Below is text extracted from the pdf file found at http://www.eff.org/legal/cases/merkey_v_yahooscox/merkey_amicus_motion_final.pdf, which is presumed to be equivalent to the official scanned court document found at http://scofacts.org/Merkey-Perens-12.pdf (see which for Exhibit 1).
For more information, see http://scofacts.org/merkey.


Kurt Opsahl, Esq.                                            
Matt Zimmerman, Esq. 
Corynne McSherry, Esq. 
ELECTRONIC FRONTIER FOUNDATION 
454 Shotwell Street 
San Francisco, CA 94110 
Telephone:  (415) 436-9333 
Facsimile:   (415) 436-9993 

Margaret Plane (USB # 9550) 
AMERICAN CIVIL LIBERTIES UNION OF UTAH 
FOUNDATION, INC. 
355 North 300 West 
Salt Lake City, Utah  84103 
Telephone:  (801) 521-9862 
Facsimile:  (801) 532-2850 


		 IN THE UNITED STATES DISTRICT COURT
		  DISTRICT OF UTAH, CENTRAL DIVISION

JEFFREY VERNON MERKEY                     No. 2:05-CV-521 DAK 

Plaintiff,                                NOTICE OF EMERGENCY 
                                          MOTION AND EMERGENCY 
vs.                                       MOTION FOR LEAVE TO 
                                          FILE BRIEF AMICUS CURIAE 
YAHOO SCOX members atul666 and            IN OPPOSITION TO 
saltydogmn; PAMELA JONES a.k.a            PLAINTIFF'S EX PARTE 
GROKLAW.COM, a.k.a. OSRM and              MOTION TO CONDUCT 
GROKLAW.NET; GRENDEL a.k.a.               EXPEDITED DISCOVERY 
PAGANSAVAGE.COM; MATT MERKEY 
a.k.a MERKEY.NET; BRANDON SUIT            Date:  August 17, 2005 
a.k.a. MERKEY.NET; JOHN SAGE a.k.a.       Time: 11:30 a.m. 
FINCHHAVEN.COM; MRBUTTLE a.k.a.           Rm: 248 
IP-WARS.NET; JEFF CAUSEY a.k.a. IP-       Judge:  Hon. Samuel Alba      
WARS.NET; AL PETROFSKY a.k.a.             Trial Date:  Not set   
SCOFACTS.ORG; DOES 1 through 200          Complaint Filed:  July 20, 2005
                                                
Defendants. 



TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD (footnote 1):

           PLEASE TAKE NOTICE that the Electronic Frontier Foundation
("EFF") and the American Civil Liberties Union of Utah ("ACLU of
Utah") hereby request leave to file the accompanying brief amici
curiae opposing Plaintiff's motion for leave to conduct expedited
discovery.  (Brief attached as Exhibit 1.)

           This is a civil rights action in which Plaintiff seeks
damages and fees and costs against ten named Defendants, most of whom
appear to have no relationship to each other, and four of whom have
elected to speak anonymously.  Plaintiff alleges that Defendants have
unlawfully conspired to murder and/or threatened to murder, and/or
solicited others to murder him.  Plaintiff also accuses Defendants of
defamation, slander of title, intentional infliction of emotional
distress, identity theft, and tortious interference with Plaintiff's
"career and business and cultural relationships."  Plaintiff contends
that the alleged bad conduct constitutes a violation of his civil and
statutory rights under federal and Utah state law.  Plaintiff has
moved the Court, ex parte, for leave to take expedited discovery to
identify and locate the Defendants, including the four anonymous
Defendants.

           EFF is a donor-supported membership organization working to
protect fundamental rights regardless of technology; to educate the
press, policymakers, and the general public about civil liberties
issues related to technology; and to act as a defender of those
liberties.  EFF currently has over 8,000 paying members nationwide,
and over 50,000 subscribers to EFFector, its email newsletter,
including over 400 subscribers in Utah.  Among its various activities,
EFF opposes misguided legislation, initiates and defends court cases
preserving individuals' rights, launches global public campaigns,
introduces leading edge proposals and papers, hosts frequent


                                                 
1.  It is the understanding of amici that Plaintiff has failed to
properly notify and serve the Defendants in this matter.  Amici are
serving Plaintiff and Defendants that have submitted documents to the
Court in connection with Plaintiff's Ex Parte Motion with copies of
this Motion and the accompanying Brief.

