1 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND (Providence) 2 3 4 5 6 7 8 9 BRADLEY SMITH, vs. Plaintiff, DEBORAH GARCIA, Defendant, MYVESTA FOUNDATION, Intervenor. ________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 16-cv-00144-S-LA 10 11 12 13 14 TRANSCRIPT OF MOTION HEARING PROCEEDINGS BEFORE THE HONORABLE CHIEF JUDGE WILLIAM E. SMITH WEDNESDAY, NOVEMBER 16, 2016; 2:04 P.M. PROVIDENCE, RHODE ISLAND 15 APPEARANCES OF COUNSEL: 16 FOR THE INTERVENOR: 17 18 19 20 21 Charles D. Blackman LEVY & BLACKMAN LLP 469 Angell Street, Suite 2 Providence, Rhode Island 02906 Paul Alan Levy PUBLIC CITIZEN LITIGATION GROUP 1600 20th Street NW Washington, DC 20009 22 ******************************** 23 GAYLE WEAR, RPR, CRR Federal Official Court Reporter 800 Lafayette Street Lafayette, Louisiana 70501 337.593.5222 24 25 2 1 November 16, 2016 2:04 P.M. 2 ---o0o--- 3 P R O C E E D I N G S 4 ---o0o--- 5 THE COURT: All right. Good afternoon. This 6 is the matter of Bradley Smith versus Deborah Garcia. 7 We're here on a motion to intervene, motion to vacate 8 judgment, a motion to dismiss, and award attorney's 9 fees. 10 11 12 So, Counsel, let's have you identify yourselves for the record. MR. BLACKMAN: Your Honor, Charles Blackman. 13 With me is pro hac vice counsel, Paul Levy, on behalf 14 of the Myvesta Foundation. 15 permission, Mr. Levy would like to argue for us. 16 THE COURT: 17 MR. LEVY: 18 THE COURT: 19 20 Come on up. Okay. With the Court's That's fine. And I am Mr. Levy. I assumed that to be the case. Go ahead. MR. LEVY: May it please the Court, I am Paul 21 Alan Levy, appearing for the proposed intervenor, 22 Myvesta Foundation. 23 grant Myvesta Foundation's motion for leave to 24 intervene as a defendant so that it can then move to 25 set aside a consent order that prejudices interests, We are here asking the Court to 3 1 2 and also seek dismissal of the case. Simply put, as we see it, this is a 3 fraudulent lawsuit purportedly filed pro se seeking 4 relief that was purportedly consented to pro se, but 5 where the real objective was to serve the interests of 6 some unidentified third person -- we don't yet know who 7 that was, although we can guess -- and by obtaining 8 relief that's prejudicial to another third party, and 9 that's my client, Myvesta. 10 It's a tactical maneuver that was used by 11 somebody who was sophisticated to a certain extent, but 12 unscrupulous to an extent. 13 that specializes in what's called search engine 14 optimization, or in the trade known as Black-Hat Search 15 Engine Optimization, taking advantage of the knowledge 16 that Google and other search engines, when they're 17 confronted with an order from a judge that declares the 18 matter to be defamatory, will do the good-citizen thing 19 by exercising its discretion to take the page that's 20 determined to be defamatory out of the search index. 21 It was presumably an outfit The complaint in this case is directed at 22 harming Myvesta's interests. If we are right that 23 Deborah Garcia is a fictional defendant, Myvesta is the 24 only real defendant in this case. 25 that prejudices Myvesta's interests, as a practical It's a consent order 4 1 matter. 2 We think the motion for leave to intervene 3 was filed timely, and that's why we think it should be 4 granted. 5 6 7 THE COURT: Explain to me again what Myvesta's interest is here. MR. LEVY: Myvesta owns the blog on which the 8 pages that the Court's consent order called for Google 9 to take out of the search index, its search index, 10 11 which Google honored. THE COURT: All right. Allegedly, it was the 12 defendant or the alleged defendant who you think is a 13 fictional person, Deborah Garcia -- 14 MR. LEVY: 15 THE COURT: 16 17 Right. -- who allegedly wrote the blog entry that was claimed to be defamatory. MR. LEVY: The complaint alleges that Deborah 18 Garcia is the author of two comments on blog articles 19 on the Myvesta website. 