Judge Says Devin Nunes' Family Has To Tell The Judge Who Is Funding Their Lawsuit Against Esquire & Ryan Lizza

from the wide-open-eyes-emoji dept

A big open question regarding Rep. Devin Nunes' never ending series of lawsuits against the media has been who is funding those lawsuits. As a watchdog group highlighted last year, House rules require certain steps be followed if a Member is receiving free legal services, and it did not appear that Nunes had followed those steps, and if Nunes were actually paying for those legal services, House rules required that he not be receiving a discount for them, which the watchdog group noted was worth investigating.

The funding of these lawsuits has now become an issue in a case that... was not directly filed by Rep. Nunes. As you'll recall, Nunes sued reporter Ryan Lizza and Esquire publisher Hearst over an article regarding Nunes' family, and the farm they own in Iowa. A few months after Rep. Nunes' lawsuit, Nunes' family filed a separate lawsuit over the same article, against the same defendants, using the same lawyer as Nunes, Steven Biss.

A year ago, a district court judge dismissed Rep. Nunes' lawsuit, though the appeals court recently revived that lawsuit in a truly bizarre decision. The family's case against Lizza and Hearst was on shaky ground, but was allowed to proceed on a very narrow claim.

Over the last few months we've talked about how the proceedings in that case have gone completely off the rails in ways that I've honestly never seen before in years of following some pretty intense cases.

But one of the issues at play in the case is... who is funding the family's lawsuit. That became an issue, because if Rep. Nunes himself is funding the case and is the real party of interest in the lawsuit, that impacts the standard under which defamation must be shown (notably, whether or not the actual malice standard applies). And, Nunes's family has admitted that it (1) isn't paying, and (2) has little involvement in the lawsuit, despite being the plaintiffs. From some recently unredacted filings:

In addition, Plaintiffs’ apparent lack of investment in prosecuting their own lawsuit was buttressed by their deposition testimony admitting they have not incurred out-of-pocket payments to counsel, with the exception paying $500 to former local counsel Joe Feller, and their document production of financial records indicating the same lack of payments to counsel for costs or fees, save the payment to Feller. Consider further that Plaintiff Anthony Nunes III, testifying as the 30(b)(6) corporate representative of NuStar, answered the question “[W]ho is funding the lawyers for this lawsuit?” with “I have no idea.” NuStar 30(b)(6) Anthony Nunes III Dep. 400:8-10.

And while the judge had initially suggested some level of skepticism regarding the relevance of finding out who was funding the family's legal fees, a new ruling says that Biss and the family need to cough up that info and give it to the judge, who will review it in private (meaning it still may never become public). Judge Mark Roberts notes that Hearst and Lizza make a compelling enough case that this information is relevant to their arguments in the case. First, he notes, this isn't just random speculation and fishing on the part of Hearst/Lizza. There's at least some smoke here.

In the case at bar, I find there is more than speculation or mere theory regarding the relevance of third-party funding. First, Plaintiffs have not denied that the litigation is being funded by others. Second, Plaintiffs have only incurred $500 in charges during this protracted litigation. Third, Anthony Nunes III, an individual Plaintiff and the corporate representative has “no idea” who is paying the lawyers representing Plaintiffs. These circumstances may not ultimately turn out to be “untoward,” but they are certainly unusual. Moreover, these circumstances lift the basis for Defendants’ inquiry above the level of mere speculation and raise legitimate subjects for inquiry not present in a more run-of-the-mill personal injury case or commercial dispute. The instant case is distinguishable from a case like Benitez where the defendant seeking litigation funding information could not point out how it might affect the plaintiff’s credibility or be used for impeachment

And, because the real party of interest matters to the actual malice standard, which could be key to this case, there's a more compelling interest in making sure this information is available:

As Defendants point out, a crucial and often determinative issue in a defamation case is whether a plaintiff needs to prove actual malice. This Court has expressed doubt about the viability of a theory of defense based on the Plaintiffs’ status as involuntary public figures. Nevertheless, the unusual facts presented here make Defendants’ inquiry into litigation funding a legitimate subject for discovery to enable them to make the argument on a full record.

Also, the court is well aware that Nunes has been suing many media organizations, reporters, and critics -- which he does not condemn, but merely notes is relevant to this inquiry.

Similarly, the Plaintiffs’ relationship to Congressman Nunes is an important factor in permitting the discovery. Congressman Nunes has engaged in considerable defamation litigation with the assistance of the same attorney employed by Plaintiffs in the instant action. I offer no criticism of any party’s use of the courts to vigorously protect their interests. Nevertheless, Congressman Nunes is clearly a public figure who would be required to prove actual malice. The requirement of actual malice was adopted by the United States Supreme Court because “[i]t would give public servants an unjustified preference over the public they serve, if critics of official conduct did not have a fair equivalent of the immunity granted to the officials themselves.” New York Times v. Sullivan, 376 U.S. 254, 282-83 (1964.) It may turn out that there has been no coordination between the Congressman and his family, as Plaintiffs assert. However, Defendants inquiry into third-party funding serves the legitimate purpose of determining whether such coordination exists. In light of the important constitutional protections that proof of actual malice provides, it is not a significant imposition to require Plaintiffs to provide discovery that would prove or dispel the notion that a third party is using the instant case to avoid a significant hurdle to a defamation claim. Given the close family relationship, the other defamation litigation Congressman Nunes has pursued in his own name with the help of the same attorney, and the Plaintiffs’ lack of knowledge of who is paying their lawyers, the inquiry is not founded on mere speculation.

The judge also notes that in the financial interest disclosure statement that was required as part of the case, the family said that "there are no associations, firms, partnerships, corporations, and other artificial entities" that "have a direct or indirect pecuniary interest in the Plaintiffs’ outcome in the case" but the fact that family members admit they haven't been paying raises questions about whether or not that statement is accurate.

I will not engage in speculation about what arrangements Plaintiffs may have made to finance their lawsuit, if any. However, Anthony Nunes III professed lack of knowledge about who is paying Plaintiffs’ lawyers at least raises the possibility that an undisclosed entity related to NuStar has a pecuniary interest in the outcome of the case that would be pertinent to the Court’s assessment of conflicts.

There's also the issue of whether or not this is a sort of shell lawsuit, and the family is not "the real party of interest." The judge wants to find out.

I cannot say, based on the record before me, that NuStar is not a real party in interest. However, I also cannot rule out the possibility. Anthony Nunes III’s lack of knowledge about who is paying the attorneys prosecuting this action raises legitimate concern about not only who may be in charge of the lawsuit, but also whether Plaintiffs are the still the real parties in interest. Defendants call the Court’s attention to Conlon v. Rosa, which raised the concern of secret funding by stating, “He who pays the piper may not always call the tune, but he’ll likely have an influence on the playlist.”...

Again, I will refrain from speculating about the terms of any agreement between Plaintiffs and a third-party who may be funding this litigation. Nevertheless, it is more than mere speculation and far from a “fishing expedition” to make inquiries that would determine if Plaintiffs assigned all or some of their interest in their claims. Plaintiffs claim compensatory damages of $20,000,000.... It is not unreasonable to inquire whether Plaintiffs’ arrangement with whomever may be funding the case includes an assignment or an agreement that the funder otherwise stands to benefit from the litigation’s outcome. If Plaintiffs have made such an assignment, they may no longer be the real parties in interest. Defendants have a legitimate interest in ensuring the judgment will have a preclusive effect.

If Rep. Nunes himself is somehow the real party of interest, there's a separate issue in that he is also considered a witness in the case. And that creates some questions that the judge wants answered.

I gather from comments at the hearing that Defendants’ concern is that Congressman Nunes may be a source of, or helped arrange, the funding. While this concern has yet to be proven, the basis for it goes beyond mere conjecture. Congressman Nunes and Mr. Biss have related litigation in this Court arising from the same allegedly defamatory article at issue here. Congressman Nunes alleges significant damages arising from the article, as do Plaintiffs. While these family members may be separately financing their respective suits, it is not merely a fishing expedition to inquire about the Congressman’s involvement in the financing of the instant lawsuit and his stake, if any, in the outcome. It may be that he has no more than a desire for his family to succeed in their lawsuit. However, he is also a witness in this case and Defendants are entitled to inquire about his interests in the lawsuit that may illuminate a possible bias.

The judge also highlights that Hearst believes the funding is important to refute a potential "David v. Goliath" argument made by the Nunes family at trial (arguing that big bad NY media is trying to harm lowly poor Midwest farmers), and notes that's another reason to allow discovery on funding.

