ryan lizza – Techdirt (original) (raw)

Devin Nunes Learns That If He’s Going To Sue For Suggesting His Family Hired Undocumented Workers, Part Of The Lawsuit Is Finding Out If The Workers Are Documented

from the that's-how-discovery-works,-buddy dept

Well, well, well. As you may recall, back in 2019 Devin Nunes and his bumbling lawyer Steven Biss sued Esquire magazine and reporter Ryan Lizza because Nunes really did not like this article about Nunes’ parents and their family farm, which is actually in Iowa, rather than California as many people believed. It’s an interesting article, in large part because of the way the town sort of freaked out when they realized Lizza was working on an article. The headline of the article talks about a “politically explosive secret,” and I took it to mean the fact that the farm that Nunes’ regularly talked about had (very quietly) moved to Iowa, rather than staying in California. But, there is at least a vague suggestion that the farm might hire undocumented workers, since that was standard practice for farms in that part of Iowa. Lizza’s article doesn’t come out and say that, but it does note this:

Other dairy farmers in the area helped me understand why the Nunes family might be so secretive about the farm: Midwestern dairies tend to run on undocumented labor. The northwest-Iowa dairy community is small. Most of the farmers know one another, and most belong to a regional trade group called the Western Iowa Dairy Alliance (though WIDA told me NuStar is not a member). One dairy farmer said that the threat of raids from ICE is so acute that WIDA members have discussed forming a NATO-like pact that would treat a raid on one dairy as a raid on all of them. The other pact members would provide labor to the raided dairy until it got back on its feet.

In every conversation I had with dairy farmers and industry insiders in northwest Iowa, it was taken as a fact that the local dairies are wholly dependent on undocumented labor. The low unemployment rate (it’s 2 percent in Osceola County), the low profit margins in the dairy business, and the global glut of milk that keeps prices low make hiring outside of the readily available pool of immigrants from Mexico and Guatemala unthinkable.

“Eighty percent of the Latino population out here in northwest Iowa is undocumented,” estimated one dairy farmer in the area who knows the Nunes family and often sees them while buying hay in nearby Rock Valley. “It would be great if we had enough unemployed Americans in northwest Iowa to milk the cows. But there’s just not. We have a very tight labor pool around here.” This person said the system was broken, leaving dairy farmers no choice. “I would love it if all my guys could be legal.”

And, at the time, you could see how Nunes, as a high ranking Republican Congress member, thought that… might not look good, given the GOP’s stance on undocumented workers and immigration.

So, Nunes sued. And then, his family and their farm also sued (also using Biss). The cases weren’t going well for Nunes or his family (they were going really poorly actually), but they got a reprieve thanks to a truly bizarre 8th Circuit ruling that argued that a tweet Lizza made after the lawsuit had been filed could be defamatory in “republishing” the article while on notice that Nunes claimed its false. You can read that link to understand why that ruling is bad and wrong, but the case has continued.

That said, there has been some craziness around the depositions in the case including one involving an attempted deposition of an employee of the Nunes’ farm, NuStar Farms. The employee showed up with a lawyer hired by the farm, who advised the employee to plead the 5th regarding questions about his documents. Steven Biss then interrupted the deposition, paused it, and when they came back the lawyer said he was no longer representing the employee. There was a lot more of this kind of thing as well. Just go read the original post.

Anyway, that case has continued, and as Liz Dye over at Above the Law first noted, if you’re going to sue someone claiming it’s defamation to merely suggest that all the farms around where your family’s farm is hire undocumented workers, well, whether or not your farm has undocumented workers is one of those things that’s going to come out in court.

Lizza and Hearst have filed quite an incredible motion for summary judgment. And, at the very least it suggests you’d have to be not very smart at all to sue for defamation over a claim regarding whether or not there were undocumented workers on your farm. While parts of the motion are redacted, it’s not too difficult to see that much of what’s in there suggests that the Nunes family not only likely hired undocumented workers, but they knew about it. Specifically, NuStar, after submitting an employee roster to the Social Security Agency was informed that the majority of their employees received “no match” notices, which does not definitively prove that they are undocumented, but certainly raises… concerns about their documentation.

NuStar produced a verified employee roster with their names, proffered SSNs, dates of employment, and dates of birth… In response to the Court’s order, the SSA reported that data for 76%, or 243 of 319, of NuStar employees listed did not match its records….

This data is consistent with two so-called “no-match” letters the SSA sent NuStar in November 2019 and December 2020… The letters state that, for tax year 2018, 20 of 27 NuStar employees (74%) did not match SSA records , and for tax year 2019, 14 of 19 employees (74%) did not match….

Also, during Nunes’ testimony, he revealed that he, personally had first-hand knowledge of his family’s hiring practices.

The Congressman testified that he has “firsthand knowledge” of how his family hires farm workers, from when he worked with them in California on ventures they “all… shared”:

> I mean, I do have obviously firsthand knowledge… about when I did it way back in the day, the way that we did it. I was trained by my mother and my grandmother… on what to do. … I can’t imagine that they changed when they went there.”

