John T. Reed' motion to quash Rothstein' subpoena to make Reed give a deposition in the separate case of Whitney Information Network, Inc. v. Glenn Purdy IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA WHITNEY INFORMATION NETWORK, INC., No. C 03-60693-CIV MARRA/SELTZER (S.D. FL) Plaintiff, EMERGENCY MOTION v. TO QUASH SUBPOENA GLENN PURDY, an individual Defendant. ________________________________/ 1. Now comes John T. Reed, pro se, and moves this Court to quash the subpoena ordering him to appear for a deposition on June 18, 2004, in San Francisco in the above Florida case. (Exhibit A) BACKGROUND 2. JOHN T. REED, (hereinafter REED) is an investigative journalist and a one-man shop, home-office-based, self-publisher of a newsletter on real estate investment and books on real estate investment, football and baseball coaching, and succeeding. For more than twenty years, REED has been the leading critic of real estate investment get-rich-quick authors, seminar speakers, "mentoring" services, and TV infomercial gurus. In that capacity, he has appeared as the person presenting the sober counterpoint to various get-rich-quick gurus in numerous national media stories including appearances on Larry King Live, Good Morning America, and 60 Minutes. REED is a West Point graduate and a Harvard MBA. 3. WHITNEY INFORMATION NETWORK, INC. (hereinafter WIN) is a publicly-traded, Florida-based, nationwide purveyor of get-rich-quick books, seminars, and "mentoring" services. WIN sells some books, but primarily markets seminars and mentoring services costing thousand of dollars each to mainly novices through TV infomercials and telephone "boiler room" high-pressure salespersons. According to its 2003 annual report filed with the Securities and Exchange Commission, WIN grossed $95 million that year. 4. RUSS WHITNEY (hereinafter WHITNEY) is the chairman of the board, chief executive officer, and majority owner of WIN. 5. Since around 1999, REED has criticized WHITNEY at his Web site https://www.johntreed.com and in his nationwide newsletter Real Estate Investor's Monthly. WHITNEY and WIN have a well-publicized policy of suing those who criticize them. Before WIN/WHITNEY sued REED, the Web site with the most criticism of WHITNEY was Creative Real Estate On-Line (https://www.creonline.com) a news group where anyone can post comments about real estate investment information sources. WIN/WHITNEY intimidated them into banning all discussion of Russ Whitney with the following email that has long been posted at the creonline and REED Websites: Terry [Vaughn owner of Creative Real Estate On Line], I have been gentlemanly and patient with you. You obviously are not a man of your word. If that is not true then I will see ALL POSTS regarding me and my company immediately removed from your site AND YOUR ARCHIVES. Terry, if that is not done immediately, starting TODAY, prepare to spend some money. I will institute a lawsuit against Creonline, you and all Creonline employees. I will also sue every poster on your board that has slandered my good name, in FEDERAL COURT on Monday morning. Count on it! Monday morning. Federal Court.
Win or lose, you WILL be spend money from here on out for the illegal and slanderous use of my name. [Russ Whitney] 6. This is as close to an admission of a plan to violate F.R.C.P. 11 and to commit common law against abuse of process as one can get. 7. In addition, various associates of WHITNEY have reported that WHITNEY or his associates said the following at WIN meetings: o "We will sue anyone who bashes us on the Internet." o "REED doesn't have any money. We're gonna wear him out." o An attendee of a WIN seminar told REED that the WIN speaker warned the audience that any criticism of WHITNEY or WIN would be met with a lawsuit. 8. REED does not have time to seek affidavits from the informants at this time because of the nearness of the deposition date (6/18/04). However, WHITNEY can refute these allegations in his response to this motion if he chooses. 9. On May 23, 2004, WIN/WHITNEY attorney Scott Rothstein sent REED an email that said in part, Should you fail to comply, your inaction will be met with extremely severe legal consequences which will make what you are currently embroiled in look like a tea party. I respectfully suggest that you revisit your gameplan and throw in the towel. 