All that said... this does not mean that the public is going to learn this information. Instead, the judge is saying that the information must first be presented "in camera" (basically: judge's eye's only). Notably, the judge points out that it was the defendants, Hearst and Lizza, who had raised the idea of in camera review, while the Nunes family just flat out resisted having to hand over the documents "but make no reference to the need for in camera inspection." Still, in an abundance of caution, the judge says that he will review the information in private first, and then if he sees no reason to change his mind, he will order the Nunes family to hand that information over to the defendants:

I conclude it is prudent to review the records prior to requiring production to Defendants. If, after my in camera review, no reason appears to reconsider my decision, I anticipate entering a supplemental order requiring their production to Defendants consistent with the protective order in place.

For what it's worth, that means that even assuming the judge does agree, after reviewing whatever information, that the documents need to be handed over to the defense, that information might still not become public. There is a protective order regarding the content shared in discovery which keeps most of it secret (this is for a good reason), and should this case ever get to trial, then some of it may become public. But... there's a good chance (1) this never goes to trial, and (2) this information does not become public (at least not via this case). Still, it's notable that the judge has agreed the information is relevant and must be revealed to him.

Filed Under: actual malice, defamation, devin nunes, esquire, litigation funding, ryan lizza, slapp suits, steven biss
Companies: hearst, nustar farms

Unsealed Documents In Nunes' Family Farm's Lawsuit Against Ryan Lizza Raise More Questions About The Lawsuit Than They Answer

from the you-did-what-now? dept

The saga of Devin Nunes' family's lawsuit against reporter Ryan Lizza and Esquire Magazine got even more bizarre last week. Back in June, we had written about some heavily redacted documents in the case that suggested that Nunes' lawyer, Steven Biss, was playing some very dangerous games in order to try to keep the employees of the NuStar Farms (owned by Nunes' relatives) from testifying as to their immigration status. As you may recall, the only part of the lawsuit that was still going on were defamation claims regarding the implication that the farm might employ undocumented workers, which would be noteworthy, considering Devin Nunes hardline stance on immigration.

As we covered back in June, after first making it difficult to set up a deposition with the employees, when that deposition finally occurred, the lawyer for the employee recommended he take the 5th, at which point Biss (who was not representing the employee) paused the deposition for quite some time, before insisting that the employee would not take the 5th. From the filing:

Defendants noticed the depositions of six of Plaintiffs’ current employees and had them served with subpoenas duces tecum that required them to bring identification to their depositions. Plaintiffs’ counsel, Steven S. Biss, accepted service of the subpoenas on behalf of the employees, but Plaintiffs arranged for separate counsel, Justin Allen, to represent the deponents. F.S.D. was the first such witness to be deposed on May 12, 2021.

While Defendants’ counsel was questioning F.S.D. about his purported signature on various documents, Mr. Allen stated, “I’ve advised my client to invoke his Fifth Amendment right regarding questions about this document. [F.S.D.] --- ” (Doc. 103-8 at 20 (Dep. pp. 71-72).) Mr. Biss then interrupted stating, “Hold on. Hold on. Can we go off the record for just a minute? I’d like to talk to Justin before we do this.” (Id. (Dep. p. 72).) In fact, the deposition was delayed for much more than just a minute. More than two hours later, the deposition resumed. When Defendants’ counsel attempted to make record, Mr. Biss interrupted him several times insisting that Mr. Allen would make a statement and the deposition would be rescheduled. Once Mr. Biss got his way, Mr. Allen stated,

I am not going to allow [F.S.D.] to answer that question because when we left it I advised him to invoke his Fifth Amendment right. We took a break. We went off the record, and we’ve had several conversations with lots of people and I’ve talked to [F.S.D.], and as of now I am no longer representing him. I am not his lawyer.

(Id. at 21 (Dep. pp. 74-75).) The depositions were then halted. At the hearing, Mr. Biss stated that a new lawyer had been retained to represent the employee witnesses at their depositions, but he could only identify the new attorney by her first name, Jennifer. Mr. Biss was ordered to provide her name to opposing counsel and the Court. To date, I have not received that information.

Still, much of the information remained redacted. Law professor Eugene Volokh filed a brief asking the court to unseal some of the documents in the case, and late last week the court agreed. So now we get to see a lot more, and as Elizabeth Dye at Above the Law points out, the new details show that this lawsuit "is even grosser than expected."

The newly unredacted documents highlight the evidence Hearst has found, through the discovery process that at the very least strongly calls into question the immigration status of employees of NuStar Farms. Considering that's the only issue left in the case, it seems quite incredible that the farm and Nunes' family would continue to push this lawsuit -- though, as other recent filings have shown, it's unclear how much Nunes' family actually knows about the lawsuit that was filed in their name. A failed deposition redaction notes that family members admitted to not knowing who was paying for the lawsuit, and that they weren't looking for any money in return (even though the lawsuit requests $25 million).

According to the filing:

In addition, Plaintiffs’ apparent lack of investment in prosecuting their own lawsuit was buttressed by their deposition testimony admitting they have not incurred out-of-pocket payments to counsel, with the exception paying $500 to former local counsel Joe Feller, and their document production of financial records indicating the same lack of payments to counsel for costs or fees, save the payment to Feller. Consider further that Plaintiff Anthony Nunes III, testifying as the 30(b)(6) corporate representative of NuStar, answered the question “[W]ho is funding the lawyers for this lawsuit?” with “I have no idea.” NuStar 30(b)(6) Anthony Nunes III Dep. 400:8-10.

Also, this:

Plaintiffs have had little involvement in the prosecution of their own case. See NuStar 30(b)(6) Corporate Rep. Tr. at 10:9-15:18 (corporate representative testifying that he never saw the 30(b)(6) topics and did not prepare); Lori Nunes Tr. at 185:3-22 (testifying that she did not review SSA records ordered to be produced to Plaintiffs); Anthony Nunes, III Tr. at 303:8- 308:11 (same); Anthony Nunes, Jr. Tr. at 97:13-100:15 (same); Lori Nunes Tr. at 117:23-124:9 (testifying that she did not know where information in interrogatory response came from but suspecting it came from counsel); see also Toni Dian Nunes Tr. at 86:10-89:17, 112:25-116:6 (testifying that she never saw subpoena directed to her and accepted by Plaintiffs’ counsel and that some records produced in response were not actually hers).

And yet the case pushes forward on the issue of the immigration status of the employees of the farm, and the formerly redacted, but now unsealed, bits of Esquire's filing are incredibly eye opening and would make most people question why this lawsuit is being fought in the first place. From the now unsealed filing:

To defend against those allegations, Defendants obtained in discovery from NuStar records concerning its hiring of workers. These include (i) USCIS Forms I-9 and accompanying employee identification cards for most current and former employees, and (ii) two "No-Match letters issued to NuStar by the U.S. Social Security Administration ("SSA")... Defendants also obtained from the SSA, pursuant to this Court's order... a chart indicating whether or not the Social Security Numbers ("SSNs") that the workers provided to NuStar matched the SSA's records...

Those documents demonstrate that the six subpoenaed NuStar employees—who were employed by NuStar before, during, and after the article was published, according to NuStar's verified response to Interrogatory No. 1, could have criminal exposure under 8 U.S.C. §1324c, and that their testimony may incriminate them. What follows is a small sampling of the reasons.

First, the SSA responded that the Social Security numbers reported by NuStar as associated with each of the subpoenaed employees does not match the SSA's records.... This authoritative, self-authenticating document from the United States Government confirms that the SSA has no record of having issued to these workers the SSNs that NuStar recorded at the time of hire.

Second—and consistent with this—NuStar received letters from the SSA in 2019 (for tax year 2018) and 2020 (for tax year 2019) notifying them that the majority of SSNs provided on their employees’ Forms W-2 did not match the government’s records. That is, in 2018, 20 out of 27 employees came back as a “no match,” and in 2019, 14 of 19 came back as a “no match.”... Those letters stated that NuStar could use a free online portal to learn which employees’ numbers did not match, and to thereafter follow up with the respective employees to correct the errors on the W-2 forms.... This is important if the employees are here legally, as otherwise the SSA will not be able to accurately account for their Social Security benefits. Tellingly, Plaintiffs did not produce any documents indicating they had done so.

