Google Subpoena Withdrawn in Brummer v. Wey Defamation Case

February 7, 2017

This is an update of "Subpoena Served On Google In Brummer V. Wey Defamation Case" ( Blog, January 31, 2017), which reported on the January 11, 2017, and November 16, 2016, Subpoenas served on Google by Plaintiff Brummer.  As readers may recall, an Amended Complaint was recently filed in the defamation lawsuit brought by Plaintiff Brummer, who is a law professor at Georgetown University Law Center and served on the Financial Industry Regulatory Authority's National Adjudicatory Council ("NAC") from 2013 to 2015. Christopher Brummer, Plaintiff, v. Benjamin Wey, FNI Media LLC, and NYG Capital LLC d/b/a New York Global Group, Defendants (Amended Complaint, Supreme Court of the State of New York, New York County, File No. 153583/2015, January 13, 2017).

FINRA NAC Decision and First Amendment Commentary

As set forth in the "Introduction "of the Amended Complaint:

1. This action arises out of the vindictive and malicious conduct of defendant Benjamin Wey ("Wey") and the companies he controls, NYG Capital LLC d/b/a New York Global Group ("NYGG") and FNL Media LLC ("FNL Media"). Defendants have been waging a comprehensive and widespread internet defamation campaign against Professor Brummer, a Professor of Law at Georgetown University Law Center.

2. Professor Brummer accordingly seeks, among other things, compensatory and punitive damages and an order enjoining Defendants from continuing their deliberate and relentless campaign of defamation, harassment, and intimidation, and from further tarnishing Professor Brummer's reputation.

By way of a brief, and I mean very, very brief presentation of the issue that prompted Brummer's lawsuit, consider this allegation in the Amended Complaint:

13. In August 2013, after a fully-litigated proceeding, a FINRA hearing panel found that two of Wey's business associates (William Scholander and Talman Harris) had violated Section 10(b) of the Securities Exchange Act of 1934, SEC Rule 10b-5, and FINRA Rules 2020 and 2010 for fraudulently marketing the stocks of Deer Consumer Products, Inc. This decision (the "Hearing Panel Decision") prohibited the parties from associating with any FINRA firm in any capacity. This Hearing Panel Decision was appealed to the NAC and ultimately affirmed on December 29, 2014. Professor Brummer served on the NAC panel that issued this decision (the "NAC Decision").

14. Less than a month after the NAC Decision upholding professional discipline against Wey's associates, Defendants wrote and published on TheBlot an article about Professor Brummer titled "WANT TO GET RICH FROM A CRIMINAL? ASK CHRIS BRUMMER, GEORGETOWN LAW SCHOOL PROFESSOR." . . .

READ: In the Matter of Department of Enforcement, Complainant, v. William Scholander and Talman Harris, Respondents (Decision, FINRA National Adjudicatory Council, Complaint No. 2009019108901, December 29, 2014).

Google Subpoena

On January 11, 2017, a mere two days before the Amended Complaint was filed, Plaintiff Brummer served a Letter from Vorys, Sater, Seynmour and Pease LLP to Google, Inc. and Subpoena for Production of Business Records. The Subpoena ordered the production of business records of the following:

As used in this subpoena, "Gmail Accounts" refers, collectively, to the accounts associated with the following Gmail addresses:



Please produce documents containing the following subscriber data related to each of the Gmail Accounts:

1. First and Last Names associated with the Gmail Accounts;
2. Mobile phone numbers provided to register the Gmail Accounts;
3. Alternate email addresses provided to register the Gmail Accounts;
4. Dates the Gmail Accounts were registered;
5. Dates, if any, that the Gmail accounts were deleted;
6. Internet Protocol addresses from which the Gmail Accounts were created; and
7. All Internet Protocol address history logs for the Gmail Accounts.

The Affidavit of Adam Sherman, a lawyer for Plaintiff Brummer, asserts, in pertinent part:

4. Plaintiff seeks to confirm the identities of the authors of the many defamatory statements anonymously or pseudonymously published about him on various websites online

5. This includes serving a subpoena on Google Inc. ("Google") in California for certain business records, namely documents containing identifying information relating to several Google-owned email accounts ("Gmail Accounts") which were identified by the domain registrar company, LLC and domain privacy services company Domains By Proxy, LLC, in response to prior subpoenas in this matter. A list of the specific Gmail Accounts is contained in Attachment 3 (MC-025) of the subpoena.

6. Specifically, Plaintiff seeks to obtain identifying information associated with the Gmail Accounts such as names, phone numbers, recovery email addresses, and Internet Protocol addresses. Plaintiff could then use that information to identify the individual(s) responsible for 5. 6. the anonymous or pseudonymous defamatory statements.

NOTE: The January 11, 2017, Subpoena apparently supersedes a previously filed November 16, 2016 iteration.  