20 curiosities of the case is that the comments were 21 actually posted to different articles than the one that 22 were sought to be delisted in the consent order. 23 THE COURT: 24 MR. LEVY: 25 Although, the -- one of the Okay. So sophisticated, but perhaps a little sloppy as well. 5 1 THE COURT: Right. So now that I've learned 2 more about this situation and read the reason -- one of 3 the reasons this was scheduled was that I had read the 4 blog entry from the -- was it Public Citizen, and this 5 appears to be part of a pattern of cases that's filed. 6 MR. LEVY: It appears. Professor Volokh has 7 actually read more of the actual cases than I have. I 8 have access to the Dropbox that contains many of them. 9 But there appear to be a few dozen cases around the 10 country like this, a half or two dozen of which seemed 11 to be -- and I want to make clear this is only seemed 12 to be -- linked to a single operative. 13 THE COURT: Okay. So I had -- I tried to 14 reach out, but it didn't work out, but I tried to reach 15 out to the U.S. Attorney's office to attend here today 16 because it seemed to me that now that I've read all 17 these papers, that crimes may have been committed here. 18 And I'm wondering if you have been in touch with any 19 folks in law enforcement in any of the jurisdictions 20 where these cases have been brought to initiate 21 criminal investigations. 22 MR. LEVY: To some extent, Your Honor. And I 23 agree with you. I mean, we have resources and we want 24 to be able to pursue discovery to figure out who ought 25 to pay the attorney's fees under the anti-SLAPP 6 1 statute, but it's my suspicion that the resources 2 needed to deal with this problem are much more in the 3 hands of the authorities. 4 Because I'm on the public record, I'm not 5 sure I want to give the other side information about 6 what -- which jurisdictions, but I do -- 7 8 THE COURT: That's fine. You don't have to do that. 9 MR. LEVY: I do know that Professor Volokh, 10 and I'm party to some communications relating to these 11 communications, is in touch with authorities in at 12 least two jurisdictions where such cases have been 13 filed. 14 to the extent that Your Honor believes that the 15 involvement of the U.S. Attorney for this district 16 would be appropriate, I would certainly encourage that 17 because in the end, I suspect that dealing with this 18 problem is going to be beyond our needs -- beyond our 19 means. 20 And I would certainly encourage Your Honor -- You know, on the one hand, we would like to 21 be -- sort of get our fees back under the SLAPP 22 statute, but the most important thing is to put a stop 23 to this so that it doesn't keep happening. 24 me that what Your Honor says in this case and any 25 subsequent investigations that come out and actions It seems to 7 1 that might be taken pursuant to those investigations, 2 might well be the best medicine for the problems that 3 have been brought to light here. 4 5 THE COURT: Are there any other cases in which you've reached this point? 6 MR. LEVY: This is the only case. I mean, 7 I've been looking very hard for local counsel in 8 Baltimore where some cases involving the interests of 9 my client have been filed in state court. And I 10 believe I have somebody, but I haven't gotten the final 11 okay because it's a public interest group and they need 12 to have their litigation committee pass on it, and they 13 don't -- haven't yet sort of completed that process. 14 do hope to file something -- that is actually a case 15 that was filed by a young lawyer who I think probably 16 got in over his head. 17 THE COURT: 18 MR. LEVY: 19 I Um-hum. But there may be some accountability there. 20 This morning, we were able to -- we asked in 21 the clerk's office, and apparently the papers were 22 brought to the court by a service entity. 23 filing fee, unlike some other cases where the filing 24 fee was paid with cash, the filing fee here was paid by 25 check. And the So there may well be some traceability there. 