Preview
Filed: 4/21/2022 6:26 PM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 63799191
By: Sandra Orizaga
4/22/2022 9:35 AM
CAUSE NO. 20-CV-1975
Blake Tartt III, § IN THE DISTRICT COURT OF
§
Plaintiff, §
§
v. § GALVESTON COUNTY, TEXAS
§
John Doe and Jane Doe, §
§
Defendants. § 56TH JUDICIAL DISTRICT
TWITTER’S SPECIAL APPEARANCE AND
OPPOSITION TO PLAINTIFF’S MOTION FOR SHOW CAUSE ORDER
Non-Party Twitter, Inc. (“Twitter”) specially appears to oppose Plaintiff Blake
Tartt III’s (“Plaintiff”) Motion for Show Cause Order (the “Motion”):
I. SUMMARY OF THE BRIEF
Plaintiff served Twitter with a California subpoena, issuing from a California
court, seeking the identity of user @WinstonSmithOMI on Twitter’s platform.
Plaintiff has never explained @WinstonSmithOMI’s connection to this litigation, and
Plaintiff’s Complaint contains no references at all to that user, Twitter, or any
Tweets. Instead, Plaintiff’s Complaint vaguely alleges that various individuals online
attribute a racist video to him and Plaintiff leaves it to the Court and to Twitter to
speculatively connect the dots.
Twitter objected to Plaintiff’s unmasking subpoena, explaining that courts
around the country have recognized that, for such a subpoena to be enforced, Plaintiff
must first obtain a court ruling that the subpoena is constitutionally permissible
under the First Amendment. Twitter explained this First Amendment concern to
Plaintiff in two separate letters, to which Plaintiff never responded. Instead, Plaintiff
waited five months and then chose to file the instant Motion without notice to Twitter.
That Motion should be denied for several reasons.
As an initial matter, this Court lacks personal jurisdiction over Twitter to order
it to show cause. The Court does not have general personal jurisdiction over Twitter
because it is not “at home” in Texas. And it does not have specific personal jurisdiction
over Twitter because Twitter is a non-party to this litigation such that specific
jurisdiction cannot apply here (and because this dispute does not “arise” out of
conduct that Twitter directed at Texas). And even if this Court did have personal
jurisdiction over Twitter, this discovery dispute is not properly resolved in a Texas
court. Plaintiff is attempting to enforce a California subpoena, issued by a California
court clerk, on a California resident. No known authority would permit such a dispute
to be adjudicated in Texas.
If this Court does determine that it may lawfully resolve this dispute (and it
should not), it should still deny the Motion for three reasons.
First, a subpoena seeking to “unmask” an anonymous speaker cannot be
enforced without Plaintiff first obtaining a First Amendment review of that subpoena.
This being a California subpoena issued by a California court to a California
company, that review must be conducted by a California court applying California
law. Because Plaintiff never did that, Twitter cannot be compelled to comply with
Plaintiff’s subpoena.
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Second, there are serious doubts that Plaintiff’s subpoena could survive First
Amendment scrutiny. The requisite First Amendment review requires Plaintiff to
prove, with cognizable evidence, that he could maintain a prima facie case of
defamation against the user he seeks to unmask. Assuming that Plaintiff attempts
to unmask @WinstonSmithOMI in order to add that user as a defendant, it is unlikely
that Plaintiff could maintain a defamation claim against that user because: (1) he has
not offered a single allegation or piece of evidence related to @WinstonSmithOMI; (2)
Plaintiff is a limited purpose public figure under Texas law that would need to show
“actual malice,” which he has not even attempted to do, and (3) it appears that many
of Plaintiff’s targets are merely parroting attributions offered by reliable news
sources.
Third and finally, a “show cause” motion would only be appropriate if this
Court had ordered Twitter to do something and Twitter then needed to “show cause”
as to why it had not obeyed that order. Nothing of the sort has happened because
Twitter’s actions here were entirely routine: a California court issued a subpoena to
Twitter and Twitter objected to it. Because Twitter need not “show cause” for
anything in this case, the Motion can and should be denied for this reason alone.
II. STATEMENT OF RELEVANT FACTS
A. Twitter is a foreign corporation operating a global information
platform.
Twitter is a Delaware corporation with its principal place of business in San
Francisco, California. See Ex. A, Declaration of Hayden M. Schottlaender, ¶ 2. Twitter
maintains no offices in Texas. Id. Twitter offers a global information sharing and
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distribution platform committed to the free expression of its users. Id. Twitter
account holders can choose to display their true identities or can speak
pseudonymously. Id. ¶ 3.
B. Plaintiff has filed a vague lawsuit alleging that two Doe defendants
defamed him.
Plaintiff Blake Tartt has sued two “Doe” defendants, John Doe and Jane Doe.
Compl., ¶¶ 3, 4. The Doe defendants are individuals “whose identity and whereabouts
are unknown.” Id.
In his Complaint, Plaintiff alleges that he was defamed by the Doe defendants.
He complains that a video was posted “on the internet” in April 2020. Id. ¶ 8. The
narrator in that video likens a crowd in Oxford, Mississippi to “being in the Congo
jungle.” Id. John Doe is alleged to have attributed that narration to Plaintiff via a
“comment[] about the video” and “other postings.” Id. ¶¶ 8–9.
Jane Doe is alleged to have “stated in an on-line post” in August 2, 2020:
Oh, that awful and offensive video narrated by one of the rich and
powerful people who pulls the strings at Ole Miss and who watches the
Rebs play from high above the field in a luxury box and mercilessly
mocks African American women. The misogyny drips from his voice.
Id. ¶ 9.
Plaintiff also complains of three other “writings” that he alleges to be
defamatory and that he fails to attribute to any particular Doe defendant. Id. ¶ 11.
The Complaint does not once mention Twitter, any Tweets, or any activity
whatsoever on Twitter’s platform.
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C. Plaintiff served two objectionable subpoenas on Twitter.
Plaintiff incorrectly describes his attempts to subpoena Twitter. Plaintiff first
subpoenaed Twitter on April 7, 2021, not January 19, as he claims. Ex. A ¶ 4; see also
Ex. A-1, at 1. The subpoena seeks only identifying information for the Twitter account
@WinstonSmithOMI. Ex. A-1, at 7.
Twitter timely objected to that subpoena, asserting that it was unenforceable
because such a subpoena must be domesticated in California. Ex. A ¶ 5; see also Ex.
A-3. Twitter also noted that if Plaintiff did choose to issue and domesticate a new
subpoena, Twitter would again object because Plaintiff had not obtained judicial
review of the subpoena as required by the First Amendment and its protection of
anonymous online speech. Ex. A-3, at 1-2.
Ignoring Twitter’s instruction with respect to the First Amendment review,
Plaintiff then domesticated an identical subpoena in California and served that
domesticated subpoena on Twitter on September 8, 2021. Ex. A, ¶ 4; see also Ex. A-2,
at 1.
Twitter again timely responded1 to the subpoena, again objecting that Plaintiff
had not obtained a judicial review of the First Amendment implications of the
subpoena, as required by courts around the country (including in California and
Texas). Ex. A, ¶ 6; see also Ex. A-4, at 1-2; see infra, Part III.C.1.
1 Plaintiff’s Motion states that Twitter offered “[n]o response” to Plaintiff’s domesticated subpoena.
Mot. at 2. But, in the next sentence, Plaintiff notes that Twitter “responded on September 29, 2021”
to lodge its objections. The domesticated subpoena set a compliance date of September 30, 2021.
Regardless of whatever “response” Plaintiff hoped to receive prior to that compliance date, Twitter
timely objected.
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Rather than obtain that First Amendment review, Plaintiff chose to wait five
months and then file the instant Motion, asking this court (in Texas) to order Twitter
(in California) to show cause as to why it did not comply with a California court’s
subpoena. At no point in those five months did Plaintiff make any effort to confer with
Twitter about Twitter’s objections. Ex. A, ¶ 7.
After Plaintiff filed the Motion, counsel for Twitter contacted counsel for
Plaintiff to explain that this Motion was filed in the wrong court and that the parties
could avoid a great deal of unnecessary motions practice if Plaintiff were to refile a
motion seeking First Amendment review in a California court. Id. ¶ 8. Counsel for
Plaintiff appeared amenable to that idea, going so far as to note that Plaintiff had
already retained California counsel such that motions practice in California would
not impose additional burdens on Plaintiff. Id. Plaintiff’s counsel stated that he
needed to confirm that plan with his client. Id. When Twitter’s counsel called again
to confirm that plan, Plaintiff’s counsel reversed course and stated that his client
would not agree to litigate this dispute in California. Id. Plaintiff’s counsel further
stated: “If a Texas court moves us to California, then so be it.” Id.
III. ARGUMENT
A. This Court lacks personal jurisdiction over Twitter.
Over 150 years ago, the Texas Supreme Court recognized the “plain and
undeniable principle” that “to give any binding effect to the proceedings of a court, it
must have jurisdiction of the person[.]” Mitchell v. Runkle, 25 Tex. Supp. 132 (1860).2
2The laws of both Texas and California are relevant to this Motion. Because Twitter contests the
exercise of personal jurisdiction by a Texas court, Texas law applies with respect to jurisdiction.
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More specifically, a court must have personal jurisdiction over a non-party before
ordering them to produce documents or show cause. In re Mosser Mallers PLLC, No.
