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CAUSE NO.

DC-16-16077
IN RE:

PETITION OF KURT EICHENWALD


FOR DEPOSITION UNDER RULE 202

IN THE DISTRICT COURT OF

DALLAS COUNTY, TEXAS

44th JUDICIAL DISTRICT

JOHN DOES MOTION TO VACATE ORDER,


TO QUASH DEPOSITION AND FOR PROTECTION1

TO THE HONORABLE JUDGE OF SAID COURT:


COMES NOW, JOHN DOE (Doe), an unnamed Interested Party, and files this his/her
Motion to Vacate Order, to Quash Deposition and for Protection and would respectfully show this
Court the following:
I.
SUMMARY OF RULE 202 CASE
Petitioners Petition for Rule 202 Deposition (Petition) asks this Court to order a deposition
on written questions of Twitter, Inc. (Twitter). Petitioner seeks Twitters written deposition
because of an alleged Tweet or posting on the Twitter website. Petitioner states he wants to
identify Doe and to sue Doe for the as-yet unrecognized tort of assault by long-distance Tweet.

This Motion is filed contemporaneously and prior to the Special Appearance of John Doe and is
subject to that filing.

Twitter is an online news and social networking service where short 140-character
messages known as Tweets are posted on the internet by registered users. The Petitioner is such
a registered user by which he hosts a Twitter page, makes often incendiary political posts
promoting his writing in Vanity Fair and Newsweek as well as promoting self-aggrandizing
television appearances, and invites sometimes equally incendiary responsive comments by Tweet
where he often personally excoriates the responders with ad hominem attacks in the name of
political commentary.
The single December 15, 2016 Tweet that is the subject of Petitioners Rule 202 Petition,
contains what the Petitioner claims is a GIF (Graphics Interchange Format - a post of moving
pictures) posted by Doe that allegedly contained strobing lights.
Petitioner alleges that his split second of viewing Does lone December 15, 2016 Tweet
caused him to have a seizure due to his pre-existing medical condition of epilepsy and that therefore
he wishes to identify Doe to sue him/her. Such a suit would be patently frivolous.
Petitioner alleges that Doe typed into the GIF the words You deserve a seizure for your
posts. Doe did no such thing.
Petitioner requests to depose Twitter to discover the identity of Doe.
Petitioner, in the attempt to use his suit to chill the First Amendment and further embarrass
and harass Doe, also wants Twitter to a) identify other Twitter handles (names) of Doe, b)
provide all electronically stored information (ESI) related to Doe, c) provide all known IP
addresses of Doe, d) divulge Does private account information, e) give Does usage history both
before and after the single allegedly offensive Tweet, and f) provide and other unspecified user
information. Petitioners intent in so doing is to harass John Doe publicly:

Doe has today filed a Special Appearance in this matter which is incorporated herein as if
set forth at length. Petitioner has sued Doe in Texas, but cannot maintain the case in Texas due to
lack of jurisdiction.
II.
MOTION TO VACATE ORDER AND TO QUASH DEPOSITION
A.

Special Appearance2 Stays Discovery.

This case is strikingly like the Texas Supreme Court case of In Re Doe, 444 S.W.3d 603
(Tex. 2014) in which a special appearance was filed in a Rule 202 case and mandamus was
conditionally granted vacating the order of discovery until a determination of personal jurisdiction.
The result in Doe must also be the result here.
Rule 202 allows a proper court to authorize a deposition before suit is filed, Id. at 604.

This day, and prior to this Motion, a Special Appearance was filed by John Doe. This
Motion is subject to that filing and incorporates it here by reference. No relief requested here is
intended to waive the Special Appearance.
3

As Twitter did here, in Doe the deponent Google agreed to receive and respond to the Rule
202 Deposition, Id. at 605.
However, pursuant to Rule 120a, a party filing a special appearance is entitled to have
jurisdiction heard before any other matter, Id. at 608. To fail to do so and to instead order the
discovery in a Rule 202 suit improperly acts as an adjudication of the 202 claim and forces the
Respondent to litigate the merits of an important issue before a court that has not been shown to
have personal jurisdiction over him, Id. at 609. As such, this Court must stay all discovery until
a determination of personal jurisdiction over the Respondent, Doe. The Discovery Order, and the
issued subpoena (Exhibit 2) must be quashed.
B.

Rule 202 Requirement of 15 Days Notice and an Opportunity to be Heard not


met Order Must be Vacated and Deposition Quashed

Texas Rule of Civil Procedure 202 generally allows for a party to depose a witness before
a lawsuit is filed. See Tex. R. Civ. P. 202.1. The statute imposes very strict requirements as to due
process because of the significant advantages of allowing a deposition before a suit is commenced.
Rule 202.3 addresses the notice requirements, Rule 202.4 describes the burden of proof
Petitioners must meet for the Court to order a deposition to be taken and the findings that the Court
must make to issue Rule 202 contains explicit rules in which a Rule 202 petitioner must give notice
to person not named in the petition:
Rule 202.3
(a) At least 15 days before the date of the hearing on the petition, the
petitioner must serve the petition and a notice of the hearingin accordance
with Rule 21aon all persons petitioner seeks to depose and, if suit is
anticipated, on all persons petitioner expects to have interests adverse to
petitioners in the anticipated suit.

