Public Citizen Weighs In On Why Court Should Protect @DevinCow's Information Under The 1st Amendment

from the satirical-cows-get-free-speech-protection-too dept

As lawyer Steven Biss continues to use one lawsuit to seek to identify the person or people behind a satirical internet cow that he's trying to unmask in another case, Public Citizen's Paul Levy has now filed an amicus brief arguing that identifying who is behind the @DevinCow account (along with two other pseudonymous accounts) would violate the 1st Amendment. While the brief makes a nod towards the point that the @DevinCow account seems entirely unrelated to the case at hand -- between PR guy Trevor FitzGibbon and lawyer Jesselyn Radack -- its arguments focus on the fact that, even if @DevinCow had communicated with Radack, the subpoena that Biss sent to Twitter on behalf of FitzGibbon would violate 1st Amendment protections for anonymity.

Full First Amendment protection applies to communications on the Internet, and longstanding precedent recognizes that speakers have a First Amendment right to communicate anonymously, so long as they do not violate the law in doing so. Thus, when discovery seeks to identify an anonymous speaker, courts must balance the right to obtain redress from alleged perpetrators of civil wrongs against the right to anonymity of those who have done no wrong – and when the discovery targets are third-party witnesses, they are, by definition, speakers who have done no wrong. In cases such as this one, these rights come into conflict when a plaintiff seeks an order compelling disclosure of a speaker’s identity, which, if successful, would irreparably destroy the speaker’s First Amendment right to remain anonymous.

In such cases, identifying an unknown speaker is not merely the first step toward establishing a defendant’s liability for damages. Identifying the speaker gives the plaintiff immediate relief as well as a powerful new weapon, because it enables him to employ extra-judicial self-help measures to counteract both the speech and the speaker. It also creates a substantial risk of harm to the speaker, who forever loses the right to remain anonymous, not only on the speech at issue, but with respect to all speech posted with the same pseudonym. Moreover, the unmasked speaker is exposed to efforts to punish or deter his speech. For example, an employer might discharge a whistleblower, or a public official might use influence to retaliate against the speaker. Indeed, given the tenor of many online conversations, public exposure might lead a given individual to become the target of threats, doxxing and the like. Similar cases across the country, and advice openly given by lawyers to potential clients, demonstrate that access to identifying information to enable extra-judicial action may, in many cases, be the only reason plaintiffs bring many such lawsuits at all.

As Levy lays out in the brief, under no existing legal standard, should the court have Twitter identify @DevinCow and the other account holders.

Fitzgibbon’s subpoena cannot meet this standard. First, the aspect of the subpoena that seeks identifying information for @DevinCow strongly suggests bad faith. @DevinCow is a Twitter account holder who is a defendant in a different lawsuit, now pending in state court, in which a different plaintiff, also represented by Stephen Biss, counsel for plaintiff Fitzgibbon in this case, has been frustrated in his efforts to use Virginia state subpoenas to compel the identification of that defendant. The subpoenas have not succeeded, in part because Mr. Biss has not complied with Virginia’s statutory procedure for such subpoenas—which do not apply in federal court—but also in part because he has not met the First Amendment standard for identifying anonymous speakers who have been sued for their speech. The justifications set forth in Fitzgibbon’s opposition to the motion to quash do not come close to showing any basis for believing that @DevinCow has had any involvement in making any false statements about Fitzgibbon or of that she has any evidence bearing on the claims by or against Fitzgibbon; the use of the subpoena in this case to identify @DevinCow is a transparent ruse. The significant indications of bad faith infect the validity of the entire subpoena, not just the aspect seeking to identify @DevinCow.

Second, the effort to discover the identities of @DevinCow, @jimmysllama and @Kaidinn, and to obtain location and other potential identifying information about the owners of twenty-two additional Twitter accounts, is not pursued in aid of Fitzgibbon’s core claims, for defamation and breach of contract. Discovery is sought in aid of Fitzgibbon’s claim that Radack is liable for having conspired to defame him with various third parties, who are not named as defendants in this litigation. But under Virginia law, a conspiracy to commit a tort is actionable only if the plaintiff can also succeed on the underlying tort claim, here defamation.... Similarly, under Hustler Magazine v. Falwell, 485 U.S. 46 (1988), and Food Lion v. Capital Cities/ABC, 194 F.3d 505, 522 (4th Cir. 1999), a tort claim that seeks damages for injury to reputation can succeed only if the claim meets First Amendment standards for a defamation claim. In effect, then, Fitzgibbon’s civil conspiracy claim against Radack is one that piggybacks on his defamation claim and may, assuming that Radack has sufficient assets, provide an additional claim for damages. But discovery in aid of additional damages does not pertain to a core claim and hence does not provide a basis for overriding the right to speak anonymously....