10. Since 2000, WIN has been threatening REED with lawsuits and filing lawsuits against REED for REED's refusal to remove all mention of WHITNEY from REED's Web site. The suits filed are: o 6/25/02-WHITNEY and WIN v. REED, 2:02-CV-288-FTM-29 DNF, U.S. District Court, Middle District of Florida, Fort Myers Division o 1/29/03-WHITNEY and WIN v. REED, 0301788, 17th Judicial Circuit, Broward County, FL o 3/31/03-WIN v. REED, 03-60597-CIV-SEITZ/BANDSTRA, U.S. District Court, Southern District of Florida, Miami Division o 5/13/04-Motion for leave to amend current complaint to add additional causes of action 11. REED removed the Broward County suit to the U.S. District Court, Southern District of Florida, Fort Lauderdale Division on 2/12/03. WHITNEY and WIN voluntarily withdrew the first lawsuit, but are now trying to amend the remaining suits to include part of the claims made in the original suit. All the suits now reside in the Fort Lauderdale Division of the Southern District of Florida (Case No. 03-60195-CIV-MARRA/SELTZER) and are being heard by the same judge and magistrate judge as the present WIN v. PURDY case which is the subject of this motion 12. The various legal actions against REED by WIN and WHITNEY are improper attempts to use legal process to chill REED's right of free speech and freedom of the press and to harass and intimidate REED out of criticizing WIN and WHITNEY and to increase REED's cost of litigation. REED moved to strike two of the complaints under California's Anti-S.L.A.P.P. statute (CCP 425.16), however the Florida U.S. District Courts denied the motions. REED filed a counterclaim for abuse of process in Fort Lauderdale. 13. This subpoena is also an attempt to obtain information for the WIN and WHITNEY v. REED cases, not WIN v. PURDY as represented in the subpoena. There is a seven-hour limit on the deposition of REED in the case where he is a party. This WIN v. PURDY deposition attempts to get around that limit. 14. During the latter part of April and May of 2004, WIN and WHITNEY apparently adopted a new litigation strategy of burying REED in legal filings so he could not perform his normal work and make a living. REED is defending himself pro se in all the litigation. A half dozen motions weighing a combined total of approximately four pounds have been filed by WIN and WHITNEY during that period. 15. REED is not a party to the WIN v. PURDY case that is the subject of the deposition subpoena. To the best of REED's knowledge, he has no information that would be relevant to the WIN v. PURDY case. 16. REED has never laid eyes on PURDY or WHITNEY. He has never heard the voice of PURDY either live or in a recording. He has never heard the live voice of WHITNEY. REED has never communicated to PURDY (except to ask what the subpoena was about) or received a communication from PURDY. REED has never communicated directly with WHITNEY or received a communication directly from WHITNEY. (REED Declaration) 17. According to PACER, the WIN v. PURDY case involves breach of contract by PURDY. REED has no knowledge of what such contract may have obligated PURDY to do or not do, nor has REED ever had an opportunity to observe any PURDY behavior, let alone any that might relate to his contractual obligations. 18. WHITNEY lives and works in Cape Coral, FL. PURDY lives in adjacent Fort Myers, FL. REED lives in Alamo, CA. REED has never lived in Floida. To the best of REED's knowledge, neither WHITNEY nor PURDY has ever lived in California. 19. When REED inquired of WIN attorney Scott Rothstein what information they thought REED had about WIN v. PURDY, Rothstein said only that PURDY had listed REED in initial disclosures and directed REED to PURDY. 20. REED obtained a current email address for PURDY from a mutual acquaintance. When REED sent an email to PURDY inquiring why PURDY listed REED in initial disclosures in the WIN v. PURDY suit, REED got no answer. REED also called a PURDY cell phone number provided by the mutual acquaintance, left a voice mail message, but got no return call. Calls to Purdy's law firm found the pertinent attorneys out of town. 21. It appears likely that PURDY is either confusing a possible expert witness with a fact witness or that he listed REED in his initial disclosures for the beneficial effect he hoped such a listing would have on WIN, not because REED had any facts about WIN v. REED. MEMORANDUM OF LAW 22. This subpoena should be quashed under Rule 45(c)(3)(A)(iv) of the F.R.C.P. because it "subjects [REED] to an undue burden." Although the subpoena specifies the hours of 10 AM to 1 PM, it will require almost an entire day of REED's time because of commuting from REED's home in Alamo to San Francisco. Since REED appears to have no knowledge whatsoever relevant to WIN v. REED, any burden is an undue burden. 