The Code Construction Act applies to the Texas Rules of Civil Procedure. Tex. Govt
Code Ann 311.002 (4); In re Walkup, 122 S.W.3d 215, 217 (Tex App.Houston [1std Dist.] 2003,
writ dismissed). Use of the word must creates or recognizes a condition precedent. Tex. Govt
Code Ann 311.016 (3). Therefore, service of the petition and notice of the hearing is required 15
days prior to any Rule 202 hearing.
Here, suit was filed on December 19, 2016 (Exhibit 1) and the Order allowing expedited
discovery was signed by the Court on the same date December 19, 2016 (Exhibit 3). This is
less than one day to give notice and is proof as a matter of law that the hearing was not subject to
proper 15-day notice. On that ground alone, the Order must be vacated.
There was no attempt by the Petitioner to effectuate service on Doe prior to the hearing.
Therefore, there was no notice and an opportunity to be heard and the Order must be vacated until
there has been 15 days notice given with an opportunity for Doe to be heard which must be after
a ruling on the special appearance.
C.

No Basis for Expedited Discovery and Ex Parte Ruling - Order Must be


Vacated due to lack of Due Process and the Deposition Quashed

Rule 202(d) states that the notice time of 15 days may be shortened, as justice or necessity
may require.
However, Petitioner, gave non-specific and non-fact-based cursory reasoning for the need
of expedited discovery to avoid the destruction of Doe ESI and the nature of the conduct of
Doe (Exhibit 1, Paragraph 11).
There are no facts provided as to any attempt by Doe or Twitter, Inc. to destroy any
evidence. This Court therefore has been misled by the Petitioner into an ex parte final decision on
the merits decided within only hours or minutes of its filing as an order of discovery in a Rule

202 suit acts as an adjudication of the merits of the 202 claim, see In Re Doe, 444 S.W.3d 603,
608-609 (Tex. 2014).
Even in a Temporary Restraining Order under Rule 680 which is NOT an adjudication
on the merits and has an arguably much lower burden, the prerequisites to such ex parte relief
require:
specific facts shown by affidavit or by the verified complaint that immediate and
irreparable injury, loss or damage will result to the applicant before notice can be served
and a hearing had thereon.
The Order by this Court as drafted by the Petitioner (Exhibit 3) is, respectfully, wholly
deficient in that there is no factual finding as to why ex parte relief is necessary.
D.

Petitioner has Failed in Burden of Proof - No Findings Justifying Rule 202


Order - Order Must be Vacated and Deposition Quashed

Rule 202.4 describes the burden of proof Petitioners must meet for the Court to order a
deposition to be taken and the findings that the Court must make to issue a Rule 202 order:
202.4 Order.
(a) Required findings. The court must order a deposition to be taken if, but only if,
it finds that: (1) allowing the petitioner to take the requested deposition may prevent
a failure or delay of justice in an anticipated suit; or (2) the likely benefit of allowing
the petitioner to take the requested deposition to investigate a potential claim
outweighs the burden or expense of the procedure.
The Order, Exhibit 3, contains none of the above required findings and is therefore on its
face defective. The Petitioners drafted petition does not even allege facts that would allow such
findings to be made. The Order therefore must be vacated absent the requisite factual and legal
findings.

E.

Petitioner has not Served John Doe - Order Must be Vacated due to Lack of
Due Process and Deposition Quashed

Rule 202.3(b) provides a method for alternative service of process in exceptional


circumstances if service is not possible under section 202.3(a).
Rule 202.3(b):
(1) Unnamed persons described in the petition whom the petitioner expects to have
interests adverse to petitioner's in the anticipated suit, if any, may be served by
publication with the petition and notice of the hearing. The notice must state the
place for the hearing and the time it will be held, which must be more than 14 days
after the first publication of the notice. The petition and notice must be published
once each week for two consecutive weeks in the newspaper of broadest circulation
in the county in which the petition is filed, or if no such newspaper exists, in the
newspaper of broadest circulation in the nearest county where a newspaper is
published. [bold added]
May creates discretionary authority or grants permission or a power. Tex. Govt Code
Ann 311.016 (1). In this situation, use of may signals that notice by publication is an alternative
to service in accordance with Rule 21a. The use of the must language three times in this
provision shows there are multiple requirements needed to comply with the notice by publication
provision.
Doe has not received notice in accordance with the provisions of Rule 21a, or under the
alternative of notice by publication. Service of the petition and notice of the hearing are conditions
precedent to a Rule 202 hearing. Petitioner has not complied with the notice provisions, therefore
any Order resulting from the ex parte hearing must be vacated.
Petitioner has not even mentioned service or notice on John Doe. Petitioner has not
attempted service on John Doe. While it is true that Rule 21a permits service "by such other
manner as the court in its discretion may direct, Petitioner has not asked the Court to waive or
alter the notice requirements of Rule 202 as to John Doe, see, Davis Family Blanco Rd. Prop. Trust

v. Canyon Creek Estates Homeowners Ass'n, 2009 Tex. App. LEXIS 8154 (Tex.App. -- San
Antonio, Oct. 21, 2009). Petitioner has not sought service by publication or any other means.
This failure of service was not due to lack of ability to serve Doe. Petitioner could easily
have obtained an order allowing service on Doe through means designed to notify him/her even
without knowing his/her name or identity. Petitioner did not even try to serve Doe.
Doe was available for service Petitioner knew how to contact Doe. Yet Petitioner sought
to avoid the legal process that would provide Doe notice and an opportunity to be heard. As such,
the Order, made without notice and without any opportunity for Doe to be heard, must be vacated.
E.