05-08-00259-CV, 2008 WL 963170, at *2 (Tex. App.—Dallas Apr. 9, 2008, no pet.)
(“An order is void when a court has no power or jurisdiction to render it . . . .”). Plaintiff
bears the burden of establishing that this Court has jurisdiction over Twitter.
Seligman-Hargis v. Hargis, 186 S.W.3d 582, 585 (Tex. App.—Dallas 2006, no pet.);
Gulf Coast Int’l, L.L.C. v. Rsch. Corp. of the Univ. of Haw., 490 S.W.3d 577, 583 (Tex.
App.—Houston [1st Dist.] 2016, pet. denied) (quotation omitted) (explaining that, in
a special appearance, the Plaintiff “bears the initial burden of pleading sufficient facts
to bring a nonresident . . . within the reach of the Texas long-arm statute that grants
personal jurisdiction”).
Personal jurisdiction may be either general or specific. Gulf Coast Int’l, L.L.C.,
490 S.W.3d, at 584; BNSF Ry. Co. v. Tyrrell, 137 S. Ct. 1549, 1558 (2017) (referring
to specific jurisdiction as “case-linked”). Twitter specially appears to assert that
Plaintiff has failed to establish that this Court has either general or specific personal
jurisdiction over Twitter sufficient to decide Plaintiff’s Motion.
1. The Court lacks general personal jurisdiction over Twitter.
Plaintiff cannot show that this Court has general personal jurisdiction over
Twitter. Absent exceptional circumstances which do not exist here, 3 a court may
Because the subpoena was issued by a California court, California law applies with respect to
subpoena procedure and applicable objections thereto (including the First Amendment). Infra, Part
III.C. Finally, because Plaintiff brings a claim for defamation in Texas, Texas law supplies the
elements for that claim.
3 An “exceptional case” is one in which “a corporate defendant’s operations in another forum ‘may be
so substantial and of such a nature as to render the corporation at home in that State.’” BNSF Ry.
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exercise general jurisdiction over a corporation only if the corporation is “at home” in
that state. BNSF Ry. Co., 137 S. Ct. at 1558. A corporation is “at home . . . [at] the
corporation’s place of incorporation and its principal place of business.” Id.
Accordingly, establishing general personal jurisdiction is a “high bar” in Texas.
Searcy v. Parex Res., Inc., 496 S.W.3d 58, 72 (Tex. 2016). It requires that a defendant
be “tied up–almost entangled in a web–with the forum state.” Id. Here, Twitter was
formed in Delaware and maintains its principal place of business in San Francisco,
California. Ex. A, ¶ 2. Twitter is not “at home” in Texas such that it can be subjected
to general personal jurisdiction in this Court. See FedEx Corp. v. Contreras, No. 04-
19-00757-CV, 2020 WL 4808721, at *7 (Tex. App.–San Antonio, Aug. 19, 2020, no
pet.) (FedEx not subject to general personal jurisdiction in Texas despite substantial
in-state operations, operation of globally accessible website, and registration to do
business in Texas).
2. The Court lacks specific personal jurisdiction over Twitter.
Plaintiff similarly cannot show that Twitter is subject to specific personal
jurisdiction in Texas. As an initial matter, the very concept of “specific” personal
jurisdiction does not apply to non-parties; discovery disputes like this should
therefore only be resolved in the forum in which a non-party is subject to general
personal jurisdiction. In other words, “specific jurisdiction” enables a court to
recognize jurisdiction over a party defendant; it cannot be applied to non-parties
because there is no way that the litigation could “arise” out of a non-party’s in-state
Co., 137 S. Ct. at 1558. The example provided by the Supreme Court is where a war has forced the
corporation’s owner to temporarily relocate the enterprise to the forum state. Id.
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activities. See IRA Resources, Inc. v. Griego, 221 S.W.3d 592, 596 (Tex. 2007) (“a
defendant can only trigger specific jurisdiction through its own conduct” and the
“unilateral acts of third parties” have no bearing on specific jurisdiction analysis).
Twitter is not aware of any Texas authority recognizing specific jurisdiction over a
non-party and the Court should reject any invitation to be the first. See Amelius v.
Grand Imperial LLC, 64 N.Y.S. 3d 855, 866 n.4 (N.Y. Sup. Ct. 2017) (expressly
rejecting specific jurisdiction argument where Yelp was not a party in holding that
“the only theory available” with respect to personal jurisdiction over a non-party is
general personal jurisdiction).
But even as to parties, specific personal jurisdiction exists only where: “(1) the
defendant has purposefully availed himself of the privilege of conducting activities in
the forum state, and (2) there is a substantial connection between those contacts and
the operative facts of the litigation.” Gulf Coast, 490 S.W.3d at 584. Importantly, “the
relationship must arise out of contacts that the defendant himself creates with the
forum State.” Walden v. Fiore, 571 U.S. 277, 284 (2014) (citation and internal
quotation marks omitted). Here, Twitter’s maintenance of a globally-accessible
website does not thereby subject it to personal jurisdiction anywhere in the world.
See Wakefield v. British Med. J. Publ’g Grp., Ltd., 449 S.W.3d 172, 187–88 (Tex.
App.—Austin 2014, no pet.) (“[S]imply making an alleged article accessible on a
website is insufficient to support specific jurisdiction in a defamation suit.”) (citations
omitted). Because Plaintiff has not otherwise pled sufficient facts to establish
personal jurisdiction, this Court does not have jurisdiction to decide this Motion,
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which must instead be resolved by a California court. Therefore, the Court should
deny the Motion for lack of jurisdiction.
B. California is the only proper venue to adjudicate a dispute arising
from a California-domesticated subpoena.
Beyond this Court’s lack of jurisdiction over Twitter, the Court should further
dismiss Plaintiff’s Motion because as a matter of proper venue, this discovery dispute
must be resolved in California Superior Court. As discussed above, Plaintiff
domesticated his subpoena to Twitter in California under C AL. CIV. PROC. CODE §
2029.300, meaning that it was executed from a California Court Clerk under
authority of the San Francisco County Superior Court. See Ex. A-2, at 3–4 (issued on
behalf of “THE PEOPLE OF THE STATE OF CALIFORNIA” and signed by Carolyn
Balistreri, Clerk of California Superior Court for San Francisco County). Accordingly,
after Twitter objected to that California subpoena, the appropriate remedy was for
Plaintiff to move to compel in that same Court. See CAL. CIV. PROC. CODE § 2029.600
(explaining that “[i]f a dispute arises relating to discovery under this article, any
request . . . for other relief may be filed in the superior court in the county in which
discovery is to be conducted”); see also id. § 2029.600, Law Revision Commission
Comments (explaining the purpose of resolving such disputes in California is “to
ensure that[,] if a dispute arises relating to discovery under this article, California is
able to protect policy interests and the interests of persons located in the state”);
Myers v. Ribble, 796 S.W.2d 222, 224 (Tex. App.—Dallas 1990, no writ) (“effect” of
domestication order is to “transform” one state order into the same order issued by
the domesticating state); Yelp, Inc. v. Hadeed Carpet Cleaning, Inc., 770 S.E.2d 440,
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444 (Va. 2015) (“[E]nforcement of a subpoena seeking out-of-state discovery is
generally governed by the courts and the law of the state in which the witness resides
or where the documents are located.”); Colorado Mills, LLC v. SunOpta Grains &
Foods Inc., 269 P.3d 731, 734 (Colo. 2012) (“[T]he bottom line is that enforcement of
civil subpoenas against out-of-state nonparties is left to the state in which the
discovery is to take place.”). As an improper forum, the Court lacks the authority to
resolve this dispute. Quinn v. Eighth Jud.Dist. Ct. in & for Cnty. of Clark, 410 P.3d
984, 989 (Nev. 2018) (holding that Nevada court lacked authority to enforce
California-domesticated subpoenas issued to California residences and “any
application for an order to compel should have been made to and adjudicated by the
California court”). The Court should deny the Motion on that basis alone.
C. Plaintiff has not and cannot satisfy the requisite First Amendment
standards for unmasking anonymous speakers.
1. The Court should deny the Motion based on Plaintiff’s failure
to obtain a First Amendment ruling prior to subpoenaing
Twitter.
Setting aside the jurisdiction and venue defects, the Motion fails because
Plaintiff continues to ignore the burdens imposed on him by the First Amendment.
Plaintiff seeks to unmask the identity of pseudonymous Twitter user
@WinstonSmithOMI. To do so, he must first obtain a court order finding that such
unmasking would be constitutional under the circumstances. That is true under
California law, which applies here to a California subpoena served on a California
resident. See CAL. CIV. PROC. CODE §§ 2029.500 (expressly incorporating Title 4 of
Part 4 of the Discovery Act, which includes Section 2025.480, and “any other law or
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court rule of this state governing a deposition, a production of documents or other
tangible items, or an inspection of premises”); 2029.600 (requests to enforce subpoena
“shall comply with the applicable rules or statutes of this state”). But this is not a
California anomaly; Texas courts recognize the very same protections and apply a
nearly identical First Amendment standard.
