Date: 08-12-2013

Case Style: John Phillips v. Randy J. Harrington

Case Number: CJ-2012-1522

Judge: Dana Kuehn

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: John M. Gibson

Defendant's Attorney: Tracy Robinett, Jacob Aycock and Charles R. Swartz

Gregory D. Nellis and Carol J. Allen for Google, Inc.

Description: John Phillips and Deborah Phillips sued Randy J. Harrington, Darren W. Lee, Charles McClain, Mid-American Bigfoot Research Center, Lost Horizon Computers and Doe No through Doe No. 100 on libel and slander theories claiming:

1. Plaintiffs are each residents of Broken Arrow, Tulsa County, Oklahoma.

2. Defendant Randy J. Harrington (“Harrington”) is a resident of Leavenworth County, Kansas.

3. Defendant Darren W. Lee (“Lee”) is a resident of Adair County, Oklahoma.

4. Defendant Charles McClain (“McClain”) is a resident of Fayette County, Alabama.

5. Defendant Mid-America Bigfoot Research Center (“MABRC”) is a d.b.a. and resident of Oklahoma.

6. Defendant Lost Horizon Computers, is business entity that resides in Stilwell, Adair County, Oklahoma, and is owned and operated by Lee.

7. DefendantsDoeNo. 1 throughDoeNo. 100 areunknownpersons orentities.

8. The complaints of the Plaintiff occurred in or were published within the State of Oklahoma.

9. This Court has jurisdiction to hear all matters alleged in this Petition. Venue is proper in Tulsa County, Oklahoma. The Plaintiff resides in Tulsa County, Oklahoma, each of the Defendants has immediate, acknowledged and continuous ties to the State of Oklahoma, and the acts and omissions giving rise to the Plaintiffs petition occurred in Oklahoma and/or created harm and damages within the State of Oklahoma to an Oklahoma resident. The damages claimed exceed the jurisdiction requirements of this Court.

FACTUAL BACKGROUND

10. In March of 2006, Plaintiff John Phillips had his initial interaction with Defendant Harrington via an Internet website.

11. At that time, the Plaintiff John Phillips and Defendant Harrington had a disagreement online and disputed the nature of a photograph. Plaintiff John Phillips and Defendant Harrington did not meet in person at this time, or interact in any way other than Internet correspondence.

12. After this time, Defendant Harrington become increasingly hostile and threatening, and began posting vicious untrue and scandalous statements about PlaintiffJohn W. Phillips. Ultimately, Defendant Harrington was banned from this blog for his improper postings and outrageous behavior.

13. In January of 2007, Defendant Harrington traveled to Broken Arrow Oklahoma, and arrived at the home of the Plaintiffs. All Plaintiffs’ were home. Uninvited and unannounced Defendant Harrington entered onto the plaintiffs’ property, recorded threats, video taped his entire intrusion. A few days later he posted a heavily edited version of this video on a website (www.midamericabigfoot.com, aka MABRC) as well as YouTube.com (“Youtube”). Including in this post was Plaintiffs’ address and personal cell phone number along with further false, malicious, threatening and defamatory statements. The video has been (and continues to be) posted on various websites at all tunes relevant. The Defendants continue to revise and re-edit this video for re-posting and republication.


14. Around this same time, Plaintiff was contacted via telephone by individuals who are well acquainted with Defendant Flarrington. These contacts waned of Defendant Harrington’s criminal and psychological history, history of erratic behavior, and that his actions toward Plaintiffs indicated real and immediate danger and should be taken seriously.

15. Plaintiff reported Defendant Harrington’s video session to the Broken Arrow Police, and filed a police report. Around this same time, the City ofLeavenworth, Defendant Harrington’s employer, also launched an investigation that ultimately lead to Defendant Harrington’s termination from employment as a city fireman.

16. Around that same time, the MABRC website and YouTube video, and the related postings regarding Plaintiff John Phillips were pulled down at the urging of the Broken Arrow Police.

17. In August of 2008, Defendant Harrington launches a new web blog on MySpace with new and regurgitated defamatory statements against Plaintiff John Phillips. The Plaintiff was warned of this blog and lodged a complaint. MySpace promptly removed the entire blog. Defendant Harrington re-registered under a different ISP approximately Sixty (60) days later with substantially similar defamatory content. Again, Plaintiff Phillips complained and the offensive, defamatory blog was removed.

18. In August 2009, Defendant Harrington creates, in quick succession, three additional attack blogs, including titled “Separating Truth from Trolls”, “Squatchabyss”, and “I am Phillips, Ruler of the Internet”, on Google BlogSpot platform. At this time, Defendant Harrington posts, in the name of Plaintiff John Phillips, “self-degrading” posts where one or more Defendants post, untrue, false, misleading and defamatory statements. The Defendants then “respond” to the fraudulent statements posted in Phillips name, and frequently reference, copy, and re-post those fraudulent communications and false statements to further their attacks and misrepresentations against Plaintiffs.

19. The use of false responses and fraudulently manufactured statements issued by Defendants in Plaintiff Phillips name was also attempted in the TulsaWorld. This attempt was noted and thwarted by Plaintiff John Phillips, and the Tulsa World ultimately banned Defendant Harrington from posting to that newspaper.

20. The Defendant’s maliciously and intentionally directed their activities to Plaintiff John Phillips employment and livelihood. Defendants intended to cause the termination of Plaintiff John Phillips employment. After August 2009, one or more of the Defendants continued this pattern of deception, at various times and through various sources, by posting or communicating using the identity of Plaintiff John Phillips, to misrepresent or stage more and additional defamatory statements and false impressions.

21. In the period since August of 2009, and at various other times, Defendant Harrington, Defendant Darren Lee, and various other persons, both known and unknown to Plaintiffs, have post entirely false, extreme, outrageous, threatening, defamatory, vindictive and invasive online posts on numerous websites, blog sites and internet communications including but not limited to:

A: Defamatory allegations of Homosexuality;

B: Defamatory allegations of Professional Misconduct;

C: Defamatory allegations of dishonesty, theft, embezzlement, fraud, and moral;

D: Defamatory allegations of marital infidelity;

E: Defamatory allegations of sexual perversion;

F: Defamatory allegations turpitude;

G: Defamatory allegations of Bestiality and Sexual Deviancy; of Bribery;

H: Defamatory allegations of infection by dread disease;

I: Defamatory allegations of criminal conduct;

Defamatory allegations of child abuse;

K: Defamatory allegations that Plaintiff “Jane Doe” is a “Dyke”;

L: Defamatory allegations that minor Plaintiff “Jane Doe” uses illegal substances;

M: Threats of violence against Plaintiffs;

N: Posting of fabricated, outrageous, insulting, false, misleading, and electronically altered pictures, images, and media

0: Posting of personal information including phone numbers, home address, and other sensitive, private information;

P: Posting of messages in the name of the Plaintiff John Phillips intended to cast him in a false and defamatory light;

Q: Racial Slurs.

22. The Defendants’ actions and conduct have continued and have escalated at all times relevant, and Defendants continue to maintain and propagate thousands of false, outrageous, misleading, abusive and threatening statements, images and allegations in publications, websites, weblogs, internet chat, and other forms of publication about the Plaintiffs up to the date of this Petition.

FIRST CAUSE OF ACTION

DEFAMATION

23. For their first cause of action, the Plaintiffs hereby incorporate by reference the foregoing paragraphs as if fully set forth herein.

24. Defendants, together and separately, have negligently, recklessly or with malice, published and re-published, false, defamatory, and actionable statements, about the Plaintiff John W. Phillips as well as other members of his family, on multiple websites, blogs, newspapers and places of public discourse.

25. The Defendants numerous, continuous, and repeated statements, accusations, utterances, allegations and publications are false, defamatory and without privilege.

26. The Defendants, during all times relevant, acted individually and in a concerted effort with malice toward the Plaintiffs and with the deliberate and willful intention harm plaintiffs reputation and falsely hold Plaintiffs up for public scorn and contempt.

27. The Defendant’s actions damaged and impaired the Plaintiffs’ reputation, and business interests, embarrassment, mental stress and anguish, and caused to Plaintiffs to incur financial losses, loss of reputation, and unnecessary expenses.

28. Plaintiff is, in addition to actual and consequential damages, entitled to punitive damages due to the wanton, wreckless, intentional and malicious nature of the Defendants acts and omissions.