The likely benefit of allowing the deposition outweighs the burden or expense
of the procedure.

One of two requirements must be met before a deposition can be ordered, See Rule
202.4(a). As to the first, as above, the Petitioner provides no facts or proof to support that the
deposition sought would prevent a failure or delay of justice (Exhibit 1). Certainly, there has been
no such finding (Exhibit 3). The only other possible basis for allowing the deposition is the second
requirement, that the Court may only order a deposition if the likely benefit of allowing the
deposition outweighs the burden or expense of the procedure. Rule 202(a)(2).
Petitioners have failed to acknowledge this burden in the Verified Petition and no proof has
been provided (Exhibit 1).
The benefit Petitioners may receive is minimal because any suit for assault or other tort
will fail (see Exhibit 1 202 Petition was filed in order to bring suit against Doe for assault and
other intentional torts).
In Texas, the tort of assault requires either direct or indirect physical contact with the
Petitioner by Doe, see Texas Penal Code 22.01(a)(1); Fisher v. Carrousel Motor Hotel, 424
S.W.2d 627, 629 (Tex. 1967); Young v. City of Dimmitt, 776 S.W. 671, 673 (Tex. App. Amarillo

1989, writ denied, 787 S.W.2d 50 (Tex. 1990). To establish a claim for assault and battery in a
civil action, Petitioner must show that the defendant intentionally or knowingly threatened him
with imminent bodily injury, See, Garza v. United States, 881 F.Supp. 1103, 1106
(S.D.Tex.1995); Robinson v. State, 630 S.W.2d 394, 403 (Tex.App.San Antonio 1982, pet.
ref'd) (citing McCullough v. State, 24 Tex.App. 128, 5 S.W. 839 (1887)). There was no threat
made by Doe whatsoever and Petitioner has alleged no such threat.
Ultimately, to prevail, the Petitioner must show that physical contact occurred. See Preble
v. Young, 999 S.W.2d 153, 156 (Tex.App.Houston [14th Dist.] 1999, no pet.).

By the

Petitioners own admission, there was no physical contact with the Petitioner or with any object
touching the Petitioner. As any suit for assault must ultimately be unsuccessful, Petitioner will
receive no benefit if this Court were to allow the requested deposition.
Further, the burden the Court must assess is that of abridging Does fundamental First
Amendment rights. This Court can only permit Petitioners request for a deposition if the Court
determines that Does constitutionally-protected Freedom of Speech is outweighed by Petitioners
desire to know who was responding to the Petitioners political Tweets. Regardless of which
option Petitioner uses to make his request for deposition, he is unable to meet his burden of proof.
The Petition has not alleged, and Petitioner will not be able to allege (much less prove) any facts
sufficient to allow this Court to make the findings required to order a Rule 202 deposition. The
Order therefore must be vacated and the deposition quashed.
III.
MOTION TO QUASH DEPOSITON, ALTERNATIVELY FOR PROTECTIVE ORDER
A.

Law allows that Deposition may be Quashed and Protection Sought by Doe.

Rule 202 allows for any interested party to object to a pre-suit deposition:

Rule 202.5
[D]epositions authorized by this rule are governed by the rules applicable to
depositions of nonparties in a pending suit. The scope of discovery in depositions
authorized by this rule is the same as if the anticipated suit or potential claim had
been filed.
The rules of discovery allow any person from whom discovery is sought, and any other
person affected by discovery request to move for a protective order. Tex. R. Civ. P. 192.6 (a).
One of the reasons to ask for such relief is to protect the movant from invasion of personal,
constitutional, or property rights. Tex. R. Civ. P. 192.6 (b). A court may then make any order in
the interest of justice that denies or limits the requested discovery, Tex. R. Civ. P. 192.6 (b) (1).
B.

Deposition Impinges on Free Speech Deposition Must be


Quashed Protection is required.

The Petitioner, on his Twitter page, invites Tweets of a political nature from readers such
as Doe. Further, Petitioner receives and makes hundreds of political Tweets a year that while
clearly and admittedly political, contain vile statements and personal ad hominem attacks.
Petitioner and his employers, Newsweek and Vanity Fair, would likely claim that even Petitioners
most vile and ad hominem Tweets intended to belittle and cause emotional, mental and physical
reactions (i.e. harm, per Petitioners tacit definition) to the readers - are protected by Free Speech.
However, Petitioner seems not to care about that right when it comes to others such as Doe.
Constitutional Rights are involved in this matter because any order exposing Does identity
would destroy Does right to anonymous free speech. The right to speak anonymously is a wellrecognized First Amendment freedom. Tally v. California, 362 U.S. 60 (1960); Doe v. State, 112
S.W.3d 532 (Tex. Crim. App. 2003) (en banc). The United States Supreme Court addressed the
importance anonymous literature has played in the progress of mankind when they invalidated
an ordinance that make it illegal to distribute reading materials that did not include information
identifying the name and address of the person who created the publication. Tally 362 U.S. at 62.
10

(the Court cited multiple examples of anonymous literature, most notable was the Federalist
Papers. See id. at 64-65.). For many in history, the Federalist Papers would likely have been
considered offensive and provoked emotional and physical reactions.
Furthermore, First Amendment rights have been held to apply equally to speech on the
Internet to speech in a public place.

