1The case, Sykes v. Bayer Pharmaceuticals Corporation, et

al., 3:07 cv 660 (E.d. Va. 2007) was dismissed with prejudice

upon a voluntary stipulation of dismissal.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Lisa Sykes and

Seth Sykes, Individually and

as Parents and Natural

Guardians of Wesley Alexander Sykes,

a minor child

v. Civil No. 08-mc-13-JM

Bayer Corporation, et al.

O R D E R

Clifford J. Shoemaker, Shoemaker & Associates, 9711

Meadowlark Road, Vienna, Virginia was ordered to show cause why

he should not be sanctioned under Fed. R. Civ. P. 11 with respect

to a subpoena duces tecum served on a non-party to a case then

pending in the Eastern District of Virginia.1 The time allotted

to Shoemaker to show cause expired but he was subsequently given

additional time.

Background

Clifford Shoemaker, Esq. was counsel to the plaintiff in the

underlying case. In the underlying case the claim was that the

plaintiff-child developed neuro-developmental disorders from high

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mercury exposure as a result of exposure to defendant’s medicine

in utero. Shoemaker is a 1973 law school graduate who indicates

on his website that he has focused his attention on an alleged

mercury-created autism epidemic. He claims to have “tried cases

in federal district courts all over the country.” 

Ms. Seidel was a non-party to the Sykes’ suit. Ms. Seidel

maintains a website, www.neurodiversity.com, on which she posts

articles she and others have written about the controversy about

whether mercury has or has not created an autism epidemic. 

Shortly after posting an article on several fees Mr. Shoemaker

obtained in various Vaccine Injury Compensation Program claims,

Shoemaker served Ms. Seidel with the subpoena at issue.

The subpoena, as Ms. Seidel correctly summarizes:

commands production of “all documents

pertaining to the setup, financing, running,

research, maintaining the website

http://www.neurodiversity.com” - including

but not limited to material mentioning the

plaintiffs - and the names of all persons

“helping, paying or facilitating in any

fashion” my endeavors. The subpoena demands

copies of all of my communications concerning

any issue which is included on my website,

including communications with representatives

of the federal government, the pharmaceutical

industry, advocacy groups, non-governmental

organizations, political action groups,

profit or non-profit entities, journals,

editorial boards, scientific boards, academic

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boards, medical licensing boards, any

“religious groups (Muslim or otherwise), or

individuals with religious affiliations,” and

any other “concerned individuals.”

The subpoena is very broad. Ms. Seidel filed a timely and wellprepared motion to quash. Shoemaker interposed no objection. 

The record provides no information as to whether Shoemaker

provided notice of the subpoenaed deposition to counsel for

defendants.

I quashed the subpoena and ordered Mr. Shoemaker to show

cause why he should not be sanctioned under Fed. R. Civ. P. 11. 

He has responded to that Order. See Document no. 7. Ms. Seidel

has responded to his response. See Document no. 10.

Discussion

(T)he risks attendant to the misuse of the

subpoena power are great . . .. “Moreover,

the injury resulting from attorney misuse of

the subpoena power is not limited to the harm

it inflicts upon the parties. Rather, misuse

of the subpoena power also compromises the

integrity of the court’s processes.” 

(citation omitted).

Spencer v. Steinman, 1999 WL 33957391, *2 (E.D.Pa.). Fed. R.

Civ. P. 45(a)(1) requires an attorney to take steps to avoid

imposing an undue burden or expense on a subpoenaed non-party. 

Fed. R. Civ. P. 11(b) requires an attorney who signs or later

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advocates a court paper to refrain from presenting it for any

improper purpose such as to harass.

The subpoena which I have attached to this order is

breathtakingly broad. Mr. Shoemaker made no attempt to avoid

imposing an undue burden or expense on Ms. Seidel. To the

contrary, I find that he sought to burden her by requiring

production of every scrap of paper related to autism, her web

site, her tax returns, and her communications with the

government. He improperly imposes a requirement to create

documents, e.g., a list of “names of persons helping, paying or

facilitating . . . these endeavors.” The documentation sought is

exhaustive.