Third, Fitzgibbon has not shown that he has exhausted alternate sources of information that would not require imposing on the First Amendment rights of third parties. Other courts have said that “‘an alternative requiring the taking of as many as 60 depositions might be a reasonable prerequisite to compelled disclosure.’” In re Petroleum Products Antitrust Litig., 680 F.2d 5, 9 (2d Cir. 1982), quoting Zerilli v. Smith, 656 F.2d 705, 714 (D.C. Cir.1981). So far as the record reflects, his only discovery efforts to date seeking to obtain Radack’s alleged conspiratorial communications consists of sending her written discovery requests to which, his brief alleges, defendant Radack has refused to respond. His brief further asserts, at 44, 53, 57, without providing admissible evidence to support his contentions, that Radack has been guilty of spoliation and hence cannot be trusted to produce evidence voluntarily. He does not explain why he has not moved to compel discovery from Radack, including, if necessary, pursuing forensic examination of her electronic equipment. Moreover, if Radack has been guilty of spoliation as Fitzgibbon alleges, the sanctions for such spoliation could easily be a sufficient route to establish her liability, making it wholly unnecessary to impose on the free speech rights of innocent third parties. The Eastern District docket sheet does not reflect the filing of any motion to compel discovery or to seek sanctions for alleged spoliation. https://www.courtlistener.com/docket/16048358/fitzgibbon-v-radack/. The very fact that Fitzgibbon has not pursued such alternate means to establish his claims against Radack gives ground to infer that other motives might be afoot.

One hopes that the court already knows and understands this -- but it's good to see Public Citizen and Levy weighing in so clearly. Either way, as Levy reminds us, it's yet another example of how Virginia is a target for libel tourism these days.

Filed Under: 1st amendment, anonymity, devin nunes, devincow, jesselyn radack, steven biss, subpoena, trevor fitzgibbon
Companies: twitter

Devin Nunes' Lawyer Continues To Use Unrelated Case To Try To Unearth Satirical Internet Cow Account

from the abusing-the-subpoena-process dept

A few weeks back, we wrote about a bizarre situation in which Rep. Devin Nunes' lawyer, Steven Biss, appeared to be using his subpoena power to seek out info about Twitter accounts related to some of Devin Nunes' lawsuits -- but in an unrelated case. The whole story was crazy. As you've likely heard, Nunes has been suing (among other things) an account holder of the satirical @DevinCow Twitter account. While that case continues to plod on, Biss tried to subpoena Twitter for the account holder's identity (along with information on political consultant Adam Parkhomenko) in a totally unrelated case, involving breach of contract claims following a settlement of an earlier defamation lawsuit involving a well-known civil liberties lawyer, Jesselyn Radack, and a PR guy, Trevor FitzGibbon.

Part of the claims in that breach of contract lawsuit is that Radack may have been communicating with third party accounts to say things about FitzGibbon, after the settlement involved an agreement not to speak publicly about him. So, there could be some reasonable areas in which Biss might seek evidence that Radack is communicating about FitzGibbon, but (1) so far most of the fishing expedition seems to be based on pure random speculation, (2) sending a subpoena to Twitter, rather than the users in question, is simply the wrong way to do things, and (3) most importantly, the inclusion of the Devin Cow account and the Parkhomenko account -- when there appears to be zero public evidence that either the cow or Parkhomenko even knew who Radack or FitzGibbon were -- is especially questionable.

Indeed, in moving to quash the subpoena, Twitter called out Biss' fishing expedition, claiming that the attempt to unearth the details behind the @DevinCow appeared to have been done "for an improper purpose: to end-run around discovery disputes in an unrelated lawsuit."

Incredibly, along with that filing, Twitter included quite an incredible email from Biss to Twitter's outside counsel, Pat Carome from Wilmer Hale:

Pat,

As I said during our conference call on Friday, I am interested in obtaining the name(s) of the public interest groups behind Mom and the cow. I am not interested in delay.

Having said that, and in light of the fact that your client will not agree to any less drastic alternative, I will withdraw the Subpoena and either submit to the process set forth in section 407.1 or server Twitter with discovery requests or both.

Ultimately, your client will be required to divulge the identities of the dummies and stooges it permits to use its platform.

Steven S. Biss

We'll see about that, Steve. We'll see about that.