See, Reno v. ACLU, 521 U.S. 844, 869-70 (1997).

Specifically, the right to speak anonymously extends to speech via the internet.

Doe v.

2TheMart.com Inc., 140 F. Supp. 2d 1088, 1092 (W.D. Wash. 2001). See also Doe v. Cahill, 884
A.2d 451, 456 (Del. 2005); Dendrite International, Inc. v. John Doe No. 3, 775 A.2d 756, 76566
(N.J. Super. Ct. App. Div. 2001).
Because internet users have a Constitutional right to speak anonymously, numerous courts
across the county have imposed a strict and heavy burden on parties seeking to compel
identification of anonymous speakers. This onerous and difficult burden is required because once
the court orders that an anonymous speaker be identified, that speakers First Amendment rights
have been infringed.
One of the first courts to address the issues in a John Doe defamation case was Dendrite,
775 A.2d 756. Dendrite brought a defamation claim against various John Doe defendants who had
posted messages on a Yahoo! message board dedicated to discussions about Dendrite. The New
Jersey court, in denying Dendrites request for Yahoo! to expose the John Doe defendants
identities, offered a four-step process for courts to balance the well-established First Amendment
right to speak anonymously, and the right of the plaintiff to protect its propriety interests and
reputation... Id. at 760.
First, the Petitioner must attempt to notify the anonymous party to afford an opportunity to
oppose the Petitioners motion. Id. Second, the Petitioner must identify and set forth all statements
which are allegedly tortious, Id. Third, the court must determine whether Petitioner has established
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a prima facia cause of action; meaning Petitioner must bring evidence sufficient to withstand a
motion to dismiss, Id. Finally, the court must balance the defendants First Amendment freedoms
against the strength of Petitioners prima facia case and the need for disclosure of Does identity,
Id. at 760-61.
The next important case to address this issue was John Doe No. 1 v. Cahill, 884 A.2d 451
(Del. 2005). Cahill recognized that plaintiffs (like the Petitioner has done here) can file weak or
baseless claims for the sole reason of exposing an anonymous persons identity. Id. at 457. Armed
with that information, plaintiffs may then engage in extra-judicial remediesrevenge or retribution.
Id. Petitioners threat to exact revenge or retribution on Doe has already been articulated by
Petitioner:

The Cahill Court held that the summary judgment standard is the appropriate test to strike
a balance between a defamation plaintiffs right to protect his reputation and a defendants right to

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exercise free speech anonymously. Id. at 460. Therefore, a defamation plaintiff must support the
claim with facts sufficient to defeat a summary judgment motion. Id.
While the Petitioners tort allegation here is not a defamation claim, but one for assault
(and other unalleged, unnamed and unidentified torts), the standard articulated by the Cahill Court
should be adopted by this Court.
While Dendrite and Cahill are not binding precedent on this Court, they are extremely
persuasive originating from the highest courts in their respective jurisdictions. Applying the wellreasoned standards articulated in these cases to this matter, the Court should require Petitioners to:
(1) notify Doe in a manner that will sufficiently give notice of this proceeding. Rule 202 requires
notice, so at the minimum this Court should require Petitioners to comply with the notice
provision, (2) identify and properly plead all allegedly tortious acts and the causes of action
asserted or to be asserted, and (3) provide sufficient evidence that would allow each such tort claim
to pass summary judgment. Only after Petitioner has complied with steps 1 through 3 should this
Court even begin to carefully balance Does First Amendment freedoms against the strength of
Petitioners claims and the necessity for disclosure of Does identity.
Doe moves for this Court to protect the Constitutional rights at issue. Applying the tests
articulated in Dendrite and Cahill, Petitioner should be required to bring forth sufficient evidence
that would allow any alleged tort claims to survive summary judgment. Based on the Petition
(Exhibit 1), this Court does not have sufficient evidence to find that the Tweet by Doe was tortious.
Therefore, Doe requests a protective order and moves to quash the deposition on written questions
of Twitter.

13

C.

Deposition Seeks Information for a Federally Preempted and


Barred Claim Deposition Must be Quashed Protection is
required.

The same analysis above to showing a viable cause of action before any deposition can
occur also applies here. The Communication Decency Act 47 USC 230 bars any claim by the
Petitioner for content simply republished by Doe and therefore discovery regarding Doe is
prohibited.
Doe merely republished a GIF (with its internal wording untouched). 47 USC 230(e)(3)
proscribes liability under any Texas law for Does alleged actions:
230(e)(3) State law.
No cause of action may be brought and no liability may be imposed under
any State or local law that is inconsistent with this section.
The prohibition of liability relates to any user like Doe:
230(c)(1) Treatment of publisher or speaker.
No provider or user of an interactive computer service shall be treated as
the publisher or speaker of any information provided by another information
content provider.
As Doe cannot be treated as the publisher or speaker of this re-posted and unaltered GIF,
then he cannot be held liable for the alleged effects of its content, as a matter of law. As such,
Federal law preempts any alleged tort that the Petitioner might try to file and any discovery would
be as to a non-actionable event. That kind of discovery is outside the scope of the Texas Rules
and is prohibited, see Tex.R.Civ.P. 192.3(a).
D.

