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DAVID R. OWENS,

State

BarNo. 180829
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BRUNO W. TARABICHI, State Bar No. btarabichi@owenstarabichi. com OWENS TARABICHI LLP 111 N. Market St., Suite 730 San Jose, California 95113 Telephone: 408-298-8200

dowens @owenstarabichi. com

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Facsimile: 408-521-2203
Attorneys for Respondent Oliver Gobat
SUPERIOR COURT OF THE STATE OF CALIFORNIA

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COLINTY OF SAN FRANCISCO

St. Lucia Free Press,

Case

No. CPF-I3-513220

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Petitioner,

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RESPONDENT OLIVER GOBAT'S oPPOSTTTON TO MOTTON TO QUASH SUBPOENA AIID REQUEST FOR SANCTIONS

Oliver Gobat,
Respondent.

Date:

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October 16,2013 9:00 am 302 Judge: Hon. Marla J. Miller

Time: Dept.:

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DISCOVERY

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Opp. to Mot. to Quash

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I.

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II.
ru. A.
B.

The U.K. order was validity issued-Petitioner's arguments are based '...............3 on afabrication of U.K. rules and inadmissible heresay The U.K. court determined that is has jurisdiction over Respondent Gobat's defomation claim-Petitioner's argument to the contrary is againwithout evidence or merit.....
Respondent Gobat has a clear prima facie case for defamation and Petitioner's failure to specifically address the defamatory statements

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..........5

C.
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speala

volumes....

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l.

Defendant has a primafacie defamation claim under applicable U.K. law....

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a. The article at issue contains defamatory b.

statements that reduce

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Respondent'sesteemandreputationinsociety.'..... .."....'.'.'.8
The article containedwrittenwords about Respondent and was published to those other than Respondent ..............................10

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2.
D.

Even assuming, arguendo, that U.K law is inapplicable, Respondent has a primafacie defamation claim under U.S. \a.........'.'..." 10

Petitioner's meritless orguments ore so lacking in credibility and goodfaith that sanctions against Petitioner and its counsel are appropriate ..........

..."""""'

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IV.

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Counselors At Law

Opp. to Mot. to Quash

TABLE OF AUTHORITIES
Page Cases

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a

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Baker v. Los Angeles Herald Exam'r, 42 Ca1.3d254,260

(1986)

......12

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8

ChaplinslE v. New Hampshire, 315 U.S. 568,571

(1942)....... (1999)

....................10
..........11

Ferlauto v. Hamsher, 74 Cal. App. 4th 1394,1401 Forsher v. Bugliosi, 26 Ca1.3d792,806

Gertz v. Welch, 418 U.S. 323,347

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(1930)

'.....13 ....................11
...............1

(1974)....... (1955) (2008)

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Jeffers v. Screen Extras Guild, Inc., 134 Cal. App.Zd 622, 623 Krinslcy v. Doe 6, 159 CaL App. 4th

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ll54,ll72

................7,12,13
.................11

Letter Carriers v. Austin, 418 U.S. 264

(1974) (1972) (2008)

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Mclellan v. Mclellan, 23 Cal. App. 3d 343,359

.................4

Nygard, Inc. v. Uusi-Kerttula, 159 Cal. App. 4th 1027 , 1047

Seelig v. Infinity Broadcasting Corp., 97 CaL App. 4th 798, 809 United States v. Stevens, 59 U.S. 460,460

........1

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(2002)

..............11 ......................11

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(2010).......

Statutes

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44-45 Cal. Civ. Proc. Code S 2029.200(e)............. Cal. Civ. Proc. Code S 2029.350 Cal. Evid. Code $ 1200.......... 28 U.S.C. $ 4102 et seq.
Cal. Civ. Code $$

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............3

.......1, 3 ........-.......4 ......................10

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Opp. to Mot. to Quash

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LRSF
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10.0(c)(1).. (2).............

."""""""14
................"'3

U.K. Civil Procedure Rule 40.2(1) and

Treatises

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32 Halsbury's Laws of England $ 510 (Lord Mackay of Clashfern ed., 5th ed.

2012)

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Opp. to Mot. to Quash

I.

INTRODUCTION
California law permits the issuance of a subpoena based upon a foreign subpoena. Cal.

