Preview
Filed: 7/7/2021 1:55 PM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 55115939
By: Rolande Kain
7/7/2021 2:59 PM
CAUSE NO. 20-CV-1975
BLAKE TARTT III § IN THE DISTRICT COURT OF
§
Plaintiff §
§
VS. §
§ GALVESTON COUNTY TEXAS
§
JOHN DOE, and §
JANE DOE §
§
Defendants § 56TH JUDICIAL DISTRICT
MOTION FOR ISSUANCE OF LETTERS ROGATORY
FOR SERVICE OF SUBPOENA DUCES TECUM ON TWITTER, INC.
TO THE HONORABLE COURT:
Plaintiff Blake Tartt, III requests the issuance of letters rogatory and a subpoena duces tecum,
directed to The Custodian of Records of Twitter, Inc., in The Superior Court of California, County
of San Francisco, requesting the production of certain business records, and in support of this motion
shows:
1. This is an action for defamation.
2. The Twitter user @WinstonSmithOMI Tweeted, “racist donor Blake Tartt”. See
Attachment A.
3. A false statement that a person is a racist is libel per se. City of Brownsville v. Pena,
716 S.W.2d 677, 682 (Tex. App.—Corpus Christi 1986, no writ).
4. When a case involves defamation per se there is a presumption that the statements
caused harm to the Plaintiff’s reputation. Hancock v. Variyam, 400 S.W.3d 59, 63–64 (Tex. 2013);
Goree v. Carnes, 625 S.W.2d 380, 384 (Tex. App.—San Antonio 1981, no writ); see also Waste
Mgmt. of Tex., Inc. v. Tex. Disposal Sys. Landfill, Inc., 434 S.W.3d 142, 147, 150–151(Tex. 2014).
5. Plaintiff is aware that Twitter, Inc. has sent notice and a copy of Plaintiff’s prior
subpoena to any email address(es) associated with any account(s) properly identified in the prior
subpoena. No individual has objected to that subpoena. Plaintiff requests that Twitter Inc. respond
to this Subpoena only after a reasonable attempt to notify the user @WinstonSmithOMI of the
request and the lawsuit by contacting the user @WinstonSmithOMI at any email address(es)
associated with any account(s) properly identified in this subpoena or provided by the user
@WinstonSmithOMI, thereby providing the user an opportunity to assert his or her First
Amendment right to speak anonymously through an application for a protective order or a motion
to quash. If no contact can be made at the contact information provided by @WinstonSmithOMI,
Plaintiff requests immediate delivery of the information requested. If contact is made, Plaintiff
requests that Twitter Inc. deliver the requested information no later than 20 days after the date on
which @WinstomSmithOMI receives notice of the request and the lawsuit.
6. When there is a factual and legal basis for believing libel may have occurred, the
writer's message will not be protected by the First Amendment. Krinsky v. Doe, 72 Cal. Rptr. 3d
231, 239, 244–46 (Cal. Ct. App. 2008). Libelous utterances are not constitutionally protected
speech. Id. One’s First Amendment right to freedom of speech is not absolute. Id. Accordingly,
a further balancing of interests should not be necessary to overcome the Defendant's constitutional
right to speak anonymously. Id.
7. Here, as the attachment shows, the user @WinstonSmithOMI called the Plaintiff a
racist. This statement is Defamation Per Se in Texas. Therefore, further balancing of interests is
not necessary.
8. Twitter policy states, “You may not use our service for any unlawful purpose or in
furtherance of illegal activities.” The Twitter Rules, https://help.twitter.com/en/rules-and-
2
policies/twitter-rules (last visited July 7, 2021).
9. Plaintiff has thus far been unsuccessful in his attempts to identify
@WinstonSmithOMI. The person using this user name has defamed the Plaintiff. The Plaintiff has
filed a lawsuit in Galveston County Texas. The Plaintiff has been harmed by these defamatory
statements. The Plaintiff will suffer harm without remedy unless Plaintiff is able to identify the
Defendant. Twitter Inc. is the only entity that can provide information necessary to identify the
Defendant.