Deposition on Written Questions with Subpoena Duces Tecum is


Overbroad and Disallowed Fishing Expedition. Deposition Must
be Quashed Protection is required.

Petitioner, in the attempt to use his suit to chill the First Amendment and further embarrass
and harass Doe, also wants Twitter to a) identify other Twitter handles (names) of Doe, b)

14

provide all electronically stored information (ESI) related to Doe, c) provide all known IP
addresses of Doe, d) divulge Does private account information, e) give Does usage history both
before and after the single allegedly offensive Tweet, and f) provide and other unspecified user
information (Exhibit 2).
The Petition only mentions one offensive Tweet (Exhibit 1). The Deposition request is
vastly overbroad as it seeks information other than that related to the single allegedly offensive
Tweet and seeks information for time frames going back to June of 2016 months before the lone
alleged offensive Tweet. Except for the purpose of harassment (threatened publicly by the
Petitioner), there is no discoverable need for any of the above requested. This is the classic
prohibited discovery fishing expedition and Doe accordingly seeks quashing of the subpoena
and a protective order, see, e.g., In Re National Lloyds, ___ S.W.3d ___, 2016 WL 6311286*4
(Tex. 2016) opinion delivered October 28, 2016; In re Weekley Homes, L.P., 295 S.W.3d 309,
318-319 (Tex. 2009); In re CSX Corp., 124 S.W.3d 149, 153 (Tex. 2003); Texaco, Inc. v.
Sanderson, 898 S.W.2d 813, 815 (Tex. 1995).
IV.
MOTION TO VACATE ORDER,
TO QUASH DEPOSITION AND FOR PROTECTION, BASED ON LACK OF
PERSONAL JURISDICTION
For the reasons set forth and based on the arguments presented in the Special Appearance
filed contemporaneously herewith and included by reference in its entirety, this Court lacks
personal jurisdiction over Doe. In the absence of any basis for personal jurisdiction over Doe, the
Rule 202 proceeding is not proper, and consequently, the Order should be vacated, the Deposition
and Subpoena quashed, and protection from further such proceedings should be afforded to Doe.

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V.
CONCLUSION
WHEREFORE PREMISES CONSIDERED Subject to his Special Appearance,
Respondent John Doe respectfully requests this Court vacate the Order allowing Rule 202
Discovery, Quash the Deposition of Twitter, Inc. and grant the request for Protection. John Doe
further prays for all other relief, both at law and in equity, to which he/she may show
himself/herself justly entitled.
Respectfully submitted,
/s/ Charles H. Peckham
_________________________
Charles H. Peckham
TBN: 15704900
cpeckham@pmlaw-us.com
Mary A. Martin
TBN: 00797280
mmartin@pmlaw-us.com
PECKHAM MARTIN, PLLC
Two Bering Park
800 Bering Drive, Suite 220
Houston, Texas 77057
(713) 574-9044
(713) 493-2255 facsimile

16

CERTIFICATE OF CONFERENCE
I hereby certify that I have communicated with counsel as follows:
As to Timothy S. Perkins, COUNSEL FOR PETITIONER, I have called and left a message
for him to discuss the merits of this motion. Given the holiday period, he is not physically in his
office this week. His staff indicated that he timely responds to voice messages; I left one around
11:30 a.m. on December 29, 2016. At the time of this filing he had not responded. It is anticipated
that he will oppose this motion. I called again and e-mailed on January 6, 2017
to confer, and Mr. Perkins did not respond.
As to Elizabeth Banker, Associate General Counsel and COUNSEL FOR TWITTER,
INC., I email corresponded with her on December 28, 2016. She indicated that she would hold on
response to the deposition on written questions pending ruling from this Court. As a non-interested
party, she did not indicate opposition or lack of opposition to the relief requested.
/s/ Charles H. Peckham
_________________________
Charles H. Peckham

CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument was forwarded to the
following on this the XXXXXXXXXXXXXXXXXXX
29th day of December, 2016 via electronic service to:
6th day of January, 2017
Timothy S. Perkins
UNDERWOOD PERKINS, P.C.
Two Lincoln Center
5420 LBJ Freeway, Suite 1900
Dallas, Texas 75240
E-Mail Address: tperkins@uplawtx.com
COUNSEL FOR PETITIONER
Elizabeth Banker, Associate General Counsel
TWITTER, INC.
1355 Market Street, Suite 900
San Francisco, California 94103
E-Mail Address: ebanker@twitter.com
COUNSEL FOR TWITTER, INC.

/s/ Charles H. Peckham


_________________________
Charles H. Peckham

17

FILED
DALLAS COUNTY
12/19/2016 11 :58:10 AM
FELICIA PITRE
DISTRICT CLERK

Tanya Pointer

DC-16-16077

NO. _ _ _ _ __
INRE:

)
)
)
)
)
)
)

PETITION OF KURT EICHENWALD


REQUESTING PRE-SUIT
DEPOSITION UNDER RULE 202

IN THE DISTRICT COURT


DALLAS COUNTY, TEXAS
JUDICIAL DISTRICT

VERIFIED PETITION REQUESTING EXPEDITED DISCOVERY BEFORE SUIT

TO THE HONORABLE JUDGE OF SAID COURT:


Petitioner, Kurt Eichenwald (hereinafter referred to as "Petitioner") submits this Verified
Petition requesting authority to take the various depositions and obtain relevant documents.
SUMMARY OF PETITION
1.