8 1 We would like the Court's permission to -- 2 because we filed the motion under the anti-SLAPP 3 statute, there is an automatic stay of discovery. 4 SLAPP statute provides for specified discovery allowed 5 on motion and for just cause, and we would like 6 permission to take discovery to try to identify whoever 7 it is who's behind this, number one, and whoever 8 they're filing on behalf of, because the argument -- I 9 mean, I can't say I've completed my research, but I The 10 think an argument can be made that the principal might 11 be responsible for the actions taken by the agent. 12 THE COURT: Now, if I understand some of the 13 attachments that you included with your affidavit, it 14 appears that you've been in touch with the attorney for 15 Mr. Brad Smith. 16 MR. LEVY: 17 THE COURT: Yes. Now, Brad -- is Bradley Smith, 18 who is purported to be the pro se plaintiff in this 19 case, who now says he's not, but are you sure you got 20 the right Brad Smith? 21 22 MR. LEVY: or at least the address on the consent papers -- 23 THE COURT: 24 MR. LEVY: 25 Well, the address on the complaint Yes. -- is the old address for the Rescue One Financial Company which was the topic of the 9 1 blog article by Myvesta Foundation, and more 2 specifically by Mr. Ruddie, which discusses the Rescue 3 One Company. 4 Brad Smith for that reason. 5 So I think we probably do have the right I actually had a former Public Citizen 6 person, who is now a law student at UC Irvine, go by 7 that address, and it's not there anymore. 8 is no longer there; they've moved to a different 9 location. That company But I think we have the right Bradley Smith. 10 And, you know, from his perspective, I can imagine why 11 he wouldn't want to be subject to personal jurisdiction 12 in Rhode Island by appearing here, not to speak of 13 spending money to send somebody here. 14 company may have a problem, but he individually has 15 probably made a wise choice by not appearing. 16 17 18 THE COURT: I think his Now, but he contends that the signature on the papers are forgeries; is that correct? MR. LEVY: He said he didn't sign them. I 19 think that's the same thing, but, yes. His lawyer 20 represented to me that his client, Bradley Smith -- and 21 the lawyer is somebody -- I mean, I don't know this 22 lawyer, but he's a lawyer with a substantial firm. 23 have no reason to doubt the veracity of what he's 24 telling me on behalf of his client. 25 client says he did not sign the papers and did not I He says that his 10 1 authorize the filing of the papers in his name. 2 THE COURT: 3 MR. LEVY: 4 All right. And I think you'll actually see that reflected in the email that explains why -- 5 THE COURT: I did. I read the email. 6 All right. So your plan, if I grant the 7 motion for you to intervene as a defendant, you then 8 become a defendant, but you've also filed a motion 9 for -- to vacate the judgment, as well as the motion to 10 11 12 dismiss and award attorney's fees; right? MR. LEVY: We have, although it's not -- I filed that as an attachment to our motion to intervene. 13 THE COURT: 14 MR. LEVY: Okay. I think the better course would be 15 to set a schedule for an opposition to that, in case 16 somebody wants to do -- I intend -- if the motion for 17 leave to intervene is granted, and I would ask the 18 Court to order the motions filed nunc pro tunc, 19 perhaps, I would intend to serve the papers on 20 Mr. Ruddie, who is the person who signed the contract 21 with Rescue One Financial, just in case he wants to 22 appear now. 23 to have the chance. 24 25 I can't imagine that he will, but he ought And meanwhile, I would like the opportunity to take discovery to figure out if in fact it was this 11 1 2 person's company or, if not, who else. THE COURT: All right. Very good. So how 3 much time do you want for the discovery that you would 4 like to take? 5 MR. LEVY: I'm going to be out of the country 6 with my family from December 21 to January 12. 7 like initially until March 1. 