10. If there are costs associated with the production of the requested information, Plaintiff
will pay the cost of production prior to delivery by Twitter Inc.
11. The witness is a resident of the State of California and is the custodian of the records
of Twitter, Inc. This social media site is alleged to have been used to disseminate false information
regarding Plaintiff, to Plaintiff’s detriment.
12. Plaintiff has good cause to believe that the witness has knowledge of and is competent
to testify on these matters:
a. Provide information for the following accounts:
URL: https://twitter.com/WinstonSmithOMI
Username: @WinstonSmithOMI
b. Information Requested:
Records regarding the identification of the owner(s) of the
@WinstonSmithOMI account, including (1) owner information, first
and last name, email address, alternate email address, phone number,
and address; (2) IP address used to setup the account; (3) each IP
address used by @WinstonSmithOMI; (4) The IP address used by
@WinstonSmithOMI on September 23, 2020 at 5:10 pm Central
Time. (5) All IP addresses used to log into the account; (6) Methods
of payment used by the account owner (if any).
A business records affidavit (DECLARATION OF TWITTER RECORDS) is attached for Twitter’s
use.
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13. WHEREFORE, Plaintiff Blake Tart, III requests that the Court order the Clerk of the
Court to issue The Custodian of Records of Twitter, Inc. the letter rogatory that is filed
contemporaneously with this motion.
Respectfully Submitted,
Johnston & McLean, PLLC
7950 Legacy Drive, Suite 330
Plano, Texas 75024
(972) 436-1661
(972) 436-1615 – Facsimile
By__________________________________
William W. Johnston
State Bar No. 10846700
billjohnstonlawoffice@gmail.com
Attorney for Plaintiff
By__________________________________
Calvin G. McLean
State Bar No. 24091885
goc.garfieldlaw@gmail.com
Attorney for Plaintiff
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CERTIFICATE OF SERVICE
I hereby certify that the foregoing
MOTION FOR ISSUANCE OF LETTERS ROGATORY
FOR DEPOSITION OF TWITTER, INC.
was served on Defendants as shown below:
via electronic filing service
on this 7th day of July 2021.
__________________________________
Calvin G. McLean
5
Preview
Filed: 7/7/2021 1:55 PM JOHN D. KINARD - District Clerk Galveston County, Texas Envelope No. 55115939 By: Rolande Kain 7/7/2021 2:59 PM CAUSE NO. 20-CV-1975 BLAKE TARTT III § IN THE DISTRICT COURT OF § Plaintiff § § VS. § § GALVESTON COUNTY TEXAS § JOHN DOE, and § JANE DOE § § Defendants § 56TH JUDICIAL DISTRICT MOTION FOR ISSUANCE OF LETTERS ROGATORY FOR SERVICE OF SUBPOENA DUCES TECUM ON TWITTER, INC. TO THE HONORABLE COURT: Plaintiff Blake Tartt, III requests the issuance of letters rogatory and a subpoena duces tecum, directed to The Custodian of Records of Twitter, Inc., in The Superior Court of California, County of San Francisco, requesting the production of certain business records, and in support of this motion shows: 1. This is an action for defamation. 2. The Twitter user @WinstonSmithOMI Tweeted, “racist donor Blake Tartt”. See Attachment A. 3. A false statement that a person is a racist is libel per se. City of Brownsville v. Pena, 716 S.W.2d 677, 682 (Tex. App.—Corpus Christi 1986, no writ). 4. When a case involves defamation per se there is a presumption that the statements caused harm to the Plaintiff’s reputation. Hancock v. Variyam, 400 S.W.3d 59, 63–64 (Tex. 2013); Goree v. Carnes, 625 S.W.2d 380, 384 (Tex. App.—San Antonio 1981, no writ); see also Waste Mgmt. of Tex., Inc. v. Tex. Disposal Sys. Landfill, Inc., 434 S.W.3d 142, 147, 150–151(Tex. 2014). 