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Civ. Proc. Code g 2029.350. Respondent obtained a valid order from a U.K. court entitling him to seek identifying information about a person who defamed him on a website and through the
sending of emails. A subpoena based upon the U.K. court order was properly served on

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Automattic, Inc., the entity with the identifying information. But, Petitioner, in an ill-advised and
desperate attempt to avoid identification and

liability for defamation, has, without any sufficient

legal basis, moved to quash this subpoena. Petitioner's motion should be denied and monetary
sanctions awarded to Respondent.

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II.

BACKGROTIND
Respondent, Oliver Gobat, a national of both St. Lucia and the United Kingdom, has been

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defamed by the publication of completely false statements made in connection with a Wordpress

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blog on a website having a URL of http://stluciafreepress.wordpress.com, which is hosted by Automattic, Inc., and by emails, which also reference this website. (Gobat Decl. flfl 14,16,17 Specifically, these publications state, among other things, that Mr. Gobat (i) is a "pirate" who

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rips-off investors, St. Lucian banks, and exploits the St. Lucian government and its people; (ii)
has caused the insolvency of a resort known as the Landings Resort; and

(iii)

has exploited his

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position as a sales agent to sell properties at artificially high prices and sell at artificially low
prices causing significant losses to others. These defamatory statements, as discussed further below, relate to Mr. Gobat's reputation as a businessman in his professional endeavors in St.

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Lucia and the U.K. and have caused significant damage to Mr. Gobat financially and emotionally.
The author of the blog, however, remain anonymous. (Id. at fl 18.) Accordingly, Mr. Gobat has been forced to file a claim for defamation against "Person(s) LJnknown" in the High

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Court of Justice, Queen's Bench Division in the U.K. (Hurst Decl.

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see Mot. to Quash Ex.

(copy of the Claim Form).) To facilitate the identification of those responsible for the defamatory
I The Declaration of Oliver Gobat in support of Respondent Oliver Gobat's Opposition to Motion to Quash Subpoena and Request for Sanctions is filed concurrently with this Opposition and is referred to herein as "Gobat Decl. fl_." Respondent invites the Court to review Mr. Gobat's Declaration as it contains a recitation of the surrounding facts regarding the defamation that has occurred.
Opp. to

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"1";:,:?"Toi'l"',-"'

Mol to Quash

statements, Mr. Gobat also obtained a validly issued order from the High Court of Justice,

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Queen's Bench Division, in U.K. permitting him to obtain information from Automattic relating

to the blog, including registration data and contact details for the blog and website (the "U.K.

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Order"). (Hurst Decl. !} 2; see Mot. to Quash Ex. A (copy of the U.K. Order).)
Service of the U.K. Order on Automattic was effected through a California subpoena
issued by Mr. Gobat's California counsel.2 (See Mot. to Quash Ex.

A (copy of the subpoena).)

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Service of the California subpoena was accepted by counsel for Automattic. (Owens Decl. !f _.)3 However, prior to Automattic's compliance with the subpoena, St. Lucia Free Press, the Petitioner and an individual who admits to owning and operating the subject website and blog, (seePet. To Quash Invalid Subpoena fl 1) filed the instant Motion to quash this subpoena.a

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ANALYSIS
Petitioner, without evidence and without legal merit, attacks the subpoena in question with

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three arguments. First, Petitioner argues that the U.K. Order is

invalid-it

is not. Second,

Petitioner argues that the U.K. court did not have jurisdiction to issue the U.K.

Order-it did.

Third, Petitioner argues that Respondent did not make a prima facie case for defamation-he has. Petitioner's arguments for quashing this subpoena are facially unfounded and a clear attempt to simply pitch any argument that might work. The lack of merit in each of Petitioner's arguments,
as identified separately below, make

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it undeniable that Petitioner has no problem misusing the

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U.S. legal system to achieve but one objective: avoid being identiJied and held responsiblefor

his defamatory acts. Petitioner has now caused Respondent even greater expense in seeking his identity, which is necessary for Respondent to pursue his defamation claim. Such conduct should

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Although a previous subpoena had been served on Automattic to effect the U.K. Order, such is not the subpoena at issue here and is irrelevant. 3 The Declaration of David R. Owens in support of Respondent Oliver Gobat's Opposition to Motion to Quash Subpoena and Request for Sanctions is filed concurrently with this Opposition and is referred to herein as "Owens Decl. fl a Petitioner attempts to cast stones at Respbndent and its counsel for not extending the retum date for the subpoen4 but such has not caused any harm to Petitioner in the least. Respondent did not file a motion to compel a response from Automattic, thereby essentially providing Petitioner with plenty of time to prepare and file its Motion to Quash. Moreover, Respondent put forth no explanation as to why it needed additional time.