Under California law, a party seeking to unmask an anonymous speaker is
required to (1) attempt to notify the affected speaker and (2) make a prima facie
showing, with evidence, of the cause of action for defamation or libel before the
plaintiff can discover the identity of an anonymous online speaker. Krinsky v. Doe 6,
72 Cal. Rptr. 3d 231, 241 (Ct. App. 2008); ZL Techs., Inc. v. Does 1-7, 220 Cal. Rptr.
3d 569, 597 (Ct. App. 2017) (“[C]onstitutional protections weigh in favor of requiring
the plaintiff to make a prima facie evidentiary showing of the elements of defamation,
including falsity, before disclosure of a defendant’s identity can be compelled.”).
Further, the California constitutional right of privacy requires that “[t]he party
seeking discovery must demonstrate a compelling need for discovery” that
“outweigh[s] the privacy right when these two competing interests are carefully
balanced.” Digit. Music News LLC v. Super. Ct., 171 Cal. Rptr. 3d 799, 809 (Ct. App.
2014) (citation omitted). Only after this balancing test is satisfied can a service
provider like Twitter be compelled to unmask the anonymous speaker. See, e.g., Music
Grp. Macao Com. Offshore Ltd. v. Does, 82 F. Supp. 3d 979, 982 (N.D. Cal 2015)
(withdrawing prior order and denying motion to enforce subpoenas against Twitter
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because the speaker’s “First Amendment rights outweigh[ed] plaintiffs’ need for the
requested information”).
Texas courts employ a similar standard in recognizing that the First
Amendment protects anonymous online speech, and that “[i]nternet anonymity
serves a particularly vital role in the exchange of ideas and robust debate on matters
of public concern.” In re Does 1-10, 242 S.W.3d 805, 820 (Tex. App.—Texarkana 2007,
no pet.). Texas courts balance the rights of putative plaintiffs against “the national
interest in not inappropriately restricting the free flow of thought and discussion by
unsupported threats of litigation.” Id. at 821. To ensure that legitimate online speech
is not squelched by the threat of litigation, Texas courts deny unmasking requests
unless the plaintiff “produce[s] evidence sufficient to create issues that would
preclude summary judgment.” Id.
As a threshold issue, Plaintiff has not obtained a finding from any court in
either state that Plaintiff has met the required standard to allow for the unmasking
of the account holders. That fact alone is dispositive. Because Plaintiff never
previously obtained a First Amendment finding, Twitter’s objections to date were
well-founded and it had no obligation to comply with the subpoena. Accordingly,
Twitter has “shown cause” for its refusal to produce responsive documents and the
Motion should be denied.
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2. Even after introducing the requisite evidence, Plaintiff would
be hard-pressed to meet his First Amendment burden on these
allegations.
Should the Court choose to begin this First Amendment analysis here (and it
should not, for the reasons above), Plaintiff would fail to meet his burdens under
either California or Texas law (as the record stands).
First, Plaintiff purports to seek such discovery in order to add the targeted
user, @WinstonSmithOMI, as a defendant in this litigation. See Ex. A-2, at 5. But, as
previously mentioned, there is no mention of Twitter, any Tweets, or
@WinstonSmithOMI anywhere in the Complaint or in the record. Plaintiff cannot
meet his burden on the current record if he has yet to explain who the user is or what
they did relevant to this litigation.4
Second, a claim for defamation under Texas law requires Plaintiff, as a limited-
purpose public figure,5 to prove that Defendants made the statement with “actual
4 The prima facie evidentiary analysis would change depending on the nature of the allegation
against the user. If, for instance, Plaintiff is primarily concerned with the accusations of racism, then
those accusations could not form the basis for a viable defamation claim. Gilbert v. Sykes, 53 Cal.
Rptr. 3d 752, 764 (Ct. App. 2007) (“Thus, to state a defamation claim that survives a First
Amendment challenge, plaintiff must present evidence of a statement of fact that is provably false.”)
(citation omitted); Garcia v. Cmtys. in Sch. of Brazoria Cnty., Inc., No. H-18-4558, 2019 WL 2420079,
at *13 (S.D. Tex. June 10, 2019) (applying Texas law to dismiss defamation claim because a
statement that the employee is racist “state[s] opinions that cannot be a plausible basis to claim
defamation”). Such statements are opinions, protected by the First Amendment and undeniably
immune from defamation liability. Skidmore v. Gilbert, No. 20-CV-06415-BLF, 2022 WL 464177, at
*3, *9 (N.D. Cal. Feb. 15, 2022) (holding the description of a Facebook post as “blatant racism,
xenophobi[c], and a call for genocide” is a “protected opinion[] under the First Amendment”) (internal
citations omitted); Okun v. Super. Ct., 629 P.2d 1369, 1374 (Cal. 1981) (opinion is not actionable
defamation unless it implies undisclosed facts).
5 To determine whether an individual is a limited-purpose public figure, Texas courts apply a three-
part test: (1) the controversy at issue must be public; (2) the plaintiff must have more than a trivial
or tangential role in the controversy; and (3) the alleged defamation must be germane to the
plaintiff's participation in the controversy. WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex.
1998) (citations omitted). Here, Plaintiff’s particular role in this controversy is public and discussed
in news articles. See Ex. A-5. Plaintiff thus qualifies as a public figure for purposes of this analysis.
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malice” by clear and convincing evidence. WFAA-TV, Inc. v. McLemore, 978 S.W.2d
568, 571 (Tex. 1998); see also Reader's Dig. Ass’n v. Super. Ct., 690 P.2d 610, 617 (Cal.
1984). Plaintiff is unlikely to meet that burden. Establishing actual malice requires
Plaintiff to show that the defendant published a defamatory statement with
“knowledge that it was false or with reckless disregard of whether it was false or not.”
McLemore, 978 S.W.2d at 573–74 (quoting N.Y. Times Co. v. Sullivan, 376 U.S. 254,
279–80 (1964)).
Here, while Twitter does not know how the targeted user is connected to this
litigation, Plaintiff is nevertheless unlikely to be able to establish that the user (if
they are an intended defendant) had actual knowledge of any falsity nor entertained
“serious doubts as to the veracity of the statements.” Guzman v. Sorola, No. 13-21-
00168-CV, 2022 WL 242899, at *16 (Tex. App.—Corpus Christi Jan. 27, 2022, no pet.
h.) (finding Plaintiff failed to establish actual malice when Defendant posted
YouTube video (citing Huckabee v. Time Warner Ent. Co., 19 S.W.3d 413, 420 (Tex.
2000)). To the contrary, the Defendants’ alleged statements mirror statements
published in reputable news sources, undermining any argument that the
Defendants acted with knowledge of falsity or reckless disregard for the truth. See
generally Ex. A-5 (news articles discussing the disputed video and attributing the
comments to Plaintiff); Jackson v. Paramount Pictures Corp., 80 Cal. Rptr. 2d 1, 12–
15 (Ct. App. 1998) (finding no actual malice where Defendant “parrot[ed]” what she
heard from previously published stories and investigations into the allegations).
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Without the foregoing, Plaintiff cannot and will not meet the requisite burden under
the First Amendment.
D. There is no court order for Twitter to defy.
Plaintiff’s choice to move for a show cause order was neither warranted nor
procedurally correct. A “show cause” order offers a party (or here, a nonparty) an
opportunity to appear before the court to explain why it should not be held in
contempt for failure to comply with a prior court order. See generally In re Martin,
654 S.W.2d 66 (Tex. App.—Austin 1983, no pet.). Twitter is not even close to being in
that posture.
It is proper for a nonparty to send an objection letter in response to a subpoena.
Monarch Healthcare v. Super. Ct., 93 Cal. Rptr. 2d 619, 625 (Ct. App. 2000)
(explaining that “nonparty witnesses should be somewhat protected from the
burdensome demands of litigation” and that “simply objecting raises the issue and
shifts the burden” on the issuing party). Here, Twitter sent a timely objection letter
for each subpoena it received from Plaintiff. See Ex. A-3, Ex. A-4. Until a court orders
production pursuant to the Second Subpoena, Twitter need not otherwise respond to
the subpoena. Monarch Healthcare, 93 Cal. Rptr. 2d, at 625. There is no such court
order here from California (or even inappropriately from Texas). In his Motion,
Plaintiff misrepresents the substance and effect of the Letters Rogatory Order,
claiming “[d]espite this Court’s Order (subpoena) as well as the California Court’s
order, Twitter has wholly refused to comply with the Court’s Order.” Mot. at 5. But a
letters rogatory is not an order compelling compliance; it merely permits Plaintiff to
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obtain and pursue a California subpoena. Ex. A-2, at 24–25. As such, there is no order
for Twitter to disobey that could sustain the basis for a show cause order.
IV. CONCLUSION
For these reasons, Twitter respectfully asks the Court to deny Plaintiff’s
Motion.
Dated: April 22, 2022 Respectfully submitted,
/s/Hayden M. Schottlaender
Hayden M. Schottlaender
Bar No. 24098391
Emma K. Roberts
Bar No. 24126601
Perkins Coie LLP
500 N. Akard Street, Suite 3300
Dallas, Texas 75201
(t) 214 965 7700
(f) 214 965 7799
HSchottlaender@perkinscoie.com
EmmaRoberts@perkinscoie.com
Counsel for Non-party Twitter, Inc.
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CERTIFICATE OF CONFERENCE
Pursuant to Local Rule 3.17(E), I hereby certify that I conferred with Calvin
McLean, counsel for Plaintiff Blake Tartt III, by telephone and email. The
substance of our conference is accurately recounted in my declaration attached
hereto. Plaintiff is opposed to the relief sought herein.