5. Plaintiff is aware that Twitter, Inc. has sent notice and a copy of Plaintiff’s prior subpoena to any email address(es) associated with any account(s) properly identified in the prior subpoena. No individual has objected to that subpoena. Plaintiff requests that Twitter Inc. respond to this Subpoena only after a reasonable attempt to notify the user @WinstonSmithOMI of the request and the lawsuit by contacting the user @WinstonSmithOMI at any email address(es) associated with any account(s) properly identified in this subpoena or provided by the user @WinstonSmithOMI, thereby providing the user an opportunity to assert his or her First Amendment right to speak anonymously through an application for a protective order or a motion to quash. If no contact can be made at the contact information provided by @WinstonSmithOMI, Plaintiff requests immediate delivery of the information requested. If contact is made, Plaintiff requests that Twitter Inc. deliver the requested information no later than 20 days after the date on which @WinstomSmithOMI receives notice of the request and the lawsuit. 6. When there is a factual and legal basis for believing libel may have occurred, the writer's message will not be protected by the First Amendment. Krinsky v. Doe, 72 Cal. Rptr. 3d 231, 239, 244–46 (Cal. Ct. App. 2008). Libelous utterances are not constitutionally protected speech. Id. One’s First Amendment right to freedom of speech is not absolute. Id. Accordingly, a further balancing of interests should not be necessary to overcome the Defendant's constitutional right to speak anonymously. Id. 7. Here, as the attachment shows, the user @WinstonSmithOMI called the Plaintiff a racist. This statement is Defamation Per Se in Texas. Therefore, further balancing of interests is not necessary. 8. Twitter policy states, “You may not use our service for any unlawful purpose or in furtherance of illegal activities.” The Twitter Rules, https://help.twitter.com/en/rules-and- 2 policies/twitter-rules (last visited July 7, 2021). 9. Plaintiff has thus far been unsuccessful in his attempts to identify @WinstonSmithOMI. The person using this user name has defamed the Plaintiff. The Plaintiff has filed a lawsuit in Galveston County Texas. The Plaintiff has been harmed by these defamatory statements. The Plaintiff will suffer harm without remedy unless Plaintiff is able to identify the Defendant. Twitter Inc. is the only entity that can provide information necessary to identify the Defendant. 10. If there are costs associated with the production of the requested information, Plaintiff will pay the cost of production prior to delivery by Twitter Inc. 11. The witness is a resident of the State of California and is the custodian of the records of Twitter, Inc. This social media site is alleged to have been used to disseminate false information regarding Plaintiff, to Plaintiff’s detriment. 12. Plaintiff has good cause to believe that the witness has knowledge of and is competent to testify on these matters: a. Provide information for the following accounts: URL: https://twitter.com/WinstonSmithOMI Username: @WinstonSmithOMI b. Information Requested: Records regarding the identification of the owner(s) of the @WinstonSmithOMI account, including (1) owner information, first and last name, email address, alternate email address, phone number, and address; (2) IP address used to setup the account; (3) each IP address used by @WinstonSmithOMI; (4) The IP address used by @WinstonSmithOMI on September 23, 2020 at 5:10 pm Central Time. (5) All IP addresses used to log into the account; (6) Methods of payment used by the account owner (if any). A business records affidavit (DECLARATION OF TWITTER RECORDS) is attached for Twitter’s use. 3 13. WHEREFORE, Plaintiff Blake Tart, III requests that the Court order the Clerk of the Court to issue The Custodian of Records of Twitter, Inc. the letter rogatory that is filed contemporaneously with this motion. Respectfully Submitted, Johnston & McLean, PLLC 7950 Legacy Drive, Suite 330 Plano, Texas 75024 (972) 436-1661 (972) 436-1615 – Facsimile By__________________________________ William W. Johnston State Bar No. 10846700 billjohnstonlawoffice@gmail.com Attorney for Plaintiff By__________________________________ Calvin G. McLean State Bar No. 24091885 goc.garfieldlaw@gmail.com Attorney for Plaintiff 4 CERTIFICATE OF SERVICE I hereby certify that the foregoing MOTION FOR ISSUANCE OF LETTERS ROGATORY FOR DEPOSITION OF TWITTER, INC. was served on Defendants as shown below: via electronic filing service on this 7th day of July 2021. __________________________________ Calvin G. McLean 5