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'1""T.:ii,:1':lit',

Opp. to Mot. to Quash

not be condoned. Petitioner's Motion should be denied and he and his counsel should be
sanctioned.s

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A.

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The U.K Order was validity issued-Petitioner's arguments are bssed on afabrication of U.K. rules and inadmissible heresay.

Under California law, if a party to a foreign proceeding retains a licensed California

attorney, that attorney may issue a subpoena if he or she "receives the original or a true and correct copy of a foreign subpoena." Cal. Civ. Proc. Code 5 2029.350. A "subpoena" is a document "however denominated, issued under authority of a court of record" requiring a person

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to, among other actions, "produce and permit inspection" of various types of records. 1d. at

2029.200(e)(2).6 Respondent's subpoena is valid because it is based on a properly issued order

from a U.K. court. Petitioner attempts to attack the validity of the underlying U.K. Order by arguing that the

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U.K. Order did not bear the "signature and seal of a judge,"

as required

by U.K. procedural rules.

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(Mot. to Quash at 3.) Petitioner, however, not only misreads these rules but is fabricating rules to
suit his purpose. Under U.K. Civil Procedure Rule 40.2(1) and (2), the standard requirements of a

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UK court order

are that

it (i)

state the name and

judicial title of the person who made it, (ii) bear

the date on which it is given or made, and (iii) be sealed by the court. (see Mot. to Quash Ex D

(copy of U.K. rules).) All of these requirements are met by the U.K. Order: it was made by Mr.
Justice Collins on June 12,2Ol3 and sealed in the High Court of Justice, Queen's Bench

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Respondent notes that Petitioner's Motion is based_upon Cal. Civ. Proc. Code $ 19.87 .1. Specifically, Petitioner relies upon the prqmile .thp!1!e_s^u!goena is_s_eeking personally i,t'irntinrUt6 information p,rsuant to Cii,. Code $ 1798.79.8(9) @-ee_Mot. to Quash 4.) Petitioner must believ e thathe faili within Cal. Civ. Proc. Code $ 1987.1(b)(5) as a person whose personally identifying information is sought in connection with an action involving that person's 'exercise of fr"" sfeeJt . Further, it is clear that Petitioner is a third.party-with respect to the subpoena in question. Accordingly, Respondent submits that Petitioner lacks standing to move to qrurh this su6poena on any basiJother than one related to free speech. In other words, Respondent requests this Court to disregard_P_elitioner's algume_nts.based 9n P1l1gly procedural order and jurisdiction of the U.K. court), since -uti.rr (i.e.,the validity of the underlying U.K. Petitiondr isnot the subpoenaed party and as a third party to this subpoen4 does not have standing to assert such objection-s, which belong strictly to Automattic as the subpoenaed p?rty. 6 instead of a "foreign subpoena." In It doeJ not matter that the U.K. court issued an "order" oohowever denominated issued underauthority California, any subpoena consists of a document, g of a court of record." Cal. Civ. Proc. Code 2029.200(e). Since the U.K. court properly issued an order, that order forms the basis for a valid California subpoena. See id. at (e)(2).
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Opp. to Mot. to Quash

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Division. A

seal is defined as "a mark which the court puts on a document to indicate that the

document has been issued by the court." (Owens Decl. !f 2,Ex.

A.)

Here, the U.K. court

properly stamped the order with the seal of the Queen's Bench Division. (See Mot. to Quash Ex.

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A (copy of the U.K. Order).) There is no signature requirement in the Rul*Petitioner is

simply fabricating this requirement.T Further, the transcript from the hearing before the U.K.
court clearly evidences the proper granting of the U.K. Order. (Hurst Decl. fl 3, Ex. A, p. 6,
11.