Anyway, it appears that Biss is not at all happy about Twitter's motion to quash and last week filed quite the opposition. It is pages upon pages of bluster and nonsense. It begins by claiming that the litigation process is "a search for the truth" as if that allows for any fishing expeditions possible. That's not how it works. Then it engages in a bizarre, systematic attempt to smear Jesselyn Radack. It's not often you see legal filings with the following statements:

Radack is not what she seems to be. She does not behave like an attorney. She behaves as if she is a political operative or an undercover government agent. Radack openly, proudly and publicly admits that she uses “drug dealer tactics” in her representation of whistleblowers and leakers...

She meets with people in person. She pays in cash, and she uses “burner phones”. She admits to having “multiple computers, including an air-gapped computer that’s not hooked up to the Internet, so that I can use encrypted communications if we’re not able to meet in person.” [Id.]. Radack admits that she uses encrypted messaging services, including Signal,9 to cloak and hide her communications with third-parties. It is virtually impossible to get any useable evidence from Radack.

This is all presented as nefarious evidence of her hiding the key evidence in this case. Of course, what it leaves out is that Radack mainly represents government whistleblowers and leakers, and the reason for these actions is to protect her clients. It's actually good lawyering, rather than "not behaving like an attorney."

Of course, reading between the lines, what Biss appears to be trying to say is that he actually has no evidence to back up his fishing expedition in this case (which is relevant to a wholly unrelated case), and if he can just convince the court that the reason he has no evidence to back up his claims is because Radack is sneakily hiding the evidence, perhaps the court will let him go forward with the fishing expedition and force Twitter to "divulge the identities of the dummies and stooges."

Much of the filing is just a rehashing of the original claims in the case, rather than any actual responses to Twitter's motion to quash. Nowhere does it ever explain how the @DevinCow account has anything to do with any of this. Instead, bizarrely, in explaining how Twitter works to the judge, Biss keeps using @DevinCow in hypothetical examples for no clear reason. For example:

A “tweet” is a message posted to Twitter containing text, photos, a GIF, and/or video. A tweet appears on the sender’s profile page and home timeline and on the home timeline of everyone who follows the sender. A “retweet” is a tweet that is shared publicly with a user’s followers. Retweets can be published with or without comment. “Likes” are represented by a small heart and are used to show appreciation for a Tweet. Likes appear on the sender’s profile page and can be accessed by anyone simply by clicking or tapping into the Likes tab. “Mentions” or “tags” are tweets that contain another account’s username, preceded by the “@” symbol. For example: “Hello @DevinCow”. “Tagging” someone is a way of including them in a conversation. Tags appear on the sender’s profile page of public tweets and in the recipient’s notifications tab and will appear on the recipient’s home timeline view if the recipient of the tag follows the sender.

Why even mention @DevinCow there?

The only attempt at evidence that Biss has that Radack has somehow communicated with the DevinCow and Adam Parkhomenko accounts is a tweet she made after Biss had already filed this subpoena, which merely lists some of Biss' various questionable lawsuits.

Note that that tweet is on January 8th of this year. The original subpoena filed by Biss seeking info on @DevinCow and Parkhomenko dates back to at least December of last year, when Radack first mentioned it online. It takes quite a lot of chutzpah by Biss to file a subpoena in this case, with absolutely no evidence that Radack and DevinCow or Radack and Parkhomenko were communicating, and then use her mentioning this subpoena as evidence that now they are communicating.

But that's what Biss appears to be doing.

No one forced Radack to tweet or to tag @DevinCow or @RVAwonk or @AdamParkhomenko. Radack chose to breach the settlement agreement and to defame Fitzgibbon to these third-parties. She chose to follow these accounts and she chose to tag them in tweets that were none of their business. Radack made this case the business of @DevinCow and many, many other third-parties. She chose to broadly tag Twitter users with massive followings, such as @DevinCow, because she wanted to increase the audience and, therefore, exacerbate the pain and suffering she inflicted with each foul tweet

That's not how any of this works. But Biss is digging furiously to now claim that because of his subpoena leading Radack to tweet at @DevinCow, that now means that @DevinCow is a "witness" and thus can be subpoenaed:

As Radack’s own tweets demonstrate, Radack intentionally mentioned or tagged @DevinCow and other anonymous users repeatedly in tweets that violated the settlement agreement and constitute defamation. The user or users operating these Twitter accounts, including @DevinCow, are witnesses to Radack’s wrongdoing. Fitzgibbon is entitled as a matter of law to discover their identities so he can take their depositions in this case.

The reason she tweeted at them was because you put them in the subpoena, dude.

Then, on Tuesday, Biss filed a "statement of additional evidence" which consists of... evidence that Jesselyn Radack has used Twitter's DM function. But not with @DevinCow.