				  1


educational events, engages the press regularly, and publishes a
comprehensive archive of digital civil liberties information on the
most linked-to web sites in the world at www.eff.org.

       EFF is particularly concerned with protecting the rights of
individuals to speak anonymously, on the Internet or otherwise, and
regularly advises individuals around the country whose free speech
rights are threatened.  This case squarely impacts the interests of
EFF members and the interests of anonymous speakers who we seek to
protect.  In its brief, EFF identifies critical First Amendment and
due process requirements that must be taken into account before
Plaintiff is permitted to intrude upon the rights of anonymous
Defendants.

       The ACLU of Utah is a nonprofit, nonpartisan membership
organization, founded in 1958.  The ACLU of Utah is the state
affiliate of the ACLU, which was founded in 1920 to protect and
advance civil liberties throughout the United States and has more than
300,000 members nationwide.  The ACLU of Utah has more than 2,200
members, and more than 650 subscribers to its email newsletter. The
ACLU of Utah has been involved extensively in litigation and advocacy
to protect the rights of speakers under the First Amendment.  Some of
this litigation and advocacy has focused on First Amendment rights in
the context of the Internet.  For instance, the ACLU of Utah is
currently plaintiff and counsel in The King's English v.  Shurtleff,
2:05-cv-00485-DB, a federal lawsuit challenging a variety of
restrictions on Internet speech.

       EFF and the ACLU file this motion on an emergency basis because
Plaintiff seeks expedited discovery yet has failed to properly notify
multiple Defendants of the very existence of this lawsuit.  Without
proper notice, several Defendants are unable to appear before this
Court on August 17, 2005, in order to oppose Plaintiff's motion.  EFF
and the ACLU of Utah are deeply concerned that the interests of
speakers who have chosen to exercise their Constitutional right to
speak anonymously  Defendants identified by Internet aliases atul666,
saltydogmn, mrbuttle a.k.a IP-Wars.com, and Grendel
a.k.a. PaganSavage.com  will be compromised if the Court

				  2


grants Plaintiff his requested relief.  

        Amici believe it is critical that the First Amendment rights
of individuals like the anonymous speakers here are protected from
discovery fishing expeditions in the absence of a genuine need that
outweighs the constitutionally protected interest. The choice to speak
anonymously should not be invalidated by judicial process unless it is
clearly shown that specifically identified, relevant information about
an anonymous poster is central to the claims of the party seeking the
information, that those claims are viable, and that the party can
acquire the information in no other manner.

        Accordingly, EFF and the ACLU of Utah respectfully request
leave to file the accompanying brief amici curiae, which discusses in
detail the ample precedent rejecting the use of civil discovery tools
where the disclosure of information would infringe another party's
First Amendment interest in anonymity.  Plaintiff has made no attempts
to satisfy the significant requirements presented by both the First
Amendment and expedited discovery rules.

        For the above reasons, EFF and the ACLU of Utah respectfully
request that this Court grant this Motion for Leave to File as Amici
Curiae.

         

Dated: August 15, 2005           Respectfully submitted, 



                                 ____________________________ 
                                 Margaret Plane 

                                 American Civil Liberties Union of Utah 
                                 Foundation, Inc. 

                                 Electronic Frontier Foundation 

                                 Attorneys for Amicus Curiae  
         





				  3


                                                    
			CERTIFICATE OF MAILING

I hereby certify that on August 15, 2005 I caused to be sent a true
and correct copy of the foregoing NOTICE OF EMERGENCY MOTION AND
EMERGENCY MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE IN OPPOSITION
TO PLAINTIFF'S EX PARTE MOTION TO CONDUCT EXPEDITED DISCOVERY to:

Jeffrey Vernon Merkey 
1058 East 50 South 
Lindon, Utah  84042 
(via hand delivery), and  

Alan P. Petrofsky 
3618 Alameda Apt. 5 
Menlo Park, CA  94025 
(via overnight service).  

				       AMERICAN CIVIL LIBERTIES UNION 
				       OF UTAH FOUNDATION, INC. 

				       ELECTRONIC FRONTIER FOUNDATION 
				       Attorneys for Amici Curiae 

				       By ___________________________
					    MARGARET PLANE 
         











				  4

$Id: Merkey-Perens-12.html,v 1.2 2005/09/11 05:40:19 al Exp $