SECOND CAUSE OF ACTION

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

29. For their second cause of action, the Plaintiffs hereby incorporate by reference the foregoing paragraphs as if fully set forth herein.

30. The Defendants vile, outrageous, malicious and defamatory statements, published false and misleading images, actions and omissions were intended and expressly designed to prey on the Plaintiffs’ emotional and physical well being, and mental state.

31. The Defendant’s intentional or reckless false publications, direct and thinly veiled threats of violence, and stalking behavior caused fear, anxiety, embarrassment, apprehension and/or severe emotional distress.

32. The Defendants course of conduct was extreme, shocking, outrageous, and despicable. Defendants knew their actions and statements entailed a high risk of harm, yet deliberately and continuously proceeded to act with conscious disregard or utter indifference to the risk of harm to the Plaintiffs.

33. The Plaintiffs suffered fear, humiliation, and severe emotional distress as the direct or proximate result of the conduct of the Defendants.

THIRD CAUSE OF ACTION

FALSE LIGHT INVASION OF PRIVACY

34. For their third cause of action, the Plaintiffs hereby incorporate by reference the foregoing paragraphs as if fully set forth herein.

35. The publications and conduct of the Defendants have unreasonably intruded on the privacy and seclusion of the Plaintiffs:

A. Defendant Harrington invaded the residential property of the Plaintiffs to videotape and record Plaintiffs home, property and address, and make false, misleading and threatening statements;

B. Defendant Harrington has published personal and private addresses, telephone numbers and information about the Plaintiffs;

C. Defendant Harrington has published comments and analysis of Plaintiffs “security systems” and Harrington’s ability to by-pass or defeat those measures;

D. Defendant Harrington has published and acknowledged his behavior that legally constitutes “stalking”;

36. One or more of the Defendants have appropriated the name or likeness of the Plaintiff John W. Phillips for use in false, salacious, and defamatory publications both on the Internet and in news papers.

37. The Defendants, intentionally or with reckless disregard, have through their actions, omissions and conduct, given unreasonable, unwarranted and harmful exposure of the private life and living conditions of the Plaintiffs. Defendants have, in the course of publishing the legion of false statements, also intentionally published truthful personal information, including but not limited to contact information, addresses, vehicle information and other such protected details exposing the Plaintiffs to attack, undesired scrutiny, stalking or victimization.

38. The conduct of the Defendants, taken as whole and viewed as individual acts, unreasonably and maliciously casts the Piaintiffs in a false light before the public, and creates a completely false impression of the Plaintiffs to friends, acquaintances, co-workers, employers, and strangers alike.

FOURTH CAUSE OF ACTION

TRESSPASS TO LAND

39. For their fourth cause of action, the Plaintiffs hereby incorporate by reference the foregoing paragraphs as if fully set forth herein.

40. Defendant Hanington did knowingly, intentionally and with malice enter upon the land of Plaintiffs without permission, consent or privilege.

41. Defendant Harrington trespassed with the malicious intent to stalk, embarrass, defame, and cast Plaintiffs in a false and misleading light.

42. Defendant Harrington wrote in one of his numerous blogs that he “urinated” on the office door of PlaintiffJohn Phillips office, and at various times video taped the facility for posting and inappropriate comment.

FIFTH CAUSE OF ACTION

TORTIOJUS INTERFERENCE WITH BUSINESS RELATIONS

43. For their fifth cause of action, the Plaintiffs hereby incorporate by reference the foregoing paragraphs as if fully set forth herein.

44. The Defendant’s conduct and acts, taken as a whole, performed with wreckless disregard or with express intent, harmed Plaintiff John Phillips relationship with his business contacts and employer.

45. Plaintiff John Phillips, from time to time and at various times was required to explain the actions of Defendants, and defend his character and reputation from the constant, false and malicious mischaracterization by Defendants. The false light cast upon Plaintiff Phillips created embarrassment and impaired his relationships with his business relations.

46. Plaintiff John Phillips was required to spend countless hours documenting, storing, and cataloging the postings, communications, and libelous writings of the Defendants, and required to complain, respond, refute, explain and correct the perception of others arising from or relating to the conduct of the Defendants.

47. The Defendants intentionally and with malice prepared and designed their blogs, websites, postings, and publications in a manner and with the design and purpose of increasing the likelihood of disc overy through normal and traditional web searches through search engines including but not limited to Google, Yahoo!, and Chrome. Defendants used known and readily available marketing techniques, tools, and procedures to ensure “hits” (successful search results) or increase the likelihood of “hits” on Defendants publications by individuals searching for Plaintiffs name, Plaintiffs business activities, or Plaintiffs known affiliations, including his employer.

48. Defendants actions created concern, harassment, embarrassment, damage to reputation and character, and unwarranted negative publicity for the Plaintiffs, Plaintiffs relations and associates, Plaintiff’s business and commercial relationships, and Plaintiffs employer.

49. Plaintiffs were damaged and harmed by the actions, omissions and conduct of the Defendants, and suffered actual damages, loss of income, lost opportunity, needless and unnecessary costs and expenses, damage to reputation and character, and severe emotional distress.

SIXTH CAUSE OF ACTION

CIVIL ASSAULT

50. For their sixth cause of action, the Plaintiffs hereby incorporate by reference the foregoing paragraphs as if fully set forth herein.

51. The Defendants intentionally, unlawfully and with malice created the constant and imminent fear of physical attack or use of violent force, or stalking.

52. The Defendants regular and continuous written commentary on Plaintiffs physical residence, current activities, security protection, and personal details created a air of constant threat. Defendant Harrington then confirmed this threat by his established, apparent and manifest willingness to travel to the vicinity of Plaintiffs residence and office without warning or notice.

53. Persons with direct knowledge of Defendant Harrington, using information he posted regarding Plaintiff, contacted Plaintiffs to warn of Defendants Harrington’s obsession with and interest in a certain serial killer, and his investment in books and memoirs written regarding successfully conducting serial murder. The documentation and evidence received by Plaintiffs confirmed the reality of these allegations, and gave rise to immediate fear and apprehension of impending unlawful attack.

54. Defendant Harrington has on more than one occasion asserted his ability to evade any security systems or protections installed by Plaintiffs. Broken Arrow Police have confirmed Defendant’s checkered history of erratic behavior, emotional dysfunction, and violent temper.

55. Plaintiffs were damaged and harmed by the actions, omissions and conduct of the Defendants, and suffered actual damages, needless and unnecessary costs and expenses, and severe emotional distress.

SEVENTH CAUSE OF ACTION

TEMPORARY AND PERMANENT INJUNCTION

56. For their seventh cause of action, the Plaintiffs hereby incorporate by reference the foregoing paragraphs as if fully set forth herein.

57. Pursuant to 12 O.S. § 1382, Plaintiff’s are entitled to a Temporary and Permanent Injunction preventing fhrther and continuing publication of false, salacious, defamatory and tortious publications by Defendants, and the removal and permanent disposal ofexisting and future websites, web blogs and chat threads attacking and harming Plaintiffs.

58. Plaintiffs are likely to prevail on the merits based on the extensive, continuous and outrageous body ofrecorded evidence of Defendants conduct. The extent, nature and content of the recorded and documented evidence is overwhelmingly in support of injunction.

59. The nature and content of the Defendants publications creates the immediate need for a Temporary injunction, and requires a Permanent injunction. In the absence of Injunction, Plaintiff will suffer, continuing irreparable harm to Plaintiffs rights to privacy and reputation. Further, Defendant’s continuing false, unsupported attacks would include the filings, details and unseemly, false and tortious publications issued by Defendants. Defendants would suffer no harm if appropriate Injunction were to be granted.

60. Public Interest would be served by the issuance of a temporary injunction.

61. Plaintiffs meet the Oklahoma standard for the issuance of a Temporary and Permanent Injunction.

EIGHTH CAUSE OF ACTION

DAMAGES

62. For their eighth cause of action, the Plaintiffs hereby incorporate by reference the foregoing paragraphs as if fully set forth herein.

63. Plaintiffs request the following damages to be separately and individually considered for the purpose of determining the appropriate award of damages that will fairly compensate them:

A. The loss of reputation and character Plaintiffs have suffered in the past and will continue to suffer in the future;

B: The mental anguish, public humiliation, and emotional distress created by Defendants and suffered by Plaintiffs in the past, and the continued suffering of Plaintiffs’ in the future;

C: The economic losses suffered by Plaintiff John Phillips;

64. Plaintiffs have suffered actual, consequential and special damages in excess of Two Hundred Fifty Thousand Dollars ($250,000.00) in addition to attorney fees, costs, related expenses and costs of prosecution on the claims and causes of action herein asserted.