Twitter wasted very little time in responding to Biss' nonsensical filing:

Plaintiff’s 59-page Opposition misapprehends the law and fails to provide any justification for the invasive discovery he demands from Twitter about 23 accounts on the Twitter platform. First and foremost, Fitzgibbon’s arguments completely disregard the First Amendment rights of Twitter’s anonymous users (Requests 1, 2, 3). Courts across the country have agreed that an online service provider, like Twitter, can, and is often best positioned to, assert its users’ rights to anonymity. Fitzgibbon cannot intrude on these rights without proving, among other things, that unmasking these particular anonymous speakers is necessary to advance his core claims and defenses—including by demonstrating that these speakers have highly relevant information that Fitzgibbon cannot obtain elsewhere.

The Opposition confirms that Fitzgibbon cannot come close to satisfying this demanding standard to unmask @DevinCow. Indeed, the Tweets that purportedly demonstrate @DevinCow’s relevance, if anything, underscore that @DevinCow is embroiled in this dispute only because @DevinCow is the defendant in another, unrelated state-court action in which Fitzgibbon’s counsel represents a different plaintiff and has sought repeatedly, without success, to discover the identity of the account holder of @DevinCow. Fitzgibbon has not demonstrated that @DevinCow is even relevant to his case, let alone that he will be unable to pursue his claims against Radack without unmasking @DevinCow.

Fitzgibbon’s arguments regarding his other requests are also meritless. He fails to address Twitter’s arguments that the Stored Communications Act (“SCA”) prohibits it from producing a user’s address book (Request 4) and Tweets, Retweets, Likes and replies (even redacted) in response to a demand for communications containing certain words (Request 5). Nor does Fitzgibbon address Twitter’s argument that the Subpoena imposes an undue burden in violation of Federal Rule of Civil Procedure 45(d) by demanding that Twitter manually redact communications between @JesselynRadack and other users that, once redacted, would be (at best) barely relevant to his claims because they would show nothing more than the accounts from or to which each message was sent and the time and date of each message (Request 6).

Moreover, recognizing that these three requests (Requests 4, 5, 6) seek Radack’s own documents, Fitzgibbon concedes that he has other options. He could, for example, move to compel the discovery he seeks from Radack. Fitzgibbon never explains why he did not pursue—and still has not pursued—this less burdensome alternative.

Twitter points out that Biss appears to confuse the standards for 1st Amendment protections of anonymity with the 4th Amendment's privacy protections:

Fitzgibbon errs in suggesting that the First Amendment provides no protection to Twitter’s anonymous users because they “have no reasonable expectation of privacy in their noncontent subscriber information.” Opp. 54. Although that test may be relevant to a Fourth Amendment analysis, it is not the First Amendment test for unmasking an anonymous speaker. Rather, the applicable First Amendment test requires a litigant to prove, among other things, that unmasking the anonymous speaker is necessary to advance his claims—including by demonstrating that there is no other way for the proponent of the subpoena to obtain information essential to his case.... That is true whether the anonymous speaker is an actual (or prospective) defendant in the underlying litigation, or merely a potential source of evidence.

It also goes into more detail about the utter (or should that be udder?) nonsense involved in the opposition regarding @DevinCow and highlights (as I mention above) that the "evidence" of Radack and DevinCow communicating is almost entirely them tweeting after the subpoena was issued, which appears to be what first put them in touch.

Fitzgibbon has not come close to making the exacting showing necessary to unmask @DevinCow. Fitzgibbon fails to show that @DevinCow has any evidence of Radack’s alleged wrongdoing, let alone that @DevinCow is uniquely in possession of critically important evidence on which the success of Fitzgibbon’s claims depends. See Ex. A (collecting all of the images of Tweets that Fitzgibbon has put forward as allegedly showing a connection between @DevinCow and Fitzgibbon’s case). Fitzgibbon does not dispute that the pleadings in his case never mention @DevinCow. And he nowhere explains how either of the two screenshots his counsel previously shared with Twitter’s counsel show that @DevinCow is a “potential witness[] to Radack’s breaches of the settlement agreement” or a “participant[] in the conspiracy to defame” him. Opp. 53; see Ex. A at 4. As explained in Twitter’s opening brief, these Tweets involved unilateral outreach by @JesselynRadack to @DevinCow, commenting on entirely different subject matter. They do not suggest, even remotely, that @DevinCow was involved in, or witness to, any of the alleged misconduct in the Fitzgibbon Litigation.

