Over the past several years, the companies we target have started attempting to
use lawsuits as a mechanism to fend off animal liberationists. Although the lawsuits
are rarely a successful tactic, they do present a host of issues that are often
alien to activists. More importantly, they are ridden with new and sometimes confusing
processes of extracting information.
The use of the civil process by our
enemies typically relies on the following beliefs: that we probably will not respond,
that we cannot afford to hire a lawyer to defend us, that any lawyer we do hire
will not be as good as their lawyers, and that in suing us they might just tap
into a wealth of useful information. However, experience shows us that we can,
in fact, find lawyers to defend us for cheap or free, that we can learn to represent
ourselves, and that we can educate ourselves and our lawyers about our rights
and how to assert them in order to sabotage our opponents attempts at obtaining
The point of this article is to give activists a basic sense
of the civil lawsuit process, what our rights are, and how to use them most effectively.
While this article may serve as a general guide on how to conduct yourself through
the discovery portion of a lawsuit, laws and procedures vary from state to state,
and various circumstances demand different responses. Use this information for
what it is: an overview of the civil process and an activists guide to security
culture in the frame of civil lawsuits.
It is impossible to explain the
entire civil litigation process here. The next few paragraphs will only provide
a very general overview, followed by some basic guidelines to keep in mind to
A lawsuit is initiated when the Plaintiff (the party
filing the case) serves the Defendant with a summons and the lawsuit. At that
point, the Defendant has 30 days to file an answer to the lawsuit. If you somehow
find out you are being sued but have not received legal papers, you do not have
to do anything in response. It will cost the other side money and give you more
time if you try to avoid being served with the legal papers. Some tips on this:
do not answer the door if you see someone holding a stack of papers, tell your
roommates to be on the lookout for a plain-clothed person at the door with papers
looking for you, and be creative.
The first thing to do is to talk to and
possibly hire a good lawyer. She will be able to offer guidance through this process.
Also, be sure to talk with activists who have been through the civil courts before,
talk to your co-defendants, and consider putting up a maximum resistance (including
refusing to answer questions).
After an answer is filed, the discovery process
begins. This may (and probably will) include depositions, interrogatories, requests
for production, and subpoenas duces tecum. While these are the most common forms
of discovery, there may often be other types that arise. The discovery phase of
lawsuits serves one purpose: to gather information. In light of the fact that
the information is sought by our enemies and that the information will undoubtedly
be readily available to other entities (e.g., law enforcement agencies and other
campaign targets), any information disclosed should be done carefully and only
if absolutely necessary.
Some things to remember when answering discovery
requests or testifying at depositions:
1. If you do not know the answer,
do not guess or speculate.
2. Your lawyer has one thing in mind: your best
interests. Your best interests may not always match up with the best interests
of other activists, organizations, or the movement. Never compromise the safety
(legal or otherwise) of others to save your own ass. More than likely, any information
that would harm others will neither change your fate nor advance your position.
3. Do not answer questions unrelated to the issues raised by the lawsuit.
4. Do not offer information about other activists or organizations. Even if a
question and answer seems innocent, you may be providing information that can
5. If you are going to plead the Fifth to any questions, you
may want to consider pleading the Fifth to all questions. In most states, answering
certain questions will automatically cause you to waive your right to plead the
Fifth if you answer certain other questions.
First, activists should remember
that security is of utmost importance always, not just when there is a lawsuit
or criminal case pending. By always practicing sound security, activists can avoid
cause for concern later on.
There are two typical situations for activists
caught in the civil discovery process. Usually, the person from whom information
is being sought is either a defendant or a witness. A witness who is not a defendant
in the case is probably in the best position. In the past, activists who have
been called to a deposition to testify and were not parties to the lawsuit have
seen no reason to offer any information at all to the opponents. Thus, their strategy
was simple: plead the Fifth to every single question asked. With this method,
there is no concern over waiving the Fifth by answering some questions and not
others, and there is no question about unwittingly divulging any damaging information
to the opponent, because they receive no information at all.
On the other
hand, if the individual subpoenaed to give testimony or written evidence is a
defendant in the case, the issues become a bit more complex. If you are a defendant
and refuse to answer any questions in depositions, you may waive your right to
enter much of a defense at trial. Furthermore, if you refuse to answer a question
in depositions, you cannot later offer the information at trial. Defendants still
have the option of pleading the Fifth, especially if there is an ongoing criminal
case. In some instances, answering a handful of questions can be useful in that
it allows one to put on more of a defense at trial. Again, just remember that
like any form of interrogation, seemingly innocent questions in a deposition can
be very damaging.
An interesting tactic used during the civil deposition
process is to write down every single question asked. If an answer is given, record
that as well. Take detailed notes, but do not write anything that would imply
knowledge that wasnt admitted during testimony (e.g., they ask about John
Activist and you write Johnny in your notes). Taking notes annoys
the attorneys taking the deposition, and it allows the activist to have a written
record of the deposition. If any questions related to any other activist or organization
arise during the deposition, they should be notified and informed of the line
Finally, there is the written portion of discovery: interrogatories,
requests for admissions, and requests for production. These should be treated
in a similar manner: only give information that is relevant, necessary to your
case, and required by law. Remember: it is illegal to suppress evidence, but if
you do not know the information or do not have the evidence in your possession,
then you cannot offer it. Refer to the guidelines above for what to disclose.
depositions and written discovery, several objections can be made to most questions.
The most common objections are irrelevant, overbroad, and attorney-client privilege.
One standard for questions in discovery is that they must be reasonably calculated
to lead to the admission of relevant evidence. Therefore, questions must relate
directly to the issues at hand. One benefit to having a lawyer is that you then
have attorney-client privilege, which further protects you from disclosing certain
pieces of information. Consult your lawyer for a better idea of what falls under
this privilege. During depositions, you can assert these privileges and refuse
to answer questions. However, a judge may later order you to answer the question,
as she or he would in trial. Again, to avoid offering information, the Fifth should
be used whenever possible.
Be forewarned that if information is refused
based on an objection or the Fifth, the opposing attorneys will likely make threats
of further legal action. Many times, these are empty threats to coerce you into
answering. Occasionally, they will file a Motion to Compel, asking the Court to
order you to answer a question. Here, depending on what the reason is for refusal,
the Court may or may not order you to respond. At that point, you must determine
the implications of answering the question. If the question is at all related
to others (including an organization), it is probably best to treat it like a
grand jury and refuse to participate. It may take some sacrifice to avoid selling
out your comrades, but keeping quiet on questions about others is the only appropriate
Consulting a lawyer on how to deal with these situations may be
helpful, but remember: a lawyer has only your interests in mind, not those of
anyone else or the greater movement. Additionally, trying to play the game of
outsmarting the other side is dangerous. By only answering seemingly harmless
questions about others, an activist could be handing the other side crucial information
they need. Just as with grand juries or any other form of interrogation, activists
should refuse to give information about others in depositions.
more about the civil process, make use of your local law library. Also, Nolo Press
offers a number of excellent books on representing yourself in court. Even if
you are not electing to represent yourself, familiarizing yourself with the process
so that you can make informed decisions is highly recommended.
keep in mind that all the information our opponents get on us is information that
we or other activists make available. By practicing good security all of the time,
we can often avoid ending up in civil or criminal courts in the first place. If,
however, we do end up there, it is essential not to let our guard down. The new
weapon of choice for our opponents seems to be civil suits. As activists, it is
our job to learn about this weapon, how to disarm it, and, in the end, render