/s/Hayden M. Schottlaender
Hayden M. Schottlaender
CERTIFICATE OF SERVICE
On the 21st day of April 2022, a true and correct copy of the above was sent
electronically served by electronic mail through MyFileRunner.com to attorneys for
Plaintiff, as follows:
William W. Johnston (billjohnstonlawoffice@gmail.com)
Calvin G. McLean (goc.garfieldlaw@gmail.com)
Johnston & McLean, PLLC
One Legacy West
7950 Legacy Drive, Suite 330
Plano, Texas 75024
Attorneys for Plaintiff
/s/Hayden M. Schottlaender
Hayden M. Schottlaender
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EXHIBIT A
CAUSE NO. 20-CV-1975
Blake Tartt III, §
§
Plaintiff §
§
IN THE DISTRICT COURT OF
§
v. §
GALVESTON COUNTY, TEXAS
§
John Doe, and Jane Doe, §
56TH JUDICIAL DISTRICT
§
Defendants. §
DECLARATION OF HAYDEN M. SCHOTTLAENDER
I, Hayden M. Schottlaender, declare as follows:
1. I am of sound mind, over the age of 21, have never been convicted of a
felony, and am fully competent to make this Declaration. I am counsel of record for
Non-Party Twitter, Inc. (“Twitter”) in the above-captioned matter. I make this
Declaration based on my personal knowledge obtained in the course of that
representation. If called to testify to the statements contained in this Declaration, I
could and would testify competently thereto.
2. Twitter offers a global information sharing and distribution platform
committed to the free expression of its users. Twitter is a Delaware corporation and
has its principal place of business in San Francisco, California. It maintains no offices
in Texas.
3. Twitter account holders can choose to display their true identities or can
speak pseudonymously.
4. Twitter has received two subpoenas from Plaintiff Blake Tartt III
(“Plaintiff”) in this matter. The first was received on April 7, 2021 by 2-day priority
156199009.2
mail. A true and correct copy of the April 2021 subpoena is attached hereto as
Exhibit A-1. The second was received on September 8, 2021 and delivered by courier.
A true and correct copy of the September 2021 subpoena is attached hereto as
Exhibit A-2.
5. In response to the first subpoena, Twitter timely objected, explaining
that the subpoena was unenforceable and needed to be domesticated in California.
Twitter also explained that, even if domesticated, the subpoena would still fail
because Plaintiff failed to obtain judicial review as required by the First Amendment
and its protection of anonymous online speech. A true and correct copy of Twitter’s
first objection letter is attached hereto as Exhibit A-3.
6. After Twitter received the second subpoena (now domesticated), Twitter
again timely objected to Plaintiff’s failure to obtain judicial review of the First
Amendment implications of the subpoena. A true and correct copy of Twitter’s second
objection letter is attached hereto as Exhibit A-4.
7. Plaintiff’s Counsel failed to respond to either of Twitter’s objections and
made no effort to meet and confer with Twitter. Instead, without notice to Twitter,
Plaintiff filed its Motion for Show Cause Order (the “Motion”) five months after
receiving Twitter’s second objection letter.
8. After Plaintiff filed the Motion, I contacted Plaintiff’s Counsel to explain
that this Motion was filed in the wrong court and that the parties could avoid a great
deal of unnecessary motions practice if Plaintiff were to refile a motion seeking First
Amendment review in a California court. Counsel for Plaintiff appeared amenable to
-2-
156199009.2
that idea, going so far as to note that Plaintiff had already retained California counsel
such that motions practice in California would not impose additional burdens on
Plaintiff. Plaintiff's Counsel stated he needed to confirm the plan with his client.
When I called again to confirm that plan, Plaintiff’s counsel reversed course and
stated that his client would not agree to litigate this dispute in California. Plaintiff’s
counsel further stated: “If a Texas court moves us to California, then so be it.”
9. Searching online for news articles, I located multiple published articles
mentioning Plaintiff. True and correct copies of the articles I located are attached
hereto as Exhibit A-5.
My name is Hayden Schottlaender, my date of birth is March 21, 1990, and my
business address is 500 N. Akard St., Suite 3300, Dallas, Texas 75201.
I declare under penalty of perjury that the foregoing is true and correct.
Executed in Dallas County, State of Texas, on this 21st day of April 2022.
Hayden M. Schottlaender
-3-
156199009.2
EXHIBIT A-1
UNITED STATES
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AndreaHoxie@gmail.com
Tel. 713.626.4690 • Fax 713.364.7973
2 April 2021
via U.S. mail, priority, number 9410 8036 9930 0135 1245 36
The Custodian of Records of Twitter, Inc.
c/o CT Corporation System
818 West 7th Street, #930
Los Angeles, California 90017
Re: No.20-CV-1975; Blake TartIII vsJohn Doe andJane Doe;In the 56th Judicial
District Court of Galveston County, Texas
Dear Sir or Madam:
Please find enclosed a Subpoena for Deposition & Production of Documents,
Deposition by Written Questions, check for $1.00 for a witness fee, and related
materials.
First, I ask that you acknowledge receipt of the subpoena by signing and dating
the copy that is attached to the return envelope. Please scan the signature page and
return via email to andreahoxie@gmail.com or use the return envelope (or both).
Second,please forward the responsive documents to Mr. William Johnston as indicated
on page 3 of the subpoena. Also, please advise Mr. Johnston or Mr. McLean of any
fees associated with your production of the requested documents so that payment can
be remitted.
Looking for to bearing from you, I am
Yours truly,
Andrea Hoxie, 3'CP 650
Texas Authorized Private Process Server
The only thing necessary for the triumph of evil is for good men to do nothing."
Edmund Burke
RAND_ANLEA
HOXIE
P0 Box 667506
HOUSTON TX 77266-7506
HOXIE
P 0 Box 667506
HOUSTON TX 77266-7506
11111111111111111111111111111111111111111111111111111
RETURN OF SERVICE OF SUBPOENA
I, Andrea Hoxie, delivered this subpoena to The Custodian of Records of Twitter, Inc. by
depositing it in an official depository of the U.S. Mail on the 2" day of April 2021, sent via U.S.
Mail, priority, tracking number 9410 8036 9930 0135 1245 36, addressed to:
The Custodian of Records of Twitter, Inc.
c/o CT Corporation System
818 West 7th Street, #930
Los Angeles, California 90017
and tendered to the witness a fee of $1.00.
, was unable to deliver a copy of this subpoena to
for the following reasons:
By:
Andrea Hoxie, PCS #650, certified by order of
the Supreme Court of Texas
ACCEPTANCE OF SERVICE OF SUBPOENA BY
WITNESS UNDER TEXAS RULE OF CIVIL PROCEDURE 176
I accept service of this subpoena.
Witness
Date
FEE FOR SERVICE OF SUBPOENA:$
4
THE STATE OF TEXAS
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
SUBPOENA FOR DEPOSITION & PRODUCTION OF DOCUMENTS
To: Any Sheriff or Constable of the State of Texas or Other Person Authorized to serve and
execute subpoenas as provided in Texas Rule of Civil Procedure 176.5.
You are commanded to summon The Custodian of Records ofTwitter,Inc., c/o it registered
agent in California,CT Corporation System,818 West 76 Street,#930,Los Angeles, California
90017, to appear at 1355 Market Street, Suite 900 San Francisco, California 94103 on the 30th
day of April 2021 at 10:00 a.m., to produce and permit inspection and copying of the following
documents or tangible things to be used as evidence in this case:
Provide information for the following accounts:
URL: https://twitter.com/WinstonSmithOMI
Username: @WinstonSmithOMI
Information Requested:
Any and all records regarding the identification of the owner(s) ofthe
@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) Last 5 IP
addresses used to log into the account and type of computer used; and
(4)any and all methods of payment used by the account owner.
Duties ofPerson Served with Subpoena. You are advised that under Texas Rule of Civil
Procedure 176, a person served with a subpoena has certain rights and obligations. Rule 176.6
provides the following:
1
(a) Compliance required. Except as provided in this subdivision, a person
served with a subpoena must comply with the command stated therein unless discharged by
the court or by the party summoning such witness. A person commanded to appear and give
testimony must remain at the place of deposition, hearing, or trial from day to day until
discharged by the court or by the party summoning the witness.
(b) Organizations. If a subpoena commanding testimony is directed to a
corporation, partnership, association, governmental agency, or other organization, and the
matters on which examination is requested are described with reasonable particularity, the
organization must designate one or more persons to testify on its behalf as to matters known
or reasonably available to the organization.