Third, the Forms I-9, social security cards, and identification documents are, in many instances, insufficient and/or fraudulent on their face. This was on stark display in the (yet-completed) deposition of [REDACTED], the first NuStar employee to testify.

As AboveTheLaw notes correctly, having a No Match letter does not mean that an employee is an undocumented immigrant. But, it certainly raises some questions about their documentation. And, if the Nunes family's main concern about the Lizza article was it suggesting the farm might have employed undocumented workers (which, to be clear, the article never actually says -- it merely highlights how the industry relies on undocumented workers, and it is quite common for such undocumented workers to be employed on farms around the Nunes' farm), perhaps the dumbest move Nunes and family could make is to sue for defamation over those very claims. Because unlike an old Esquire article that doesn't actually accuse the farm of hiring such workers, now (1) it's definitely in the news again, and (2) there's more evidence coming, and what's been shown so far does not look good at all.

Indeed, the filing goes even deeper in raising serious questions about the documentation status of NuStar's employees.

On his I-9, bearing a date in 2007, [REDACTED] stated that he was a United States citizen.... However, before his attorney (from the Brown Winick firm in Des Moines, who met his client for the first time that day) advised him to invoke his Fifth Amendment right, [REDACTED] testified that he was not a United States citizen and, instead, was and is a legal permanent resident holding a government-issued green card.... This, of course, suggests [REDACTED] made a false statement under penalty of perjury on his Form I-9.

Moreover, Section 2 of the Form I-9 is not filled out by the employer, and the signature on the Form I-9 does not appear to match the signature on the produced 2017 Form W-4 for [REDACTED] .... This raises questions as to how [REDACTED], who does not read English, was able to complete the form without assistance, and whether someone at NuStar completed it for him without disclosing that fact as required on the form itself. These are questions Defendants’ counsel intended to explore, until [REDACTED] counsel from the Brown Winick firm instructed his client to assert his Fifth Amendment right....

Most significantly: The resident alien card that [REDACTED] proffered to NuStar in order to gain employment is, on its face, fraudulent. [REDACTED] proffered card states that his class of admission to the United States is “W16.” ... “W16” is limited to persons who entered the United States without inspection prior to January 1, 1982, and were subsequently granted legal permanent resident status. See Dep’t of Homeland Security, Immigrant Classes of Admission, https://www.dhs.gov/immigration-statistics/lawful-permanent-residents/ImmigrantCOA (last visited May 15, 2021); ... However, date of birth, as stated on his proffered card and as he testified, is [REDACTED].... It is impossible for [REDACTED] to have been granted permanent resident status under the W16 class of admission, as he was born almost three years after the cut off for that class.

If the entire case hinges entirely on whether or not Lizza had no basis to believe that the farm employed undocumented workers, this is... probably not the way to make that case.

Also unsealed was Steven Biss's response to this filing, claiming that none of the above matters:

The fact that the social security numbers reported by NuStar did not match the SSA’s records is irrelevant. Inclusion of a worker’s name on a no- match letter makes no statement about the worker’s immigration status. Mismatches can result from a variety of reasons, including typographical errors (misspellings), clerical errors, mis-transposition of a number, an incomplete W-4, mistakes by the SSA, name changes, fraud/identity theft.

There's also a lot of table pounding about how (1) the article is false and quotes were "fabricated" by Lizza, (2) that none of the documents suggest the employees are undocumented or face criminal exposure, (3) that the only "misconduct" was from Lizza and Hearst, and (4) all of this is intended to "harass" the plaintiffs. You can read the filing for yourself at the link above or embedded below, but to me they are wholly unconvincing. The filing also insists that (1) Biss and NuStar are not pressuring its employees to not take the 5th, and also that (2) they "will not assert the Fifth Amendment or refuse to answer any questions." That seems quite odd given that the one transcript that has been released certainly showed the then lawyer of the employee suggesting the employee assert his 5th Amendment rights.

Esquire and Lizza then responded with the now unsealed document suggesting that the court really ought to appoint "competent, independent counsel" to represent the employees of NuStar farms.

Eventually the court mostly sided with Hearst and Lizza, noting that there was no harassment here:

During the deposition, Defendants’ counsel was asking questions about documents such as a bond F.S.D. had posted and a traffic ticket he had received that bore his signature. Mr. Biss made a lengthy speaking objection claiming this was harassment.... Here, where the identity and immigration status of the employees is a central issue, it is not harassing or irrelevant to ask questions about such documents. In the context of this case, it is not conducive to obtaining truthful answers from an employee such as F.S.D. to have his employer’s lawyer making lengthy, animated objections to those questions

Similarly, the magistrate judge seemed at least somewhat concerned about Biss's actions:

The most puzzling and troubling aspect of Mr. Biss’s explanation, however, is the representation that he “sought a sidebar with counsel for the witness to determine whether the witness wanted to take the Fifth Amendment.” (Doc. 107 at 10.) This two-hour “sidebar” occurred immediately after Mr. Allen stated, “I’ve advised my client to invoke his Fifth Amendment right regarding questions about this document.” (Doc. 103-8 at 20 (Dep. pp. 71-72).) Normally, one would expect the lawyer for a deponent to be in the best position to ascertain whether the deponent desires to assert a privilege. There is no record of the sidebar, only Mr. Biss’s protestations that the employees are not being pressured regarding their rights under the Fifth Amendment. Mr. Biss makes bald assurances that the employees want to answer all questions and not assert their Fifth Amendment rights. Nevertheless, Mr. Biss’s behavior—coupled with the facts that (a) the privilege was raised, (b) the privilege was perhaps withdrawn after a lengthy sidebar, and (c) Mr. Allen was fired—gives me little confidence that F.S.D. could make a knowing waiver of his Fifth Amendment rights under these circumstances.

The court, however, initially declined to appoint a lawyer for the employees, because Biss insisted that one had already been found for them, though he could not name her beyond "Jennifer." The hearing transcript is quite incredible on this:

THE COURT: However, I understand that in this circumstance, that Mr. Biss, or perhaps it's the Nuneses, have arranged to have another lawyer or lawyers appear on behalf of these witnesses. Is that the case, Mr. Biss?

MR. BISS: Yes, sir, it is.

THE COURT: All right. Who is it that you've arranged to have appear?

MR. BISS: I know her name is Jennifer. I don't know her full name, but I was involved in engaging her; but NuStar engaged her, so she -- and she is available.

THE COURT: What do you mean that she is available? For us to talk to now or just available for any of these depositions?

MR. BISS: She's available for the depositions, whenever they are scheduled.

THE COURT: Okay. I'd like you to figure out who that person is and notify the Court and notify opposing counsel of that today. I know you expressed some concern that whoever would be designated to represent these defendants would be -- I don't know if you used the word "harassed," but I don't -- encouraged to assert their Fifth Amendment rights, and I don't think there's -- I'm not worried about Iowa lawyers who are admitted to the bar being able to vigorously assert their clients' rights. I think if I were in Jennifer's position and someone who knew a lot more about the underlying case -- whether it was you, Mr. Biss, or someone from the defendants who knew more about the underlying documents and the potential jeopardy my clients might face -- was calling me to talk to me about that, I'm not sure I would consider that harassment. It might be somewhat welcome so that I can accurately -- I mean, effectively defend my clients in their depositions. So that's not a worry that I have.

Again, all of this is not how these things normally work, and it remains somewhat bizarre that Nunes' family is still moving forward with this case.

It's unclear what happened with "Jennifer" but a few weeks later, in early July, the court reversed course and appointed counsel to the employees:

On June 17, 2021, I entered an order declining to appoint counsel for six of Plaintiffs employees who are witnesses. Because of the distinct possibility that these witnesses may not comprehend the jeopardy they may face and because they may not be able to afford counsel, I conclude it is necessary to appoint counsel from the CJA panel for the witnesses. Therefore, I appoint John P. Greer of Greer Law Office in Spencer, Iowa to represent the employee witnesses. The prior order at 119 remains unmodified in all other respects. This Order appointing counsel is subject to Plaintiffs employees satisfying the Court of their qualifications for court-appointed counsel under 18 U.S.C. Section 3006A.

This case is certainly quite messy, but it remains difficult to see any way in which this case makes sense for the Nunes' family beyond as a harassment technique itself. It continues to retain all the hallmarks of a SLAPP suit, and serves as a strong reminder that Iowa needs an anti-SLAPP law and we need a federal anti-SLAPP law to go with it as well.