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15-23.) For Petitioner to argue that such a stamped order is a "naked document drafted by
Gobat's local counsel in England but reflects no authority of any court," (Mot. to Quash at 3) is complete nonsense and without merit. Petitioner also bases its mistaken assessment of the validity of the U.K. Order on an alleged phone conversation with an unnamed court clerk that allegedly informed Plaintiff
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counsel that no such order existed. (See Mot. to Quash at 3; Decl. of Catherine Gellis tT3.) AnV

conversation that occurred between a court clerk and Petitioner's counsel is hearsay, see Cal.

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Evid. Code $ 1200, and cannot be considered by this Court. See McLellan v. Mclellan,23 CaL App. 3d 343,359 (1972) (declarations or affldavits in support of a motion "must be tested by the
same rules as those applicable to oral

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testimony")

and Jeffers v. Screen

Extras Guild, Inc., 134

Cal. App. 2d 622,623 (1955) (holding that affidavits in support of a motion that were based on
hearsay were "devoid of any evidentiary

value"). Petitioner's use of an alleged phone call

as a

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basis for concluding that the U.K. order is invalid is meritless. Again, the properly issued and
sealed

U.K. Order was attached to the operative subpoena. Petitioner has put forth no evidence

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whatsoever to support its ridiculous suggestion that the U.K. Order is somehow fake.

Simply put, the U.K. Order is valid. Petitioner's basis for suggesting its invalidity is
based upon a fabrication of a signature requirement and heresay. The utter lack of merit behind

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Petitioner also suggests that the stamp only means that the Order has been ?Pplied for and relies upon a comparison to the placement of the st?mp on the U.K. Claim Form. Does the Petitioner s6riously base its position on the location of the stamp as giving the U.K. Order validity? An . order is only stamped by the U.K. court after it is signed by a judge; howevet, the signed copy is maintainedby the court, and the application for order is simply stamped/sealed and returned to the requestin! party without the jfdge's signature. (Hurst Decl_. tT 4.) Moreover,lhe subpoena served on Automattic included an electronic copy of the U.K. Order, which clearly displays the red colored seal, a copy of which is also attached hereto. (Owens Decl. ti4, Ex. B.)
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Opp. to Mot. to Quash

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these arguments is clearly supportive of an ill-advised attempt to misuse the U'S. legal system to

ultimately avoid Petitioner's liability for defamation. Such should not be condoned and provides

a clear basis for sanctions against Petitioner and its counsel.

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B.

The [1.K. court determined that is has jurisdiction over Respondent Gobat's defamation claim-Petitioner's argument to the contrary is again without evidence or meril

Petitioner asserts that aU.K. court would lack jurisdiction to hear Respondent's
defamation claim, despite the fact that Respondent has numerous business and personal connections to the

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U.K. (Mot. to Quash

at

4.) Also, Petitioner, without any evidence whatsoever,

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improperly suggests that Respondent is merely

Respondent

shopping" in the U.K. because

sue over speech made by a St.

"is a resident of . . . St. Lucia attempting to

Lucia[n]

journalist concerning St. Lucian matters intended for a St. Lucian audience." (1d.)
As an initial matter, a U.K. court, not a California court, is in the best position to decide
whether that country has jurisdiction over Respondent's defamation claim. If Petitioner wishes to
assert that the

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U.K. is an improper venue, it should do so in the appropriate U.K. court, rather

than asking a California court to analyze foreign jurisdictional law.

Nonetheles s, the U.K. court,

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in issuing the (1.K. Order, has already decided that it has

o'As

jarisd.iction. (Hurst Decl. fl 3, Ex. A,p.4,11. 1-4. (Mr. Justice Collins:

where

I say this is one

do not think there could be any doubt. . . that it is . , . an entirely appropriate casefor

bringing proceedings in this jurisdiction.") (emphasis added).) Moreover, Respondent is rrot merely a resident of St. Lucia; he is also a U.K. national. (Gobat Decl. fl 2.) Respondent also
maintains numerous other ties to the

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U.K. For example, Respondent's family

resides in the U.K.,

and Respondent spends between 30-40 days in the U.K. each year.

(Id. atlJ 3.) Importantly, with

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respect to Respondent's defamation claim, Respondent's business largely consists of acting as a

sales agent

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for English property owners and marketing St. Lucian properties to English tourists.

