In October, Stephen Elliott filed a lawsuit against Moira Donegan, the creator of the Shitty Media Men list, a suit that has caused concern among digital privacy advocates. In a move that won’t exactly quell their concerns, Elliott’s attorney filed a petition with the court on January 23 seeking to compel Google to turn over not just every version of the list and the identities of everyone who edited his entry on it, but also retain an extremely broad set of information about the people who may have been involved in viewing the list, editing it, or even sending emails about it.
Elliott’s defamation lawsuit centers around the fact that his entry on the list accused him of rape, among several other, much lesser offenses, like “sneaking into” a women’s-only Facebook group, as one entry put it. (Elliott has said that his sexual identity centers around BDSM and non-penetrative sex, and that the rape allegation is thus demonstrably false.) From the start, he and attorney Andrew Miltenberg have shown a keen interest in gathering information not just about Elliott’s anonymous accuser, but about anyone who ever touched the list. (Like many women in media, I was forwarded a version of the list the night it was created and viewed it, but didn’t make any edits or add any names.)
Now, in a petition first reported by the Hollywood Reporter, Miltenberg and Eliott’s second attorney, Ira S. Nesenoff, write that their own efforts to identify people connected to the list have failed, and that they’re seeking to compel Google to turn over the information through a subpoena.
Plenty of people seem eager to help Elliott’s team figure out who contributed to the list. The attorneys write that after filing the complaint, they “fielded numerous calls from individuals claiming to have information about the List and/or its contributors over the ensuing two months.”
Those emails led to an evidently expansive investigation. They write:
The undersigned counsel spent significant time attempting to identify the Jane Doe Defendants utilizing information from callers, interviewing prominent media members, combing social media and performing other investigative tactics. These efforts, unfortunately, yielded no conclusive proof and the Jane Doe defendants remained anonymous.
(Miltenberg has previously declined to state whether he is providing his services to Elliott pro bono or at a discounted rate. We’ve additionally asked him whether anyone else is paying for the suit, and will update should he respond to that question.)
The petition also attacks Donegan for supposedly enjoying the “spoils” of creating the list, which is referred to as a “witch hunt.” (Donegan lost her job at The New Republic soon after Buzzfeed broke the news of the list’s existence, though TNR has said her dismissal was not related to the list. She remains freelance, though she is writing an opinion column for The Guardian as a contributor and signed a book deal in October.)
The petition also implicitly blames the list’s existence for a lapse in Elliott’s sobriety and his home being vandalized, as well as a subsequent bout of suicidal ideation:
The character assassination by Defendants achieved the conspirators’ goals, as Plaintiff contemplated suicide and required treatment to survive severe, emotional trauma and a relapse after years of sobriety. As Donegan enjoys the spoils of the “witch hunt,” including a lucrative book deal and the adoration of thousands, Plaintiff endures persistent humiliation, harassment, vandalism of his home and fear for his physical safety and mental well-being. Plaintiff, through the instant action, seeks to challenge the veracity of the accusations on the List, but is unable to challenge his anonymous accusers absent acourt-ordered subpoena unmasking the Doe Defendants.
The meat of the letter, however, is asking the court to grant permission for a subpoena, the body of which Miltenberg and Nesenoff laid out in a letter to the court on January 8. The subpoena would ask Google to preserve quite a bit of information about the list as a whole, including:
[B]oth the original version of the List, any and all subsequent versions or variations of the List, whether in digital form or print, as well as any and all emails or electronic communications sent pertaining to the List’s creation, publication, editing, circulation, publicizing, as well as any names, email addresses, IP addresses and any other identifying information for any and all people and/or accounts (Google or otherwise), that received, accessed, viewed, edited, input information, or in any way contributed to the List or the circulation of the List. Additionally, preserve any and all documents, data and information possessed pertaining to the list including, but not limited to, a change log, version history of the List, variations of the List (both immediately before and immediately after an individual altered, contributed to or in any way accessed the List), time stamps, highlights, edits, additions, subtractions, undo/redo and any other information Google maintains pertaining to the List and any individual who accessed, edited, contributed to, received, sent or otherwise utilized the List.
As for what specifically they’re asking Google be compelled to produce, right now they’re dividing it into two sections. First, they’d like to subpoena identifying information for anyone who edited Elliott’s entry on the list, which would include their “email address and/or Gmail account name, IP address, IP address history, name, handle, alias, physical address, phone number, and any social media account names or handles associated with said individuals.”
As for the list itself, Elliott’s team is requesting that any conceivable version of it ever made be produced: “[A]ny and all preserved versions of the List, and any variation thereof, change history, versions, versioning or version history of the List, with any and alliterations of the List which contain entries associated with Stephen Elliott, as well as the aforementioned identifying information for any individual who made, edited or otherwise manipulated said entries, including the time, date and, if possible, IP address associated with said information.”
In a statement to Jezebel, Miltenberg wrote, “Considering the significant issues at stake and the damage accomplished by the list, we think that the request is reasonably calculated to secure the information necessary for the Court to ultimately make a determination in this matter.”
For their part, Donegan and her attorney Roberta Kaplan have moved to dismiss the case and halt any and all discovery on it, including the proposed Google subpoena. In a statement to Jezebel, Joshua Matz, one of the attorneys on the case, who is employed by Kaplan’s firm, Kaplan Hecker & Fink LLP, writes:
“Mr. Elliot’s sweeping subpoena raises grave First Amendment and privacy concerns, especially in a #MeToo context. It seeks to strip free speech protections from people who played no role whatsoever in the statements he incorrectly describes as defamatory. And it rests on allegations that fail on their face to allege a viable claim. We have asked the courts to stay discovery while considering our motion to dismiss the Complaint. But even if the subpoena is issued, its recipients will have powerful arguments available to them in resisting it.”
According to THR, Kaplan herself has also characterized what she calls “‘too submissive-to-rape’ defense” as “obviously absurd.”