(c) Production of documents or tangible things. A person commanded to
produce documents or tangible things need not appear in person at the time and place of
production unless the person is also commanded to attend and give testimony, either in the
same subpoena or a separ
Preview
Filed: 4/21/2022 6:26 PM JOHN D. KINARD - District Clerk Galveston County, Texas Envelope No. 63799191 By: Sandra Orizaga 4/22/2022 9:35 AM CAUSE NO. 20-CV-1975 Blake Tartt III, § IN THE DISTRICT COURT OF § Plaintiff, § § v. § GALVESTON COUNTY, TEXAS § John Doe and Jane Doe, § § Defendants. § 56TH JUDICIAL DISTRICT TWITTER’S SPECIAL APPEARANCE AND OPPOSITION TO PLAINTIFF’S MOTION FOR SHOW CAUSE ORDER Non-Party Twitter, Inc. (“Twitter”) specially appears to oppose Plaintiff Blake Tartt III’s (“Plaintiff”) Motion for Show Cause Order (the “Motion”): I. SUMMARY OF THE BRIEF Plaintiff served Twitter with a California subpoena, issuing from a California court, seeking the identity of user @WinstonSmithOMI on Twitter’s platform. Plaintiff has never explained @WinstonSmithOMI’s connection to this litigation, and Plaintiff’s Complaint contains no references at all to that user, Twitter, or any Tweets. Instead, Plaintiff’s Complaint vaguely alleges that various individuals online attribute a racist video to him and Plaintiff leaves it to the Court and to Twitter to speculatively connect the dots. Twitter objected to Plaintiff’s unmasking subpoena, explaining that courts around the country have recognized that, for such a subpoena to be enforced, Plaintiff must first obtain a court ruling that the subpoena is constitutionally permissible under the First Amendment. Twitter explained this First Amendment concern to Plaintiff in two separate letters, to which Plaintiff never responded. Instead, Plaintiff waited five months and then chose to file the instant Motion without notice to Twitter. That Motion should be denied for several reasons. As an initial matter, this Court lacks personal jurisdiction over Twitter to order it to show cause. The Court does not have general personal jurisdiction over Twitter because it is not “at home” in Texas. And it does not have specific personal jurisdiction over Twitter because Twitter is a non-party to this litigation such that specific jurisdiction cannot apply here (and because this dispute does not “arise” out of conduct that Twitter directed at Texas). And even if this Court did have personal jurisdiction over Twitter, this discovery dispute is not properly resolved in a Texas court. Plaintiff is attempting to enforce a California subpoena, issued by a California court clerk, on a California resident. No known authority would permit such a dispute to be adjudicated in Texas. If this Court does determine that it may lawfully resolve this dispute (and it should not), it should still deny the Motion for three reasons. First, a subpoena seeking to “unmask” an anonymous speaker cannot be enforced without Plaintiff first obtaining a First Amendment review of that subpoena. This being a California subpoena issued by a California court to a California company, that review must be conducted by a California court applying California law. Because Plaintiff never did that, Twitter cannot be compelled to comply with Plaintiff’s subpoena. -2- Second, there are serious doubts that Plaintiff’s subpoena could survive First Amendment scrutiny. The requisite First Amendment review requires Plaintiff to prove, with cognizable evidence, that he could maintain a prima facie case of defamation against the user he seeks to unmask. Assuming that Plaintiff attempts to unmask @WinstonSmithOMI in order to add that user as a defendant, it is unlikely that Plaintiff could maintain a defamation claim against that user because: (1) he has not offered a single allegation or piece of evidence related to @WinstonSmithOMI; (2) Plaintiff is a limited purpose public figure under Texas law that would need to show “actual malice,” which he has not even attempted to do, and (3) it appears that many of Plaintiff’s targets are merely parroting attributions offered by reliable news sources. Third and finally, a “show cause” motion would only be appropriate if this Court had ordered Twitter to do something and Twitter then needed to “show cause” as to why it had not obeyed that order. Nothing of the sort has happened because Twitter’s actions here were entirely routine: a California court issued a subpoena to Twitter and Twitter objected to it. Because Twitter need not “show cause” for anything in this case, the Motion can and should be denied for this reason alone. II. STATEMENT OF RELEVANT FACTS A. Twitter is a foreign corporation operating a global information platform. Twitter is a Delaware corporation with its principal place of business in San Francisco, California. See Ex. A, Declaration of Hayden M. Schottlaender, ¶ 2. Twitter maintains no offices in Texas. Id. Twitter offers a global information sharing and -3- distribution platform committed to the free expression of its users. Id. Twitter account holders can choose to display their true identities or can speak pseudonymously. Id. ¶ 3. B. Plaintiff has filed a vague lawsuit alleging that two Doe defendants defamed him. Plaintiff Blake Tartt has sued two “Doe” defendants, John Doe and Jane Doe. Compl., ¶¶ 3, 4. The Doe defendants are individuals “whose identity and whereabouts are unknown.” Id. In his Complaint, Plaintiff alleges that he was defamed by the Doe defendants. He complains that a video was posted “on the internet” in April 2020. Id. ¶ 8. The narrator in that video likens a crowd in Oxford, Mississippi to “being in the Congo jungle.” Id. John Doe is alleged to have attributed that narration to Plaintiff via a “comment[] about the video” and “other postings.” Id. ¶¶ 8–9. Jane Doe is alleged to have “stated in an on-line post” in August 2, 2020: Oh, that awful and offensive video narrated by one of the rich and powerful people who pulls the strings at Ole Miss and who watches the Rebs play from high above the field in a luxury box and mercilessly mocks African American women. The misogyny drips from his voice. Id. ¶ 9. Plaintiff also complains of three other “writings” that he alleges to be defamatory and that he fails to attribute to any particular Doe defendant. Id. ¶ 11. The Complaint does not once mention Twitter, any Tweets, or any activity whatsoever on Twitter’s platform. -4- C. Plaintiff served two objectionable subpoenas on Twitter. Plaintiff incorrectly describes his attempts to subpoena Twitter. Plaintiff first subpoenaed Twitter on April 7, 2021, not January 19, as he claims. Ex. A ¶ 4; see also Ex. A-1, at 1. The subpoena seeks only identifying information for the Twitter account @WinstonSmithOMI. Ex. A-1, at 7. Twitter timely objected to that subpoena, asserting that it was unenforceable because such a subpoena must be domesticated in California. Ex. A ¶ 5; see also Ex. A-3. Twitter also noted that if Plaintiff did choose to issue and domesticate a new subpoena, Twitter would again object because Plaintiff had not obtained judicial review of the subpoena as required by the First Amendment and its protection of anonymous online speech. Ex. A-3, at 1-2. Ignoring Twitter’s instruction with respect to the First Amendment review, Plaintiff then domesticated an identical subpoena in California and served that domesticated subpoena on Twitter on September 8, 2021. Ex. A, ¶ 4; see also Ex. A-2, at 1. Twitter again timely responded1 to the subpoena, again objecting that Plaintiff had not obtained a judicial review of the First Amendment implications of the subpoena, as required by courts around the country (including in California and Texas). Ex. A, ¶ 6; see also Ex. A-4, at 1-2; see infra, Part III.C.1. 1 Plaintiff’s Motion states that Twitter offered “[n]o response” to Plaintiff’s domesticated subpoena. Mot. at 2. But, in the next sentence, Plaintiff notes that Twitter “responded on September 29, 2021” to lodge its objections. The domesticated subpoena set a compliance date of September 30, 2021. Regardless of whatever “response” Plaintiff hoped to receive prior to that compliance date, Twitter timely objected. -5- Rather than obtain that First Amendment review, Plaintiff chose to wait five months and then file the instant Motion, asking this court (in Texas) to order Twitter (in California) to show cause as to why it did not comply with a California court’s subpoena. At no point in those five months did Plaintiff make any effort to confer with Twitter about Twitter’s objections. Ex. A, ¶ 7. After Plaintiff filed the Motion, counsel for Twitter contacted counsel for Plaintiff to explain that this Motion was filed in the wrong court and that the parties could avoid a great deal of unnecessary motions practice if Plaintiff were to refile a motion seeking First Amendment review in a California court. Id. ¶ 8. Counsel for Plaintiff appeared amenable to that idea, going so far as to note that Plaintiff had already retained California counsel such that motions practice in California would not impose additional burdens on Plaintiff. Id. Plaintiff’s counsel stated that he needed to confirm that plan with his client. Id. When Twitter’s counsel called again to confirm that plan, Plaintiff’s counsel reversed course and stated that his client would not agree to litigate this dispute in California. Id. Plaintiff’s counsel further stated: “If a Texas court moves us to California, then so be it.” Id. III. ARGUMENT A. This Court lacks personal jurisdiction over Twitter. Over 150 years ago, the Texas Supreme Court recognized the “plain and undeniable principle” that “to give any binding effect to the proceedings of a court, it must have jurisdiction of the person[.]” Mitchell v. Runkle, 25 Tex. Supp. 132 (1860).2 2The laws of both Texas and California are relevant to this Motion. Because Twitter contests the exercise of personal jurisdiction by a Texas court, Texas law applies with respect to jurisdiction. -6- More specifically, a court must have personal jurisdiction over a non-party before ordering them to produce documents or show cause. In re Mosser Mallers PLLC, No. 05-08-00259-CV, 2008 WL 963170, at *2 (Tex. App.