NINTH CAUSE OF ACTION

EXEMPLARY DAMAGES

64. For their ninth cause of action, the Plaintiffs hereby incorporate by reference the foregoing paragraphs as if fully set forth herein.

65. Defendants’ conduct, when considered from the perspective of the Defendants at the time of the occurrences, involved an extreme degree of risk in light of the probability and magnitude of potential harm to Plaintiffs.

66. The nature of Defendants’ conduct illustrates not only a manifest attitude of conscious indifference for the rights, safety and welfare of the Plaintiffs, but also clearly establishes Defendants intentional, actual, conscious, malicious and predisposed awareness of the dangers created by such conduct, and Defendants’ express intention and manifest goal to cause harm to Plaintiffs.

67. Despite the known or probable risks, Defendants continued and expanded their wrongful activities with malice or conscious indifference to the rights, safety and welfare of others. Therefore, Defendants are liable for exemplary andlor punitive damages WHEREFORE, Plaintiffs, John W. Phillips, Deborah Phillips, and their Minor Child, prays this Court award them all manner of relief, including actual, special, consequential, and punitive damages in excess of two hundred fifty thousand ($250,000.00) or as alleged, as well as any and all other damages found appropriate, and including attorney fees, costs and expenses of prosecution as merited by law or in equity.

Defendant Randy Harrington filed a motion to dismiss, which was overruled.

Defendant Randy Harrington answered and counterlcaimed as follows:

1) Tn response to factual allegations incorporated into the allegations and statements offered in Answer to the Petition, unless specifically admitted to herein, Plaintiffs are without sufficient information to neither admit nor deny such claims, assertions, statements or allegations.

SPECIFIC DENIAL

2) The allegations of Defendant Harrington’s Answer and Counterclaim numbered Paragraph 69 through Paragraph 75, inclusive, are hereby denied, and strict proof thereof is hereby demanded.

AFFIRMATIVE DEFENSES

(A) Failure to State a Claim upon which relief can be granted;

(B) Waiver;

(C) Bad Faith and Unclean Hands; Defendant’s conduct has and continues to

(D) Fraud and Deceit; The Defendant’s actions constitute intentional misrepresentation, deception and fraud including its representations and allegations made to the court. Defendant, using various false identities, concealed identities and pseudonyms has pursued a vicious, malicious and concealed campaign of deceit which has been extended and continued into his pleadings before this Court.

(E) Statute of Limitations; The Counterclaims asserted by Defendant are time barred by the Statute of Limitations under Oklahoma Law

(F) All applicable affirmative defenses referenced in 12 Okia. Stat. 2008(C) are hereby incorporated herein; and Plaintiffs expressly reserve the right to assert such other affirmative defenses as may be merited based on further and ongoing discovery.

WHEREFORE, Plaintiffs, John W. Phillips, Deborah Phillips, and their Minor Child, prays this Court DENY Defendant Harrington’s claims and counterclaims, and award Plaintiffs all manner of relief, including actual, special, consequential, and punitive damages in excess of two hundred fifty thousand ($250,000.00) or as alleged in their Petition, as well as any and all other damages found appropriate, and including attorney fees, costs and expenses of prosecution as merited by law or in equity.

Defendant John Harrington appeared, answered and counterclaimed as follows:

1 Harrington is without sufficient information to either adn’ut or deny the allegations set forth in Paragraph 1 of Plaintiffs’ Petition.

2. Harrington admits Paragraph 2 of the Plaintiffs’ Petition.

3. Harrington admits Paragraph 3 of the Plaintiffs’ Petition,

4. Harrington is without sufficient information to either admit or deny the allegations set forth in Paragraph 4 of the Plaintiffs’ Petition.

5. Harrington is without sufficient information to either admit or deny the allegations set forth in Paragraph 5 of the Plaintiffs’ Petition.

6. Harrington is without sufficient information to either admit or deny the allegations set forth in Paragraph 6 of the Plaintiffs’ Petition.

7. Harrington is without sufficient information to either admit or deny the allegations set forth in Paragraph? of the Plaintiffs’ Petition.

8. Harrington denies Paragraph 8 of the Plaintiffs’ Petition.

9. Harrington denies Paragraph 9 of the Plaintiffs’ Petition.

10. Harrington admits Paragraph 10 of the Plaintiffs’ Petition.

11. Harrington admits Paragraph 11 of the Plaintiffs’ Petition.

12. Harrington denies the allegations set forth in Paragraph 12 of the Plaintiffs’ Petition.

13. Harrington admits that he travelled to Plaintiff John W. Phillips home in or around January 2007. Harrington denies the remaining allegations set forth in Paragraph 13 of the Plaintiffs’ Petition.

14. Harrington is without sufficient information to either admit or deny the allegations set forth in Paragraph 14 of the Plaintiffs’ Petition.

15. Harrington admits that Plaintiff filed a police report with the Broken Arrow Police Department. Harrington denies the remaining allegations set forth in Paragraph 15 of the Plaintiffs’ Petition.

16. Harrington is without sufficient information to either admit or deny the allegations set forth in Paragraph 16 of the Plaintiffs’ Petition.

17. Harrington is without sufficient information to either admit or deny the allegations set forth in Paragraph 17 of the Plaintiffs’ Petition.

18. Harrington denies Paragraph 18 of the Plaintiffs’ Petition.

19. Harrington is without sufficient information to either admit or deny the allegations set forth in Paragraph 19 of the Plaintiffs’ Petition.

20. Harrington is without sufficient information to either admit or deny the allegations set forth in Paragraph 20 of the Plaintiffs’ Petition.

21. Harrington denies that he engaged in the conduct alleged in Paragraph 21 of the Plaintiffs’ Petition. Harrington is without sufficient information to either admit or deny the allegations set forth in Paragraph 21 of the Plaintiffs’ Petition related to the conduct of other Defendants.

22. Han-ington denies that he engaged in the conduct alleged in Paragraph 22 of the Plaintiffs’ Petition. Harrington is without sufficient information to either admit or deny the allegations set forth in Paragraph 22 of the Plaintiffs’ Petition related to the conduct of other Defendants.

23. Paragraph 23 of the Plaintiffs’ Petition contains no allegations to admit or deny.

24. Harrington denies that he engaged in the conduct alleged in Paragraph 24 of the Plaintiffs’ Petition. Barrington is without sufficient information to either admit or deny the allegations set forth in Paragraph 24 of the Plaintiffs’ Petition related to the conduct of other Defendants.

25. Harrington denies that he engaged in the conduct alleged in Paragraph 25 of the Plaintiffs’ Petition. Harrington is without sufficient information to either admit or deny the allegations set forth in Paragraph 25 of the Plaintiffs’ Petition related to the conduct of other Defendants.

26. Harrington denies that he engaged in the conduct alleged in Paragraph 26 of the Plaintiffs’ Petition. Barrington is without sufficient information to either admit or deny the allegations set forth in Paragraph 26 of the Plaintiffs’ Petition related to the conduct of other Defendants.

27. Harrington denies that he engaged in the conduct alleged in Paragraph 27 of the Plaintiffs’ Petition. Harrington is without sufficient information to either admit or deny the allegations set forth in Paragraph 27 of the Plaintiffs’ Petition related to the conduct of other Defendants.

28. l-larrington denies Paragraph 28 of the Plaintiffs’ Petition.

29. Paragraph 29 of the Plaintiffs’ Petition contains no allegations to admit or deny.

30. Harrington denies that he engaged in the conduct alleged in Paragraph 30 of the Plaintiffs’ Petition. Harrington is without sufficient information to either admit or deny the alLegations set forth in Paragraph 30 of the Plaintiffs’ Petition related to the conduct of other Defendants.

31. Harrington denies that he engaged in the conduct alleged in Paragraph 3lof the Plaintiffs’ Petition. Harrington is without sufficient information to either admit or deny the allegations set forth in Paragraph 3 I of the Plaintiffs’ Petition related to the conduct of other Defendants.

32. Harrington denies that he engaged in the conduct alleged in Paragraph 32 of the Plaintiffs’ Petition. Harrington is without sufficient information to either admit or deny the allegations set forth in Paragraph 32 of the Plaintiffs’ Petition related to the conduct of other Defendants.