As the lawyers note in the filing, the claim that the farm couldn’t possibly know whether or not the workers were undocumented is at odds with the law:

Perhaps, like the Congressman, the NuStar Plaintiffs will persist in claiming ignorance until an employee has said out loud that they are unauthorized. But that is not even the standard the government must meet to prosecute knowing hire violations under federal immigration law….

Nunes also claimed that as an employer to look into whether or not someone here is undocumented is not allowed. But the motion points out that there is, in fact, a E-Verify tool provided by the government that tons of employers used. Nunes, during deposition, dodged questions about using E-Verify, but the motion points out that he didn’t seem to feel that way as a Congressman who talked about verification all the time.

The Congressman’s position in this case is that any employer verification to “find out whether somebody’s here illegally” is “discriminatory and illegal.”… (“Even if the [verification] tool existed, [employers] can’t use it.”). His reasoning extends to the government’s tool E-Verify, which is authorized by statute, allows instant comparison of the I-9 to government records, and is used by over a million employers…. When asked if E-Verify may be used lawfully, he would not answer directly, citing its “discriminatory nature” and saying “it is unlawful to use E-Verify to target people . . . .” … (“Q. Would it surprise you to learn that the United States government uses it? A. That’s your opinion.”). [REDACTED] Because “there is no way” to verify someone’s status, he claims the only way one could know a worker is undocumented is if the worker admits it—he has never known an “illegal” worker because although he has “worked with people in agriculture . . . [his] whole life[,] [n]ot one person ever came up to [him] and said, oh, I’m illegal. Not one.”

The above testimony is at odds with the Congressman’s 19-year career as a legislator, when he continually tried to pass laws that addressed I-9 verification requirements for dairy workers and confronted the reality that unauthorized workers are ubiquitous on dairy farms.

Between 2003 and 2019, the Congressman co-sponsored eight bills (voting for a ninth) on the shortage of authorized farm workers, particularly in dairies….. The bills sought to amend a visa (H-2A) that applies only where “there are not sufficient workers who are able, willing, and qualified” in the U.S.—i.e., only where there is a labor shortage—to cover farm and dairy workers. … These efforts mirror his public statements where, [REDACTED] he approvingly cited the “Bracero Program,” which until 1964 allowed Mexican nationals to work in the United States on short contracts in agriculture…. The Congressman has said in interviews that “security along with a permit system of some kind, and then a verification system” has “always been the solution.”

The Congressman’s legislative record and public statements belie his testimony that verifying work eligibility is “illegal,” and “there is no way . . . to know” authorization status…. As a lawmaker, far from treating E-Verify as “illegal,” he tried three times to make an electronic verification “system modeled after . . . E-Verify” mandatory, publicly lauding it. … (saying on Fox News, E-Verify has “worked really, really well” and should be mandatory).

Ooops.

Also, this:

The Congressman’s bills also contradict his testimony that “nobody’s hiring unauthorized workers.” … The Farm Workforce Modernization Act (“FWMA”) of 2019 (which he cosponsored) and 2021 (which he voted for) would give status to unauthorized workers already working in the U.S. yet who are “inadmissible or deportable from the United States,” i.e., unauthorized…. This would make little sense if “nobody” hired unauthorized workers because it is “impossible,” as the Congressman claimed at his deposition…. (in Fox News interview, saying, “[E]veryone knows that, in this country, we have got millions of people that are here on either expired permits, or they never had a permit in the first place.”).

Oh, and this:

Six times, the Congressman tried to eliminate penalties for farm workers who falsified SSNs.

Huh. They also mention nine other bills he worked on regarding farm workers. Yet, in deposition when asked if he recalls any bills he co-sponsored related to labor in the agriculture industry, Nunes answered “No.” The filing notes that this deposition took place just a few months after he had voted for just such a bill.

There’s a lot more in the filing, but, really, it’s kind of astounding that this case was ever filed in the first place. It’s equally astounding that Biss and Nunes didn’t think that all of this would come out.

Filed Under: devin nunes, esquire, ryan lizza, steven biss, undocumented workers
Companies: hearst, nustar farms

Devin Nunes Claims The Right To An ‘Unimpaired Reputation’ Is A ‘Sacred Right’; Oh And Also Needs To Cough Up Info On How He Got Hired

from the thin-skinned-public-figure-says-what? dept

Former Congressman, now Trump lackey TruthSocial CEO, Devin Nunes hasn’t had very much success with his long list of lawsuits against critics and the media. In just the past few months he’s lost multiple such cases. Of course, that hasn’t stopped him from soldiering on. One of the bigger cases he filed was against reporter Ryan Lizza and Hearst Media over an Esquire piece that Lizza published. While a district court dismissed the lawsuit easily, a year ago, the 8th Circuit brought it back with a bizarrely confused ruling about the single publication rule. I’m not going to revisit all the problems with that ruling, you can go to the link and read it if you want. However, it did at least revive the case, if only on an exceptionally narrow basis around a single tweet by Lizza, and whether or not that tweet (and not the underlying article) were done with actual malice under the law (i.e., with Lizza knowing it was untrue).

