“You can’t always get what you want
But if you try sometimes you just might find
You get what you need” – Rolling Stones
Well, I won.
What did I win? The court case to defend my reporter’s privilege, in the face of those who wished to use the courts to harass me because I write South Dakota’s #1 political website. As much as I’ve wanted to cheer on it, I’ve been patiently waiting while the court decide what to do about it. And how much of my attorney’s fees that Mr Willard would be paying.
What case am I referring to? The Robocall Criminal case where defendant Daniel Willard was found guilty of paying for robocalls without having the proper disclosures. As part of the trial, myself and Dan Lederman (who is suing Willard & US Senate Candidate Stace Nelson among others civilly) found ourselves subpoenaed.
What was their reasoning for dragging me into the circus? They wanted to pick my brain to see if things had been leaked to me, and – this is no lie – to see if I had used my magical technical powers to track phone calls. Which was, and remains, an idiotic presumption.
So, I fought it, and I won. I just had to hang tight so see to what degree I’d won.
This has been a long time in coming, so, what did Judge Foley have to say about it? Here’s my copy of it, in black & white:
So, what were the highlights? From page 2:
“Petitioners Powers and Lederman seek sanctions in the form of attorney’s fees and costs and in their brief claim they incurred $10,600.00 in fees to confer with counsel, research,draft, and argue all pleadings and motions in this case as it pertains to them..”
We asked for $10,600 in legal fees….. From Page 5:
In this particular case, Mr. Arends is a veteran of the legal profession and a solo practitioner. The fees of $200.00 an hour for his work are reasonable. After a careful review of the work necessary to argue the motions and pleadings, the Court finds the hours worked on this issue to be reasonable. In fact, the Court would like to commend Mr. Arends on the fine legal work he displayed in this matter.
Judge Foley was complimentary to the thoroughness of our attorney’s work, but….
Further, as described in Guthrie, “a lessor amount of terms will still serve to send a message … and prevent further abuses.”
The Judge thought messages are more important than amounts… Wait, What? From page 6:
While the Court is sensitive to the actual attorney’s fees Mr. Arends accumulated on behalf of his clients, those fees must be weighed against the equities of the particular facts in this case. The argument that Willard should have to pay the price of forcing Lederman and Powers to go through this ordeal is strong. But the more compelling aspect of this issue is the need to impose “punitive” terms upon Willard for issuing abusive subpoenas, not necessarily making Mr. Arends’ clients whole. Mr. Arends’ work must be deemed successful; his clients paid to have their subpoenas quashed . The Court feels that success should come at a price to Mr. Arends’ clients themselves, not just Willard.
Aw, darn it. If we wanted to contest the subpoena, we had to pay for a big chunk of the privilege of doing so. Again, page 6:
As mentioned, the Court has already determined there was bad faith involved in the issuance of the two subpoenas at issue. The Court has taken the position that the issuance was done, at least in part, as a means of punishing an individual who have filed a civil suit against Willard and with whom Willard may disagree politically.
Yes, the judge recognizes that they were being jerky to us, hence the “bad faith” involved in the issuance of the two subpeonas. And the end result:
CONCLUSION: After careful consideration of the four factors provided by the South Dakota Supreme Court in Guthrie, the Court finds reasonable the imposition of sanctions in the amount of $250.00 for issuing the subpoena to Mr. Powers in bad faith, and $250.00 for issuing the subpoena to Mr. Lederman in bad faith. The Court imposes terms equaling a total of $500.00 against the defendant, Daniel Willard.
As a result of all of this, the court set the precedent that some bloggers, in this case, specifically me, are Journalists in the eyes of the law. And, that Daniel Willard was pursuing this matter against me in bad faith.
And so, I’ll just cue up the Rolling Stones on my jukebox to remind myself that “You can’t always get what you want. But if you try sometimes you just might find, you get what you need.”