33. Flarrington denies Paragraph 33 of the Plaintiffs’ Petition.

34. Paragraph 34 of the Plaintiffs’ Petition contains no allegations to admit or deny.

35. Harrington denies Paragraph 35 of the Plaintiffs’ Petition.

36. Harrington denies that he engaged in the conduct alleged in Paragraph 36 of the Plaintiffs’ Petition. Harrington is without sufficient information to either admit or deny the allegations set forth in Paragraph 36 of the Plaintiffs’ Petition related to the conduct of other Defendants.

37. Harrington denies that he engaged in the conduct alleged in Paragraph 37 of the Plaintiffs’ Petition. Harrington is without sufficient information to either admit or deny the allegations set forth in Paragraph 37 of the Plaintiffs’ Petition related to the conduct of other Defendants.

38. Harrington denies that he engaged in the conduct alleged in Paragraph 38 of the Plaintiffs’ Petition. Harrington is without sufticient information to either admit or deny the allegations set forth in Paragraph 38 of the Plaintiffs’ Petition related to the conduct of other Defendants.

39. Paragraph 39 of the Plaintiffs’ Petition contains no allegations to admit or deny.

40. Harrington denies the allegations set forth in Paragraph 40 of the Plaintiffs’ Petition.

41. Harrington denies the allegations set forth in Paragraph 41 of the Plaintiffs’ Petition.

42. Harrington denies the allegations set forth in Paragraph 42 of the Plaintiffs’ Petition.

43. Paragraph 39 of the Plaintiffs’ Petition contains no allegations to admit or deny.

44. Harrington denies that he engaged in the conduct alleged in Paragraph 44 of the Plaintiffs’ Petition. Harrington is without sufficient information to either admit or deny the allegations set forth in Paragraph 44 of the Plaintiffs’ Petition related to the conduct of other Defendants.

45. Harrington is without sufficient infonnation to either admit or deny the allegations set forth in Paragraph 45 of the Plaintiffs’ Petition.

46. Harrington is without sufficient information to either admit or deny the allegations set forth in Paragraph 46 of the Plaintiffs’ Petition.

47. Harrington denies that he engaged in the conduct alleged in Paragraph 47 of the Plaintiffs’ Petition. Harrington is without sufficient information to either admit or deny the allegations set forth in Paragraph 44 of the Plaintiffs’ Petition related to the conduct of other Defendants.

48. Harrington denies that he engaged in the conduct alleged in Paragraph 48 of the Plaintiffs’ Petition. Harrington is without sufficient information to either admit or deny the allegations set forth in Paragraph 48 of the Plaintiffs’ Petition related to the conduct of other Defendants.

49. Harrington denies Paragraph 49 of the Plaintiffs’ Petition.

50. Paragraph 52 of the Plaintiffs’ Petition contains no allegations to admit or deny.

51. Harrington denies that he engaged in the conduct alleged in Paragraph 51 of the Plaintiffs’ Petition. Flarrington is without sufficient information to either admit or deny the alLegations set forth in Paragraph 51 of the Plaintiffs’ Petition related to the conduct of other Defendants.

52. Harrington denies that he engaged in the conduct alleged in Paragraph 52 of the Plaintiffs’ Petition. Harrington is without sufficient information to either admit or deny the allegations set forth in Paragraph 52 of the Plaintiffs’ Petition related to the conduct of other Defendants.

53. Harrington is without sufficient information to either admit or deny the allegations set forth in Paragraph 53 of the Plaintiffs’ Petition.

54. Harrington denies the allegations set forth in Paragraph 54 of the Plaintiffs’ Petition.

55. Harrington denies Paragraph 55 of the Plaintiffs’ Petition.

56. Paragraph 56 of the Plaintiffs’ Petition contains no allegations to admit or deny.

57. Harrington denies Paragraph 57 of the Plaintiffs’ Petition.

58. Harrington denies Paragraph 58 of the Plaintiffs’ Petition.

59. Harrington denies Paragraph 59 of the Plaintiffs’ Petition.

60. Harrington denies Paragraph 60 of the Plaintiffs’ Petition.

61. Harrington denies Paragraph 61 of the Plaintiffs’ Petition.

62. Paragraph 62 of the Plaintiffs’ Petition contains no allegations to admit or deny.

63. Harrington denies Paragraph 63 of the Plaintiffs’ Petition.

64. Harrington denies Paragraph 64 of the Plaintiffs’ Petition.

65. Paragraph 65 (misnumbered) of the Plaintiffs’ Petition contains no allegations to admit or deny.

66. Harrington denies Paragraph 66 (misnumbered) of the Plaintiffs’ Petition.

67. E-larrington denies Paragraph 67 (misnumbered) of the Plaintiffs’ Petition.

68. Harrington denies Paragraph 68 (misnumbered) of the Plaintiffs’ Petition. Affirmative Defenses By way of fUrther answer, Harrington asserts the following affirmative defenses which may bar, in part or in whole, the Plaintiffs’ causes of action:

1. Failure to state a claim upon which relief can be granted;

2. Estoppel and waiver;

3. Assumption of risk;

4. Unclean hands;

5. Statutes of limitations;

6. Lack of personal jurisdiction;

7. Harrington incorporates and reasserts all of the defenses set forth in his Motion to Dismiss filed herein on October 5, 2012.

Harrington reserves the right to assert additional affirmative defenses as discovery progresses.

COUNTERCLAIM

First Cause of Action — Abuse of Process

For his first cause of action, Harrington incorporates paragraphs 1 - 68 herein by reference and further states:

69. The Plaintiffs have improperly used the Court’s process for an ulterior or improper purpose.

70. Harrington has suffered damages as a result of the Plaintiffs’ conduct.

71. Harrington should therefore be entitled to judgment against John W. Phillips and Deborah Phillips, jointly and severally, for damages that have been incurred and will continue to be incurred as a result of defending this action, plus punitive damages in an amount to be determined by a jury of his peers.

Second Cause of Action — Tortious Interference With Business Relations

For his second cause of action, Harrington incorporates paragraphs 1 - 71 herein by reference and further states:

72. The Plaintiff John W. Phillips intentionally and maliciously interfered with Harrigton’s business interests by making misrepresentations and disseminating false information to Harrington’s business contacts and employer.

73. The conduct of Plaintiff John W. Phillips was neither justified, privileged, nor excusable and caused harm to Harrington’s business interests through Loss of employment, loss of income, damage to reputation and the costs and expenses related thereto.

74. Harrington should therefore be entitled to a judgment in personam against John W. Phillips for damages in excess of $75,000.00, plus punitive damages in an amount to be determined by a jury of his peers.

WHEREFORE, Defendant Randy J. judgment in his favor and against Plaintiffs severally, for damages and punitive damages Harrington respectfully requests this Court to enter John W. Phillips and Deborah Phillips, jointly and to be determined by ajury of his peers.

Plaintiff responded to Harrington's counterclaim as follows:

1) Tn response to factual allegations incorporated into the allegations and statements offered in Answer to the Petition, unless specifically admitted to herein, Plaintiffs are without sufficient information to neither admit nor deny such claims, assertions, statements or allegations.

SPECIFIC DENIAL

2) The allegations of Defendant Harrington’s Answer and Counterclaim numbered Paragraph 69 through Paragraph 75, inclusive, are hereby denied, and strict proof thereof is hereby demanded.

AFFIRMATIVE DEFENSES

(A) Failure to State a Claim upon which relief can be granted;

(B) Waiver;

(C) Bad Faith and Unclean Hands; Defendant’s conduct has and continues to

(D) Fraud and Deceit; The Defendant’s actions constitute intentional misrepresentation, deception and fraud including its representations and allegations made to the court. Defendant, using various false identities, concealed identities and pseudonyms has pursued a vicious, malicious and concealed campaign of deceit which has been extended and continued into his pleadings before this Court.

(E) Statute of Limitations; The Counterclaims asserted by Defendant are time barred by the Statute of Limitations under Oklahoma Law

(F) All applicable affirmative defenses referenced in 12 Okia. Stat. 2008(C) are hereby incorporated herein; and Plaintiffs expressly reserve the right to assert such other affirmative defenses as may be merited based on further and ongoing discovery.

WHEREFORE, Plaintiffs, John W. Phillips, Deborah Phillips, and their Minor Child, prays this Court DENY Defendant Harrington’s claims and counterclaims, and award Plaintiffs all manner of relief, including actual, special, consequential, and punitive damages in excess of two hundred fifty thousand ($250,000.00) or as alleged in their Petition, as well as any and all other damages found appropriate, and including attorney fees, costs and expenses of prosecution as merited by law or in equity.


