Journalist Joshua Ferguson subpoenaed in ongoing lawsuit between blog, City of Fullerton

March 13, 2020

The City of Fullerton, California, filed three deposition orders for testimony and documents from Friends for Fullerton’s Future, a community blog, and two of its journalists on March 13, 2020, as part of its ongoing suit accusing them of violating state and federal anti-hacking laws.

Joshua Ferguson, one of the journalists, was ordered to appear for questioning on March 23. Journalist David Curlee and the blog received similar orders.

The city’s complaint, filed Oct. 24, 2019, concerns more than a dozen documents that it alleges were illegally downloaded from the city’s account on the file hosting and sharing service Dropbox. The depositions were filed one day after a district judge granted the city a preliminary injunction, barring the blog from publishing, sharing or deleting any of the contested files. The prior restraint was stayed, or paused, fewer than two weeks later.

Kelly Aviles, attorney for the blog and its journalists, told the U.S. Press Freedom Tracker that the orders were invalid because they were improperly filed after the city had received notice of her clients’ appeal, which stays, or pauses, all pending matters.

Kimberly Hall Barlow, attorney for the City of Fullerton, told the Tracker the orders were filed properly and that they will continue to pursue the depositions as part of the discovery process.

The deposition order, reviewed by the Tracker, demands that Ferguson bring numerous documents and communications related to the city’s allegations, including documentation of his use or possession of nearly two dozen files, the IP addresses for all of his computers and electronic devices, invoices for his internet services, his Dropbox activity log and private browser use.

It also commands the production of all documents, including communications, relating to the blog’s argument that the city’s Dropbox was accessible to the public at large, and that accessing it was part of routine newsgathering.

The deposition also focuses on communications around 15 public records requests, six of which were filed by Ferguson and one by Curlee. Many of the remaining requests were filed by individuals associated with Air Combat USA, Inc., a private company which has sued the city for breach of contract. The subpoena also requests copies of all communications between Ferguson and anyone affiliated with the corporation.

Hall Barlow told the Tracker that the city’s intent is not to be punitive or suppress the press, but to retrieve the confidential documents containing the private information of multiple individuals that were downloaded from the Dropbox account.

But the subpoenas request an amount of invasive information not typically seen outside of national security cases, said Aviles. The attempt to subvert California’s shield law and reporter’s privilege protections are concerning, she said.

Aviles told the Tracker that she hopes all filings in the appeal will be complete in the next two to three months.

The U.S. Press Freedom Tracker catalogues press freedom violations in the United States. Email tips to [email protected]

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