Filed Under: anti-slapp, defamation, devin nunes, immigration, immigration status, ryan lizza, slapp, steven biss
Companies: hearst, nustar

Devin Nunes' Deposition Goes Off The Rails, As He Keeps Suing (And Actually Gets A Minor Victory In One Suit)

from the omnibus-post dept

It's getting difficult to keep up with all of the many lawsuits involving Devin Nunes and his family against the media -- and that statement alone should raise your eyebrows quite high. As someone who has sworn to protect the Constitution (which includes the 1st Amendment), Nunes seems very interested in using the judicial system repeatedly to intimidate and silence critical reporting from the press. This post will cover three separate lawsuits (out of a much longer list of lawsuits) in which things happened this month. First off, he's filed yet another lawsuit, this time against NBC Universal over claims that Rachel Maddow made defamatory remarks about him. He's suing in Texas, which seems like an odd choice for many reasons. After all, he's a Congressional Representative from California. NBC is based in New York. Many of his previous lawsuits have been in Virginia. Honestly, the complaint makes the most half-hearted attempt to explain why Texas is the proper venue, stating "MSNBC is at home in Texas." What does that even mean? MSNBC is based in New York.

Oh, and the other oddity in choosing Texas? Texas actually has a semi-decent anti-SLAPP law.

That said, there are elements of the MSNBC case that may actually be more challenging for MSNBC. The lawsuit is over statements by Rachel Maddow that may have been false, regarding questions about what Nunes did with a package sent by an accused Russian agent. Nunes claims he followed the proper protocols for the handling of such a package, alerting the DOJ and handing it over the the FBI. Maddow accused him of not doing that. Still, to be defamatory, Nunes will have to show that Maddow knew what she was saying was false or had very strong reasons to believe they were false. In the complaint, Nunes's lawyer, Steven Biss, points to some Breitbart articles as proof, which... does not show that Maddow knew them to be false. However, I will note, that of all the many wacky Biss/Nunes lawsuits, this one actually reads marginally stronger than all the others. That's progress, I guess.

Separately, Nunes and Biss actually had a minor victory in another lawsuit -- one filed in November last year against the Washington Post (not the first time Nunes has sued the Washington Post). This lawsuit argued that two marginally incorrect statements were defamatory, which seemed ridiculous. The judge, however, has taken a very broad reading of the article, and finds that there are possible readings that are defamatory, and at least a plausible argument of actual malice in the fact that the underlying mistake in the article -- regarding Nunes' position regarding claims of the Obama administration surveilling Donald Trump during the 2016 campaign -- had been covered accurately in the Washington Post at an earlier date. And thus, there's enough in here to consider actual malice:

In the article at issue here, the Post reported that Nunes made that baseless claim himself. A newspaper’s own prior (and correct) reporting that is inconsistent with its later (and incorrect) reporting could certainly give the paper reason to seriously doubt the truth of its later publication—just as a source’s pre-publication recantation may be evidence that a publisher had reason to doubt the source’s original claims....

The Post urges the Court to conclude that its November 9, 2020 article merely misattributed the baseless claims to Nunes (rather than to President Trump) and was therefore a “simple misstatement of the Post’s prior reporting.”... That may very well be true. But at this stage in the proceedings, where the Court is limited to the allegations in the Amended Complaint and the reasonable inferences that can be drawn from them, the Court cannot determine what in fact led to the incorrect statements in the article.

The judge refuses to dismiss the defamation claims, and will allow the case to move forward. This does not mean that Nunes is likely to win, but it will be costly for the Washington Post. They will have to go through discovery, and then can argue there's no actual malice with additional evidence later (at which point they have a higher likelihood of succeeding). Nunes' supporters have been cheering this on, and acting like some great evils will be outed through discovery, which... is generally not how this works.

However, that does take us to the final story, which is truly ridiculous. In the long-running saga involving Nunes' family's farm's defamation lawsuit against Hearst publications, Esquire, and reporter Ryan Lizza, something truly bizarre happened last week. We had discussed how the case seemed to go off the rails earlier this summer as the two sides fought over depositions.

And it went even more off the rails last week at a deposition involving Nunes himself. Remember, Nunes' own lawsuit over the article was dismissed, but a tiny, tiny part of his family's suit lives on. However, Nunes was deposed last week, and according to a filing from Steven Biss on Friday, it did not go well. Biss claims that the lawyer for Hearst interfered with the deposition saying that lawyer "unceremoniously interrupted, threatened and stopped" the Nunes deposition.

Biss claims that this was "obstruction" as well as "unethical" and finally claims (somewhat laughably) that "it violates every tenet of the Federal Rules of Civil Procedure and the First Amendment." It's rather rich for Biss -- who regularly makes a mockery of the 1st Amendment via his defamation lawsuits -- to argue that a rather understandable objection to attempts to expose protected information "makes a mockery of the 1st Amendment."

Biss helpfully includes the relevant transcript of the deposition which... does not appear to make Biss/Nunes look good. Indeed, it seems to show how Hearst's lawyer was doing exactly the right thing.

At issue is that the reporter, Ryan Lizza, turned over some of his reporting notes and recordings as part of the discovery process, but those items were put under a protective order, saying that it is for the attorney's eyes (and ears) only. This makes sense. Reporters need to be able to protect their sources, and turning them over in a lawsuit should include a protective order to stop them from being viewed or listened to by opposing parties... or those who aren't even parties in the case. Again, in this case, Nunes' himself is not a party to the suit, but is being deposed as "a witness." It seems fairly evident that he should not be able to see Lizza's notes nor hear his reporting recordings. Yet, that's exactly what Biss attempted to do in the deposition. Hearst's lawyer, Jonathan Donnellan immediately objected.

BY MR. BISS:

Q. Counsel asked you during the deposition whether you had ever listened to the audiotapes that Mr. Lizza produced. I think you said no. I want to play two of those audiotapes for you and get your response --

MR. DONNELLAN: Hold on, Steve, I'll object to that. That goes beyond the scope of my examination. I did not ask the Congressman today about any matters that were covered by the protective order in this case, and he did not testify as to the substance of any matters covered by the protective order in this case, and I want it to stay that way.

So that's beyond the scope of the examination, so I object to any attempt to introduce to him or to expose him to any of the evidence that's covered by the protective order.

From there, things get pretty crazy, with a lot of it just being performative nonsense. Biss insists that he should be able to play the recordings, and Donnellan correctly points out that you can't undo that once it's done, and he believes it violates the protective order. And then, Nunes just starts butting in and (incorrectly) insisting that Biss can ask him anything. Anything labeled "THE WITNESS" is Nunes:

THE WITNESS: Aren't I the one being deposed, doesn't my lawyer have a right to ask me questions? You get to end it without my lawyer having time to ask me questions, is that how this works?

MR. DONNELLAN: It's beyond the scope of the examination and its evidence that you're not entitled to hear, Congressman.

MR. BISS: Why isn't he entitled to hear it?

MR. DONNELLAN: It's governed by the protective order.

And then... it just gets more and more ridiculous. Nunes then started to build up a head of steam. Biss claims that just because Donellan asked if Nunes had heard the recordings (which Nunes said he did not), that now means that Biss can play Nunes the recordings (which, again, are under a protective order). Nunes seems to think he's entitled to it all, and he has some, uh, very interesting ideas about what rights he has to information in these situations:

THE WITNESS: You also asked me about some documents, and I said no, I'd like to see them. So, I have that on my testimony to you, that I would like to see them. If they exist, what you're asking me, I have every right to see them. If not, there needs to be transparency in this process. Because if you're hiding something from me, like you hid my response of my subpoena, that's completely outrageous. You can't do that.

MR. DONNELLAN: Steven, if you look at--

THE WITNESS: You have to show me. You brought it up. If they exist, I get to see them. You don't get to ask me questions about things that you know and I don't. You did it once, you got caught, now you're doing it again. So, now I find out there are audiotapes and there's -- are there documents? What kind of documents have I not see for this -- for this --

There's some back and forth between Biss and Donnellan regarding the protective order, and then suddenly Nunes jumps in to -- I kid you not -- "object." Then he claims that he's going to go to the judge directly himself. That's not how any of this works, but okay.

THE WITNESS: Wait, I object to that. I have a right, this is my deposition. I totally object to that. They definitely -- I do have a reason to know. You've stat on this deposition going through conspiracy theory after conspiracy theory after conspiracy theory, whether it's who's paying lawsuits, or frivolous ethics violations, and then you do that bogus little game on me where you show me a subpoena and then play some game like I haven't complied, and now I find out that you had it sitting next to you there as one of the exhibits.