Randy Harrington offered to confess judgment in favor of the Plaintiff pursuant to 12 O.S. 1101.1 in the amount of $5,000.00.

Plaintiff filed a motion to compel against Google, Inc. asserting:

COMES NOW Plaintiffs, John W Phillips, Deborah Phillips and “Jane Doe”,’he minor daughter of John and Deborah Phillips (“Plaintiffs”), and hereby moves this Court, pursuant to Okla Stat tit 12 §2004(l)(D)(2) for an order to compel Google Inc to comply with multiple Subpoena Duces Tecum which were issued in Oklahmaa, domesticated in California and required the production documents and files kept and held in Google Inc’s possession and control. Further, Plaintiff’s based on assertions made by Google Inc’s legal staff, believes that Google Inc. spoliated and destroyed evidence in this case after having been notice of the matter and having been ordered to preserve such evidence. In support of this Motion, Plaintiffs allege and state the following:

1. Plaintiffs filed this action in Tulsa County District Court on March 22, 2012

2. Plaintiffs issued a Subpoena Duces Tecum on Google, Inc. (“GOOGLE”) on April 18, 2012 and domesticated this subpoena in the State of California for service upon Google, Inc. (Exhibit A). The Subpoena (HApril Subpoena”) prominently included the language: The Plaintiff requests that you produce all records described in this subpoena. In addition, to preserve the evidence, you should construe all instances of the words “produce” or “provide” to mean, “preserve.”

3. The April Subpoena requested very specific information regarding the owner of “www.squatchabyss.blogspot.com” as well identifying information and specific posts related to the screename “Todtkaufman”. (Exhibit A) An IT technical firm specializing in cyber forensic research was contracted (at considerable expense) to draft the request for data to assure technical accuracy and specificity.

4. Google’s first response was on May 9, 2012 indicating that Google received the Subpoena (Google Internal Reference Number: 227940). This letter reserved time to respond pending notice to the Google Account owner. Google indicated it would respond Twenty Days from the date of May 9, 2012. (Exhibit B)

5. Google responded to the April Subpoena on June 4, 2012. This response was heavily redacted and included only partial information requested. (Exhibit C)

6. Plaintiff’s issued a more specific Subpoena Duces Tecum on November 1, 2012 that was domesticated in the State of California (“November Subpoena”). Again, the November Subpoena included notice and preservation language identical to the April Subpoena. There was initially no response to this subpoena, but after consultation with Google Legal, Google responded on December 18, 2012 with two pages that was largely non-responsive, and included identical information provided in June 2012 [Google Internal Reference Number: 280905]. (Exhibit D)

7. In January 10, 2013, the Plaintiff’s issued and domesticated a third and final very specific Subpoena Duces Tecum (“January Subpoena”) directed specifically information for the account of “Todtkaufman”. Plaintiffs were at that time, aware of online activity of this individual during specific dates and times. (Exhibit E)

8. Google has never responded to this Subpoena in writing. On March 1, 2013, Counsel contacted Google Legal via Email to specifically inquire as to the January Subpoena. Google Legal representative Andrew Chung responded that there were no responsive documents, and that Google Policy was to not keep records longer than 28 days. (Exhibit F)

9. Counsel confirmed this conversation via email, and objected to Google’s failure to keep these records on a known, pending matter, contrary to a protective order.

10. Google, despite having valuable evidence in this matter, and having specific and detailed notice of the nature, type and dates involved, has continued to destroy evidence and avoid lawful discovery.

11. Google has had notice of this matter since April of 2012, and despite Plaintiffs diligent and good faith efforts to gather evidence has evaded production by citing Google’s own constantly changing internal policies on preservation of evidence. Since April of 2012, Counsel for Plaintiffs has spoken directly with Google representatives and engaged in numerous email messages requesting such information and complying with Google’s “ever-changing” destruction of documents policies.

12. Google regularly and routinely conducts business in the State of Oklahoma. Google services customers through Out the State of Oklahoma. Google maintains physical facilities within the State of Oklahoma.

WHEREFORE, for the reasons set forth above, Plaintiff prays its motion is granted, that the Court issue an Order compelling Google Inc. to fully and completely respond to Plaitniffs Subpoena’s issued in April, November and January. Further, to the extent that it is determined that Google has negligently, knowlying or willfully destroyed evidence in this matter, that this Court issue an Order finding Google Inc. in Contempt, and award Plaintiffs’ such damages, including attorney fees, costs and expenses, and such other damages as the Court deems just and equitable.

Google, Inc. responded to Plaintiff's Motion to Compel as follows:

COMES NOW Non-party Respondent, Google mc, (“Google”) by and through_its attorneys of record, Gregory D. Nellis and Carol J. Allen of the law firm of Atkinson, Haskins, Nellis, Brittingham, Gladd & Fiasco, and hereby submits its Response in Opposition to Plaintiffs’ Motion to Compel and Application for Contempt.

As a preliminary matter, Plaintiffs have failed to comply with the requirements of LRCV 21 and Okla. Stat. fit. 12 § 3237(A)(2) which requires Plaintiffs to confer in person or via telephone in good faith to resolve any discovery dispute before filing a Motion to Compel.

Despite Google’s good faith compliance with multiple subpoenas and production of many pages of account registration and IP information for accounts identified in Plaintiffs’ three subpoenas, Plaintiffs move this Court to either compel Google to produce additional information or hold it in contempt for failing to preserve such information. Plaintiffs’ Motion to Compel and Application for Contempt should be denied because (1) an Oklahoma court cannot enforce a California subpoena against a non-party residing in California; (2) Google has complied in good faith with each subpoena received from Plaintiffs and had no duty to preserve evidence between subpoenas; and (3) Plaintiffs have failed to comply with local rules governing motions to compel.

I. BACKGROUND

Since April 2012, Plaintiffs have served three subpoenas on Google in California, seeking information that may help Plaintiffs identify an Internet blogger they accuse of defamation. Google has responded to each subpoena in a timely matter, and it has produced pages of account registration information and IP logs for various accounts identified in Plaintiffs’ subpoenas.

Plaintiffs’ first subpoena was dated April 18, 2012; was endorsed by a California court on May 2, 2012; and was received by Google on May 4, 2012. The subpoena sought basic subscriber information and IP logs for a Blogger account associated with the URL http:// sqatchabyss.blogspot.com and the name TodTKaufman. The subpoena specifically referred to blog posts made in June and July 2011. It also sought information relating to other Google services for the identified user.

On May 9, 2012, Google sent a response letter to Plaintiffs, advising them that it would provide 20 days’ notice to the user prior to producing the requested information. Thus, Google produced the requested information on June 4, 2012, including account registration information for a Blogger account and a YouTube account as well as the IP addresses from which the accounts were created and more than twenty pages of available IP logs from April and May 2012, which Google had preserved upon receipt of the subpoena. Plaintiffs did not complain about the adequacy of Google’s production, and Google heard nothing further from Plaintiff for the next five months.

Then, on November 21, 2012, Google received a second subpoena from Plaintiffs. The subpoena was dated November 1, 2012, and it was endorsed by a California court on November 21, 2012. The subpoena sought information regarding the B logger account at http:// sqatchabyss.blogspot.com and a Gmail account for the address todtkaufman(gmai1.com from May 1, 2011 to the present. On December 18, 2012, Google produced responsive documents, which provided subscriber information for the Gmail account and the Blogger account. It also included the creation IP for the user’s account and recent log-in activity, which consisted of a single log-in on November 17, 2012. Again, Google heard nothing from Plaintiffs until it received a third subpoena.

Google received Plaintiffs’ third subpoena on January 18, 2013. The subpoena was dated January 10, 2013 and endorsed by a California court on January 16, 2013. The third subpoena sought additional information regarding the Blogger account at http://sqatchabyss.blogspot.com for the time period from June 2, 2012 to September 28, 2012. It specifically requested IP logs for that time frame. After Google received the third subpoena and produced basic subscriber information for the Blogger account, a Google legal assistant advised Plaintiffs that Google had no additional responsive documents to the January 2013 subpoena because IP log-in data reasonably accessible to Google through its litigation support tools was retained for only 28 days. In other words, by the time Google received the subpoena in January 2013, it no longer had ready access to IP logs for June to September 2012.