Fishing Expedition

As previously set forth in the "Preliminary Statement" in Christopher Brummer, Plaintiff, v. Benjamin Wey, FNI Media LLC, and NYG Capital LLC d/b/a New York Global Group, Defendants (Defendants Memorandum of Law In Support of Defendants' Motion to Quash and for a Protective Order, Supreme Court of the State of New York, New York County, File No. 153583/2015, December 7, 2016):

In an outrageous and overbroad fishing expedition, Plaintiff has issued a subpoena to Google Inc. ("Google") seeking swaths of irrelevant and highly personal information related to at least 11 e-mail accounts belonging to numerous individuals and "subscribers" without making any attempt to comply with applicable law. Substantively and procedurally, the Improper Non-Party Subpoena is defective, illegal, and must be quashed with a protective order issued against any further attempts to obtain this information. Substantively, it is an overbroad, invasive, harassing, and illegal fishing expedition to obtain personal information about individuals and e-mail accounts extending far beyond the scope of the claims in the Complaint. Plaintiff has no conceivable need for information such as the cell phone numbers, I.P. account usage, and "all other information" that Google possesses for the accounts of the subscribers set forth in the Improper Non-Party Subpoena, almost all of whom are mentioned nowhere in the Complaint.

Independently, and not surprisingly, the Improper Non-Party Subpoena is also facially and procedurally defective. It expressly fails to include any notice whatsoever as to "the circumstances or reasons such disclosure is sought or required" as must be done pursuant to CPLR 3101(a)(4), or the even stricter laws in Google's home state of California that require a specific affidavit and other information be attached to a subpoena in order to prevent exactly this kind of litigation misconduct.

Strictly from my perspective as a lawyer, the Google Subpoena is unsettling. If Plaintiff Brummer prevails in sustaining the viability of his Google Subpoena, the confidentiality of sourcing information of some nine email accounts will be at risk.  One might wonder whether those nine accounts were each opened by nine different individuals -- and muse even further whether the purported names on the accounts will match those of the folks who actually created the email addresses. Who knows and why should that even matter? Even assuming that the nine accounts were opened by the same individual, that should not be, in and of itself, enough justification to pierce the confidentiality of such online activity.  Many of us have opened and maintain more than one email account and online identities. That being said, I anticipate that the Court will weigh the equities and rights at issues and reach a legally sound decision as to whether to order the production of the information demanded.

If nothing else, the subpoena should serve as a wake-up call to all of you who live your lives online and have some misplaced confidence with the perceived anonymity of an online handle or an email address.

In Christopher Brummer, Plaintiff, v. Benjamin Wey, FNI Media LLC, and NYG Capital LLC d/b/a New York Global Group, Defendants (Stipulation and Order Withdrawing Motion to Quash as Moot, Supreme Court of the State of New York, New York County, Mot. Seq. No. 14, File No. 153583/2015,February 2 2016), we are advised that Plaintiff Brummer withdrew the November 15, 2016 Subpoena served on Google and that the company is directed to provide no documents, information, or other responsive material. I'm not quite sure as to whether this has or will extend to the January 17, 2017, subpoena served on Google, so stay tuned as we continue to cover this nasty, defamation case.

Bill Singer's Comment

I am a long-time critic of the current state of Wall Street self-regulation and of FINRA (and its predecessor, the NASD). For nearly three decades, I have gone toe-to-toe many times with NASD/FINRA and I am not intimidated by the self-regulator, its Staff, or its management. Some might characterize my relationship with FINRA as trench warfare. I have no intention of altering my philosophical differences with FINRA and will not tone down my criticism or critique.

Notwithstanding my historic antagonism towards FINRA, I do not agree with the tone or the approach of TheBlot's coverage of FINRA's Scholander/Harris case. I will not enmesh myself in a discussion of the merits of FINRA's regulatory case or the issues on appeal. In this commentary, I am only addressing what I view as vicious, personal attacks by TheBlot against Brummer, who, as a member of FINRA's appellate body, the NAC, did not prepare the charges or present them at the OHO level. Given Brummer's limited involvement as one of several appellate adjudicators, I do not understand the rationale or the proportionality of TheBlot's ad hominem campaign, which has spread beyond the Plaintiff.

Respondents Scholander and Harris may be angry, furious, and enraged by FINRA Staff who investigated, charged, and prosecuted the case against them. As a defense lawyer, I appreciate that such a response is typical for those charged. Those same respondents may also view FINRA's case against them as unfair, biased, and baseless. Again, that sort of comes with the territory and is a typical reaction, sometimes with justification. FINRA is not always a sympathetic (or innocent) party because of its resort to questionable tactics and frequently unfair procedural policies; however, it is hard to use those circumstances to justify what strikes me as unwarranted insults and attacks heaped upon Brummer by TheBlot, which was not a named party in the FINRA regulatory case.

Journalists and pundits often feel passionately about misconduct by the high and mighty in regulation and government. That's a good thing. The issue in Brummer v. Wey, however, appears to be one of drawing lines and of crossing them.  There is a point where passion crosses over into unreasonableness. There is a point where disagreement crosses over into bogus alternative facts. There is a point where criticism crosses over into defamation.

The question before the New York State Supreme Court is whether TheBlot's commentary went beyond the boundaries of free speech and crossed over the line into defamation. Without question, this case seems destined not only for trial but for years of subsequent appeals. Personally, I am disgusted by the personal attacks against Plaintiff Brummer. As a lawyer, however, I also know that language that often disgusts me may still be protected speech. As to whether such protection will be afforded by the courts to Defendants is what this lawsuit will test.