Shoemaker seeks to justify the subpoena by allegations that

Seidel is not “a mere mother of an autistic child and housewife,”

but a co-conspirator under 42 U.S.C. §1985 with her husband or

“the defendant (Bayer) or by some organization dedicated to

harassing this plaintiff (Ms. Sykes) and her witness . . .” 

Shoemaker’s claim that Ms. Seidel was the “leader of a conspiracy

to obstruct justice . . .” is unsupported by any facts. It is

clear that she has openly and extensively exercised her First

Amendment right to speak out on the issue. Shoemaker certainly

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has the right to disagree with her, but he has no right to misuse

the process to abuse her.

Shoemaker has not offered a shred of evidence to support his

speculations. He has, he says, had his suspicions aroused

because she has so much information. Clearly he is unfamiliar

with the extent of the information which a highly-competent

librarian like Ms. Seidel can, and did, accumulate. If Shoemaker

wanted to know if Ms. Seidel was in part supported by or provided

information by Bayer, he could have inquired of Bayer or limited

the Seidel subpoena to that information. Instead he issued the

subpoena calling for production of documents and a deposition on

the day before he stipulated to dismiss the underlying suit with

prejudice. His failure to withdraw the subpoena when he clearly

knew that suit was over is telling about his motives. His

efforts to vilify and demean Ms. Seidel are unwarranted and

unseemly.

Clearly the litigants are passionate about the causative

issues surrounding autism. Nothing in this order is intended to

indicate that this court has any view as to who is right on the

autism issues. What the court does have views about is the

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2 Shoemaker also issued a simultaneous abusive subpoena to a

Massachusetts physician with views contrary to his effort.

6

impropriety of misuse of a subpoena.2 Shoemaker could make an

argument for discovery from Seidel to attempt to establish that

his defendants improperly used her and her web site to impact

witnesses in the underlying case. That might meet Rule 26's

smell test. However, he has no right: (1) to serve a grossly

overly broad subpoena intended to harass; (2) to go on a “fishing

trip” for anything to support a new suit for defamation or for a

§1985(3) conspiracy; and (3) to fail his duties under Rule

45(c)(1). Most of the documents sought have no arguable

relevance to the underlying case and were not likely to lead to

admissible evidence.

If Ms. Sykes or the Geiers believe they have a cause of

action against Ms. Seidel, they have an avenue to pursue such a

claim. What they and Shoemaker can not do is abuse the subpoena

power in the Sykes v. Bayer case.

I find that Clifford Shoemaker violated Fed. R. Civ. P.

11(b)(1) and Rule 45(c)(1). The 11(b)(1) violation may also

violate Virginia’s Rules of Professional Conduct which provide in

part:

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(1) Preamble: A lawyer should use the law’s

procedures only for legitimate purposes and

not to harass or intimidate others.

(2) Rule 3.1: A lawyer shall not assert or

controvert an issue therein unless there is a

basis for doing so which is not

frivolous . . .

Comment [1]. The advocate has a duty to use

legal procedure for the fullest benefit of

the client’s cause, but also a duty not to

abuse legal procedure. (emphasis added).

Clifford J. Shoemaker’s action is an abuse of legal process,

a waste of judicial resources and an unnecessary waste of the

time and expense to the purported deponent. 

The Clerk of Court is directed to forward a certified copy

of this order, the motion to quash, the show cause order, and the

response of Shoemaker and Seidel to the appropriate professional

conduct committee of the Virginia State Bar in order that it may

be made aware of Clifford J. Shoemaker’s conduct and so that

those authorities may take whatever action they deem appropriate.

As a sanction from this court, Clifford J. Shoemaker is

ordered to attend within three months, a continuing legal

education program on ethics and on the discovery rules in the 

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Federal Rules of Civil Procedure. He is ordered to file a

certification of completion of the programs. 

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: June 23, 2008

cc: Brian T. Stern, Esq.

John F. McHugh, Esq.

Kathleen Seidel, Respondent

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