On March 1, 2013, apparently dissatisfied with Google’s response, Plaintiffs’ counsel drafted an email to a Google legal assistant threatening to seek sanctions against Google and accusing Google of bad faith and wrongful destruction of documents. See Exhibit F to Plaintiffs’ Motion. Although Plaintiffs fail to mention it, the March 1, 2013 email was not actually sent to Google (or, at a minimum was not received by Google). Plaintiffs’ exhibit shows that Plaintiffs’ counsel sent the email to himself and not to Google. Rather than pursuing discussions with a Google attorney, on March 27, 2013, Plaintiffs filed the instant motion. Google opposes the motion because it is both procedurally improper and without merit, as described further below.

II. ARGUMENT AND AUTHORITIES

A. An Oklahoma court cannot enforce a California subpoena against a non-party residing in California

As a threshold matter, Plaintiffs have brought their motion in the wrong court. Plaintiffs acknowledge that the subpoenas they seek to enforce were domesticated in California. Mtn. at 1. Plaintiffs availed themselves of a straightforward process permitted by California’s Code of Procedure for issuing subpoenas through California counsel. Cal. Code Civ. P. § 2029.350 (providing that subpoena issued by California counsel may incorporate terms used in foreign subpoena). A key purpose of domesticating a subpoena for service on an out-of-state non-party is to permit motions to enforce or oppose such subpoenas to be heard by a court with subpoena power over the resident. Indeed, that is precisely what the California Code of Procedure contemplates. See Cal. Code Civ. P. § 2029.600 (providing that “any request for a protective order or to enforce, quash, or modify a subpoena, or for other relief’ may be filed in the superior court in the county where discovery is to be conducted). Put simply, a California court should hear disputes about subpoenas domesticated and served in California.

Enforcing the subject subpoenas in California is also consistent with Oklahoma case law addressing the scope of the State’s subpoena power. Specifically, Oklahoma appellate courts have held “that the subpoena powers of Oklahoma courts stop at the state line.” Lovett v. Wal-Mart Stores, Inc., 2001 OK CIV APP 9, ¶ 12, 18 P.3d 387, 389; see also Craft v. Chopra, 1995 OK CIV APP 135, ¶ 7, 907 P.2d 1109, 1111 (rejecting argument that Oklahoma discovery process extends beyond state bounds). Thus, permitting Plaintiffs’ motion to proceed in this Court would contravene state law. Plaintiffs’ motion misses the point by emphasizing that Google “regularly and routinely” conducts business in the State of Oklahoma, serves Oklahoma residents, and maintains facilities in Oklahoma. Mtn. at 4, ¶12. While such facts may be relevant to a personal jurisdiction analysis if Google were a putative defendant, none of these facts make Google an Oklahoma resident for purposes of subpoena enforcement. See, e.g., Craft, 907 P.2d at 1111 (rejecting argument that minimum contacts analysis applies to discovery of documents from non-resident nonparties via Oklahoma subpoenas, and emphasizing that cases addressing this issue apply to party defendants and not witnesses). Google’s headquarters, documents, and custodians are in Mountain View, California. In short, Google is not subject to Oklahoma’s subpoena powers in this case.

B. Google has complied in good faith with each subpoena received and had no duty to preserve evidence between receiving subpoenas

Despite the lack of a legal or factual basis, Plaintiffs accuse Google of spoliating and destroying evidence after having been ordered to preserve it. Mtn. at 1. Google has done no such thing. Upon receiving each subpoena, Google searched for responsive information and preserved any such information until it was produced to Plaintiff.

Plaintiffs’ quarrel with Google is that Google did not affirmatively preserve information that wasn’t responsive to Plaintiffs’ subpoenas on a going forward basis in case Plaintiffs decided to request that information as well. In support of their argument that Google had a broad-based duty to preserve all evidence relating to any accounts identified in Plaintiffs’ subpoenas, Plaintiffs note that each of their subpoenas included an instruction advising that requests to “produce” or “provide” documents should be read to mean “preserve.” From this, Plaintiffs conclude that Google had an ongoing and indefinite duty to preserve any and all data associated with accounts referenced in the subpoenas, even after Google discharged its obligations under each subpoena by producing the requested information. Plaintiffs’ argument not only lacks legal support, but also is undermined by further instructions directing that Google “simply preserve the records for which you object and provide all other requested information.” Plaintiffs misleadingly suggest that a preservation order was entered against Google in this case. Mtn. at 3, ¶9. That is simply untrue. The mere fact that Plaintiffs’ November subpoena has a heading entitled “Preservation Order” does not amount to entry of a protective order, nor does it alter Google’s legal obligations. Until now, no court has reviewed or entered any order relating to Plaintiffs’ subpoenas, which were issued by clerks as ministerial acts.

In any case, no Oklahoma statute or court supports the imposition of broad preservation obligations on non-parties. Notably, the statute governing subpoenas, 12 Okia. Stat. § 2004.1, does not impose an ongoing duty to preserve evidence on non-party subpoena recipients. If such a duty existed, it likely would be in the subsection titled “Duties in Responding to Subpoena.” Okla. Stat. tit. 12 § 2004.1(D). Indeed, where the Oklahoma legislature intended to require preservation of evidence, it included specific language to that effect. See, e.g., Okla. Stat. tit. 12 § 2004.1 (D)(2)(b) (requiring person who inadvertently produces privileged or protected information to “preserve the information until the claim is resolved”). The Oklahoma Supreme Court has recognized only a litigant’s duty to preserve evidence. See Barnett v. Simmons, 2008 OK 100, ¶20, 197 P.3d 12, 20 (reasoning that “a litigant who is on notice that documents and information in its possession are relevant to litigation or potential litigation or are reasonably calculated to lead to the discovery of admissible evidence has a duty to preserve such evidence”). There is no Oklahoma decision imposing a similar obligation on non-parties, much less non-parties who have already made a complete production pursuant to a subpoena, and Plaintiffs cannot impose additional obligations on Google through their subpoena instructions.1 In fact, to the extent Plaintiffs suggest that Google should prospectively preserve electronic communications, doing so could constitute an illegal wiretap in violation of 18 USC § 2511.

Finally, it must be emphasized that, despite Plaintiffs’ suggestion to the contrary, Google’s policy regarding retention of IP log data for litigation has been in place since long before Plaintiffs’ first subpoena. Thus, Plaintiffs’ arguments regarding Google’s “constantly changing internal policies on preservation of evidence” and”‘ever-changing’

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‘Similarly, third parties owe no general duty to preserve evidence under California law. See Temple Cmly. Hosp. v. Super. Ct., 20 Cal. 4th 464, 477 (1999) (refusing to recognize spoliation claim against third party for failure to preserve evidence because third parties owe no general duty to do so). Courts have imposed obligations to preserve evidence on third parties only where the party was contractually obligated to do so or explicitly promised to preserve evidence, inducing another party to reasonably rely on the promise. See, e.g., Cooper v. State Farm Mut. Auto. Ins. Co., 177 Cal. App. 4th 876, 892 (2009). Google has no contract with Plaintiffs, nor did it explicitly promise to preserve account information.

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destruction of documents policies” have no basis in fact. Mtn. at 2-3, ¶11. For each subpoena, Google produced the account creation IP and any recent IP logs that fell within the scope of Plaintiffs’ requests. These productions fully discharged Google’s obligations, and Google was not required to preserve additional data that Plaintiffs might ask for in the future.2

C. Plaintiff has failed to comply with local rules governing motions to compel

Further, Plaintiffs’ motion should be denied because Plaintiffs’ counsel failed to meet and confer with Google’s counsel as required by state and local rule. This State’s code of procedure provides that motions to compel “must include a statement that the movant has in good faith conferred or attempted to confer either in person or by telephone with the person or party failing to make the discovery in an effort to secure the information or material without court action.” Okla. Stat. tit. 12 § 3232(2). Similarly, Tulsa County’s Local Rule CV 21 provides that the Court will refuse to set or hear any discovery dispute unless counsel for the movant advises the Court in the motion that the lawyers have conferred. Local Rule CV 21 specifically provides that “correspondence alone will not satisfy this requirement.” As mentioned above, Plaintiffs’ counsel spoke with a Google legal assistant and never requested to speak with an attorney. Rather than requesting a conference with a Google attorney — which Google would have readily accommodated -- Plaintiffs filed the instant motion accusing Google of wrongdoing. In fact, Plaintiffs’ counsel declined the

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2 As a practical matter, a prospective duty to preserve all information for all accounts for which legal process was ever received would immobilize Google’s operations. Although Google does not release the number of civil requests it receives on annual basis, Google’s 2012 Transparency Report indicates that Google received over 40,000 government requests for user data related to 68,000 accounts last year. See 2012 Transparency Report, available at: http://www.google.com/transparencyreport/userdatarequests (last accessed on April 10, 2013). Relevant portions of the Transparency Report are attached hereto as Exhibit I A.