23. To the extent that PURDY has listed REED in initial disclosures because of REED's expertise in real estate investment and/or real estate investment get-rich-quick schemes, the subpoena should be quashed under Rule 45(c)(3)(B)(ii) because it "requires disclosure of an unretained expert's opinion or information not describing specific events or occurrences in dispute and resulting from the expert's study made not at the request of any partyâ€¦" 24. The gravamen of all of WIN and WHITNEY's litigation against REED is libel of a public figure (WHITNEY and WIN) by a media defendant (REED). REED's criticism of WHITNEY and WIN is protected speech under the First Amendment to the United States Constitution; Article I, section 2(a) of the California Constitution; Article I, Section 4 of the Florida Constitution, and the New York Times v. Sullivan [376 U.S. 254 (1964)] line of U.S. Supreme Court cases regarding libel of a public figure in the media. All of WIN/WHITNEY's defamation allegations against REED allege "actual malice," a legal term of art that only applies to public figure-media libel suits. [Id. At 279) 25. In Times v. Sullivan, the U.S. Supreme Court said U.S. law had a "â€¦profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open.â€¦" (Id. At 270) That commitment is reflected in case law regarding dismissing cases for failure to state a claim under F.R.C.P. 12(b)(6). Such motions are rarely granted in general, but they are favored in free speech cases. For example, Sack on Defamation, -Libel, Slander, and Related Problems Â§16.2 quotes Andrews v. Stallings, [119 N.M. 478, 892 P.2d 611 (Ct. App. 1995)] "Because of intimidating effect of libel suits, determination as to viability of complaint should be made 'at the earliest possible stage.'" At Â§16.3.1, Sack makes similar arguments with regard to summary judgment in public-figure-plaintiff-media-defendant cases. 26. Similarly, deposition subpoenas generally must meet low standards to survive a motion to quash. However, in the present case, where the deposition subpoena is part of an attempt to chill REED's free speech, the Court should quash the subpoena unless WIN or PURDY can show that REED actually has factual knowledge likely to lead to admissible evidence in the WIN v. PURDY case. The Court should quash the subpoena for the same reasons that courts dismiss or grant summary judgment early in public-figure-plaintiff-media-defendant cases. Freedom of speech and the press mean little if the targets of unfavorable press can easily punish the speaker or publisher with substantial legal expense, harassment, and time consumption. 27. WHEREFORE, REED respectfully requests that this Court quash the subpoena commanding REED to give a deposition in WIN v. PURDY at Esquire Deposition Services in San Francisco on June 18, 2004 at 10 AM. Dated: _______________ _____________________________________ John T. Reed, Pro se 342 Bryan Drive Alamo, CA 94507 925-820-6292, fax 925-820-1259 www.johntreed.com IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA WHITNEY INFORMATION NETWORK, INC., No. C 03-60693-CIV MARRA/SELTZER (S.D. FL) Plaintiff, DECLARATION OF PROPOSED DEPONENT v. GLENN PURDY, an individual Defendant. ________________________________/ I, John T. Reed, under penalty of perjury hereby declare: 1. I have never laid eyes on either Russ Whitney or Glenn Purdy. 2. I have never heard the voice of Glenn Purdy or the live voice of Russ Whitney. 3. I have never been associated with Russ Whitney or Glenn Purdy. 4. I have never communicated to Glenn Purdy except to ask why I was being subpoenaed for a deposition in this case. 5. I have never received a communication from Glenn Purdy. 6. I have communicated with the attorneys of Russ Whitney and Whitney Information Network, Inc. but I have never communicated directly with Russ Whitney or Whitney Information Network, Inc. 7. I do not know whether Glenn Purdy ever signed a contract with Russ Whitney or Whitney Information Network, Inc. or, if so, what the provisions of such a contract might have been. 8. I have never observed any behavior of Glenn Purdy, let alone any that would relate to his obligations under a contract with Russ Whitney or Whitney Information Network, Inc. 9. I have never been retained as an expert by either Russ Whitney or Glenn Purdy. 10. I have never made a study at the request of either Russ Whitney or Glenn Purdy. 11. To the best of my knowledge, I know of no events or occurrences relevant to the Whitney Information Network, Inc. v. Glenn Purdy case. 12. I declare under penalty of perjury that the foregoing is true and correct. ____________ ___________________________________ Date John T. Reed, Pro se 342 Bryan Drive Alamo, CA 94507 925-820-6292, fax 925-820-1259 www.johntreed.com John T. Reed on real-estate-investment information Copyright 2004 by John T. Reed, a.k.a. John Reed, Jack Reed, 342 Bryan Drive, Alamo, CA 94507, Voice: 925-820-7262, Fax: 925-820-1259, www.johntreed.com