http://scienceblogs.com/insolence/2008/04/an_open_letter_to_david_kirby_and_dan_
olmsted.php

Dear Mr. Kirby and Mr. Olmsted:

You are both journalists. I realize that neither of you at present
work for the traditional press and that both of you seem to devote
yourselves mainly to blogging (Mr. Olmsted at the Age of Autism and
Mr. Kirby at the Huffington Post), but I have to believe that you both
still consider yourselves to be at heart journalists. That is why I am
writing this to you and posting it publicly on my blog. If you've ever
read any of my posts on this issue, you probably realize that I
strongly disagree with your positions and that at times I have been
quite harsh in my judgment of articles you have both written. I am,
however, hoping that for this one issue, upon which (I hope) we can
all agree that you will for the moment put that aside and consider
what I have to say. I am appealing for your condemnation of what has
been done to autism blogger Kathleen Seidel.

You may have heard about Kathleen Seidel's situation, in which she has
been subpoenaed based on her blogging. I realize that you and Kathleen
strongly disagree over whether thimerosal-containing vaccines or
vaccines in general themselves are responsible for the "autism
epidemic." Indeed, you may be aware that Kathleen has spent
considerable time and done truly prodigious work in investigating the
claims and activities of people who champion the claim that vaccines
cause autism and found out some rather disconcerting information, for
example about the father-and-son team of Dr. Mark Geier and David
Geier, specifically about their Lupron protocol. Even so, I hope that
you will put yourself in her place for a moment, because, at the
moment, you are both very much like she is in that you are primarily
bloggers these days. Imagine how you would react if what happened to
Kathleen happened to you.

What happened to Kathleen, of course, is that a lawyer representing
vaccine injury plaintiffs Rev. Lisa Sykes and Seth Sykes against Bayer
and other companies, namely Clifford Shoemaker, subpoenaed Kathleen,
her financial records, records related to her blog, and her e-mails
with other bloggers. His rationale appears to be a paranoid belief
that somehow Kathleen is a shill for big pharma or the government. She
clearly isn't (indeed the very suggestion is ludicrous), and never
mind that, even if she were, she is not a party to the case. In
considering how you would react if this were you being subpoenaed by,
say, a vaccine manufacturer or the CDC, you should know that Kathleen
is not a party to the lawsuit. You should further know that there is
no specialized knowledge that she possesses that is needed for the
plaintiffs to pursue their case, and she is not accused of doing
anything illegal or defamatory. Finally, you should look at the text
of the subpoena and consider just how broad it is. Finally, you should
look at the post by Kathleen that appears to have provoked this
subpoena, a post entitled The Commerce in Causation, which looked at
how Shoemaker makes his money representing "vaccine-injured" clients.

The subpoena was issued within hours after that post.

Let lay it out for you just what the stakes are. Ask yourself: What
would your reaction be if, hours after you published a post or article
critical of, say, Julie Gerberding, the CDC's lawyers issued a
subpoena demanding "all documents pertaining to the the setup,
financing, research, and maintaining" your blogs; bank statements,
canceled checks, online or offline donation documents, and tax
returns; all documents (e-mails, notes, memos, letters, etc.)
pertaining to communications related to your blogs; all such documents
related to your communications with autism activist groups (Kathleen's
subpoena demands any communication she may have had with the
government or pharmaceutical companies); all such documents related to
your communications with religious groups ("Muslim or otherwise"); and
all e-mails with basically any blogger in her blogroll? No doubt you
would see such a subpoena as a nakedly blatant fishing expedition and
attempt to intimidate you--and rightly so, because that's what it
obviously is in Kathleen's case. Indeed, the reaction in the overall
blogosphere and the legal blogosophere to Shoemaker's abuse of the
subpoena privilege has been uniformly negative. Indeed, Eric
Turkewitz, who writes the New York Personal Injury Law Blog, wrote:

Just to be clear here, this post isn't about whether the underlying
lawsuit is a good one or not. The suit apparently deals with whether
mercury additives to vaccines caused the plaintiff's autism. I haven't
read it. This is about going after the citizen-journalist for having
the audacity to speak freely on a subject.
[...]

She has argued First Amendment protection and journalistic protection
among other factors. I urge you to read the link above for her self-
drafted motion to quash.

But there is one thing she didn't do, and I suggest it here. She
didn't explicitly ask for sanctions. But that should not stop a judge
from imposing them, even if the growing chorus of blogospheric
condemnation makes Shoemaker rethink his strategy (and his Google
reputation) and withdraw the outrageous subpoena.

Given that this subpoena is clearly an obvious attempt to silence
Kathleen or, at the very least, punish her for her criticisms of
Clifford Shoemaker and his activities, I am appealing to both of you
to use your influence and position in the autism biomedical movement
to protest this shameless action by Mr. Shoemaker. I am urging you to
speak out against legal intimidation and thuggery and for the First
Amendment right of the media, including bloggers, of freedom of
speech. Your speaking out against Mr. Shoemaker's despicable actions
would carry even more force, because it is well known that you both
strongly disagree with Kathleen's position regarding whether vaccines
cause autism. If both of you, who so strongly disagree with Kathleen's
conclusions, were to speak out, it would shame Shoemaker and his
clients, the Sykes, beyond any condemnation that I or the rest of the
blogosphere can provide. It would also demonstrate to those of us who
disagree with you that, whatever our other disagreements, you do
support the First Amendment for fellow citizen-journalists, regardless
of their point of view on autism causation.

Walter Olsen of Overlawyered put it particularly well:

Should the subpoena somehow be upheld and its onerous demands
enforced, it could signal chilly legal times ahead for bloggers who
expose lawyers and their litigation to critical scrutiny.
Think about it this way. If a lawyer representing a plaintiff suing
vaccine companies can get away with this, just imagine what abuses
lawyer with the resources of a big pharmaceutical company or the
government could perpetrate to silence blogospheric critics. Imagine
what mischief they could cause by demanding the correspondence, e-
mails, financial records, and contacts with religious groups from
their critics. That would be you, Mr. Kirby and Mr. Olmsted.

Just think about it.

Sincerely,

Orac