Petitioner is a senior writer with Newsweek who covers numerous topics,

including politics. Petitioner has epilepsy, a fact about which he has written and discussed on
national television programs.

On the evening of December 15, 2016, John Doe (a/k/a Ari

Goldstein, a/k/a @jew_goldstein) ("Doe") tweeted to Petitioner an image known to trigger


seizures in people with epilepsy, e.g., a strobe image flashing at a rapid speed. Doe sent this
image with the intent of causing a seizure, as evidenced by the words Doe typed onto the strobe,
"You deserve a seizure for your posts." Doe succeeded in his effort to use Twitter as a means of
committing assault, causing Petitioner to have a seizure which led to personal injury.
DEPOSITION SOUGHT
2.

Petitioner seeks the deposition of a Custodian of Records of Twitter, Inc., as

authorized by Texas Rule of Civil Procedure 202.

EXHIBIT
Verified Petition - Page I

GROUNDS FOR RULE 202 PETITION

3.

Petitioner seeks to obtain the identity of Doe in order to bring a suit against Doe

for assault and other intentional torts.


4.

Absent a need for litigation to facilitate production of the identity of Doe for his

having engaged in assault, Petitioner will not be bringing suit against Twitter for the publication
of the depraved and illegal actions of Doe. Upon information and belief, Twitter suspended
Doe's account upon learning of the assault.
5.

Petitioner seeks to identify and investigate Doe and any other individuals who

may have acted in concert with him/her in engaging in the assault against Petitioner.
6.

Petitioner anticipates that the deposition will help identify Doe and any other

individual who may have acted in concert with Doe. Petitioner thereafter anticipates he will be
in a better position to determine which claims should be prosecuted and/or a lawsuit should be
filed against Doe or any other individual who acted in concert with Doe.
7.

Petitioner seeks to depose a Custodian of Records ofTwitter, whose headquarters

is located at 1355 Market Street, Suite 900, San Francisco, California 94103. As such, Petitioner
intends to serve deponent Twitter with a copy of this Petition.
SUBJECTS OF TESTIMONY

8.

The substance of the testimony Petition expects to elicit from deponent involves

the identity of Doe and any other individual who may have acted in concert with Doe.
9.

Deponent possesses unique and superior knowledge relevant to this subject.

Verified Petition- Page 2

10.

Rule 202 provides the procedure for investigating potential claims and potential

defendants in the situation present in this request for Rule 202 Deposition.
11.

The Court, by allowing the Petitioner to take the requested deposition (likely on

written questions alone), may prevent a failure or delay of justice in the anticipated suit.
Petitioner would also request that the requested deposition, pursuant to Rule 191 of the Texas
Rules of Civil Procedure, be on an expedited basis so as to avoid the destruction of Doe ESI and
the nature of the conduct of Doe.
12.

Further, the deponent has unique, if not exclusive, knowledge of the facts and

circumstances regarding the issues and questions noted herein that is not obtainable from any
other source. The basis for Petitioner's belief is that Twitter's registration process requires a user
to provide a name and address before he or she can post a tweet. Further, on information and
belief, Twitter also records the user's Twitter account information and IP address every time he
or she logs into Twitter and posts a tweet. Petitioner needs to conduct an investigation in order
to identify Doe and any other individual who acted in concert with Doe. Since most, if not all, of
the key facts are within the exclusive possession of the deponent, the deposition needs to occur
and the documents requested need to be produced.
13.

The discovery sought is necessary because the identity of the Twitter user(s)

responsible for the posts on @jew_goldstein is unknown to Petitioner, as the user(s) of the
@jew_goldstein handle are and remain intentionally anonymous.

Additionally, Twitter's

Privacy Policy requires a court order prior to releasing personal information about its users, and
therefore the information regarding the anonymous user(s) of the @jew_goldstein handle is
unavailable to Petitioner by any other means.

Verified Petition- Page 3

14.

Request is hereby made for the Court to issue an order allowing the Petitioner to

take the requested deposition of a Custodian of Records and receive the documents requested to
identify Doe and any other individual who acted in concert, and Petitioner would therefore
request the Court authorize Petitioner to take the deposition of deponent.

DOCUMENTS REQUESTED
15.

Petitioner requests that deponent Twitter be required to produce for inspection

and copying any and all documents (including, but not limited to ESI), including relevant
Internet Protocol ("IP"), addresses which utilizing the Twitter "handle" of the potential
defendants, the account information, usage history of this user under all other "handles" and
other user information (a) identifying Doe and (b) identifying any other individual who acted in
concert with Doe.
PRAYER
WHEREFORE, request is hereby made that the Court allow Petitioner to take the
requested deposition on an expedited basis in order to prevent a failure or delay of justice in the
anticipated suit, in order to allow the Petitioner to identify Doe and any other individual who
acted in concert with Doe. Petitioner prays for such other and further relief, both general and
special, at law or in equity, to which Petitioner may be justly entitled.

Verified Petition- Page 4

Respectfully submitted,
Underwood Perkins, P.C.

