Lawyer Deploys Faulty Subpoena Demanding Evidence Preservation, Fails To Impress Lawyer Receiving It
from the getting-hassled-by-the-person-suing-The-Man dept
When a lawyer sends a demand to another lawyer, the one doing the sending had better be on top of their law game. Otherwise, things will go badly. And when they go badly, they end up being discussed here.
Conservative blogger (and lawyer) Scott Johnson got hit with a subpoena ordering him to preserve evidence possibly relevant to a legal challenge of Trump's travel ban from a courtroom halfway across the country. The advance subpoena informed Johnson of his pending obligation to preserve (with production expected later) certain notes pertaining to certain blog posts pertaining to his attendance of a reception for conservative writers held by Trump at the White House.
The problem with the proposed subpoena and evidentiary preservation demands is they weren't actually, you know, legal.
On June 10, I was served with a letter and draft subpoena from Tana Lin of the Keller Rohrback law firm’s Seattle office alerting me to my “document preservation obligations with respect to documents that are relevant or potentially relevant to this litigation.” Lin represents plaintiffs in Doe v.Trump, venued before Judge James Robart in the federal district court for the Western District of Washington.
Though the lawsuit had been stayed, pending a recently issued ruling from the Ninth Circuit in the parallel Hawaii v. Trump “travel ban” case, Judge Robart authorized Lin to notify me of the lawsuit and seek my confirmation by June 15 that I would preserve potentially relevant documents until such time as she sends me a formal subpoena or the lawsuit is formally resolved.
The "potentially relevant documents" included any notes Johnson might have taken during this meeting and specifically referenced the same notebook Johnson referenced in his detailed post about the reception. To wit:
Although there was some degree of difficulty writing while standing, I took notes on the questions and Trump’s answers in my new notebook from CVS.
Johnson -- who knows a few things about federal procedures -- immediately fired a letter back to Tana Lin, telling her she had the wrong statute.
The final sentence of your letter in bold type cites Rule 34(a) of the Federal Rules of Civil Procedure. Rule 34(a) applies to a “party” to litigation. I am not a party. I am a “nonparty.” As such, Rule 34(c) would apply to me. Unless I am missing something, I find your instruction to me that I am “required” to do anything under Rule 34(a) highly misleading.
He also informed her the correct statute wasn't going to be of much help either.
Rule 34(c) cross references Rule 45. As a distant nonparty to the litigation, Rule 45 gives me certain rights once you serve me with a valid subpoena. Yet the draft subpoena you have served on me is a nullity.
[...]
Once I have objected to the subpoena under Rule 45, the rule would require you to seek an order enforcing compliance in the United States District Court for the District of Minnesota. I understand that Minnesota Attorney General Lori Swanson has joined you in the litigation. Perhaps you can assign enforcement of the subpoena to Ms. Swanson. I’m sure Minnesota taxpayers would enjoy the opportunity to see up close and personal how she is expending the resources of her office to hound a journalist for his utterly superfluous notes in the service of your litigation.
Lin called the reference to the wrong statute a "typo," but it really makes no difference which statute was cited: Johnson is a private individual who just happened to be invited to a reception thrown by the president. It's not like he had some preexisting obligation to retain the notebook for X number of years just in case someone might need it for future litigation. As he points out, he's not a government agency. He took notes for a planned blog post. He had no "duty" to preserve them then and there's not much in the proposed subpoena showing any legal reason why he can't throw them out now.
What's concerning about this -- no matter which side of the travel ban you come down on -- is that litigants fighting an executive order somehow feel private non-parties should be compelled to turn over their private notes on the off-chance there might be something damning hidden in them. Johnson calls it "harassment" and he's not wrong. This is no different than anyone in any situation using the weight of the government to compel journalists to produce information about sources and contacts when they're not party to ongoing lawsuits or expected to serve as witnesses.
Beneath it all is a lawyer who slid a subpoena request past an inattentive judge, citing statutes that don't say what she thinks they say. That's a lot of power to be wielding badly, considering it's mostly bad things that wait for those who reject a judge's advances.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: doe v. trump, fishing, scott johnson, subpoena, tana lin, threat, travel ban
Reader Comments
Subscribe: RSS
View by: Time | Thread
Judge was guilty here
the prime guilty party here is Federal Judge James Robart -- who was obviously derelict in his professional duties. Lawyer Lin was entirely powerless without Robart.
So why give a total pass to government legal bureaucrat Robart as being somehow innocently "inattentive" ?
Bias
[ link to this | view in chronology ]
Re: Judge was guilty here
What you also miss is that "Inattentive" isn't exactly a kind word here, and the rest of the tone "That's a lot of power to be wielding badly" is highly critical of the judge.
