Pharma Exec Trying To Dodge First Amendment By Pretending He’s Going To Sue An American In A Foreign Court

People are finding cool new (probably illegal) ways to unmask people they want to sue. In this case, it’s a guy who didn’t like some things said about him. But in order to get a libel lawsuit going, the plaintiff needs to have a defendant to sue. Here’s where all the bad faith begins, as uncovered (and reported) by Paul Levy of Public Citizen.

Frederic Eshelman, a pharmaceutical magnate, resents being criticized by an anonymous gmail user who called him a “piece of shit” and urged companies to stop collaborating with Eshelman for, among other things, “abusing police resources” when he used his political influence to secure the arrest and prosecution of hunters who “corner-crossed” his hunting reserve to get from one bit of public land to another.  To move forward a defamation claim, he would have to get a subpoena to Google enforced in a California court, and those courts have protected the First Amendment right to speak anonymously by requiring plaintiffs to present complaints that state valid defamation claims, and to present evidence in support of that claim. And Eshelman’s supposed defamation claim is more than a little bit fanciful.

“Fanciful” is putting it kindly. There’s no valid defamation claim here, even if Eshelman manages to convince a court he’s not a public figure. (That’s going to be tough to claim, since he’s already made headlines at the Washington Post.) But we’re not even at that point yet. Eshelman wants to unmask the Doe he wants to sue, and he appears to be twisting the truth in hopes of keeping his subpoena to Google from being blocked.

So, instead of just filing a suit for defamation in his home state of North Carolina and domesticating a subpoena to Google in California, he went straight to the federal court there, invoking 28 U.S.C. § 1782, a procedure enacted to enable litigants in proceedings outside the United States to obtain needed discovery from US courts. Eshelman doesn’t actually have any lawsuits pending abroad – his excuse for using this procedure is that, among the recipients of the critical email was a company in India (SEE UPDATE BELOW) and a company in Germany (although as far as I can tell, the company he claims is in Germany is really in California). 

The update Levy has added to this post comes from Google — the recipient of the questionable subpoena. Google dug around a bit on 6 Degree PR’s website and discovered the CEO of the company actually lives in the Philadelphia area, which means every entity Eshelman wished to exploit to bypass the First Amendment is actually a US entity or resident. The First Amendment applies.

Eshelman’s use of this loophole to bypass First Amendment scrutiny would be problematic enough if it was his idea. But it wasn’t. As Levy notes, it was likely his lawyer’s idea.

Eshelman’s counsel, from the well-known libel litigation boutique Clare Locke, told me that he has used the section 1782 procedure several times before, always successfully. 

Now, that doesn’t necessarily mean every Section 1782 action filed by this firm has ultimately involved US-based entities. But it does suggest the firm has played a little loose with the facts to acquire subpoenas to unmask litigation targets.

Fortunately, this bogus attempt to unmask a critic is likely to go nowhere. Both Public Citizen [PDF] and Google [PDF] have filed motions asking the judge to quash the illicitly obtained subpoena. Both make the same point: this is bad faith litigation wholly unsupported by the known facts. This is from Public Citizen’s motion:

On January 13, 2023, Eshelman filed an Ex Parte Application for an Order Pursuant to 28 U.S.C. § 1782 against Google LLC, seeking subpoenas to learn from Google the identity of an anonymous American citizen who criticized him in a single email. […] As grounds for the request, Eshelman purportedly intends to file two defamation actions against Doe in foreign courts, claiming that the email was sent to “two international business contacts.” Neither the application nor Eshelman’s supporting declaration alleges that Eshelman suffered any injury to his reputation in either of the two foreign countries, Germany and India.

Google’s take:

The Application appears to be an attempt to circumvent the policies of the United States. The U.S. has a policy of protecting speech and public debate under the First Amendment. See, e.g., Bigelow v. Virginia, 421 U.S. 809, 829 (1975) (“The policy of the First Amendment favors dissemination of information and opinion”). There is evidence demonstrating that this matter involves a U.S. citizen or resident who sent an email to U.S. recipients, implicating the First Amendment. The Anonymous Speaker’s statement is plainly an opinion based on disclosed facts. This statement would not be actionable in U.S. courts, evidencing an intent to evade the protections of the First Amendment.

[…]

Applicant does not appear to have any basis to bring claims under Indian or German law, and he has not shown that his possible claims are actionable or that foreign proceedings are even viable. Instead, this appears to be a purely domestic dispute without a clear connection to foreign countries.

There’s basically no chance this ends up going Eshelman’s way. These are shady tactics in service of a libel lawsuit Eshelman has zero chance of winning in a US court. Hopefully, the court will quash the subpoena and force Eshelman to play by the (US) rules. And, if he has to do that, hopefully he’ll realize moving forward with a lawsuit is only going to net him another loss. If Eshelman’s smart (and there’s nothing here that suggests that he is), he’ll quit while he’s only this far behind.