Nor do any of the four recent Tweets relating to @DevinCow highlighted in Fitzgibbon’s Opposition suggest any connection between @DevinCow and Radack’s alleged defamation of Fitzgibbon. All these Tweets were posted after Twitter had notified all of the users affected by the Subpoena, and seem to have been prompted by the happenstance—created by Fitzgibbon and his counsel—that the Subpoena seeks information from a group of Twitter accounts that includes @JesselynRadack and @DevinCow. See Opp. 30, 35-36, 40, 41. Three of the four Tweets appear to involve unilateral outreach from @JesselynRadack, or one of these other accounts, without any statement or response from @DevinCow. See Opp. 30, 35-36, 40. In one, @DevinCow was unilaterally “tagged” (i.e., mentioned by account name) by the author of the Tweet along with many other accounts whose information is also demanded by the Subpoena. See Opp. 35-36. The remaining three Tweets refer to the fact that Fitzgibbon’s counsel (Steven S. Biss) also represents Congressman Devin Nunes in a defamation action against @DevinCow (as well as several other plaintiffs prosecuting other defamation suits). See Opp. 30, 40, 41. The possibility that @DevinCow and @JesselynRadack may (or may not) have a reason to communicate with each other about being targets of different lawsuits filed by the same lawyer hardly shows that @DevinCow can provide testimony or information that is essential to the success of Fitzgibbon’s claims. And even if @DevinCow did have some knowledge or information about Radack’s alleged conspiracy, Fitzgibbon still could not satisfy the First Amendment standard because he has not tried to compel Radack to produce that information and has not shown that unmasking @DevinCow is truly necessary.

The primary case on which Fitzgibbon relies, Sines, 2018 WL 3730434, further underscores that he cannot meet the First Amendment standard for unmasking @DevinCow. In that case, the subpoena sought to discover the account information of an anonymous individual who, according to credible evidence, had “at [a] minimum” “discussed preparations for the event” that gave rise to plaintiffs’ claims. Id. at *11; see also id. at *13 (“[D]iscovery from other individuals involved in planning the … event is highly relevant to understanding Defendants’ purpose and intent in organization it.”). The court concluded that “[s]uch participation support[ed] an inference that Doe could be a witness with information relevant to Plaintiffs’ case.” Id. at *11. Here, Fitzgibbon has not produced any evidence that @DevinCow even discussed Fitzgibbon with Radack at all, much less that @DevinCow is a critically important witness to Radack’s alleged conspiracy to defame him.

Let's just say that one side in these filings comes across as a competent, well-reasoned legal argument. The other seems to be taking the throw as much shit at the wall and hope something sticks approach. Hopefully the judge in the case sees through the nonsense.

Oh, and Twitter even had time to respond to that bizarre "additional evidence" filing, noting that it's meaningless regarding the issues at hand:

Just hours before Twitter’s deadline to file this Reply, Fitzgibbon filed a “Statement of Additional Evidence” that, he alleges, demonstrates his basis and need for the Subpoena’s demands.... This “additional evidence” consists exclusively of what purport to be a series of Direct Messages pertaining to Fitzgibbon that were supposedly exchanged between @JesselynRadack and an unidentified Twitter account holder whom Fitzgibbon describes as a “whistleblower.”... While Fitzgibbon says he knows the identity of this “whistleblower,” ... he does not suggest that the “whistleblower” has any connection to any of the Twitter accounts listed in the Subpoena (other than @JesselynRadack).

Fitzgibbon’s last-minute filing does not cure any of the Subpoena’s numerous defects. Nothing in the filing demonstrates that the identity of @DevinCow (or @jimmysllama and @Kaidinn, for that matter) is at all relevant to Fitzgibbon’s claims—let alone that he thinks he needs to unmask these users to prove those claims. To the contrary, the filing indicates that Fitzgibbon believes he already has sufficient evidence to prove Radack’s liability, and so, if anything, confirms that Fitzgibbon has no such need.

Finally, Twitter once again suggests that the court should award Twitter its legals fees and costs:

Finally, Fitzgibbon offers no response to the argument that this Court should award Twitter the fees and costs incurred in connection with its Motion under Rule 45(d)(1). Fitzgibbon’s counsel’s offer to stipulate to a protective order does not dispel the inference of improper purpose in his demand for identifying information for @DevinCow—a defendant in an entirely separate lawsuit in which Mr. Biss represents the plaintiff. A protective order that limits disclosure to counsel for the parties would still mean disclosing @DevinCow’s identity to one of the individuals that has unjustifiably sought to invade the account’s anonymity: Mr. Biss, Fitzgibbon’s counsel. And the inference of improper purpose is only strengthened by the complete absence of any evidence that @DevinCow was involved in the events alleged in the pleadings of the Fitzgibbon Litigation and Fitzgibbon’s concession that he could have—but has not—sought to compel production of most of the demanded records from Ms. Radack herself. The Subpoena demands the very same information that Mr. Biss has been seeking (so far, unsuccessfully) in an unrelated action in Virginia state court. He should not be permitted to use this Subpoena to circumvent that court’s management of ongoing discovery disputes. An award of fees and costs is needed to curtail such abuse of the discovery tools.