8 THE COURT: 9 Okay. All right. I would Then what I will do is I'll grant the motion to intervene on behalf 10 of Myvesta Foundation and set a schedule for discovery 11 until March -- did you say March 1st? 12 MR. LEVY: 13 THE COURT: 14 MR. LEVY: I think March 1. That's fine. I expect that there may be some 15 elusive characters on the other end of this case. 16 might end up asking for more, but I want to give myself 17 and other people a hard deadline. 18 THE COURT: That's fine. I And then now that 19 you're a -- your client is a defendant in the case, you 20 can formally file the motion to vacate the judgment, 21 and we'll give the other parties an opportunity to 22 object to that. 23 If there is no objection to the motion to 24 vacate the judgment, then I'll grant the motion and 25 vacate the judgment. So we'll see what transpires with 12 1 that. And then you can docket at your leisure, I 2 guess, the motion to dismiss. 3 want to be filing a motion to dismiss while your 4 discovery is ongoing. 5 MR. LEVY: But I don't think you So... I'm not -- the practical problem 6 for our client is getting, excuse me, getting the order 7 vacated. 8 THE COURT: 9 MR. LEVY: Um-hum. I think you could actually grant a 10 motion to dismiss, and we would then be pursuing 11 discovery on the question of who owns attorney's fees. 12 So I would like to file the motion. 13 thinks it's better to keep it on hold, I can -- 14 15 THE COURT: I'm certainly happy to have you move it -- 16 MR. LEVY: 17 THE COURT: 18 MR. LEVY: 19 THE COURT: 20 No. If Your Honor Right. -- move it forward. Right. So I have no problem with you filing both at the same time, and -- 21 MR. LEVY: 22 THE COURT: Okay. -- give the parties an 23 opportunity, whoever they are, to file whatever they 24 want to file. 25 But I'm also going to -- I am going to have a 13 1 transcript of this proceeding prepared, and I'm going 2 to order the Clerk to send a copy of the file, all of 3 your filings, as well as the transcript of this 4 proceeding this afternoon to the United States 5 Attorney's office for them to review because it does 6 appear to me, as I said earlier, just at first blush, 7 that there's potentially multiple crimes that have been 8 committed, both fraud and potentially forgery. 9 various kinds of fraud, I think, are in play here, and 10 so I think it is something that law enforcement should 11 become aware of and investigate. 12 And I'm embarrassed that this order, this consent 13 order, was signed, but it shows you just how, you know, 14 in a busy court, how something like this can happen. 15 But I'm, frankly, if everything that's in here is true, 16 which it appears to be, I'm pretty outraged about it. 17 MR. LEVY: If I may, Your Honor, it's our 18 observation that these cases tend to be filed in 19 big-city courts where, I mean, as a lawyer, I've been 20 litigating for nearly 40 years now and I know the 21 pressures that federal district court judges are under. 22 And I'm not much in state court in big cities, but, I 23 mean, I know they're under a heavy sort of paper 24 caseload pressures as well, and somebody's taking 25 advantage of that. 14 1 2 THE COURT: Well, I'm sure in time it will get sorted out. 3 MR. LEVY: 4 THE COURT: 5 Yeah. Thank you, Your Honor. All right. Thank you very much. We'll be in recess. 6 THE COURTROOM DEPUTY: 7 (Adjourned at 2:22 p.m.) 8 * 9 * * All rise. * * CERTIFICATE OF OFFICIAL REPORTER 10 11 I, Gayle Wear, Federal Official Court 12 Reporter, in and for the United States District Court, 13 do hereby certify that pursuant to Section 753, Title 14 28 United States Code that the foregoing is a true and 15 correct transcript of the stenographically reported 16 proceedings held in the above-entitled matter and that 17 the transcript page format is in conformance with the 18 regulations of the Judicial Conference of the United 19 States. 20 21 Dated 19th day of November, 2016. 22 23 24 25 /s/ Gayle Wear GAYLE WEAR, RPR, CRR FEDERAL OFFICIAL COURT REPORTER