Editorial: Unwanted Twitter Publicity Provides Valuable Lesson
It began with a simple letter: "The City of Danbury hereby orders you to CEASE AND DESIST publication of and/or comment on the deposition transcripts from the matter of DaCosta v. Danbury on www.HatCityBLOG.blogspot.com and/or any other internet and/or social media site, including Twitter and Facebook that are currently in your possession, custody, and control…The reason for this cease and desist is to protect a variety of privacy rights were [sic] implicated the minute the full text of the transcripts were released. Compliance will be deemed complete when the transcripts have been removed from you [sic] blog… and the transcripts have been returned to the undersigned at Rose Kallor… Please provide proof compliance [sic] to the undersigned within three (3) days of your receipt of this cease and desist letter. As you are award [sic] from reading the Danbury News Times, the City of Danbury did receive a request made pursuant to the Freedom of Information Act ('FOIA') for these transcripts…"
And with this letter, the law firm of Rose Kallor became a temporary laughingstock of reporters and legal bloggers throughout the Twitterverse.
For those readers not familiar with this story, here's the background. An employment lawsuit is pending in federal court in which the City of Danbury is a defendant. Rose Kallor is defending the city. Some news reporters filed requests for copies of transcripts of depositions in the case with the City of Danbury. There were apparently no protective orders in place related to the depositions. After substantial delay in getting their FOI requests fulfilled, the reporters apparently obtained copies of the depositions from the plaintiff's lawyer. Thereafter, one of the reporters, blogger Alfonso Robinson, posted a piece about the lawsuit and reproduced excerpts of the depositions on his blog.
In what should now serve as a lesson for other lawyers, an attorney at Rose Kallor appears to have decided that she might be able to bully the blogger into taking down the depositions with a "cease and desist" letter. The attorney sent a letter that accused Robinson of violating several laws by publishing the transcripts and demanded return of the transcripts to the law firm within three days.
Some folks are intimidated by a fancy letterhead bearing a list of attorneys. Bloggers do not usually fall into that category. Bloggers also tend to find support among their media peers. Another reporter, Andy Thibault, began writing about the issue. The attorney then applied to the court for a protective order, and Thibault showed up to cover the hearing. He asked for a copy of the motion for a protective order and was dismissed by the attorney. (Lawyer lesson: Don't be rude to reporters. They're just doing their jobs and it is of no help to your client to have them write about your dismissiveness in their article.)
Thibault then wrote an article that was critical of the law firm's conduct. The article quotes several lawyers, including prominent First Amendment lawyer Dan Klau and former Freedom of Information Commission Executive Director Mitchell Pearlman, all of whom appear to be in agreement that the Rose Kallor letter was groundless. The Thibault article was posted in online newspapers and the link was tweeted by other reporters and bloggers. It caught the interest of some more bloggers who authored their own posts criticizing the law firm's letter. These posts were further tweeted, linking to the Thibault article. Others began retweeting the blog posts and the article.
Eventually the Rose Kallor letter was hitting the twitter feeds of reporters for state and national publications. Hartford Courant reporters tweeted that the letter was an act of intimidation. Brad Heath of USA Today tweeted, "This letter might break some kind of record for legal errors per paragraph." Most of the tweets shared the same basic theme – that the law firm was either: (1) ignorant of the law; or (2) just a bunch of bullies. Neither reputation is one a law firm wants to have.
What can lawyers learn from this story? First, do not try to bully people. Cease and desist letters have their place, but think about whether there is a legitimate legal basis for the demand. Second, be respectful to reporters. They are just doing their jobs when they are covering a case and it is a real disservice to the client to be rude to them. Third, once a story hits Twitter, there is little hope of stopping the retweets. Either resolve the issue before it gets out of hand or, at the very least, be comfortable knowing that whatever you write to a blogger, is likely going to be read by others. Make sure that the communications are professional, respectful, free of typos, and a proper articulation of the law.