(1d.) Therefore, Respondent's business success depends on "the goodwill that he has generated
amongst homeowners and tourists in England." Qd.) Furthermore, the defamatory content published by this unknown'Joumalist" was not

merely a St. Lucian matter only intended for consumption by a St. Lucian audience. Respondent
Opp. to Mot. to Quash

has business relationships

with St. Lucian property owners that are U.K. residents (Gobat Decl. !l!f

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25-27), some of whom received an e-mail directing them to the offending article (1d.). Since people outside of St. Lucia received an invitation to view the article, the content at issue

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inherently consisted of more than St. Lucian matters intended for a St. Lucian audience. These
facts are more than enough to provide a "nexus" to the U.K. and to justifu jurisdiction by a U.K. court, as has already been determined.

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Petitioner's lack of investigation into this issue evidences again that Petitioner is simply
tossing up any arguments that could seemingly be made in an attempt to avoid being held liable

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for his defamatory acts.8 Such misuse of the U.S. legal system and attempts to avoid a validly
issued subpoena should not be condoned but should be sanctioned.

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C. Respondent Gobat has a clear primafacie casefor defamation and Petitioner's failure to sp e ciftc ally address th e defomato ry statements
speaks volumes. Petitioner has published an article on his website and through emails sent to numerous people that Mr. Gobat (i) is a "pirate" who rips-off investors, St. Lucian banks, and exploits the
St. Lucian government and its people;

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(ii) has caused the insolvency of a resort known

as the

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Landings Resort; and (iii) has exploited his position as a sales agent to sell properties at

artifrcially high prices and sell at artificially low prices causing significant losses to others.
(Gobat Decl. flfl 14-20,26.) These defamatory statements relate to Mr. Gobat's reputation as a
businessman in his professional endeavors in St. Lucia and the U.K. and have caused significant damage to Mr. Gobat financially and emotionally.

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(d.

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n29.)

Such is a clear case

of

defamation under either U.K. or U.S. law.

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I Petitioner evens goes to the extent of erroneously and distractingly drawing the Court's attention to U.K. rules regarding service. Petitioner states that Respondent was obligated to seek the U.K.
court's permission to "serve" the claim form and order outside of the U.K. (Mot. to Quash at 4.) Service of the claim form or order are not an issue here, as Respondent is not attempting to serve Petitioner at all. The only service that occurred in this matter is service of the subpoena on Automattic, about which there is no issue. Petitioner has not challenged, nor does it have standing to challenge, service, per se, of the subpoena on Automattic. Petitioner is again simply throwing unfounded and misplaced arguments against the wall to see what sticks or to confound the issues thereby distracting from the overall issue-Petitioner's desire to avoid identification and being held accountable for his defamatory acts.
Opp. t0 Mot. to Quash

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1.

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Defendant has a primafacie defomation claim under applicable U.K. law,

When an unknown party makes a motion to quash a subpoena seeking his or her identity

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from an Internet service provider (ISP), California courts require that the party opposing the motion make a prima facie showing of defamation.e KrinslE v. Doe 6,159 Cal. App.

4thll54,

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ll72 (2008).

The facts of ,Krinslcy are similar to the facts of the instant case. In Krinslqt, arr

unknown Doe posted allegedly libelous messages on a message board owned by Yahoo! Inc. Id. at 1158-59. The plaintiff, one of the persons attacked by the posts, sued for defamation and
served a subpoena on Yahoo! Inc. to determine the anonymous poster's

identity. Id. The

unknown Doe then filed a motion to quash.

Id.

The court of appeal held that, if "discovery of the

a

defendant's identity is necessary to pursue the

plaintiffs claim, the court may refuse to quash

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third party subpoena if the plaintiff succeeds in setting forth evidence that a libelous statement has
been made." Id. at 1172. To determine whether a defamatory statement has occurred, a

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California court will look to the substantive law of the jurisdiction in which the defamation claim
arose. See id. at ll73-74 (setting forth Florida's defamation standard). Petitioner agrees with this

proposition. (Mot to Quash at 6.)

