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Allegheny Energy and Attorneys Abused Legal Process to Uncover Identity of Internet Critic

Oct. 31, 2005

Allegheny Energy and Attorneys Abused Legal Process to Uncover Identity of Internet Critic

Company Subpoenaed Yahoo! to Identify Anonymous Poster and then Fired Him

WASHINGTON, D.C. – Allegheny Energy and its attorneys from Morgan, Lewis & Bockius improperly used the courts to learn the identity of an Internet message board poster critical of the company and then fired him, Public Citizen said in a lawsuit filed in federal court in Philadelphia late Friday.

In July 2003, an Allegheny employee – Fairview, W.Va., resident Clifton Swiger – posted anonymous criticisms of the company in a Yahoo! message board room dedicated to discussion of the company. Swiger accused Allegheny, which is based in Greensburg, Pa., of poor management and used a racist term to describe the company’s diversity program, which he called a waste of money.

Three months later, the company, represented by Morgan, Lewis, filed suit against “John Doe” in Philadelphia as an excuse to subpoena Yahoo! to disclose information about the poster of the critical remarks. Allegheny claimed the poster had violated a “duty of loyalty” by criticizing the company in the message board posting. The company then filed an emergency motion to rush the subpoena from Yahoo!, claiming the need to prevent the poster from posting additional messages that would breach the employee’s duty to the company. Allegheny claimed the writer could be a “high-ranking” employee but did not inform the court that the poster had identified himself in the message as a “non-exempt” employee (“non-exempt” generally refers to a relatively low-level employee, paid by the hour). Because he was never notified of the lawsuit against him, Swiger could not defend himself against Allegheny’s claims. Yahoo! complied with the subpoena and disclosed Swiger’s information to Allegheny. After learning the employee’s identity, Allegheny and Morgan, Lewis discontinued the lawsuit.

On Dec. 10, 2003, Swiger was fired for “placing racially derogatory postings on the Yahoo! message board in violation of Allegheny Energy’s Positive Work Environment expectations,” even though the posted comments were not made at work or posted during work hours. It took Swiger more than a year to find a new job, and then for a salary well below the salary he received while employed by Allegheny.

In the civil complaint, Swiger claims that Allegheny and Morgan, Lewis knowingly abused the court’s processes by filing civil proceedings to identify the poster of the critical remarks and then fire him, not to proceed with a legitimate legal action. Additionally, Allegheny violated Swiger’s right to speak anonymously on the Internet and wrongfully discharged him from his position after more than 16 years on the job.

“Although Swiger’s use of racist language is abhorrent, the First Amendment nevertheless protects it, and should protect it in a free society,” said Public Citizen attorney Greg Beck. “But the real harm to our democracy is that the company and its law firm abused the court’s processes to get information for their private use, employing discovery procedures that should be available only to support litigation.”

Mark Cuker from the Philadelphia firm Williams, Cuker & Berezofsky serves as local counsel for Swiger.

To read Public Citizen’s complaint, click here.