—Dallas Apr. 9, 2008, no pet.) (“An order is void when a court has no power or jurisdiction to render it . . . .”). Plaintiff bears the burden of establishing that this Court has jurisdiction over Twitter. Seligman-Hargis v. Hargis, 186 S.W.3d 582, 585 (Tex. App.—Dallas 2006, no pet.); Gulf Coast Int’l, L.L.C. v. Rsch. Corp. of the Univ. of Haw., 490 S.W.3d 577, 583 (Tex. App.—Houston [1st Dist.] 2016, pet. denied) (quotation omitted) (explaining that, in a special appearance, the Plaintiff “bears the initial burden of pleading sufficient facts to bring a nonresident . . . within the reach of the Texas long-arm statute that grants personal jurisdiction”). Personal jurisdiction may be either general or specific. Gulf Coast Int’l, L.L.C., 490 S.W.3d, at 584; BNSF Ry. Co. v. Tyrrell, 137 S. Ct. 1549, 1558 (2017) (referring to specific jurisdiction as “case-linked”). Twitter specially appears to assert that Plaintiff has failed to establish that this Court has either general or specific personal jurisdiction over Twitter sufficient to decide Plaintiff’s Motion. 1. The Court lacks general personal jurisdiction over Twitter. Plaintiff cannot show that this Court has general personal jurisdiction over Twitter. Absent exceptional circumstances which do not exist here, 3 a court may Because the subpoena was issued by a California court, California law applies with respect to subpoena procedure and applicable objections thereto (including the First Amendment). Infra, Part III.C. Finally, because Plaintiff brings a claim for defamation in Texas, Texas law supplies the elements for that claim. 3 An “exceptional case” is one in which “a corporate defendant’s operations in another forum ‘may be so substantial and of such a nature as to render the corporation at home in that State.’” BNSF Ry. -7- exercise general jurisdiction over a corporation only if the corporation is “at home” in that state. BNSF Ry. Co., 137 S. Ct. at 1558. A corporation is “at home . . . [at] the corporation’s place of incorporation and its principal place of business.” Id. Accordingly, establishing general personal jurisdiction is a “high bar” in Texas. Searcy v. Parex Res., Inc., 496 S.W.3d 58, 72 (Tex. 2016). It requires that a defendant be “tied up–almost entangled in a web–with the forum state.” Id. Here, Twitter was formed in Delaware and maintains its principal place of business in San Francisco, California. Ex. A, ¶ 2. Twitter is not “at home” in Texas such that it can be subjected to general personal jurisdiction in this Court. See FedEx Corp. v. Contreras, No. 04- 19-00757-CV, 2020 WL 4808721, at *7 (Tex. App.–San Antonio, Aug. 19, 2020, no pet.) (FedEx not subject to general personal jurisdiction in Texas despite substantial in-state operations, operation of globally accessible website, and registration to do business in Texas). 2. The Court lacks specific personal jurisdiction over Twitter. Plaintiff similarly cannot show that Twitter is subject to specific personal jurisdiction in Texas. As an initial matter, the very concept of “specific” personal jurisdiction does not apply to non-parties; discovery disputes like this should therefore only be resolved in the forum in which a non-party is subject to general personal jurisdiction. In other words, “specific jurisdiction” enables a court to recognize jurisdiction over a party defendant; it cannot be applied to non-parties because there is no way that the litigation could “arise” out of a non-party’s in-state Co., 137 S. Ct. at 1558. The example provided by the Supreme Court is where a war has forced the corporation’s owner to temporarily relocate the enterprise to the forum state. Id. -8- activities. See IRA Resources, Inc. v. Griego, 221 S.W.3d 592, 596 (Tex. 2007) (“a defendant can only trigger specific jurisdiction through its own conduct” and the “unilateral acts of third parties” have no bearing on specific jurisdiction analysis). Twitter is not aware of any Texas authority recognizing specific jurisdiction over a non-party and the Court should reject any invitation to be the first. See Amelius v. Grand Imperial LLC, 64 N.Y.S. 3d 855, 866 n.4 (N.Y. Sup. Ct. 2017) (expressly rejecting specific jurisdiction argument where Yelp was not a party in holding that “the only theory available” with respect to personal jurisdiction over a non-party is general personal jurisdiction). But even as to parties, specific personal jurisdiction exists only where: “(1) the defendant has purposefully availed himself of the privilege of conducting activities in the forum state, and (2) there is a substantial connection between those contacts and the operative facts of the litigation.” Gulf Coast, 490 S.W.3d at 584. Importantly, “the relationship must arise out of contacts that the defendant himself creates with the forum State.” Walden v. Fiore, 571 U.S. 277, 284 (2014) (citation and internal quotation marks omitted). Here, Twitter’s maintenance of a globally-accessible website does not thereby subject it to personal jurisdiction anywhere in the world. See Wakefield v. British Med. J. Publ’g Grp., Ltd., 449 S.W.3d 172, 187–88 (Tex. App.—Austin 2014, no pet.) (“[S]imply making an alleged article accessible on a website is insufficient to support specific jurisdiction in a defamation suit.”) (citations omitted). Because Plaintiff has not otherwise pled sufficient facts to establish personal jurisdiction, this Court does not have jurisdiction to decide this Motion, -9- which must instead be resolved by a California court. Therefore, the Court should deny the Motion for lack of jurisdiction. B. California is the only proper venue to adjudicate a dispute arising from a California-domesticated subpoena. Beyond this Court’s lack of jurisdiction over Twitter, the Court should further dismiss Plaintiff’s Motion because as a matter of proper venue, this discovery dispute must be resolved in California Superior Court. As discussed above, Plaintiff domesticated his subpoena to Twitter in California under C AL. CIV. PROC. CODE § 2029.300, meaning that it was executed from a California Court Clerk under authority of the San Francisco County Superior Court. See Ex. A-2, at 3–4 (issued on behalf of “THE PEOPLE OF THE STATE OF CALIFORNIA” and signed by Carolyn Balistreri, Clerk of California Superior Court for San Francisco County). Accordingly, after Twitter objected to that California subpoena, the appropriate remedy was for Plaintiff to move to compel in that same Court. See CAL. CIV. PROC. CODE § 2029.600 (explaining that “[i]f a dispute arises relating to discovery under this article, any request . . . for other relief may be filed in the superior court in the county in which discovery is to be conducted”); see also id. § 2029.600, Law Revision Commission Comments (explaining the purpose of resolving such disputes in California is “to ensure that[,] if a dispute arises relating to discovery under this article, California is able to protect policy interests and the interests of persons located in the state”); Myers v. Ribble, 796 S.W.2d 222, 224 (Tex. App.—Dallas 1990, no writ) (“effect” of domestication order is to “transform” one state order into the same order issued by the domesticating state); Yelp, Inc. v. Hadeed Carpet Cleaning, Inc., 770 S.E.2d 440, -10- 444 (Va. 2015) (“[E]nforcement of a subpoena seeking out-of-state discovery is generally governed by the courts and the law of the state in which the witness resides or where the documents are located.”); Colorado Mills, LLC v. SunOpta Grains & Foods Inc., 269 P.3d 731, 734 (Colo. 2012) (“[T]he bottom line is that enforcement of civil subpoenas against out-of-state nonparties is left to the state in which the discovery is to take place.”). As an improper forum, the Court lacks the authority to resolve this dispute. Quinn v. Eighth Jud.Dist. Ct. in & for Cnty. of Clark, 410 P.3d 984, 989 (Nev. 2018) (holding that Nevada court lacked authority to enforce California-domesticated subpoenas issued to California residences and “any application for an order to compel should have been made to and adjudicated by the California court”). The Court should deny the Motion on that basis alone. C. Plaintiff has not and cannot satisfy the requisite First Amendment standards for unmasking anonymous speakers. 1. The Court should deny the Motion based on Plaintiff’s failure to obtain a First Amendment ruling prior to subpoenaing Twitter. Setting aside the jurisdiction and venue defects, the Motion fails because Plaintiff continues to ignore the burdens imposed on him by the First Amendment. Plaintiff seeks to unmask the identity of pseudonymous Twitter user @WinstonSmithOMI. To do so, he must first obtain a court order finding that such unmasking would be constitutional under the circumstances. That is true under California law, which applies here to a California subpoena served on a California resident. See CAL. CIV. PROC. CODE §§ 2029.500 (expressly incorporating Title 4 of Part 4 of the Discovery Act, which includes Section 2025.480, and “any other law or -11- court rule of this state governing a deposition, a production of documents or other tangible items, or an inspection of premises”); 2029.600 (requests to enforce subpoena “shall comply with the applicable rules or statutes of this state”). But this is not a California anomaly; Texas courts recognize the very same protections and apply a nearly identical First Amendment standard. Under California law, a party seeking to unmask an anonymous speaker is required to (1) attempt to notify the affected speaker and (2) make a prima facie showing, with evidence, of the cause of action for defamation or libel before the plaintiff can discover the identity of an anonymous online speaker. Krinsky v. Doe 6, 72 Cal. Rptr. 3d 231, 241 (Ct. App. 2008); ZL Techs., Inc. v. Does 1-7, 220 Cal. Rptr. 3d 569, 597 (Ct. App. 2017) (“[C]onstitutional protections weigh in favor of requiring the plaintiff to make a prima facie evidentiary showing of the elements of defamation, including falsity, before disclosure of a defendant’s identity can be compelled.”). Further, the California constitutional right of privacy requires that “[t]he party seeking discovery must demonstrate a compelling need for discovery” that “outweigh[s] the privacy right when these two competing interests are carefully balanced.” Digit. Music News LLC v. Super. Ct., 171 Cal. Rptr. 3d 799, 809 (Ct. App. 2014) (citation omitted). Only after this balancing test is satisfied can a service provider like Twitter be compelled to unmask the anonymous speaker. See, e.g., Music Grp. Macao Com. Offshore Ltd. v. Does, 82 F. Supp. 3d 979, 982 (N.D. Cal 2015) (withdrawing prior order and denying motion to enforce subpoenas against Twitter -12- because the speaker’s “First Amendment rights outweigh[ed] plaintiffs’ need for the requested information”). Texas courts employ a similar standard in recognizing that the First Amendment protects anonymous online speech, and that “[i]nternet anonymity serves a particularly vital role in the exchange of ideas and robust debate on matters of public concern.” In re Does 1-10, 242 S.W.3d 805, 820 (Tex. App.