Is/ Timothy S. Perkins

Timothy S. Perkins
State Bar No. 15790900
Two Lincoln Centre
5420 LBJ Freeway, Suite 1900
Dallas, Texas 75240
Telephone: (972) 661-5114
Facsimile: (972) 788-3353
Email: tperkins@uplawtx.com
Attorneys for Petitioner Kurt Eichenwald

Verified Petition- Page 5

THE STATE OF TEXAS


COUNTY OF DALLAS

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Verification

Before Me, the undersl.gned Notary Public, on this day personally appeared Kurt
Eichenwald (hereinafter "Affiant"), who is over the age of 21 and of sound mind and body, who
being by me duly sworn, on his oath deposed and said that he has read the foregoing Petition
Requesting Deposition Before Suit and that the statements of fact contained herein are within
Affiant's personal knowledge and are true and correct.

Subscribed and Sworn To Before Me, on this /ft/Jday of December, 2016, to certify
which witness my hand and official seal.
(Seaj

Verified Petition- Page 6

--

Notary Public, State of Texas

NO. DC-16-16077
INRE:
PETITION OF KURT EICHENWALD
REQUESTING PRE-SUIT

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DEPOSITION UNDER RULE 202

IN THE DISTRICT COURT


DALLAS COUNTY, TEXAS
44TH JUDICIAL DISTRICT

SUBPOENA REQUIRING PRODUCTION OF DOCUMENTS

THE STATE OF TEXAS


To:

Twitter, Inc., Custodian of Records


c/o Elizabeth Banker, Associate General Counsel
1355 Market Street, Suite 900
San Francisco, California 94103

Greetings:
In accordance with the Court's ruling in the above-numbered cause on December 19,
2016, YOU ARE COMMANDED to produce and permit inspection and copying of the
documents identified in Attachment A. The requested documents are to be produced ten (10)
days after service of this Subpoena. Any production which may be required would be made
electronically at tperkins@uplawtx.com or during normal business hours at the offices of
Underwood Perkins, P.C., c/o Timothy S. Perkins, Two Lincoln Centre, 5420 LBJ Freeway,
Suite 1900, Dallas, Texas 75240.

EXHIBIT
Subpoena- Page I

Duties of Person Served With Subpoena


You are advised that under Texas Rule of Civil Procedure 176, a person served with a
discovery subpoena has certain rights and obligations. Rule 176.6 provides:
a.
Compliance Required. Except as provided in this subdivision, a
person served with a subpoena must comply with the command stated in the
subpoena 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
partying 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 separate one. A person must
produce documents as they are kept in the usual course of business or must
organize and label them to correspond with the categories in the demand. A
person may withhold material or information claimed to be privileged but must
comply with Rule 193.3. A nonparty's production of a document authenticates
the document for use against the nonparty to the same extent as a party's
production of a document is authenticated for use against the party under Rule
193.7.
d.
Objections.
A person commanded to produce and permit
inspection and copying designated documents and things may serve on the party
requesting issuance of the subpoena - before the time specified for compliance written objections to producing any or all of the designated materials. A person
need not comply with the part of a subpoena to which objection is made as
provided in this paragraph unless ordered to do so by the court. The party
requesting the subpoena may move for such an order at any time after an
objection is made.
e.
Protective Orders. A person commanded to appear at a deposition,
hearing or trial, or to produce and permit inspection and copying of designated
documents and things may move for a protective order under Rule 192.6(b) before the time specified for compliance - either in the court in which the action
is pending or in a district court in the county where the subpoena was served. The
person must serve the motion on all parties in accordance with Rule 21 a. A
person need not comply with the part of a subpoena from which protection is
sought under this paragraph unless ordered to do so by the court. The party
Subooena- Page 2

requesting the subpoena may seek such an order at any time after the motion for
protection is filed.
Warning
Failure by any person without adequate excuse to obey a subpoena served upon that
person may be deemed a contempt of the court from which the subpoena is issued or a
district court in the county in which the subpoena is served, and may be punished by fine
or confinement, or both.

This Subpoena is issued at the request of Kurt Eichenwald, whose attorney is Timothy S.
Perkins.
Date oflssuance: December 20,2016.

Subpoena Issued By:


Underwood Perkins, P.C.
Is/ Timothy S. Perkins
Timothy S. Perkins
State Bar No. 15790900
Two Lincoln Centre
5420 LBJ Freeway, Suite 1900
Dallas, Texas 75240
Telephone: (972) 661-5114
Facsimile: (972) 788-3353
Email: tperkins@uplawtx.com

Attorney for Petitioner Kurt Eichenwald

Subpoena- Page 3

Memorandum of Acceptance

I accepted service of a copy of this Subpoena o n - - - - - - - - - - - - - ' 2016.

(Signature)

Subpoenq- Page 4

Attachment A
Subpoena Issued To Twitter, Inc.
Definitions and Instructions
1.
As used herein, the term "document" shall mean any writing or any other tangible
thing known to you whether or not in your custody, possession or control - whether printed,
recorded, reproduced by any process, or written or produced by hand.
2.
As used herein, the phrase "communication" means any oral or written exchange
of words or thoughts or ideas to another person, whether person-to-person, in a group, in a
meeting, by telephone, by letter, by email, by instant message, by text message, or by any other
process, electronic or otherwise, including without limitation any tape/digital recordings or any
writings printed, typed, handwritten, or other readable documents, correspondence, facsimiles,
memos, reports, contracts, diaries, logbooks, minutes, notes, studies, surveys, and forecasts. The
term "communication" excludes voice mail communications. Voicemail communications are to
be preserved.
3.
The term Electronically Stored Information ("ESI") means potentially relevant
information electronically, magnetically or optically stored as:
a.
b.
and drafts);

Digital communication (e.g., email, voicemail, instant messaging);


Word processed documents (e.g., Word or WordPerfect documents

c.