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Google legal assistant’s offer to put him in touch with counsel. Thus, it’s no surprise that Plaintiffs’ motion did not include the language required by state and local rule because Plaintiffs’ counsel did not have a conference with a Google attorney prior to filing their motion. Pursuant to Local Rule Civ. 21, Plaintiffs’ motion could be denied on this basis alone.

B. Plaintiffs may not recover Costs and Attorney Fees

Plaintiffs’ counsel requests an award of fees and costs in bringing their Motion to Compel. Okla. Stat. tit. 12 §3237(A)(4) allows an award of fees to a prevailing party on a motion to compel only where resistance to production was not “substantially justified” or where no other circumstances make an award of fees and costs “unjust.” An award of fees and costs to Plaintiffs in this matter is clearly not justified, where it is evident that Google has in fact complied with the subpoenas. Google should therefore be permitted to recover its reasonable attorney fees and costs in responding to Plaintiffs’ Motion, where Section 323 7(A)(4) specifically states:

If the motion [to compel] is denied, the court shall, after opportunity for hearing, require the moving party or the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award unjust. Okia. Stat. tit. 12 §3237(A)(4).

Google has made reasonable efforts to respond to Plaintiffs three subpoenas and has acted in good faith in its attempts to comply with the subpoenas’ requests. Plaintiffs should not be permitted to recover attorney’s fees and costs for a frivolous Motion to Compel and wherein Plaintiffs failed to comply with Local Rule Civ. 21 and Okla. Stat. tit 12 § 3232(2).

III. CONCLUSION

In conclusion, Plaintiffs have no valid factual or legal basis for seeking an order compelling production or sanctions against Google. Putting aside that Plaintiffs improperly ask this Court to enforce a California subpoena to a California non-party respondent in an Oklahoma court, their request should be denied because Google has complied in good faith with all of its obligations under the subject subpoenas. On the other hand, Plaintiffs have not complied with their most basic obligations to this Court, such as their obligation to meet and confer with Google’s counsel in good faith before filing accusatory motions. For the reasons stated herein Plaintiff’s motion should be denied.

WHEREFORE, premises considered, Non-party Respondent, Google Inc., respectfully requests this Court deny Plaintiffs’ Motion to Compel and Application for Contempt and award Google its attorneys’ fees and costs incurred in having to respond to Plaintiffs’ unfounded Motion and any other relief this Court deems just and equitable.

NON-PARTY GOOGLE INC.’S APPLICATION FOR ATTORNEY FEES

Non-party, Google Inc., by and through its undersigned counsel, hereby submits its Application for Attorney Fees pursuant to this Court’s Minute Order of June 13,2013 and Okia. Stat. Tit 12 § 3237(A)(4), and states in support:

1. On June 13, 2013, the Court issued its Minute Order denying Plaintiffs’ Motion to Compel Third Party Google Inc. (“Google”), and Application for Contempt (the “Motion”) and granting Google’s request for attorney fees incurred in defense of Plaintiffs’ Motion. The Court further instructed that “the amount of fees to be submitted per application to the Court within 10 days of this Order.” (See Minute Order dated June 17, 2013).

2. For the detailed reasons set forth in the Affidavits of Carol J. Allen and Jade R. Lambert, attached as “Exhibit I and 2”, respectively, Google has necessarily incurred $7,860.89 in attorney fees from April 3,2013 through June 17, 2013 in handling this matter. The attorney rätç,s charged by both Google’s lead and local counsel in this case were standard, reasonable rates for the work performed by attorneys in the states of Oklahoma and Illinois. (Bx.’s 1 and 2 at ¶5-6.) Thus the amount of, and justification for, the professional fees incurred by Google in this case are fair and reasonable,

WHEREFORE, Non-Party Google Inc., respectfully requests this Court enter an order awarding Google’s attorney fees in the amount of $7,860.89 and any such other relief the Court deems appropriate.

PLAINTIFF’S MOTION TO VACATE THE COURTS AWARD OF ATTORNEY FEES AND COSTS

COMES NOW, Plaintifl John W. Phillips, Deborah Phillips and “Jane Doe”, the minor daughter of John and Deborah Phillips, by and through counsel, and prays the court reconsider its ruling issued June 17, 2013 awarding GOOGLE attorney fees and costs on PLAINTIFFS’ MOTION TO COMPEL THIRD PARTY GOOGLE INC. 1 In support of its motion, the Plaintiffs allege and assert as follows:

PROCEDURAL HISTORY:

1) On March 27, 2013, Plaintifl filed their MOTION TO COMPEL THIRD PARTY GOOGLE INC. regarding three separate but related Subpoena Duces Tecum issued by this in relation to this matter, and domesticated in California for service upon GOOGLE:

A) April 18, 2012 Subpoena (“April Subpoena”);

B) November 1, 2012 Subpoena (“November Subpoena”); and

C) January 10, 2013 Subpoena (“January Subpoena)

2) Each of these subject Subpoena’s is attached to Plaintiffs March 27, 2013 Motion, are each incorporated herein by this reference, and omitted in this filing in the interest ofbrevity and judicial efficiency.

3) On May 17, 2013, this Court entered Default Judgment against Defendant Darren Lee.

4) On June 13, 2013, the Plaintiffs hearing on damages was heard before the Court, and damages were assessed against Darren Lee.

5) On June 13, 2013, the Court ruled on PLAINTIFFS” MOTION TO COMPEL THIRD PARTY GOOGLE INC., and denied said motion, and awarded attorney fees and costs to GOOGLE INC., on the basis of LOCAL COURT RULE 21.

6) Google was in fact noticed regarding the Discovery Dispute on February 27, 2013, (Exhibit A) regarding the verbal and written correspondence leading up to the motion to compel. As such, the Plaintiffs did in fact have both verbal and written correspondence with Google prior to filing ofits MOTION TO COMPEL. The draft email marked as Exhibit G to Plaintiffs Motion to Compel, was submitted in error as the actual notice. This correspondence was issued to and addressed to “Go ogle Legal” as required and requested by Google in its prior correspondence.

7) Plaintiffs waited to file its Motion to Compel on March 27, fully 30 days after it noticed Google of their intention to file such a Motion, and only after repeated verbal and written correspondence, and previously issued demand.

8) At all times, Plaintiffs communication with its Google was conducted in the maimer required and controlled by Google. Google made no further attempts, in 30 days, to communicate with Plaintiffs after issuing its demand and intention to file its Motion to Compel.

9) The Plaintiffs received a copy of the Court’s Minute Order on June 22, 2013 via mail.

BRIEF IN SUPPORT

The Plaintiffs Motion, in the form ofa “Motion to Reconsider” is properly within the Courts plenary authority in administration of the case pending before it, and the Court is authorized to reconsider its rulings and orders. 12 Okla. Stat. § 3226.1; 12 Okla. Stat. 2004.1(E); 12 Okla. Stat. § 1118; 12 Okla. Stat. §651; 12 Okia. Stat. §1031

In all cases, each of the subject subpoenas were served upon Google’s legal department precisely in the manner expressly required by Google. As expressly stated in Plaintiffs motion, Google has very precise internal policies and procedures required prior to considering any subpoena, and Plaintiff retained an outside expert to assist with the drafting, issuing and service of each of the subject subpoenas (Plaintiffs Motion to Compel - ¶ 11).

What may not be have been made completely clear in the original Motion to Compel is the fact that access to Google Legal is strictly limited by Google Legal’s own policies and procedures. Access to Google Legal is not publicly listed, and strictly limited by Google Legal - i.e. contact with Google Legal, in any form, is not available through publically available information. A party issuing a Subpoena must first issue a subpoena in its own court; then domesticate the Subpoena in California, then issue and serve it upon Google Legal, then await Google to issue a standard objection, then correspond via the email address provided with personnel of Google Legal’s choosing, then wait a 20 day waiting period required by Google Legal, and only then will that party receive a internal reference number and contact telephone number by which to communicate meaningfully verbally via telephone. In each such case, Plaintiff was forced to (and did) follow this procedure - and in doing so communicated with those persons selected by Google.