Filed Under: adam parkhomenko, devin nunes, fishing expedition, jesselyn radack, steven biss, stored communications act, subpoena, trevor fitzgibbon
Companies: twitter

Twitter Moves To Quash Fishing Expedition Subpoena For Info On Devin Nunes Cow By Devin Nunes' Lawyer In Unrelated Case

from the good-for-them dept

Last week, we wrote about the details of how it appeared that Devin Nunes' lawyer, Steven Biss, appeared to be using his subpoena power to try to unearth the identity of the parody account for "Devin Nunes Cow" in a totally unrelated case. I'm kind of amazed that no one else has really picked up on this story, because it's crazy. Biss has been representing Nunes in his various (highly questionable) defamation lawsuits, including the very first, which was focused on trying to expose a couple parody accounts that mocked Nunes, a Congressional Representative who really needs to grow some thicker skin. We've highlighted how much of Nunes' activity in that case in particular appears to be a fishing expedition to find out the identities of some of his critics.

What was so crazy about the story last week was that this new subpoena, sent to Twitter and seeking out information (including direct messages) from a variety of Twitter accounts, including @DevinCow, was in a totally unrelated case (the details of which are complex, and we tried to cover in that original post). As we highlighted, there were a bunch of questions raised by this -- first, sending a subpoena to Twitter to access someone's DMs is ridiculous. It would violated the Stored Communications Act. Twitter is barred from handing out such communications via civil subpoena. The correct process for Biss, if those communications are so vital to his case, would be to subpoena the users directly. But, of course, that would tip them off. The next big problem was that it appeared that at least two of the names on the list of Twitter accounts that were subpoenaed (and possibly more) had no connection whatsoever with the case at hand, involving a dispute between a well known lawyer and a well known PR executive. But they were relevant to the Devin Nunes suit.

On Tuesday, Twitter stepped in a filed a scathing motion to quash the subpoena, noting "a litany of substantive defects."

The Subpoena suffers from a litany of substantive defects and must be quashed. First, the Subpoena seeks identifying information of pseudonymous Twitter accounts without satisfying the established First Amendment requirements for unmasking anonymous online speakers... Second, it violates the federal Stored Communications Act ("SCA")... by commanding Twitter to disclose the contents of communications.... Third, it imposes an undue burden on Twitter by commanding it to produce document that could be obtained from a party to the lawsuit.... Fourth, and finally, the Subpoena imposes an undue burden on Twitter by demanding information that is irrelevant to the underlying action.

That last one is the understated way of pointing out that Biss is trying to subpoena people totally unrelated to this case. The motion makes the issue explicitly clear:

But the Subpoena is not merely defective and unlawful. One of its demands--for identifying information about the Twitter account @DevinCow--also appears to have been made for an improper purpose: to end-run around discovery disputes in an unrelated lawsuit. Nothing about the Fitzgibbon Litigation suggests that the @DevinCow account is in any way relevant to its claims or counterclaims--indeed, no reference to the account appears anywhere in any pleading. The anonymous speaker @DevinCow, however, has been named as Twitter's co-defendant in another, unrelated state-court action in which Fitzgibbon's counsel, Mr. Steven S. Biss, represents a different plaintiff.... Mr Biss has repeatedly sought in that other action, without success, to force Twitter and others to disclose information that might bear on the identity of @DevinCow, i.e. the very same information he is now demanding from Twitter through the Subpoena at issue here. The Subpoena's demand for @DevinCow's account-opening information thus appears to be an attempt to bypass the discovery process in Nunes. Such gamesmanship heightens the need for this Court to swiftly quash the Subpoena.

The motion goes on to detail the many times and many ways in which Biss has tried to unmask @DevinCow throughout the lawsuit.

