IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) INTRODUCTION

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1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA DAVID DESPOT, v. Plaintiff, THE BALTIMORE LIFE INSURANCE COMPANY, THE BALTIMORE LIFE INSURANCE COMPANIES, GOOGLE INC., MICROSOFT CORPORATION/ BING, YAHOO! INC., JUSTIA.COM/ JUSTIA, INC., LEAGLE.COM/LEAGLE, INC., PACERMONITOR.COM/ PACERMONITOR/HARROS, LLC, LAW360.COM/ PORTFOLIO MEDIA, INC., CASETEXT, INC., and RFC EXPRESS, Defendants. Civil Action No. 2:15-cv RCM The Honorable Robert C. Mitchell CASETEXT, INC. S MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS INTRODUCTION Casetext is a free, online platform founded in response to a major social justice problem: the law is expensive to access and difficult to understand. 1 Its mission is to make all the world s laws free and understandable. 2 To that end, Casetext has developed a crowd-sourced approach to legal research, by which users can discover and share legal knowledge by searching millions of primary legal documents judicial opinions, statutes and regulations annotated with insights contributed by experienced attorneys. 3 In this lawsuit, David Despot alleges that Casetext, along with several other defendants, violated state and federal law by publishing verbatim copies of judicial orders from previous litigation brought by Mr. Despot. He seeks an injunction requiring Casetext to immediately 1 About Casetext, 2 Id.; see also Jake Heller, The Business Case To Make Big Data Free, Bloomberg BNA (May 13, 2015, 3 Daniel J. O Reilly, The Changing Face of Legal Research, LJN s Legal Tech Newsletter (May 2015, at 4. 1

2 remove all documents and associated links with the Plaintiffs name... and associated legal cases. Compl. 19. He also seeks unspecified money damages for the harm he has allegedly suffered as a result of these documents appearing on Internet search engines. Id The First Amendment, however, entirely bars Mr. Despot s action against Casetext. The Supreme Court has consistently held that the First Amendment protects the publication of court records that have been lawfully obtained. See, e.g., Florida Star v. B.J.F., 491 U.S. 524, 533, 541 (1989; Smith v. Daily Mail Publ g Co., 443 U.S. 97, 103 (1979; Cox Broad. Corp. v. Cohn, 420 U.S. 469, 491 (1975. In any event, Mr. Despot s complaint fails to state a claim upon which this Court can grant relief because, as the Third Circuit has held, the verbatim publication of judicial opinions and decisions is absolutely privileged. Lowenschuss v. W. Publ g Co., 542 F.2d 180, 186 (3d Cir For both reasons, this Court should dismiss all claims against Casetext. ARGUMENT I. The First Amendment categorically protects Casetext s publication of court records from Mr. Despot s challenge. The First Amendment protects Casetext s publication of judicial opinions and orders from previous litigation brought by Mr. Despot. 4 Because all of Mr. Despot s claims against Casetext are based on its publication of these documents, they must be dismissed. In a series of cases beginning with Cox Broadcasting Corp v. Cohn, the [Supreme] Court has held that when the government makes information publicly available in a public record, the press cannot be sanctioned for publishing it. Daniel J. Solove, Access and Aggregation: Privacy, Public 4 A search for David Despot on Casetext s website results in ten judicial opinions and orders from the following cases: Despot v. Am. Income Life Ins. Co., No.1:10-cv-932 (S.D. Ohio; Despot v. Nationwide Ins., No. 1:12-cv-044 (S.D. Ohio; Despot v. Combined Ins. Co. of Am., No. 03-c (N.D. Ill.; Despot v. W. S. Fin. Grp., No. 1:06-cv (S.D. Ohio; Despot v. Keystone Ins. Grp., Inc., No. 1:cv (M.D. Pa.; Despot v. Smith, No. 4:14-CV-490 (E.D. Tex.; Despot v. Ohio Nat l Fin. Servs. Inc., No. 1:06-cv-193. (S.D. Ohio; Despot v. Bankers Life Cas. Co., No. 4:03-cv-0931 (M.D. Pa.. 2

3 Records, and the Constitution, 86 Minn. L. Rev. 1137, 1199 (2002. In Cox, the Court held that a newspaper could not be liable for civil damages under a state statute for publishing the name of a rape victim. 420 U.S. at 491. By placing the information in the public domain on official court records, the Court reasoned, the State must be presumed to have concluded that the public interest was thereby being served. Id. at 495. The Court therefore expressly rejected a course that would make public records generally available... but forbid their publication if offensive to the sensibilities of the supposed reasonable man. Id. In Smith v. Daily Mail Publishing Co., the Court crystallized this rule, concluding that if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order. 443 U.S. at 103; see also Florida Star, 491 U.S. at 541. The Third Circuit has accordingly recognized that state action to punish the publication of truthful information seldom can satisfy constitutional standards. Bowley v. City of Uniontown Police Dep t, 404 F.3d 783, 786 (3d Cir (quoting Daily Mail, 443 U.S. at 102. These principles compel dismissal of Mr. Despot s claims. Mr. Despot s allegations concern only Casetext s publication of judicial orders and opinions from previous lawsuits that Mr. Despot has filed. But Casetext is no less entitled to the First Amendment s protections for publication of content than the newspapers in Cox, Daily Mail, and Florida Star. See, e.g., Ostergren v. Cuccinelli, 615 F.3d 263, 276 (4th Cir (applying the Daily Mail standard to plaintiff s First Amendment challenge to website content; Sheehan v. Gregoire, 272 F. Supp. 2d 1135, (W.D. Wash (applying same standard. And Mr. Despot has not alleged that the information Casetext has published about him is false or was unlawfully obtained. Nor could he: The documents Mr. Despot seeks to remove are judicial orders and opinions accurate copies of public records reflecting the result of an adversarial process. 3

