the other two is, in this suit Freshwater's case is not made stronger by hiding documents - the administration's is. If the administration is right and no such defamatory or discriminatory conduct occcured, we would expect no documentation. Because people don't document events that never occurred.

Ryan Cunningham said:

eric said: Besides which Steve, isn't your explanation the very definition of fishing? Your description of the defense's reasoning is basically this: we don't know what he's hiding, we don't even know if he's hiding anything, but since he's hidden stuff in other cases, we'd best grab everything we can and then sort through it for clues. If that isn't fishing, what is?

I don't think Steve believes the lawyers don't have any idea what they're looking for. I think he believes they are unable to state explicitly what they know publicly.

Steve said: You may think its a "fishing expedition," but given the Freshwater/Hamilton history this may not be. That's all my point is, which you don't seem to accept.

Another reason for an attorney to make a subpoena to a 'hostile' third party as broad as possible, is to leave the hostile party with as little wiggle room as possible in terms of whether they have to turn over the specific information that the attorneys actually want, and the hostile party wants to avoid turning over. A too-narrow subpoena may too easily be misconstrued by the hostile party as excluding the desired information.

It is likewise possible that the defence attorneys conjecture that Freshwater and/or Hamiltom let slip something to their confederates that undercuts their case (not unreasonable, given how fast-and-loose they've played to date). IANAL, but last I checked, the First Amendment doesn't mean that if you sue somebody, and discuss the case with a (non-lawyer/priest/etc) third party, that these discussions are confidential. The standard here would appear to be relevance to the case, not whether the third party were involved in any criminal activity, etc.

Ryan Cunningham said: It still seems more logical that the judge should get involved before the subpoena sees the light of day, though. The current way the system is set up just seems too easy to abuse in exactly the way RHB believes it is being abused here. At least we'd have confidence now that the subpoena was approved by an impartial authority.

It also seems to me that if someone is intentionally hiding documents from the court, at some point this should become a criminal matter.

Steve said: What the defense wants the documents or their stragety I don't know. You don't know. But your speculation that such material is not useful for the defense (or Freshwater's lawsuit) seems unsupported.

You may think its a "fishing expedition," but given the Freshwater/Hamilton history this may not be. That's all my point is, which you don't seem to accept.

eric said: Oh, I accept that it may not be fishing. But I also think that you guys are way too lenient on the side you (and I) agree with. You're letting your biases get in the way. You would never use this line of reasoning ('hypothetically there could be a reason this is justified, so I'm fine with it') if, say, a pro-creationist lawyer under a gag order sub poenaed RBH. In that case you'd call it like you see it: absent any clear and obvious reason to do it, and with the target having no obvious connection to the matter in front of the court - and being a journalist - its fishing.

The Founding Mothers said: I think a judge having to spend time checking each subpoena that was issued would actually be less efficient. As it stands, the judge only has to check it when someone complains, which will be less often than they are issued. It would be relatively simple to check how often subpoenas are (successfully) quashed in order to quantify this. Ain't science great? The accuracy of this kind of assumes that the recipient knows that they are entitled to challenge a subpoena, which may not always be true.

eric said: The argument 'Hamilton hid things in other cases' is a justification for going fishing, but its still fishing. Sticking with my analogy, this is equivalent to arguing 'he's been caught with drugs in his car before, so even though I have no indication of any illegal activity going on now, I'm fully justified in pulling him over and searching his vehicle.' I really don't find that reasoning to be very compelling either.

Ryan Cunningham said: I'm sure it's less efficient. What it would cost is something we'd have to balance against its value protecting people from abuse. From my understanding of things, it seems too easy for attorneys to bully people without consequence.

The innkeeper and Ryan made excellent responses to Eric, and understand what I wanted to convey. Thus, I have nothing more to add to any replies to Eric.

Ryan Cunningham said: Steve's hypothetical scenario goes something like this: The lawyers might have reasonable suspicion that Hamilton or Freshwater gave specific documents or information to Sam or Levi based on some information we don't have. Maybe they don't know specifically how it was communicated or when. Maybe they don't want to tip their hand about what the specifics they're interested in to prevent a coverup. Maybe they can't be too specific for the gag order. Maybe it's a combination of all three. We're not necessarily privy to all of the information we would need to determine whether or not this constitutes fishing. Based on what we DO know about Hamilton and Freshwater, the gag order and legal disputes, though, the above scenario is highly plausible. I think Steve just wants us to be a bit more careful before we follow that old Shakespeare quote, "The first thing we do, let's kill all the lawyers."

Ryan Cunningham said: We're not necessarily privy to all of the information we would need to determine whether or not this constitutes fishing.

eric said: To you guys this may all add up to 'justified.' To me its not clear that it is.

eric said: If the Stickles fight the subpoenas, it will come down to whether the judge finds the defense's in camera argument for the information convincing.

On Friday, October 8, 2010, I mailed attorney Moore what she requested.

Freshwater Controversy www.AccountabilityInTheMedia.com The John Freshwater controversy from an independent journalist

Steve said: You don't get it. No one is saying its "justified." No one! Not me. Not Ryan. Not innkeeper.

eric said: Why, you're absolutely right. No one!