It also notes that Twitter's lawyer directly raised these issues with Biss and "Mr. Biss refused to withdraw the Subpoena" and that he pointed them to two tweets made by the defendant in this case, lawyer Jesselyn Radack, replying to @DevinCow. However, as Twitter notes, neither of those had anything to do with the plaintiff in this case, Fitzgibbon. And, considering the main points of this case are (fairly questionable) claims that Radack was conspiring with others on Twitter to defame Fitzgibbon, it seems like any such tweets would need to relate to Fitzgibbon in some manner. Later, Biss agreed to narrow the subpoena to get around the Stored Communications Act issue, saying Twitter could black out the details of communications, but he still wanted to see the metadata. And then there's this:

Counsel for Fitzgibbon asserted both that those 17 accounts, including @DevinCow, are "obviously" relevant to the Fitzgibbon Litigation, and that he has evidence indicating that @DevinCow has privately communicated with Radack via the Twitter platform... But he flatly refused Twitter's requests that he substantiate those assertions.

It then goes through all the many other reasons for the subpoena to be quashed, and then says that the court should award Twitter fees and costs.

The awarding of fees and costs is particularly appropriate where, as here, "a party issues a subpoena in bad faith, [or] for an improper purpose."

It will be interesting to watch what comes next. Also, if the court does award fees, I wonder who will be paying them? There have already been questions about who's been funding Nunes' lawsuits. Would Fitzgibbon have to pay the fees because his lawyer tried to use his case to fish for info in another case? Is that the kind of representation that Fitzgibbon wants?

Filed Under: anonymity, devin nunes, devincow, fishing expedition, jesselyn radack, steven biss, subpoenas, trevor fitzgibbon
Companies: twitter

Is Devin Nunes' Lawyer Using Questionable Subpoenas In An Unrelated Case To Seek Info On Satirical @DevinCow Account?

from the what-a-bizarre-case dept

Buckle up, because here's a wild one. Over the weekend, a ton of people sent me a tweet from "The Sparrow Project" that many people took to mean that Rep. Devin Nunes -- the Congressional Representative who spent much of 2019 filing highly questionable SLAPP suits against news organizations, journalists, political operatives, critics, and, most famously, a satirical internet cow -- has issued a highly questionable subpoena for The Sparrow Project's private Twitter DMs.

However, while that tweet may have implied it was Nunes, it is not. The case merely involves Nunes' lawyer, Steven Biss, who is the lawyer in a separate case. But there are many oddities involved in this subpoena -- and Nunes' cases may be tangentially connected in a manner that seems to raise more questions about Biss' legal strategy. Before we go any further, however, I will say that the case that the subpoena comes from is a messy one. I am not going to go into all of the background here -- hopefully just enough to understand the nature of this subpoena -- but I will note that there are many people on both sides of this case who seem to feel fairly confident about what happened between two people, when the truth is only those two people know what really happened, so I will not take any position on the specific claims underlying the two cases at issue. There are also a bunch of people floating trollish conspiracy theories -- again, on both sides -- and if you want to waste a lot of time around a lot of nonsense, there are some rabbit holes to go down, most of which will frustrate and confuse you. I don't recommend that.

The case stems from accusations that lawyer Jesselyn Radack, who has represented Ed Snowden and other whistleblowers, made regarding Trevor FitzGibbon, who ran a PR firm that represented Wikileaks, Chelsea Manning, The Intercept and some other well known organizations. In 2015, FitzGibbon's PR firm shut down following allegations of sexual harassment and assault. In 2018, after it was reported that no criminal charges would be brought against FitzGibbon, he (with Biss as his attorney) sued Radack, claiming she defamed him in saying that he sexually assaulted her. You can read the (redacted) amended complaint and follow the rest of the docket, but it gets pretty salacious and a lot of accusations are thrown back and forth and you don't really need to know those details to understand the issue we're discussing here, so I won't point you directly to them.

What matters in this instance is that after a fairly contentious process, the two parties settled in May of last year. It is also at least worth noting that the court held Radack in contempt, which highlights at least some of the contentiousness of the proceedings. Separately, because the original complaint (which was later sealed in part because of this) in the original case apparently included somewhat revealing photos that FitzGibbon claimed Radack had sent him (part of his effort to show whatever relationship they had was consensual), Radack separately sued FitzGibbon, claiming that his filing violated Virginia's revenge porn law.

A month after FitzGibbon's first case against Radack was settled, he sued Radack again, claiming that (among other things) she had breached the settlement agreement from the original case, and tacking on new defamation claims. The original settlement agreement appears to have included clauses saying that they wouldn't talk about each other on social media, and also that they wouldn't "direct, request, encourage, entice, procure or otherwise cause any third party..." to post on social media about the other.

In the new case, FitzGibbon (again using Biss as his lawyer), alleges that Radack did use social media to talk about FitzGibbon, and suggests that since many others, including followers of Radack, have tweeted about him, it violates the clause not to encourage (etc.) others to do so. This starts with Radack's very first tweet after settling the case, in which she (as per the settlement) posted a short tweet noting that the original case had been settled and she wanted to "retract and withdraw every allegation and statement I have ever made against Trevor Fitzgibbon." Some supporters of Radack responded to that tweet with statements against FitzGibbon, which the lawsuit argues breaches the settlement agreement.