You asked me if I had seen some type of documents. I said no, but I'd like to see them, if I want to see Lizza's notes or something like that. If there's notes you're damn right I want to see them. And it's wrong, it's not transparent, it's totally corrupt, and I'm going to the judge. I want to go to the judge myself. And I'm not ending this deposition. I want Steve to continue to ask me questions.

MR. BISS: You asked him a question --

(Speaking simultaneously)

THE WITNESS: Who do the hell do you think you are?

The sheer entitlement oozing out of Nunes in that exchange is quite eye opening, isn't it? And while he claims it's a conspiracy theory about who is funding all of these lawsuits, as far as I can tell there still hasn't been any public explanation, and there was a request from a watchdog group for the Congressional Ethics Office to investigate if it's being done legitimately.

Biss then starts grandstanding, claiming that Donnellan is trying to hide the audiotapes from becoming public as if that's some conspiracy, rather than a key part of journalism. Not revealing journalist sources is not about secrecy. It's how you have effective journalists who can actually find out things that those in power would like to remain secret. Forcing a journalist to reveal their sources is not about transparency and accountability -- it's the opposite. It acts as an intimidation system to silence whistleblowers.

It goes back and forth this way over and over again, with Donnellan pointing out repeatedly that if Biss' actual concern is about Lizza's audiotapes being made public, the proper place to do that is before the judge to remove the protective order and unseal them -- not to just randomly play them to Rep. Nunes. There are so many back and forths on this it's not worth it to cover them all, but here's a sample that certainly suggests this is much more about getting a narrative out into the public about there being some sort of "hidden" information by Lizza and Hearst that "they just won't tell you," rather than doing what's right here.

MR. BISS: This witness has a right to know what's on those audiotapes, just like the public does.

MR. DONNELLAN: No, he does not.

MR. BISS: The public has a right --

MR. DONNELLAN: It is subject to a court order --

(Speaking simultaneously)

MR. DONNELLAN: It's subject to a court order and it should be taken up with the court.

MR. BISS: Jon, what I find most astounding is, you represent a member of the press, and here we have a classic example, maybe another classic example of the press trying to keep the truth from the people, and including this witness, trying to keep the truth from this witness. And he's entitled to know what's on the audiotapes and to respond to what's on the audiotapes, as part of his testimony in this case, including on the question of damages, on the question of --

MR. DONNELLAN: This witness is not even a party to this case --

MR. BISS: He's a witness.

MR. DONNELLAN: -- Steve.

MR. BISS: He's a witness. He's a witness and --

MR. DONNELLAN: He has not entitlement under this order to have access to these materials. If you would like to have a discussion offline about lifting the protective order so that all materials subject to the protective order are disclosed, let's have that discussion.

But for right now, we have a protective order, it's in place, it's signed by the judge, and if you were to play this tape right now it would be a violation of that order.

At that point, Biss brings out his proverbial fainting couch.

MR. BISS: Well, I can tell you this, I am-- I'm shocked by this response. I'm shocked by it, but I'm not surprised. And I'm not going to put myself or my clients, or the witness, in the position of violating a federal court order. I'm not going to give you the satisfaction of preparing a motion for sanctions, but I will tell you this:

We are definitely, definitely going to the judge on this, and we're going to seek attorney's fees and costs for you tying up this deposition.

It goes on in this way for a while, with Biss repeatedly mischaracterizing the point Donnellan is making, and even accusing him of threatening Biss.

And, of course, that gets Nunes himself worked up into a frenzy as well:

THE WITNESS: So, just so I'm clear, so now, Steve, you don't get to ask me any questions, and anything that he asked of me, he gets to decide whether or not it's relevant or not. So, I'm being treated differently than all the other people that got deposed, which is totally ridiculous and wrong.

And I don't know what the hell you guys at Hearst are trying to cover up, but you asked me about audiotapes, you asked me about notes, you asked me about documents, so I get a right to see those documents and hear those tapes, that I now know exist. And if not, you're keeping them from me, a witness, who you've made a witness. And you're the one that called me for a deposition, not Steve.

You asked me 90 percent of questions that are not relevant at all to this case, that are completely just fishing, things that you want to try to push out to all your fake news people. And now you're threatening my lawyer with me on the line. You threatened me a couple times with going to the judge. And then you said I didn't answer your questions and you're going to the judge, so you're full of threats.

But I know this much, those tapes need to get out. If you continue to hide them, I don't know what my legal remedies are, but as far as I'm concerned, this deposition is not complete because of your illegal cover up and activity here, that continues to cover up your lies for the sex predator that you sent out to harass my family.

And now there's actual tapes that exist of this? I've never heard of them. So, why do I not get to hear them? I don't know what the court's going to say about this, but this seems totally unfair, that my lawyer doesn't get to ask me any questions. This is absurd. I don't know what game you think this is, but maybe you should send ICE out to Hearst Winery and Hearst ranch or something. What a joke.

Almost everything Nunes says above is either wrong or misleading, though the most concerning seems to be him -- the former head of the House Intel Committee, and current ranking member of it -- appearing to potentially suggest that he can send ICE out Hearst properties. But as for the rest, the nature of the deposition is that the lawyer who called it does get to ask questions, but that doesn't mean that the lawyer for the other side (who is also the lawyer for the witness) gets to reveal stuff that is under a protective order.

There's more back and forth, and Donnellan says to wrap things up and tells Biss to take it all up with the judge, leaving Biss to trot out this inane statement:

MR. DONNELLAN: No, no, no, no, if you can get off your soapbox right now, I think we have said what we have to say for the record, let's close the deposition, we can take it up with the court, and anything that you want to say to the court in terms of playing attorneys' eyes only material that was not covered by this deposition, you can make those arguments to the court.

MR. BISS: Hey, Jon, so much for the First Amendment.

I am unaware of any reading of the 1st Amendment that requires the exposure of content that was put under a protective order by a judge to a witness in a case, but perhaps I'm missing something. I'm also unaware of any reading of the 1st Amendment that requires a deposition to continue, but again, I may have missed the proper precedent. Unfortunately, Biss doesn't do much in the way of citing one in his motions to the court. The only citations are to broad statements in cases regarding how the litigation process is "a search for truth." And while that may be true, that does not speak to the practice of revealing the content of something under a protective order.

Finally, rather than type it out like I typed out all of the above quotes, I'll just screenshot how the deposition closes, because it's just the perfect closing. I want John Oliver to get people to re-enact this deposition.

The judge has already seemed somewhat annoyed about how this case is going, so it will be interesting to see how he responds to all of this...

Filed Under: depositions, devin nunes, jonathan donnellan, protection order, rachel maddow, reporter's notes, ryan lizza, steven biss
Companies: esquire, msnbc, nbc, washington post

Devin Nunes' Family's Bizarrely Stupid Defamation Lawsuit Goes Off The Rails

from the wow dept

As you may recall, Rep. Devin Nunes has been involved in a bunch of totally frivolous SLAPP suits that seem designed to try to intimidate journalists from writing stories criticizing Devin Nunes. A key one that seems to have gotten deeply under Nunes' skin is an Esquire piece from a few years ago entitled Devin Nunes’s Family Farm Is Hiding a Politically Explosive Secret written by reporter Ryan Lizza. In the fall of 2019 he sued over that article, and a few months later his family sued over it as well.

To say it hasn't gone well for Nunes would be an understatement.

As a reminder, the article claims that the "politically explosive secret" is just the fact that, despite Nunes repeatedly pitching himself as a California farmer, his family packed up the farm and moved it to Iowa a while back. Much of the article is about how they appear to have worked over time to try to hide that:

So here’s the secret: The Nunes family dairy of political lore—the one where his brother and parents work—isn’t in California. It’s in Iowa. Devin; his brother, Anthony III; and his parents, Anthony Jr. and Toni Dian, sold their California farmland in 2006. Anthony Jr. and Toni Dian, who has also been the treasurer of every one of Devin’s campaigns since 2001, used their cash from the sale to buy a dairy eighteen hundred miles away in Sibley, a small town in northwest Iowa where they—as well as Anthony III, Devin’s only sibling, and his wife, Lori—have lived since 2007. Devin’s uncle Gerald still owns a dairy back in Tulare, which is presumably where The Wall Street Journal’s reporter talked to Devin, and Devin is an investor in a Napa Valley winery, Alpha Omega, but his immediate family’s farm—as well as his family—is long gone.