Since Defendant's defamation claim is being pursued in the U.K., that country's laws

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control for purposes of determining whether Respondent can make the requisite prima facie

showing. Under U.K. law,

a defamatory statement is one

"which tends to lower

a person

in the

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estimation of right thinking members of society generally or . . . to expose him to hatred, contempt or ridicule, or to disparage him in his office, profession, calling, trade or business." (Owens Decl !f 5, Ex. C (32 Halsbury's Laws of England $ 510 (Lord Mackay of Clashfern ed.,

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Petitioner states that Respondent did not provide allegations to sustain a cause of action for defamation in either the subpoena or the U.K. Order or Claim Form. (Mot. to Quash at 4-5.) That is because Respondent is not required to do so. Respondent is only required to make a prima facie showing of defamation in response to a motion to quash. See KrinslE-v. Doe 6,159 CaL App. 4th 1154,1172 Q008) ("We therefore agree with those courts that have compelled the plaintiff to make a prima facie showing of the elements of libel in order to overcome a defendant's motion to quash a subpoena seeking his or her identity.") Petitioner eroneously rests its entire argument on this premise: that because Respondent has not made a prima facie case in the documents of the subpoena, such should be quashed. This again is a misreading of the law. However, as described herein, Respondent has clearly made the requisite prima facie case.
Opp. to Mot. to Quash

5th ed. 2012)).) Libel, a subset of defamation, occurs when a defamatory statement is "made . .

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by written or printed words or in some other permanent form, published of and concerning the
claimant, to a person other than the claimant

." Id. at $ 51 1 . If a plaintiff

establishes the elements

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of a libel, U.K. law "presumes that some damage will flow in the ordinary course of events." 1d.
at $ 516. That is, a libel plaintiff need not prove damage to his reputation or any actual loss or

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danage. Id.

lnanalyzing a defamation claim,

U.K. court first examines the meaning of the words

based on a reasonable person standard. Id. at $ 544. Next, a court determines whether, 'ounder

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the circumstances in which the words were published, the reasonable person would be likely to
understand them in a defamatory sense." 1d.

a.

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The article at issue contains defamatory statements that reduce Respondent's esteem and reputation in society.

Petitioner's article about Respondent contained defamatory statements and is libelous. First, the article calls Respondent Gobat a"pirate," not in any comical sense but undeniably calling Respondent Gobat's honesty into question and basically stating that Respondent Gobat is
a

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thief. (Gobat Decl. fl 14.) The article further implies that

Respondent, along with others, was

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responsible for causing "The Landings" resort in St. Lucia to be "financial[1y] defunct." (Gobat Decl. fl 16.) However, the resort, which both locals and foreigners understand to be synonymous

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with the luxury condominiums on the property, is profitable. (See id.

atll12,

13.) While the

Bank of St. Lucia did take charge of the commercial areas of the property due to a loan default by The Landings Limited (TLL) (see id. at lffl 5, 9, 10), Defendant was never involved in managing

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TLL.

(See

id. atlll5-10, 21.) Additionally, the resort is understood to mean the condominiums

on the property, not the additional commercial areas. (See id. at lffl 12-13.) lndeed, after TLL defaulted, Respondent and others formed a separate organization in order to take control

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of

governance of the resort and have "significantly improved the value of homeowner assets" since that time. (See id.

atl12.)

The article thus damaged Respondent's esteem and reputation

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amongst "right thinking members of society" and also disparaged him in his trade or business. Indeed, a person's reputation is not confined to his general character but includes his "knowledge,
Opp. to Mot. to Quash

skill, capacity, judgment or efficiency in the conduct of his trade, business or professional

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activity." (Owens Decl fl 5, Ex. C (32 Halsbury's Laws of England

543).) In reading the

article, a reasonable person would clearly understand it to be factual statements that the Petitioner
is dishonest and that Respondent caused the resort's bankruptcy. In so doing, Petitioner has

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clearly attacked Respondent's honesty, reputation, skill, and capacity in conducting a business. Next, Petitioner falsely accuses Respondent of abusing his position as a sales agent in
order to buy resort condominiums at artificially low prices and sell them to prospective homeowners at artificially high prices. (Gobat Decl. fl 16.) Respondent, however, does not

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control the price of condominiums at the resort. (Id. at fl 21.) Furthermore, individual
homeowners are free to choose which sales agent will represent them and what price to sell their

property. (1d.) Respondent has no monopoly on sales with respect to resort condominiums and
does not have the power to artificially adjust home prices. Again, Petitioner has disparaged

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Respondent in his calling or profession by implying that he is dishonest and has abused his

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position as a sales agent.