4 Mr. Despot also fails to articulate a state interest of the highest order that would be served by removing court records from Casetext s website. Daily Mail, 443 U.S. at 103. In fact, the state interests point in the opposite direction. The Supreme Court, in the context of media reporting, has adverted to the public interest in accurate reports of judicial proceedings. Lowenschuss, 542 F.2d at 185 (quoting Time, Inc. v. Firestone, 424 U.S. 448, 457 (1976. And there is an even greater public interest in and need for access to verbatim reports of judicial decisions without excessive delay or expense. Id. Casetext provides the general public with verbatim reports of judicial decisions for free, in an easily accessible format. Its services thus further rather than undermine the public interest. The Seventh Circuit rejected essentially the same challenge in Nieman v. VersusLaw, Inc., 512 F. App x 635 (7th Cir (unpublished. 5 There, an insurance-claims professional named Jason Nieman sued several Internet search engines and a legal-research provider, alleg[ing] that the search engines operated by these companies have enabled potential employers to find documents related to a lawsuit he brought against a past employer; as a result, he contend[ed], he has been passed over by these employers who might be wary of his litigiousness. Id. at 636. Citing the Daily Mail line of precedent, the Seventh Circuit held that [t]he First Amendment privileges the publication of facts contained in lawfully obtained judicial records, even if reasonable people would want them concealed, and dismissed the plaintiff s suit. Id. at This Court should follow the Seventh Circuit s approach and entirely dismiss the complaint against Casetext as barred by the First Amendment. Allowing liability here would make it effectively impossible for services like Casetext to provide the public with free access to court records an outcome antithetical to the values of the First Amendment. 5 A copy of Nieman is attached as Exhibit 1 for the Court s convenience. 4

5 II. In any event, Mr. Despot fails to state any claims against Casetext. As discussed above, the First Amendment bars all of Mr. Despot s claims against Casetext. In the alternative, however, this Court should dismiss Mr. Despot s complaint against Casetext because it fails to state any claim upon which relief can be granted. For starters, Mr. Despot s claims cannot be maintained because, as the Third Circuit has held, the verbatim publication of judicial opinions... is absolutely privileged. Lowenschuss, 542 F.2d at 184. In Lowenschuss, the plaintiff sued West Publishing Company... for an allegedly defamatory footnote contained in a judge s opinion which West published without change. Id. at 181. In rejecting the plaintiff s defamation action, the Third Circuit explained that the verbatim publication and effective dissemination of judicial opinions serves an intrinsic function in our system of jurisprudence. Id. at 186. So too here. Like West, Casetext publishes judicial opinions and orders without change (and, unlike West, without charge. It is therefore absolutely privileged against Mr. Despot s claims. Mr. Despot s claims also fail because Casetext is immune from civil tort liability under Section 230 of the Communications Decency Act. The Act provides that [n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. 47 U.S.C. 230(c(1. Casetext is an interactive computer service within the meaning of the statute. Id. 230(f(2. And, since the content that Mr. Despot seeks to remove from Casetext originated with another information content provider namely, the federal courts Casetext cannot be held liable. See Green v. Am. Online, 318 F.3d 465, 471 (3d Cir (holding that Section 230 bars lawsuits seeking to hold a service provider liable for its exercise of a publisher s traditional editorial functions such as deciding whether to publish, withdraw, postpone, or alter content. 5

6 And Mr. Despot s claims fail for another reason: He has not alleged that the court records at issue contain defamatory or false information. To prevail on a defamation claim, a plaintiff must plausibly allege facts establishing [t]he defamatory character of the communication. 42 Pa. Cons. Stat. 8343(a(1. And where a private figure challenges publications of public concern like judicial opinions the plaintiff bear[s] the burden of showing falsity. Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 776 (1986. Likewise, to establish misrepresentation under Pennsylvania law, a plaintiff must demonstrate that the challenged representations were made falsely, with knowledge of its falsity or recklessness as to whether it is true or false. Gibbs v. Ernst, 647 A.2d 882, 889 (Pa Mr. Despot has not alleged that the public documents published by Casetext are false or defamatory in any respect. Mr. Despot s claims against Casetext for deceptive or unfair trade practices similarly lack merit. The accurate publication of publicly available court documents does not fall within the definition of unfair or deceptive acts or practices under Pennsylvania law. See 73 Pa. Stat. Ann (4 (West. And, in any case, private plaintiffs are not entitled to injunctive relief like the court order Mr. Despot seeks here under the Pennsylvania Unfair Trade Practices and Consumer Protection Law. See id Finally, Mr. Despot claims he was a victim of retaliation discrimination that violated Title VII of the Civil Rights Act. Compl. 3. But Mr. Despot neither alleges that Casetext engaged in any unlawful employment practice[s], 42 U.S. Code 2000e 2(a, nor does he allege that he was an applicant[] for employment at Casetext, id. 2000e 2(a(2. Indeed, Mr. Despot excluded Casetext from the list of defendants to which he allegedly applied for employment. See Compl. 15. In sum, Mr. Despot does not allege that Casetext ever had an employment relationship with Mr. Despot, and so Casetext cannot be liable under Title VII. 6

7 CONCLUSION For the reasons set forth above, this Court should grant the motion to dismiss. Respectfully submitted, s/ Deepak Gupta Deepak Gupta Neil K. Sawhney GUPTA WESSLER PLLC th Street, NW Washington, DC ( (telephone ( (facsimile James M. Pietz FEINSTEIN, DOYLE, PAYNE & KRAVEC, LLC 429 Forbes Avenue, 17th Floor Pittsburgh, PA ( (telephone ( (facsimile Dated: February 23, 2016 Counsel for Defendant Casetext, Inc. 7