The article also discusses a bunch of other oddities about the Nunes' farm in Iowa, and while it never comes out and directly claims that the farm hires undocumented workers, it does note that most other farms in the area do. This point has become somewhat important in the case.

Devin Nunes' own part in the case is effectively over as the judge dismissed it last summer, pointing out absolutely nothing Nunes claimed was defamatory actually was defamatory (Nunes is appealing, because of course he is, but it's hard to see much of a chance of the case being reinstated). And while the judge had made it clear that the lawsuit by Nunes' family was on shaky ground, the Nunes' family and their lawyer, the infamous Steven Biss, decided to keep the case going.

The only claim that has survived in the case is the one where Nunes' family says it is defamatory due to the implication that the farm has employed undocumented workers. So, as would be expected, one of the things that Esquire's publisher, Hearst, wished to do was to depose the workers on the farm to establish their documentation. Last month, it became clear that something nutty was going on after Hearst filed quite a document with the court, about its efforts to depose the workers from NuStar farms. Much of the filing is redacted, but you can still get a sense of the frustration:

This Motion comes in the wake of an unusual and troubling series of events in this case, which were previewed for the Court during last week’s telephone conferences with Judge Roberts....

Reading through the details (and especially the declaration of one of Esquire's lawyers) strongly suggests (though the redactions make it a little tricky to parse out) that Biss has played games to try to keep NuStar's employees from giving depositions. This includes questions about whether or not Biss would accept service on behalf of those employees and also whether or not he would represent those employees.

Reading those links suggests the case was already turning into something of a clusterfuck, and apparently on Thursday it all blew up as the magistrate judge on the case benchslapped Biss and told him to stop playing games (first reported by the Fresno Bee, whose parent company was also sued by Nunes, and which has done some great reporting on these cases).

The order from the magistrate judge details what happened when Hearst's lawyers were finally able to depose the NuStar employees and... um... wow.

Defendants noticed the depositions of six of Plaintiffs’ current employees and had them served with subpoenas duces tecum that required them to bring identification to their depositions. Plaintiffs’ counsel, Steven S. Biss, accepted service of the subpoenas on behalf of the employees, but Plaintiffs arranged for separate counsel, Justin Allen, to represent the deponents. F.S.D. was the first such witness to be deposed on May 12, 2021.

While Defendants’ counsel was questioning F.S.D. about his purported signature on various documents, Mr. Allen stated, “I’ve advised my client to invoke his Fifth Amendment right regarding questions about this document. [F.S.D.] --- ” (Doc. 103-8 at 20 (Dep. pp. 71-72).) Mr. Biss then interrupted stating, “Hold on. Hold on. Can we go off the record for just a minute? I’d like to talk to Justin before we do this.” (Id. (Dep. p. 72).) In fact, the deposition was delayed for much more than just a minute. More than two hours later, the deposition resumed. When Defendants’ counsel attempted to make record, Mr. Biss interrupted him several times insisting that Mr. Allen would make a statement and the deposition would be rescheduled. Once Mr. Biss got his way, Mr. Allen stated,

I am not going to allow [F.S.D.] to answer that question because when we left it I advised him to invoke his Fifth Amendment right. We took a break. We went off the record, and we’ve had several conversations with lots of people and I’ve talked to [F.S.D.], and as of now I am no longer representing him. I am not his lawyer.

(Id. at 21 (Dep. pp. 74-75).) The depositions were then halted. At the hearing, Mr. Biss stated that a new lawyer had been retained to represent the employee witnesses at their depositions, but he could only identify the new attorney by her first name, Jennifer. Mr. Biss was ordered to provide her name to opposing counsel and the Court. To date, I have not received that information.

There are so many "wow" elements in there, and also plenty of things on the "these are things you should not do during a deposition" list. Just the fact that a judge would recount that in an order is kind of incredible, and suggests that the court is already both aware of and sick of Biss's antics.

The judge orders the employees from NuStar to actually comply with the subpoenas, and seems to suggest that Biss failed to inform the employees of their obligations under the subpoena until the morning of the deposition (another wow moment):

Although the subpoenas had been timely served and no objection was raised, apparently F.S.D. first learned of the deposition on the morning it was scheduled, he had not been shown the subpoena, and he did not appear with the requested documents.

So the court doesn't just order that the employees comply with the request to produce documents, but tells Biss to make sure that the employees are properly informed of them:

To avoid a repetition of this problem at upcoming depositions, Mr. Biss and any attorney retained for the employees will inform the employees of their obligation to search for the requested documents and bring the documents to the deposition, if they still possess them. Mr. Biss and any attorney retained for the employees will also advise the employees that the Court has ordered this production and employees may be asked about their efforts to comply at the deposition.

And then the magistrate judge addresses Biss's behavior. And you can tell he's not happy.

Defendants complain about Mr. Biss’s behavior during the deposition of F.S.D. Particularly, Defendants assert that Mr. Biss asserted argumentative objections that were disruptive and intended to intimidate or coach the witness. Mr. Biss asserts that his objections were proper and “intended to call out the Defendants’ overt harassment of the NuStar employee.” (Doc. 107 at 10.) Mr. Biss’s further explanation on this issue is puzzling and troubling:

No effort was made to “signal to the witness how to answer questions” or to “coach[] the witness to testify in a certain way.” Counsel for the Defendants got answers to all his questions, including those about [F.S.D.’s] traffic tickets. The deponent was never instructed not to answer. Indeed, he wanted to answer all questions. Plaintiff’s counsel sought a side bar with counsel for the witness to determine whether the witness wanted to take the Fifth Amendment. The witness did not, which is why the witness terminated the lawyer with absolutely no prompting by Plaintiffs’ counsel.

(Id. (brackets in original).) During the deposition, Defendants’ counsel was asking questions about documents such as a bond F.S.D. had posted and a traffic ticket he had received that bore his signature. Mr. Biss made a lengthy speaking objection claiming this was harassment. (Doc. 103-8 at 19 (Dep. pp. 66-67).) Here, where the identity and immigration status of the employees is a central issue, it is not harassing or irrelevant to ask questions about such documents. In the context of this case, it is not conducive to obtaining truthful answers from an employee such as F.S.D. to have his employer’s lawyer making lengthy, animated objections to those questions.

The most puzzling and troubling aspect of Mr. Biss’s explanation, however, is the representation that he “sought a sidebar with counsel for the witness to determine whether the witness wanted to take the Fifth Amendment.” (Doc. 107 at 10.) This two-hour “sidebar” occurred immediately after Mr. Allen stated, “I’ve advised my client to invoke his Fifth Amendment right regarding questions about this document.” (Doc. 103-8 at 20 (Dep. pp. 71-72).) Normally, one would expect the lawyer for a deponent to be in the best position to ascertain whether the deponent desires to assert a privilege. There is no record of the sidebar, only Mr. Biss’s protestations that the employees are not being pressured regarding their rights under the Fifth Amendment. Mr. Biss makes bald assurances that the employees want to answer all questions and not assert their Fifth Amendment rights. Nevertheless, Mr. Biss’s behavior—coupled with the facts that (a) the privilege was raised, (b) the privilege was perhaps withdrawn after a lengthy sidebar, and (c) Mr. Allen was fired—gives me little confidence that F.S.D. could make a knowing waiver of his Fifth Amendment rights under these circumstances.

The judge notes that he can appoint a lawyer for the employees, but since Biss insists that "Jennifer" has been retained, for now he will resist the temptation to appoint them counsel. However, "if concerns arise about the exercise of independent judgment by the attorney replacing Mr. Allen, I may reconsider the necessity of appointing counsel."

It also concludes with this oddity:

Plaintiffs raised a related concern. Plaintiffs explained that they had not identified new counsel previously out of concern Defendants’ attorneys will contact the new lawyer to intimidate him or her or threaten ethics violations. (Doc. 107 at 8 n.5.) At the hearing, I expressed my belief that, if I were in the new lawyer’s shoes, I would welcome communications from counsel familiar with the case and the underlying documents as I prepared to independently evaluate my clients’ potential legal jeopardy.

So, once again, Biss's actions don't seem to be doing him any favors, yet haven't reached the point at which he gets sanctioned for his behavior either. Sometimes it truly is stunning how much leeway a court will give certain lawyers. Still, none of this is good for the Nunes family and their case.