[ link to this | view in chronology ]
Re: Judge was guilty here
No, it's referring to Lawyer Lin acting badly... not the judge.
Lawyer Lin was obviously spotlighted here as the primary villain, though it should have been the judge
[ link to this | view in chronology ]
One minor point. That subpoena is a nullity for another, more relevant reason:
A draft subpoena has not been submitted to, or executed by, any judge. ;]
[ link to this | view in chronology ]
Re: Judge was guilty here
[ link to this | view in chronology ]
Who did it?
Should be in the records of the case. If not than the whole things was lie. If the judge was told something false, or his order didn't allow for watch was done, then send everything you got to the judge and get it put in the record that one lawyer in the case is making stuff and using the judge's name.
If this is the case that went on to SCTUS, then send this slimy stuff to them also.
I'm not saying this because I want one side or the other to win, but the way you stop this fake lawsuit, fake orders crap, is to cast every court's eyes clearly on it. You want to make it so the repercussions are career ending for the lawyer that tries it.
Now if the judge is the idiot in this case, then yes get it one the record so someone can show a history and get him kicked off a case if he pulls it again.
[ link to this | view in chronology ]
Re: Who did it?
[ link to this | view in chronology ]
electronic discovery rules
This didn't involve a service of a faulty subpoena; it involved a preservation notice letter with a draft of an unserved subpoena.
The goal of the letter was really to trigger a preservation obligation on Johnson. People have an obligation to preserve evidence under some circumstances, so the idea is to put Johnson on notice that he shouldn't destroy anything that may be subject to a pending subpoena- whether or not he actually has an obligation to preserve (even with notice) is a different matter.
Here's rule 45(c)(2):
Non-parties are not immune from discovery. Courts are more lenient about undue burden for non-parties since they're essentially by-standers to the litigation, but if a non-party has relevant information, they're potentially fair game for discovery.
Note the distance threshold in in 45(c)(2)(A) triggers when the person is more than 100 miles away from the place at which the evidence is to be produced. If the subpoena demands production within 100 miles of Johnson, he won't be able to object on grounds of distance.
[ link to this | view in chronology ]
Re: electronic discovery rules
there should be no such thing as a court "preservation letter"
A formal court sub poena for specific evidence can either exist or not exist -- there can be no informal or "semi sub poena" under a just rule of law
not all lawyers are corrupt, but those that are give the other five percent a bad reputation
[ link to this | view in chronology ]
Re: electronic discovery rules
There is no such thing as a court preservation letter. This was a letter from one party's attorney to someone likely to receive a subpoena in the near future. It's not an order to preserve or produce, and the recipient may not actually have a duty to preserve, despite the letter.
A subpoena is a sufficient but not necessary condition to trigger a preservation obligation. Do you think I should be able to shred or delete unfavorable docs just before suing you? Or do you think it's equitable that I be required to preserve docs relevant to the impending litigation (that I'm about to trigger), even though I haven't been subpoenaed?
An obligation to produce without an obligation to preserve would just encourage parties to race to destroy unfavorable evidence before they receive a subpoena.
[ link to this | view in chronology ]
Re: discovery rules
Incorrect
These are commonplace in U.S. courts. There is a vast array of Federal/State/Local directives authorizing them and giving judges wide discretion in their use, including authorizing lawyers to convey them to others. The official term is court 'preservation order', though 'preservation letter' is also commonly used.
The evidence "preservation" procedure is totally non-constitutional. A citizen's personal/business documents are his property to do whatever he wants to do with them at any time -- including destroying them. A legally correct court sub poena is an exception, but requires much more temporal and descriptive specificity than a preservation order. Preservation Orders are attempts to circumvent 5th and 6th Amendment citizen rights ... and cast a wide government fishing-net over large data sources, without legal justification.
[ link to this | view in chronology ]
Rule 45
"(3) Issued by Whom. The clerk must issue a subpoena, signed but otherwise in blank, to a party who requests it. That party must complete it before service. An attorney also may issue and sign a subpoena if the attorney is authorized to practice in the issuing court."
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re: subpoenas
It is a thoroughly corrupt practice.
The grave power of subpoena is strictly a judicial power, constitutionally bestowed upon formally established judges and magistrates. Those judges/magistrates can not constitutionally delegate their subpoena power to lawyers, court clerks, government agencies, nor anyone else.
But that corrupt delegation happens all the time.
A subpoena is an order from the court (specific judge) demanding that someone or something be provided to assist in a specific court case; severe penalties may be applied for non-compliance. A subpoena deprives the target of liberty and/or property.
Any lack of formal "judicial due process" in subpoena issuance is a direct violation of the 4th and 5th Amendments.
Nobody cares-- especially judges and lawyers.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]