Plaintiff engaged in numerous verbal and written communications with Google’s Legal Department prior to filing its Motion. From April of 2012 until January of 2013, Plaintiffs issued three separate subpoenas, based in part upon the conversations undertaken with various Google Legal Representatives in California via email and telephone, all such communications were premised first by an email from Google Legal to provide a necessary telephone contact number, the name of the appropriate Google Legal Representative handling that subpoena, and required Google Internal Reference Number. (See Plaintiffs Motion to Compel Generally).

In each such case, Google advised that its policy, prior to releasing any information, a twenty-day notice period was required to contact its account owner to allow for objections. In no case was any objection filed by the Google Account holder, however, Google’s response to the Subpoena was always withheld based upon this internal Google Policy. With each Subpoena issued, Counsel for Plaintiff issued emails followed by verbal telephone conversations in an attempt to obtain the relevant information requested. Google’s “28 day” document retention policy was only announced after the third such Subpoena was issued, months after Plaintiffs original preservation order, in response to continuing posts to the subject blog. Plaintiffs original Exhibit G, while never issued to Google, accurately summarizes the final, verbal conversation, which occurred on or near March 1, 2013 with the Google Legal Representative handling the January Subpoena. (see also Exhibit H - Plaintiffs’ Motion to Compel)

During all times relevant, the Google Customer continued to post and delete entries on the subject blog as was evidenced by activities discernable from a casual review of the blog. Plaintiffs continued Subpoena requests and ultimate motion to compel was premised on this continuing, relevant posting activity on the subject blog. In all communications, written and verbal, Google was asserting that no responsive information was available, and in all such cases, the information was not being retained. In all such cases, all communications and negotiations with Go ogle were being strictly limited by Google’s internal policies on third party Subpoenas. It was only after, during the final telephone conference with Google Legal, Google affirmatively asserted that all relevant information had been deleted, that Plaintiffs ified its Motion to Compel. (Id. - Exhibit A)

The fact remains that Plaintiff placed Google on notice of our suit in April of 2012; Plaintiff requested that evidence be preserved in April of 2012; Plaintiff made several, costly attempts to obtain the specific information it required in April of 2012, November of 2012 and in January of 2013; After each such subpoena, Plaintiff contacted Google Legal, and communicated with the personnel assigned there by Google; In January of 2013, Google Legal asserted by its submissions and then verbally that all relevant evidence had been destroyed pursuant to Google’s document retention policy; In February of2013, Plaintiff demanded compliance and asserted both in writind and verbally, that a Motion to Compel would be its final resort; and finally, after 30 days, filed its Motion to Compel. Plaintiff at all times was limited to communicating with Google only as allowed by Google Legal, and Google legal controlled such access. Plaintiff believes its conduct met the requirements of Rule 21.

As such, as evidenced by Exhibit A of Plaintiffs Motion to Compel, Plaintiffs assert that Counsel did in fact make continuing and good faith attempts, along with both verbal and written correspondence, to resolve its discovery dispute with Google in full compliance with the Local Rule 21. Unfortunately, Google’s own internal policies and limited access are designed and implemented to make meaningful and open dialogue for discovery disputes extremely difficult and limited in scope. It was only after a final, verbal conversation with Google Legal that Google asserted, despite a notice and an order to preserve evidence, that all such evidence was not available and not being so retained for Discovery purposes. Only then did Plaintiffs seek a motion to compel, and only after 30 days notice to Google Legal issued by Email. Likewise, during the days following Plaintiffs demand for sufficient compliance with its subpoena, no attorney with Google Legal, nor any outside counsel in Oklahoma or otherwise made any attempt to contact or follow up with any further discussions about this dispute.

WHEREFORE, Plaintiff respectfully requests this honorable court vacate its award of attorney fees and costs, and provide plaintiff such other reief as it deems just and equitable.

Goople’s Response to Plaintiffs’ Motion to Vacate the Court’s Award of Attorney Fees and Costs


COMES NOW Non-party Respondent, Google Inc., (“Google”) by and through its attorneys of record, Gregory D. Nellis and Carol J. Allen of the law firm of Atkinson, flaskins, Nellis, Brittingham, Gladd & Fiasco, and hereby submits its Response in Opposition to Plaintiffs’ Motion to Vacate Fee Award.

On June 13, 2013, this Court denied Plaintiffs’ Motion to Compel Google to produce documents and granted Google’s request for attorneys’ fees. Google argued that it should be awarded fees because Google responded to three subpoenas in good faith, and Google had no duty to preserve information that wasn’t requested just because Plaintiffs might want it later.

Plaintiffs now ask the Court to vacate its fee award. The Court should deny Plaintiffs’ motion, however, because the decision to award Google fees was wholly appropriate, and Plaintiffs’ have not satisfied the applicable legal standard for vacating this Court’s award of said fees.

Plaintiffs do not meet any of the criteria for vacating a judgment as outlined in Okia. Stat. tit. 12 § 1031. Indeed, the statute Plaintiffs invoked in their Motion to Compel against Google, Okla. Stat. tit. 12 § 3237, directs the Court to award attorneys’ fees to the prevailing party. Specifically, Section 3237(A)(4) provides:

If the motion [to compel] is denied, the court shall, after opportunity for hearing, require the moving party or the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.

Id (emphasis added). The Court clearly had discretion to award attorneys’ fees under the text of Section 3237, and Plaintiffs have produced no evidence whatsoever that the Court abused its discretion in doing so. See Payne v. Dewitt, 1999 OK 93, ¶J 9, 18, 995 P.2d 1088, 1093, 1096 (“A counsel-fee award will not be disturbed absent a demonstration of abused discretion.”).

Furthermore, Plaintiffs have not shown “substantial justification” for filing the Motion to Compel to excuse the payment of attorneys’ fees. Id. ¶ 18, 995 P.2d at 1096.

Plaintiffs’ entire motion is premised on the incorrect assumption that the Court awarded Google fees and costs “on the basis of Local Rule 21.” See Mtn. at 2. Rather, the Court specifically noted that she was considering Plaintiffs’ arguments despite the fact that Plaintiffs “failed to follow the mandates of Local Rule 21.” See June 13, 2012 Order Denying Motion. Thus, there is no reason to believe that the Court awarded fees based on Local Rule 21, particularly when Google’s basis for seeking fees was that Plaintiffs’ position was entirely unreasonable on the merits and as a matter of procedure because they (1) sought to enforce a California subpoena in Oklahoma; (2) mischaraeterized the facts to argue that Google was uncooperative, when Google produced many pages of responsive information in response to multiple subpoenas; and (3) premised their motion on a wholly unsupportable claim that Google had a broad duty to preserve information that Plaintiffs had not even requested. Plaintiffs’ failure to comply with local rules governing motions to compel was just one of many problems with their motion.

In any case, Plaintiffs’ Rule 21 argument is also without merit. Plaintiffs claim that Google “made no . . . attempts . . . to communicate with Plaintiffs” about a discovery dispute between February 27, 2013 and the time Plaintiff filed its motion to compel on March 27, 2013. That is simply not true. In fact, Google’s internal file notes document that a Google paralegal, Andrew Chung, spoke with Plaintiffs’ counsel on March 1, 2013. The notes reflect that Plaintiffs’ counsel accused Mr. Chung of lying about its document retention procedures “and said he didn’t want a meet and confer [with a Google attorney].” See Exhibit A, File Notes of A. Chung (irrelevant portions redacted). Plaintiffs also make much of the fact that Google “only announced [a 28-day IP log retention policy] after the third . . . Subpoena was issued” in January 201 3. Yet, Plaintiffs neglect to mention that the January 2013 subpoena was the first time they requested IP-log data for June to September 2012, which Google had purged pursuant to its regular 28-day retention practice.’

In short, the Court’s decision to award Google its fees was entirely reasonable, and Plaintiffs have not identified any basis for the Court to revisit that decision. Accordingly, Google respectfully requests this Court to deny Plaintiffs’ Motion to Vacate the Court’s Award of Attorney Fees and Costs, and further award Google the additional fees incurred in connection with responding to this motion.

Outcome: Dismissed without prejudice as to Lost Horizon Computers, Charles McClain and Mid-America Bigfoot Research Center. Dismissed with prejudice as to Randy J. Harrington. Default judgment taken against Darren W. Lee.

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