Filed Under: california, deposition, devin nunes, esquire, iowa, nunes family, pleading the 5th, ryan lizza, steven biss
Companies: hearst, nustar farms

Devin Nunes Sues Again; He REALLY Doesn't Want You To Read This Article About His Family's Cow Farm In Iowa

from the really,-don't-read-it dept

Devin Nunes is on quite a roll with stifling free speech. The Congressman, who once co-sponsored a bill discouraging frivolous lawsuits and also voted for a House Amendment saying that free speech should be protected, has been filing a whole bunch of lawsuits that appear to serve no purpose other than to stifle free speech -- mainly free speech that criticizes Devin Nunes. Back when he filed the first of these suits (against satirical Twitter accounts, among others), we noted that he seemed particularly mad about an article by Ryan Lizza in Esquire trying to track down details about the Nunes' family's dairy farm, which is not in California where Nunes' Congressional district is, but in Iowa. Lizza noticed that Nunes appeared to go to great lengths to not have the public realize that his family's dairy farm (which is a big part of his bio) up and left California. The article is entitled Devin Nunes’s Family Farm Is Hiding a Politically Explosive Secret and it is absolutely worth reading, in part because Devin Nunes really doesn't want you to read it. But also, in part, because it had paragraphs like this:

Nunes grew up in a family of dairy farmers in Tulare, California, and as long as he has been in politics, his family dairy has been central to his identity and a feature of every major political profile written about him. A March story in National Review is emblematic. It describes how Nunes’s family emigrated from the Azores in Portugal to California’s Central Valley, “a fertile, sunny Eden,” and how the family “worked and saved enough money to buy a 640-acre farm outside Tulare.” The soil of the Central Valley is depicted as almost sacred in these articles. National Review quotes a 1912 Portuguese immigrant farmer who wrote that when he grabs a clump of dirt, “I feel as if I had just shaken hands with all my ancestors.” As recently as July 27, the lead of a Wall Street Journal editorial-page piece about Nunes, which featured a Tulare dateline, emphasized the dairy: “It’s 105 degrees as I stand with Rep. Devin Nunes on his family’s dairy farm.” Last year, Nunes noted in an interview with the Daily Beast—headline: “The Dairy Farmer Overseeing U. S. Spies and the Russia Hack Investigation”—“I’m pretty simple. I like agriculture.” The Daily Beast noted, “The cows are not far from his mind. He keeps in regular contact with his brother and father about their dairy farm.”

So here’s the secret: The Nunes family dairy of political lore—the one where his brother and parents work—isn’t in California. It’s in Iowa. Devin; his brother, Anthony III; and his parents, Anthony Jr. and Toni Dian, sold their California farmland in 2006. Anthony Jr. and Toni Dian, who has also been the treasurer of every one of Devin’s campaigns since 2001, used their cash from the sale to buy a dairy eighteen hundred miles away in Sibley, a small town in northwest Iowa where they—as well as Anthony III, Devin’s only sibling, and his wife, Lori—have lived since 2007. Devin’s uncle Gerald still owns a dairy back in Tulare, which is presumably where The Wall Street Journal’s reporter talked to Devin, and Devin is an investor in a Napa Valley winery, Alpha Omega, but his immediate family’s farm—as well as his family—is long gone.

Much of the article actually focuses on the fact that many of the farms in and around Sibley, Iowa employ undocumented workers, which seems just a wee bit hypocritical considering the strong support in the area for a President who is desperately trying to kick undocumented people out of the country, and Nunes himself, who has been a stalwart support of the Trump agenda. Lizza spends a lot of time trying to track down if the Nunes farm employs undocumented workers, and is followed around town by various Nunes family members. Other strange things happen as well, including the local newspaper suddenly disappearing a nearly decade old story after Lizza showed up in town (in part because he'd read that now gone article).

As I noted above, the original lawsuit mentions this article in passing, and the fact that some people were discussing it on Twitter, but now he's actually sued Lizza and Esquire's publisher, Hearst Magazines for $75 million. The lawsuit is filed in federal court in Iowa, with the same Virginia-based lawyer that Nunes has used in all of the other lawsuits he's been filing against journalists and critics lately, and with local representation from lawyer Joseph Feller in Sibley, Iowa, whose legal practice seems to focus mostly on estate planning and agriculture law -- not defamation.

Notably, Iowa has no anti-SLAPP law.

Also notably, none of the parties reside in or near Iowa. Sure, the article is about Iowa. And Nunes' family (as we now know) lives in Iowa. But they're not the plaintiffs. There is some argument that if there were defamation (and that seems unlikely) the "harm" to Nunes' reputation would happen in Iowa because of this article, but it seems pretty damn clear from the article, at least, that at least most of the Iowans profiled are on Nunes' side. It seems like there's a much stronger case that if (again, which is unlikely) there is any actual reputational harm, it's to those outside of Iowa. Such as Nunes' constituents. In California.

But, notably, California has a strong anti-SLAPP law.

As for the filing itself, well, it's about as ridiculous as you can imagine. Very little in Lizza's Esquire piece actually talks about Devin Nunes. It focuses much more on his family and the town where his family lives. As with past Nunes lawsuits, it seems more performative for a, well, certain audience, than for actually convincing a judge. In the very first line it calls Lizza "a left-wing political journalist, well-known for his extreme bias towards Plaintiff," highlights that Lizza lost a job at the New Yorker in a #MeToo situation, and uses that to at least, bizarrely, imply that Lizza's trip to Sibley was to stalk female members of Nunes' family.

Lizza was a fixture of the main stream media until December 2017, when his then-employer – The New Yorker magazine – summarily severed all ties and publicly terminated Lizza because of “improper sexual conduct”.... Lizza’s name had been included in the “Shitty Media Men” list that circulated in response to allegations published about Harvey Weinstein.... In June 2018, Esquire announced that it had hired Lizza as the magazine’s chief political correspondent.... Lizza only lasted a short time at Esquire. During his brief tenure, however, he physically traveled to Sibley, Iowa, where he lurked around Plaintiff’s grammar-school aged nieces and stalked members of Plaintiff’s family, reducing Plaintiff’s sister-in-law to tears.

Later in the complaint, it literally says:

... while he was in Sibley, Lizza stalked Plaintiff’s grammar-school aged nieces, behaved like a sex offender or pedophile cruising the local neighborhood for victims, frightened a family member to tears, and exploited a grieving mother.

Not that you can claim defamation based on what's filed in a lawsuit, but those suggestions seem to toe much closer to the defamation line than anything in Lizza's article.

It takes a while for the complaint to actually get around to listing what statements it believes are defamatory (spending a bunch of time pretending that each time someone linked to Lizza's piece on Twitter it meant the story was being "republished" which is... uh... not how it works). But here's what the complaint claims is defamatory:

The Lizza Hit Piece falsely accuses Plaintiff, the “head of the House Intelligence Committee and one of President Trump’s biggest defenders”, of being involved in covering-up a “secret”, to wit:

• “Devin Nunes’s Family Farm Is Hiding a Politically Explosive Secret”.
• “So why did [Plaintiff’s] parents and brother cover their tracks after quietly moving the farm to Iowa? Are they hiding something politically explosive?”
• “Devin Nunes has a secret”.
• “Which brings us back to Nunes’s secret”.
• “So here’s the secret: The Nunes family dairy of political lore—the one where his brother and parents work—isn’t in California. It’s in Iowa”.
• “There’s nothing particularly strange about a congressman’s family moving. But what is strange is that the family has apparently tried to conceal the move from the public—for more than a decade”.
• “Why would the Nuneses, Steve King, and an obscure dairy publication all conspire to hide the fact that the congressman’s family sold its farm and moved to Iowa?”
• “On the other hand, [Plaintiff] and his parents seemed to have concealed basic facts about the family’s move to Iowa. It was suspicious”.