—Texarkana 2007, no pet.). Texas courts balance the rights of putative plaintiffs against “the national interest in not inappropriately restricting the free flow of thought and discussion by unsupported threats of litigation.” Id. at 821. To ensure that legitimate online speech is not squelched by the threat of litigation, Texas courts deny unmasking requests unless the plaintiff “produce[s] evidence sufficient to create issues that would preclude summary judgment.” Id. As a threshold issue, Plaintiff has not obtained a finding from any court in either state that Plaintiff has met the required standard to allow for the unmasking of the account holders. That fact alone is dispositive. Because Plaintiff never previously obtained a First Amendment finding, Twitter’s objections to date were well-founded and it had no obligation to comply with the subpoena. Accordingly, Twitter has “shown cause” for its refusal to produce responsive documents and the Motion should be denied. -13- 2. Even after introducing the requisite evidence, Plaintiff would be hard-pressed to meet his First Amendment burden on these allegations. Should the Court choose to begin this First Amendment analysis here (and it should not, for the reasons above), Plaintiff would fail to meet his burdens under either California or Texas law (as the record stands). First, Plaintiff purports to seek such discovery in order to add the targeted user, @WinstonSmithOMI, as a defendant in this litigation. See Ex. A-2, at 5. But, as previously mentioned, there is no mention of Twitter, any Tweets, or @WinstonSmithOMI anywhere in the Complaint or in the record. Plaintiff cannot meet his burden on the current record if he has yet to explain who the user is or what they did relevant to this litigation.4 Second, a claim for defamation under Texas law requires Plaintiff, as a limited- purpose public figure,5 to prove that Defendants made the statement with “actual 4 The prima facie evidentiary analysis would change depending on the nature of the allegation against the user. If, for instance, Plaintiff is primarily concerned with the accusations of racism, then those accusations could not form the basis for a viable defamation claim. Gilbert v. Sykes, 53 Cal. Rptr. 3d 752, 764 (Ct. App. 2007) (“Thus, to state a defamation claim that survives a First Amendment challenge, plaintiff must present evidence of a statement of fact that is provably false.”) (citation omitted); Garcia v. Cmtys. in Sch. of Brazoria Cnty., Inc., No. H-18-4558, 2019 WL 2420079, at *13 (S.D. Tex. June 10, 2019) (applying Texas law to dismiss defamation claim because a statement that the employee is racist “state[s] opinions that cannot be a plausible basis to claim defamation”). Such statements are opinions, protected by the First Amendment and undeniably immune from defamation liability. Skidmore v. Gilbert, No. 20-CV-06415-BLF, 2022 WL 464177, at *3, *9 (N.D. Cal. Feb. 15, 2022) (holding the description of a Facebook post as “blatant racism, xenophobi[c], and a call for genocide” is a “protected opinion[] under the First Amendment”) (internal citations omitted); Okun v. Super. Ct., 629 P.2d 1369, 1374 (Cal. 1981) (opinion is not actionable defamation unless it implies undisclosed facts). 5 To determine whether an individual is a limited-purpose public figure, Texas courts apply a three- part test: (1) the controversy at issue must be public; (2) the plaintiff must have more than a trivial or tangential role in the controversy; and (3) the alleged defamation must be germane to the plaintiff's participation in the controversy. WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998) (citations omitted). Here, Plaintiff’s particular role in this controversy is public and discussed in news articles. See Ex. A-5. Plaintiff thus qualifies as a public figure for purposes of this analysis. -14- malice” by clear and convincing evidence. WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998); see also Reader's Dig. Ass’n v. Super. Ct., 690 P.2d 610, 617 (Cal. 1984). Plaintiff is unlikely to meet that burden. Establishing actual malice requires Plaintiff to show that the defendant published a defamatory statement with “knowledge that it was false or with reckless disregard of whether it was false or not.” McLemore, 978 S.W.2d at 573–74 (quoting N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964)). Here, while Twitter does not know how the targeted user is connected to this litigation, Plaintiff is nevertheless unlikely to be able to establish that the user (if they are an intended defendant) had actual knowledge of any falsity nor entertained “serious doubts as to the veracity of the statements.” Guzman v. Sorola, No. 13-21- 00168-CV, 2022 WL 242899, at *16 (Tex. App.—Corpus Christi Jan. 27, 2022, no pet. h.) (finding Plaintiff failed to establish actual malice when Defendant posted YouTube video (citing Huckabee v. Time Warner Ent. Co., 19 S.W.3d 413, 420 (Tex. 2000)). To the contrary, the Defendants’ alleged statements mirror statements published in reputable news sources, undermining any argument that the Defendants acted with knowledge of falsity or reckless disregard for the truth. See generally Ex. A-5 (news articles discussing the disputed video and attributing the comments to Plaintiff); Jackson v. Paramount Pictures Corp., 80 Cal. Rptr. 2d 1, 12– 15 (Ct. App. 1998) (finding no actual malice where Defendant “parrot[ed]” what she heard from previously published stories and investigations into the allegations). -15- Without the foregoing, Plaintiff cannot and will not meet the requisite burden under the First Amendment. D. There is no court order for Twitter to defy. Plaintiff’s choice to move for a show cause order was neither warranted nor procedurally correct. A “show cause” order offers a party (or here, a nonparty) an opportunity to appear before the court to explain why it should not be held in contempt for failure to comply with a prior court order. See generally In re Martin, 654 S.W.2d 66 (Tex. App.—Austin 1983, no pet.). Twitter is not even close to being in that posture. It is proper for a nonparty to send an objection letter in response to a subpoena. Monarch Healthcare v. Super. Ct., 93 Cal. Rptr. 2d 619, 625 (Ct. App. 2000) (explaining that “nonparty witnesses should be somewhat protected from the burdensome demands of litigation” and that “simply objecting raises the issue and shifts the burden” on the issuing party). Here, Twitter sent a timely objection letter for each subpoena it received from Plaintiff. See Ex. A-3, Ex. A-4. Until a court orders production pursuant to the Second Subpoena, Twitter need not otherwise respond to the subpoena. Monarch Healthcare, 93 Cal. Rptr. 2d, at 625. There is no such court order here from California (or even inappropriately from Texas). In his Motion, Plaintiff misrepresents the substance and effect of the Letters Rogatory Order, claiming “[d]espite this Court’s Order (subpoena) as well as the California Court’s order, Twitter has wholly refused to comply with the Court’s Order.” Mot. at 5. But a letters rogatory is not an order compelling compliance; it merely permits Plaintiff to -16- obtain and pursue a California subpoena. Ex. A-2, at 24–25. As such, there is no order for Twitter to disobey that could sustain the basis for a show cause order. IV. CONCLUSION For these reasons, Twitter respectfully asks the Court to deny Plaintiff’s Motion. Dated: April 22, 2022 Respectfully submitted, /s/Hayden M. Schottlaender Hayden M. Schottlaender Bar No. 24098391 Emma K. Roberts Bar No. 24126601 Perkins Coie LLP 500 N. Akard Street, Suite 3300 Dallas, Texas 75201 (t) 214 965 7700 (f) 214 965 7799 HSchottlaender@perkinscoie.com EmmaRoberts@perkinscoie.com Counsel for Non-party Twitter, Inc. -17- CERTIFICATE OF CONFERENCE Pursuant to Local Rule 3.17(E), I hereby certify that I conferred with Calvin McLean, counsel for Plaintiff Blake Tartt III, by telephone and email. The substance of our conference is accurately recounted in my declaration attached hereto. Plaintiff is opposed to the relief sought herein. /s/Hayden M. Schottlaender Hayden M. Schottlaender CERTIFICATE OF SERVICE On the 21st day of April 2022, a true and correct copy of the above was sent electronically served by electronic mail through MyFileRunner.com to attorneys for Plaintiff, as follows: William W. Johnston (billjohnstonlawoffice@gmail.com) Calvin G. McLean (goc.garfieldlaw@gmail.com) Johnston & McLean, PLLC One Legacy West 7950 Legacy Drive, Suite 330 Plano, Texas 75024 Attorneys for Plaintiff /s/Hayden M. Schottlaender Hayden M. Schottlaender -18- EXHIBIT A CAUSE NO. 20-CV-1975 Blake Tartt III, § § Plaintiff § § IN THE DISTRICT COURT OF § v. § GALVESTON COUNTY, TEXAS § John Doe, and Jane Doe, § 56TH JUDICIAL DISTRICT § Defendants. § DECLARATION OF HAYDEN M. SCHOTTLAENDER I, Hayden M. Schottlaender, declare as follows: 1. I am of sound mind, over the age of 21, have never been convicted of a felony, and am fully competent to make this Declaration. I am counsel of record for Non-Party Twitter, Inc. (“Twitter”) in the above-captioned matter. I make this Declaration based on my personal knowledge obtained in the course of that representation. If called to testify to the statements contained in this Declaration, I could and would testify competently thereto. 