Spreadsheets and tables (e.g., Excel or Lotus 123 worksheet);

d.

Image and Facsimile files (e.g., pdf., tiff., jpg., gifimages);

e.

Sound recordings (e.g., wav and mp3 files);

f.

Video and animation (e.g., avi and mov files);

g.

Contact and relationship management data (e.g., Outlook, ACT!);

h.

Online access data (e.g., temporary internet files, history, cookies);

i.

Presentations (e.g., PowerPoint, Corel Presentations);

j.

Network access and server activity logs;

k.

Web Based Emails (e.g., Yahoo, MSN, Mac, Gmail).

4.
As used herein the term "Eichenwald Lawsuit" means the matter filed on
December 19,2016, in Cause No. DC-16-16077.

Subpoena Attachment A - Page I

5.
If you find the meaning of any tenn in this Attachment to be unclear, then you
should assume a reasonable meaning, state what that assumed meaning is, and produce the
documents on the basis of that assumed meaning.

Subnocnn Attachment A- Pnge 2

Documents To Be Produced
I.
Any and all "basic subscriber records,'' including, but not limited to, the account
owner, his or her name, location information, telephone number and email address, for the
following Twitter account: (((AriGoldstein))) @jew_goldstein.

2.
All documents relating to the session times for the period of June 1, 2016 to the
present for the following Twitter account: (((AriGoldstein))) @jew_goldstein.
3.
All documents relating to all login IP's for the period of June 1, 2016 to the
present for the following Twitter account: (((AriGoldstein))) @jew_goldstein.
4.
All documents relating to any and all tweets posted for the period June 1, 2016 to
the present for the following Twitter account: (((AriGoldstein))) @jew_goldstein.

Subpoena A!!achment A - Page 3

~
INRE:

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PETITION OF KURT EICHENWALD


REQUESTING PRE-SillT
DEPOSITION UNDER RULE 202

IN THE DISTRICT COURT

DDD83Z

4bCJ73

DALLAS COUNTY, TEXAS

.:ICIAL DISTRICT

ORDER

This matter coming before the Court on Petitioner, Kurt Eichenwald's ("Petitioner")
Verified Petition for Expedited Discovery Before Suit Pursuant to Rule 202 of the Texas Rules
of Civil Procedure, and the Court being fully advised, finds as follows:
1.

It Is Hereby Ordered that Petitioner is given leave to serve a deposition on written

questions on an expedited basis upon a Custodian of Records of Twitter, Inc. ("Twitter")


pursuant to the Texas Ru1es of Civil Procedure (whether through Letters Rogatory or otherwise),
and to initiate such other discovery and enter such further orders as may be appropriate, to obtain
infonnation regarding the identity of John Doe (a/k/a Ari Goldstein, a/k:/a @jew_goldstein)
(''Doe") and any other individuals who acted in concert with Doe who may be liable to Petitioner
in damages for assau1t and other intentional torts.
2.

It Is Further Ordered that Twitter preserve any and all infonnation or documents

regarding Doe and any other individuals who acted in concert with Doe.
3.

The Court further finds that counsel for Twitter has been notified of the intent to

file the Verified Petition requesting discovery before suit, and has agreed to the expedited relief
and the Court's ex parte consideration of same.
Dated: lJo rzw, , 'Mt .t......

\S(

'2016.

.3

EXHIBIT

Order- Page Solo

16077
xxxx
CAUSE NO. DC-16-16077
C

IN THE DISTRICT COURT OF


INRE:

PETITION OF KURT EICHENWALD


DALLAS COUNTY, TEXAS
FOR DEPOSITION UNDER RULE 202

44th JUDICIAL DISTRICT

DECLARATION OF CHARLES H. PECKHAM


"My name is Charles H. Peckham. My address is 800 Bering Drive, Suite 220, Houston,
Texas 77057 and I am lead counsel for John Doe in this matter.
"I attest that the following Screen Print contained within the Motion to Quash of John Doe
was taken by me from the Internet and was from the Twitter Account of the Petitioner, Kurt
Eichenwald, and a true and correct copy of the screen shot taken is what it purports to be:

J.. Folc:!w

As promised, I will be tweeting legal updates


about the assault on me. I'm coming for you,
you son of a bitch .
:--::::::

..
-

--=-----~~

Fqtlobtal'lder.;tyofKunEE~Miera'iSaiiant

3,199

8,975

~ 1.SII'

t.'l

. . 21

Ant

FMEic:Mf1Pop202(1)

12K

t.

11

-..i:>7j..- 0.

Ul

.~

Qlrwdenny~ W!'lei'S "'AP'I!Jt:l dO OOI I\I"I'P

EXHI IT

&..

"I am fully competent and authorized to make this Declaratio


perjury." Signed on December 29, 2016.

nd do so under penalty of

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