Later on, the complaint lists out some other "false and defamatory statements:"

a. “Devin Nunes has a secret”.

b. Plaintiff used his position as Chairman of the House Intelligence Committee as a “battering ram to discredit the Russia investigation and protect Donald Trump at all costs, even if it means shredding his own reputation and the independence of the historically nonpartisan committee in the process”. c. Plaintiff “used the Intelligence Committee to spin a baroque theory about alleged surveillance of the Trump campaign that began with a made-up Trump tweet about how ‘Obama had my ‘wires tapped’ in Trump Tower’”.

d. “Devin; his brother, Anthony III; and his parents, Anthony Jr. and Toni Dian, sold their California farmland in 2006. Anthony Jr. and Toni Dian, who has also been the treasurer of every one of Devin’s campaigns since 2001, used their cash from the sale to buy a dairy eighteen hundred miles away in Sibley, a small town in northwest Iowa where they—as well as Anthony III, Devin’s only sibling, and his wife, Lori—have lived since 2007 … [W]hat is strange is that the family has apparently tried to conceal the move from the public—for more than a decade”.

e. “Why would the Nuneses, Steve King, and an obscure dairy publication all conspire to hide the fact that the congressman’s family sold its farm and moved to Iowa?”

f. “Devin Nunes was the public figure at the heart of this, and he had no financial interest in his parents’ Iowa dairy operation. On the other hand, he and his parents seemed to have concealed basic facts about the family’s move to Iowa. It was suspicious. And his mom, who co-owns the Sibley dairy, is also the treasurer of his campaign”.

g. “I laid out the facts I had uncovered in Sibley, including the intimidation of sources and the Devin Nunes angle, and asked him for advice. ‘I’d tell that story,’ he said. He paused and added, ‘We’re a sanctuary church, if you need a place to stay. You’re safe here!’”

h. “Is it possible the Nuneses have nothing to be seriously concerned about? Of course, but I never got the chance to ask because Anthony Jr. and Representative Nunes did not respond to numerous requests for interviews.”

At least here there are some statements of fact -- but it's difficult to see how any of them are even remotely defamatory. Unless Nunes' family didn't sell their farm and didn't move to Iowa, but so far no one has denied that. Statement (e) is a question and is about Steve King and "an obscure dairy publication," not Nunes. How is that defamatory towards Nunes? Statement (g) is even less about Nunes because it's just a quote from someone else offering to protect Lizza! And is Nunes really claiming that saying he did not respond to numerous requests for interviews is defamatory? Because... that's not how it works.

Let's be clear: none of that comes anywhere even remotely in the same vicinity as a legitimate defamation claim. It all seems to center around the question of whether or not Devin Nunes has a "secret." And is he really going to argue in court that he has no secrets? And arguing over whether or not he's kept his family moving their farm from California to Iowa a secret is not defamation either. It is broadly either opinion, opinion based on disclosed facts, or substantially true. Words like "conspire" are, at worst, rhetorical hyperbole.

In other words, this is not defamatory. This is yet another SLAPP suit by Devin Nunes, who wants to claim to be a free speech supporter while suing multiple different critics over their free speech. What a hypocrite. Yet, here we are, and because Iowa has no anti-SLAPP statute, no matter what, this is going to cost at least Hearst (and possibly Lizza) a bunch of time and money.

This is why every state needs an anti-SLAPP law and why we need a federal anti-SLAPP law. If Nunes keeps filing these bullshit lawsuits against his critics, don't be surprised if other politicians decide that they too want to scare off critics with burdensome, if frivolous, lawsuits like this.

Filed Under: 1st amendment, anti-slapp, criticism, defamation, devin nunes, farms, free speech, iowa, ryan lizza, slapp
Companies: hearst magazines

Read This If You Want To Understand Just How Far The NSA Has Gone, And The Political Mess Behind It

from the must-read dept

I cannot say enough good things about Ryan Lizza's comprehensive article about the NSA's surveillance programs and the legal mess and political fights they've created. There's nothing particularly new in the article, but it does an astoundingly good job putting everything that we've learned into context. Even as someone who's been following all of this very closely, it was still a bit of a jumbled puzzle in my mind, but Lizza's piece took all of it and laid out the entire picture. It goes through all of the details of how and why the NSA began the program, its regular and repeated (often egregious) abuses, and the questionable legal defenses to protect the program. It goes into great detail on Senator Ron Wyden's long fight against these programs and in favor of civil liberties and the Constitution. It details how and why President Obama flip-flopped from his position as Senator and kept the programs, despite multiple opportunities to dump them. Even crazier, it discusses how a proposal Obama made as Senator might have stopped these programs years ago:

Even without a full picture of the programs, two senators who were not on the Intelligence Committee became intense critics of N.S.A. domestic surveillance: Barack Obama and Joe Biden. In May, 2006, after the USA Today article appeared, Biden said it was frightening to learn that the government was collecting telephone records. “I don’t have to listen to your phone calls to know what you’re doing,” he told CBS News. “If I know every single phone call you made, I’m able to determine every single person you talked to. I can get a pattern about your life that is very, very intrusive.”

Obama’s objections to domestic surveillance stretched back even further. In 2003, as a Senate candidate, he called the Patriot Act “shoddy and dangerous.” And at the 2004 Democratic Convention, in the speech that effectively launched his eventual campaign for President, he took aim at the “library records” provision of the law. “We worship an awesome God in the blue states, and we don’t like federal agents poking around our libraries in the red states,” he declared. In 2005, when he arrived in Washington, Obama became one of Wyden’s new allies in his attempts to reform the law. The Patriot Act was up for reauthorization, and, at Wyden’s urging, the Senate was trying to scale back the “library records” section. One of the first bills that Obama co-sponsored, the Security and Freedom Enhancement Act, would have required that the government present “specific and articulable facts” if it wanted a court order for records, a much higher standard than the existing one.

Obama and several other senators, including John Kerry, now the Secretary of State, and Chuck Hagel, the current Secretary of Defense, laid out their legal case against the provision in a letter to colleagues on December 14, 2005. The government could “obtain library, medical and gun records and other sensitive personal information under Section 215 of the Patriot Act on a mere showing that those records are relevant to an authorized intelligence investigation,” they wrote. It allowed “government fishing expeditions targeting innocent Americans. We believe the government should be required to convince a judge that the records they are seeking have some connection to a suspected terrorist or spy.” The following day, on the Senate floor, Obama said that the provision “seriously jeopardizes the rights of all Americans and the ideals America stands for.”

The Bush White House fought Obama’s changes, but offered a few minor concessions. Most notably, a business that received a demand for records could challenge in court a nondisclosure agreement that accompanied the demand. That was enough to placate some Democrats, including Obama. Wyden objected that the change did nothing to address Obama’s concerns, but the reauthorization of the Patriot Act passed the Senate on March 1, 2006. Wyden, eight other Democrats, and one Independent voted against it; Obama and Biden voted for it. Bush signed the law on March 9th.

Wyden later learned that, while he and Obama were fighting to curtail Section 215, the N.S.A.’s lawyers were secretly arguing before the FISA court that the provision should allow the N.S.A. to legally collect the phone records of all Americans. The lawyers, encouraged by their success in retroactively legalizing the Internet-metadata program, believed that they could persuade the FISA court to force phone companies to regularly hand over their entire databases. At the FISA court, there are no lawyers challenging the government’s arguments; all the N.S.A. needed to do was convince a single judge. Had Obama’s language been adopted, the N.S.A.’s case would have collapsed.

It's a long but fascinating article that you owe it to yourself to read, no matter where you stand on these issues. It paints the whole picture that hasn't been clear to many, and highlights just how dysfunctional the oversight has been of the NSA. And, if you weren't already impressed enough by Senator Wyden, the article presents even more reasons to be impressed by him (and depressed that there's only one of him).

On Twitter last week, after the Snowden leaks showing that, yes, as Wyden had been hinting all along, the NSA has been collecting location data on tons and tons of people, there was a great tweet by Kade Ellis, saying:

New rule: when Ron Wyden asks "NSA, do you do this spying?" HE ALREADY KNOWS THE ANSWER AND THE ANSWER IS ALWAYS YES

Unfortunately, as the article details, Wyden very rarely is even allowed to ask these questions, and the intelligence community stonewalls at every opportunity. Senator Dianne Feinstein, who should be managing oversight of the intelligence community appears to believe her job is rather to defend and support the intelligence community.

Still, the most disappointing aspects of the article really focus on how President Obama and his advisors, many of whom had spoken out against the Patriot Act and various aspects of the program now in place, suddenly changed positions once they were in power, and it was their power to abuse. The repeated stories of intelligence industry insiders coming up with the flimsiest of reasons why these programs must continue are plenty troubling. However, the fact that no one in the government seems to think that the American public can even be trusted with their basic reasoning and interpretations of the laws of the land is just ridiculous.

Either way, as stated, you owe it to yourself to find some time to read the whole thing -- but prepare to be outraged.

Filed Under: barack obama, dianne feinstein, eric holder, james clapper, joe biden, nsa, ron wyden, ryan lizza, surveillance