It also highlights a bunch of other tweets by Radack, some of which it claims are defamatory, even though they seem quite general, don't mention FitzGibbon, and could easily be about someone else entirely. Just a few examples of tweets called out in this follow up lawsuit that seem like a huge stretch:

It seems pretty difficult to argue that those either breach the agreement or that they are defamatory towards FitzGibbon. The complaint does go on to assert "common law conspiracy" claims because other accounts started tweeting things about FitzGibbon that might reach the level of defamation. I won't repost them here, but those tweets do make direct claims about FitzGibbon, and if they are false, and were posted with knowledge of their falsity, might possibly qualify as defamation. Of course, the knowledge of their falsity or making the statements with "reckless disregard for the truth" (the standard for actual malice necessary to make a defamation claim) seem like a pretty high bar that would be difficult to reach.

Radack has asked the judge to dismiss much of the case on jurisdictional grounds and for failure to state a claim (basically saying that even if everything claimed is true, it still doesn't violate the law). Frankly, I find that her argument for the 12(b)(6) failure to state a claim is pretty convincing, and FitzGibbon/Biss' opposition motion to be pretty weak. It spends a lot of time arguing why there are some cases where opinion can be defamatory, and then highlights how some of the tweets from other people appear to be defamatory, but makes little effort to show how that makes her statements defamatory.

And that finally brings us around to the tweet at the top that is the reason for this post. If Biss could show that Radack did, in fact, communicate with others to make public statements about FitzGibbon, then at the very least you could argue that it was a breach of the settlement agreement. And, thus, one could make an argument that there are some reasonable situations in which such communications could be subpoenaed as part of the discovery process, to determine whether or not Radack had, in fact, breached the contract, and somehow encouraged others to say things publicly about FitzGibbon.

But, that possibility of situations existing where it might make sense to seek discovery of such communications is about as far as I'll go in giving Biss any credit here. Because almost every other part of what's been made public so far is problematic. First of all, the subpoena is to Twitter, and not to the individuals involved in any communications:

That's a problem on multiple levels, including that the Stored Communications Act literally forbids this kind of subpoena. While most people know of the SCA as it concerns government requests for communications, it also bars internet service providers from revealing content information to private actors in civil suits. So, even if there were legit reasons to seek these communications, sending a subpoena to Twitter is not how this should be done.

But the more concerning part is that the subpoena targets the communications of 21 different Twitter accounts, and many of them claim to have no connection at all to Radack, and at least two of the accounts in the subpoena that have no known connection to Radack are connected to Nunes' lawsuits. Specifically, the subpoena seeks communications from the now famous @DevinCow account, as well as political strategist @AdamParkhomenko, who was subpoenaed in one of the Nunes' cases, and who made some news by filing quite a motion to quash in that lawsuit.

So.... what the hell are they doing in this subpoena on a totally unrelated lawsuit? As far as I can tell in going through the dockets of both cases: absolutely nothing. Perhaps there's some reason for it somewhere, but in looking through everything I can find no clear connection. Radack and Parkhomenko, for example, seemed to only start communicating after she alerted Parkhomenko to the existence of what appears to be this same subpoena on Christmas. Radack's tweet at the time went mostly unnoticed, though Adam did respond over a week later to her. As for the DevinCow account, there appears to be absolutely no obvious or public connection between Radack and DevinCow, and no reason to include that account here. Indeed, in responding to a question from myself, DevinCow told me that it has "no connection" to Radack and is "not even sure what is behind all of this craziness."

Based on that, it's extremely unclear why those two accounts (and possibly others) are included in the subpoena. And, given that the identity of DevinCow, in particular, is so important in Nunes' case, you can see how the inclusion of that account and some others may raise some eyebrows about just what is going on here. So, while many people may have misinterpreted the original Sparrow Project tweet to suggest it involved a Nunes case, the subpoena in question is technically from a totally different case, not officially involving Nunes. It's just the same lawyer for both cases. But, it should raise some serious questions as to why the (mis-targeted) subpoena in the Radack case is being used to target communications that appear unrelated to the Radack case, but potentially of significant interest to a totally different case involving the same lawyer.

Filed Under: adam parkhomenko, breach of contract, communications, defamation, devin nunes, devincow, direct messages, free speech, jesselyn radack, sca, steven biss, stored communications act, subpoenas, the sparrow project, trevor fitzgibbon
Companies: twitter