U.K. courts have held that it is defamatory

o'to

charge another with fraudulent [or]

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dishonest . . . conduct or motives." Id. at $ 550. This is exactly what Petitioner did; he charged
Respondent with being ao'pirate" and with fraudulent and dishonest conduct in buying

condominiums at artificially low prices and selling them at artificially high prices. Again, a
reasonable person reading the article would understand this accusation in a defamatory sense and,
as a result, would hold Respondent in less esteem, especially regarding Respondent's business

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conduct.

Finally, Petitioner wrongly suggests that Respondent has a conflict of interest by acting
both a sales agent and a manager of the resort. (Gobat Decl. fl 20.) To the contrary, individual homeowners decide which sales agent will represent them. Additionally, any resort profits are paid to the homeowners themselves; Respondent does not benefit from any profits purely by

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participating in resort management. (Id.

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13.) In fact, Respondent's contract

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Executive

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Director clearly states that Respondent is permitted to continue his business as a sales agent. (1d.

n22.) There is no evidence that Respondent improperly lined his own pocket or had anything
Opp. to Mot. to Quash

'1""T,:i"1:l',:l;"0

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other than the best interests of the resort in mind. (1d.n22.) By accusing Respondent in such a manner, Petitioner again charged Respondent with fraudulent and dishonest conduct in Respondent's business dealings. These defamatory statements are not opinions-they are clearly
statements of alleged facts that simply beg the question of whether they are true or false.

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b.

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The article contained written words about Respondent and was published to those other than Respondent.

Petitioner's defamatory statements occwred in an article written about Respondent and

published to those other than Respondent, satisfying the remaining U.K. requirements for libel. Petitioner published an article about Respondent and others to the St. Lucia Free Press website (Gobat Decl. !f 14,16), and people other than Respondent read the article. (Gobat Decl. fl 23,Tab 4 (showing the number of oohits" the website received).) Petitioner does not contend otherwise.

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2.

Even assaming, arguendo, that U.K. law is inapplicable, Respondent has a primafacie defamation claim under U,S. law.

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Petitioner makes much of its assertion that English law provides less free speech protection than U.S. law, but Respondent would have a prima facie defamation case even under

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U.S. law.10 Although the First Amendment broadly protects freedom of speech, see U.S. Const. Amend. I, the Supreme Court has held that the "right of free speech is not absolute at all times
and under all circumstances." ChaplinslE v. New Hampshire, 315 U.S. 568,571 (1942). Certain

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Petitioner suggests that the SPEECH Act,28 U.S.C. $ 4102 et seq!.,prevents this Court from enforcing this subpoena at issue. There are two problems with Petitioner's position. First, Petitioner asks this Court to equate a subpoena with a final judgment as identified in the SPEECH Act. (Mot to Quash at 6.) However, Petitioner has no legal support for this proposition. To reference a case that simply concludes that some foreign jurisdictions have less support for free speech than the U.S. is of no import in asking this Court to quash a subpoena. Second, Petitioner wrongly asserts that the SPEECH Act would prevent Respondent from enforcing any favorable judgment granted by a U.K. court because "English law provides less protection for speech than U.S. law does." (Id.) To the contrary, the SPEECH Act permits U.S. courts to enforce foreign judgments if the offending parfy "would have been found liable for defamation by a domestic court" even if "the defamation law applied in the foreign court's adjudication did not provide as much protection for freedom of speech and press" as U.S. law. 28 U.S.C. $ a102(a)(1)(B). As Respondent illustrates in this brief, a prima facie claim for defamation clearly exists under at least California law if not the law of other jurisdictions in the U.S. Furthernore, whether Respondent would need to enforce any future favorable judgment in the U.S. is (i) questionable given the lack of identity of the Petitioner and (ii) immaterial to whether the subpoena at issue should be quashed. Therefore, Petitioner's position based upon the SPEECH Act are desperate attempts in seeking the order to quash and firrther examples of espousing any position in an attempt to avoid being held liable for his defamatory acts.
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Opp. to Mot. to Quash