The Washington Post is reporting that Freshwater has dropped his case:

http://www.washingtonpost.com/wp-dyn/content/article/2010/10/21/AR2010102105680.html

Is it, thankfully, over?????? Maybe they did have something to hide and the overreaching of the Board's attorney's forced the issue??
http://www.nytimes.com/aponline/2010/10/21/us/AP-US-Teacher-Bible.html?_r=1&hp

eric said:

Steve said: You don't get it. No one is saying its "justified." No one! Not me. Not Ryan. Not innkeeper.

Why, you're absolutely right. No one!

Very interesting how Freshwater dropped the case Thursday, just a week after people like Sam were given deadlines to hand over material.

http://www.washingtonpost.com/wp-dyn/content/article/2010/10/21/AR2010102105680.html

Thus, whatever secrets there were may stay between Sam and Hamilton now.

Steve said:

eric said: To you guys this may all add up to 'justified.' To me its not clear that it is.

You don't get it. No one is saying its "justified." No one! Not me. Not Ryan. Not innkeeper. That's not the point here. The point is: we don't know. I laid out a plausible case based on what is KNOWN for a HYPOTETHICAL scenario where is COULD be justified. You say its "fishing" but have no evidence. I have no evidence for my hypothetical case. My point: we don't know. We have to wait. Side point: Stickles is not a "journalist." He is a blogger, who blogs in support of Freshwater/Hamilton. He has received material/"evidence" from Hamilton. If he is not involved and has no records of interest for the defense he should write a letter to the judge. Instead his energy has been to write letters to the local media (real journalists) and the school board. Why didn't he protest with the judge, but waste his energies in the public manner he has. The reason maybe simple: He did have relevant material, but is angry to have been involved. If an attorney demands material from you and you think its baseless you contact the judge, not the media. Stickles actions have been quite telling.

burk said: The Washington Post is reporting that Freshwater has dropped his case: http://www.washingtonpost.com/wp-dyn/content/article/2010/10/21/AR2010102105680.html

Nope they did dismiss it all-
http://ncse.com/webfm_send/1449

Can anyone enlighten me as to what "Stipulated Dismissal with Prejudice" means?

The Founding Mothers said: Ryan, I think we basically agree. Another idea would be that any subpoena must be issued with the following opening statement (backed up with the necessary documentary evidence): "This is my hourly rate as a lawyer. You are entitled to charge me at this rate for your reasonable, documented time and costs in supplying this information. You are also legally entitled to challenge this subpoena using the attached form." Of course, this is kind of looking at the issue from the idea of fishing moratoria. If it happens to be a reasonable request for information, and the recipient is an unreasonable person, the whole thing could backfire...

CMB said: Can anyone enlighten me as to what "Stipulated Dismissal with Prejudice" means?

CMB said: Can anyone enlighten me as to what "Stipulated Dismissal with Prejudice" means?

What are the odds that, buried in the materials the Stickles turned over was the equivalent of a nuclear hand grenade and when the Board's lawyers told Hamilton that they had it, he caved and agreed to sign whatever document they wanted to end the case?

--W. H. Heydt

Old Used Programmer

Steve said: You're right, someone from several days ago whose not part of this back-and-forth made the claim based on an unproven assumption. I take single nitpick and your silence on substantive issues as evidence you conceed with our analyses.

wonderin said: Nope they did dismiss it all- http://ncse.com/webfm_send/1449

Thanks everyone for all of the enlightening comments and explanations. This is truly an educational experience.

One down and two to go!

eric said:

Steve said: You're right, someone from several days ago whose not part of this back-and-forth made the claim based on an unproven assumption. I take single nitpick and your silence on substantive issues as evidence you conceed with our analyses.

So I think you are being completely disingenuous in implying that all the folks arguing about whether the subpoena is a fishing expedition are completely neutral. They are not. They clearly are not merely of the opinion "we don't know," they think the strategy is at least somewhat justified. I do apologize if I lumped you in with others and you are truly neutral on this question.

eric said: What I meant with my nitpick was a subtle hint that you may want to dial back the snideness. You accused me of not reading the board, twice, and then made a claim that was obviously wrong to anyone who had read the board from the start.

eric said: Now, given that we probably agree across the board about evolution, creationism, Freshwater being a terrible teacher, etc. and are basically arguing over what a subpoena may mean, I'm going to choose to withdraw. You can take it as conceding if you want.

Ryan Cunningham said:

eric said: Why, you're absolutely right. No one!

Okay. You found a corner case from 3 pages ago. You win one delicious internet cookie! But WE'RE not arguing this, though. Honest. (Though the more details Steve points out, the more probable it seems to me that the Stickles stepped in it here. They seem highly involved and unprofessional.)

Steve, I think Eric largely understands and agrees with you now. You guys seem to mostly getting peeved at each other over rhetoric and minor misunderstandings at this point. Take it easy on each other.

The argument you guys had basically kept me from flying off the handle at the lawyers and from going soft on my own side because of personal prejudice. Now our side has been vindicated and won a significant battle. On balance, life is good around these parts.

Ryan Cunningham said: Steve, I think Eric largely understands and agrees with you now. You guys seem to mostly getting peeved at each other over rhetoric and minor misunderstandings at this point. Take it easy on each other. The argument you guys had basically kept me from flying off the handle at the lawyers and from going soft on my own side because of personal prejudice. Now our side has been vindicated and won a significant battle. On balance, life is good around these parts.