2. Twitter offers a global information sharing and distribution platform committed to the free expression of its users. Twitter is a Delaware corporation and has its principal place of business in San Francisco, California. It maintains no offices in Texas. 3. Twitter account holders can choose to display their true identities or can speak pseudonymously. 4. Twitter has received two subpoenas from Plaintiff Blake Tartt III (“Plaintiff”) in this matter. The first was received on April 7, 2021 by 2-day priority 156199009.2 mail. A true and correct copy of the April 2021 subpoena is attached hereto as Exhibit A-1. The second was received on September 8, 2021 and delivered by courier. A true and correct copy of the September 2021 subpoena is attached hereto as Exhibit A-2. 5. In response to the first subpoena, Twitter timely objected, explaining that the subpoena was unenforceable and needed to be domesticated in California. Twitter also explained that, even if domesticated, the subpoena would still fail because Plaintiff failed to obtain judicial review as required by the First Amendment and its protection of anonymous online speech. A true and correct copy of Twitter’s first objection letter is attached hereto as Exhibit A-3. 6. After Twitter received the second subpoena (now domesticated), Twitter again timely objected to Plaintiff’s failure to obtain judicial review of the First Amendment implications of the subpoena. A true and correct copy of Twitter’s second objection letter is attached hereto as Exhibit A-4. 7. Plaintiff’s Counsel failed to respond to either of Twitter’s objections and made no effort to meet and confer with Twitter. Instead, without notice to Twitter, Plaintiff filed its Motion for Show Cause Order (the “Motion”) five months after receiving Twitter’s second objection letter. 8. After Plaintiff filed the Motion, I contacted Plaintiff’s Counsel to explain that this Motion was filed in the wrong court and that the parties could avoid a great deal of unnecessary motions practice if Plaintiff were to refile a motion seeking First Amendment review in a California court. Counsel for Plaintiff appeared amenable to -2- 156199009.2 that idea, going so far as to note that Plaintiff had already retained California counsel such that motions practice in California would not impose additional burdens on Plaintiff. Plaintiff's Counsel stated he needed to confirm the plan with his client. When I called again to confirm that plan, Plaintiff’s counsel reversed course and stated that his client would not agree to litigate this dispute in California. Plaintiff’s counsel further stated: “If a Texas court moves us to California, then so be it.” 9. Searching online for news articles, I located multiple published articles mentioning Plaintiff. True and correct copies of the articles I located are attached hereto as Exhibit A-5. My name is Hayden Schottlaender, my date of birth is March 21, 1990, and my business address is 500 N. Akard St., Suite 3300, Dallas, Texas 75201. I declare under penalty of perjury that the foregoing is true and correct. Executed in Dallas County, State of Texas, on this 21st day of April 2022. Hayden M. Schottlaender -3- 156199009.2 EXHIBIT A-1 UNITED STATES POSTAL SERVICE t. CHC K'N'SMP® usps.com $10.65 9410 8036 9930 0135 1245. 36.0106 5000 0069 0017 • •_-. ' ,Z, US POSTAGE i. Flal Rate Env. : U.§. kntAGE -MD Signature Confirrpation p< 04/02/2021 Mailed from 77266 PROROTY MAL 2DAYTM ANDREA HOXIE expected Delivery Date: 04/05/21 GRAND PEA INC Ref#: CGMTARTTI/VI PO'BOX 667506 0006 , HQusToN TX 77266-7506 ! ' SIGNATURE REQUIRED C007 , SHIP TVVITTER INC TO: C/O CT CORPORATION SYSTEM 818 W 7TH ST STE 930 LOS ANGELES CA 90017-3476.. i --.---, 4,---_-,,,-----,_ _ f•- , , •-st--. :=XV:.-. .11AWZo..e......e '- '7 , , r-s-it-'- -.Aft *2 _,A -, . USPS SIGNATURE TRACKING # _ —• - - i , 1- 7 1 L I '. 0:. 1 _ c 9410 8036 9930 0136 1245 36 Electronic Rate Approved #038555749 ANDREA C HOXIE 1264 POD 30-7426/3140 PO BOX 667506 J (— HOU ON,TX 77266-7506 2ce/ 1 Pay to the Ord 7A-4- $" si Photo Sato Dollars Deposit, . Dula.teat 11%1No USAA FEDERAL SAVINGS BANK IN 10750 McDERMOTT PAN %4411 SAN ANTONIO,TEXAS 78288-0544 USt (210) 456-8000 1-800-832-372 For 0Ci If 7 PIP ' :3 /40 74 26 91: TRANSIT ROUTING NUMBER LL 26'-. L 9 611. 1 264 ACCOUNT NUMBER ANDREA C HOXIE 1265 POD 30-7426/3140 PO BOX 667506 J (— HOUSTON,TX 77266-7506 Date Pay to the Order of I $ i ell Photo i Dollars Safe Deposit". Oasis on bacI. 11%&g USAA FEDERAL SAVINGS BANK 10 M°TEERMOS7778 SAN ANTONIO. 75 Fr88-0544 USAA (210)458-8000 1-800-832-3724 For ?I 1:3 L40 ?Li 2691: TRANSIT ROUTING NUMBER II. ill 264 L96111 ACCOUNT NUMBER i 265 HOXI E Post Office Box 667506 • Houston, Texas 77266 AndreaHoxie@gmail.com Tel. 713.626.4690 • Fax 713.364.7973 2 April 2021 via U.S. mail, priority, number 9410 8036 9930 0135 1245 36 The Custodian of Records of Twitter, Inc. c/o CT Corporation System 818 West 7th Street, #930 Los Angeles, California 90017 Re: No.20-CV-1975; Blake TartIII vsJohn Doe andJane Doe;In the 56th Judicial District Court of Galveston County, Texas Dear Sir or Madam: Please find enclosed a Subpoena for Deposition & Production of Documents, Deposition by Written Questions, check for $1.00 for a witness fee, and related materials. First, I ask that you acknowledge receipt of the subpoena by signing and dating the copy that is attached to the return envelope. Please scan the signature page and return via email to andreahoxie@gmail.com or use the return envelope (or both). Second,please forward the responsive documents to Mr. William Johnston as indicated on page 3 of the subpoena. Also, please advise Mr. Johnston or Mr. McLean of any fees associated with your production of the requested documents so that payment can be remitted. Looking for to bearing from you, I am Yours truly, Andrea Hoxie, 3'CP 650 Texas Authorized Private Process Server The only thing necessary for the triumph of evil is for good men to do nothing." Edmund Burke RAND_ANLEA HOXIE P0 Box 667506 HOUSTON TX 77266-7506 HOXIE P 0 Box 667506 HOUSTON TX 77266-7506 11111111111111111111111111111111111111111111111111111 RETURN OF SERVICE OF SUBPOENA I, Andrea Hoxie, delivered this subpoena to The Custodian of Records of Twitter, Inc. by depositing it in an official depository of the U.S. Mail on the 2" day of April 2021, sent via U.S. Mail, priority, tracking number 9410 8036 9930 0135 1245 36, addressed to: The Custodian of Records of Twitter, Inc. c/o CT Corporation System 818 West 7th Street, #930 Los Angeles, California 90017 and tendered to the witness a fee of $1.00. , was unable to deliver a copy of this subpoena to for the following reasons: By: Andrea Hoxie, PCS #650, certified by order of the Supreme Court of Texas ACCEPTANCE OF SERVICE OF SUBPOENA BY WITNESS UNDER TEXAS RULE OF CIVIL PROCEDURE 176 I accept service of this subpoena. Witness Date FEE FOR SERVICE OF SUBPOENA:$ 4 THE STATE OF TEXAS 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 SUBPOENA FOR DEPOSITION & PRODUCTION OF DOCUMENTS To: Any Sheriff or Constable of the State of Texas or Other Person Authorized to serve and execute subpoenas as provided in Texas Rule of Civil Procedure 176.5. You are commanded to summon The Custodian of Records ofTwitter,Inc., c/o it registered agent in California,CT Corporation System,818 West 76 Street,#930,Los Angeles, California 90017, to appear at 1355 Market Street, Suite 900 San Francisco, California 94103 on the 30th day of April 2021 at 10:00 a.m., to produce and permit inspection and copying of the following documents or tangible things to be used as evidence in this case: Provide information for the following accounts: URL: https://twitter.com/WinstonSmithOMI Username: @WinstonSmithOMI Information Requested: Any and all records regarding the identification of the owner(s) ofthe @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) Last 5 IP addresses used to log into the account and type of computer used; and (4)any and all methods of payment used by the account owner. Duties ofPerson Served with Subpoena. You are advised that under Texas Rule of Civil Procedure 176, a person served with a subpoena has certain rights and obligations. Rule 176.6 provides the following: 1 (a) Compliance required. Except as provided in this subdivision, a person served with a subpoena must comply with the command stated therein unless discharged by the court or by the party summoning such witness. A person commanded to appear and give testimony must remain at the place of deposition, hearing, or trial from day to day until discharged by the court or by the party summoning the witness. (b) Organizations. If a subpoena commanding testimony is directed to a corporation, partnership, association, governmental agency, or other organization, and the matters on which examination is requested are described with reasonable particularity, the organization must designate one or more persons to testify on its behalf as to matters known or reasonably available to the organization. (c) Production of documents or tangible things. A person commanded to produce documents or tangible things need not appear in person at the time and place of production unless the person is also commanded to attend and give testimony, either in the same subpoena or a separ