Since then, the case has continued to plod along with Nunes attempting to file a second amended complaint. Lizza and Hearst protested that the second amended complaint sought to revive a bunch of the claims that were already dismissed and to talk about stuff way beyond that one single tweet now at issue in the lawsuit. In response, back in June, the court allowed Nunes to file a second amended complaint, but a narrowly focused one:

Plaintiffs’ motion is GRANTED to allow Plaintiff’s Defamation by Implication and Common Law Conspiracy claims. Plaintiff’s motion is DENIED as to leave to amend to add False Light Invasion of Privacy claims. Plaintiff shall have until June 15, 2022 to file an Amended Complaint removing his False Light Invasion of Privacy Claim and eliminating the prolixity and irrelevant material from his remaining claims.

On June 11th, the amended complaint was filed, and as is all too typical of Devin Nunes lawsuits represented by lawyer Steven Biss, it’s chock full of all sorts of nonsense. I’d argue that it certainly did not eliminate “the prolixity and irrelevant material” when it includes stuff like this:

Lizza is a high-profile, left-wing political journalist, well-known for his extreme bias towards Plaintiff and his long history of publishing libelous statements about Plaintiff. In April 2017, while employed by the New Yorker magazine, Lizza wrote a series of articles that falsely accused Plaintiff of colluding with the “Trump Administration” to “manufacture a fake scandal” and buttress a baseless claim of wiretapping Trump Tower. Lizza falsely stated that Plaintiff had leaked classified information, engaged in a “series of lies”, misled the American public, and misrepresented the contents of intelligence files that Plaintiff had reviewed. Lizza informed the New Yorker’s readers that the “fake scandal created by Trump and Nunes is not over yet.”

Anyway, Lizza and Hearst’s lawyers also took issue with this and asked the court to strike various parts of the complaint as “immaterial and impertinent.”

Despite the mandate of the Order, Plaintiff filed his Second Amended Complaint without removing the stricken prolix and irrelevant material from his proposed second amended complaint, including the specific examples of irrelevant material that the Court identified in the Order. Plaintiff also still has not specified the basis of his defamation claim, which is now confined to a November 20, 2019 Twitter posting by Ryan Lizza, as he was ordered to do. When invited to correct the issues short of motion practice, Plaintiff refused

In response, in early July, Nunes filed a “resistance and opposition” to Lizza’s motion to strike, which again I might argue is somewhat full of prolixity and irrelevant material. Biss/Nunes insist that, for example, even as the court directly highlighted six extraneous and irrelevant tweets as examples of what not to include, it chose to include them anyway… because a conspiracy is afoot. Oddly, they only make this argument in a footnote, even though the entire point of this filing should be to explain why this content is relevant.

In addition to being “background information for the republication claim”, Plaintiff included the six tweets in the second amended complaint for two (2) reasons. First, the six tweets are evidence of prior publications, which under the Cowman case, are relevant to Plaintiff’s claim that Defendants acted with actual malice in republishing the article on November 20, 2019. Second, Plaintiff included the six tweets because they are relevant to Plaintiff’s conspiracy claim.

Then, Biss and Nunes decide to stand on their moral high horse and proclaim that there’s some fundamental right to having a good reputation, after announcing “the evidence of fraud and fabrication by Defendants is shocking” (though I’ll note that I can find no evidence of either fraud or fabrication in the amended complaint — at best they seem to suggest the possibility of sloppy reporting and/or opinionated writing, which is not anything like fraud or fabrication, and at worst, they mostly just suggest that Nunes wasn’t happy with the reporting and decided to sue over it).

But, this argument here, is just… special:

The right to an unimpaired reputation is among the most sacred rights recognized by the common law

Imagine claiming that “the right to an unimpaired reputation is among the most sacred rights” in the very same case where Nunes repeatedly trashes the reputation of Lizza. There’s also some pandering to the judge:

The law of defamation guards the reputations of public figures like Devin Nunes, just as it protects the reputations of every Judge on every Court

The magistrate judge on the case ruled late last month basically telling Nunes/Biss to knock it off, but still allowing a new amended complaint to be filed. Basically, the magistrate judge reminded Nunes and Biss that when the 8th Circuit revived the case, it did so on narrow grounds about a single tweet and whether it constituted actual malice under the law, and all the high falutin’ stuff about a conspiracy was utter nonsense.

Despite that concession, Plaintiff makes brief assertions in footnotes that the six tweets are not only “background information for the republication claim” but evidence of prior republications and that they are relevant to his conspiracy claim. (Doc. 100 at 2 n.1.) However, the Eighth Circuit was aware of the other tweets and made it clear that further proceedings on Plaintiff’s claims alleging defamation by implication, and the related claim alleging a common law conspiracy, are for the November 20, 2019 tweet which published the article. Nunes, 12 F.4th at 899. Although the tweets are not identical in the two complaints, no tweets more recent than November 20, 2019 are included in the Second Amended Complaint. Compare (Doc. 23 at 11-16) with (Doc. 90 at 10-15.)

Plaintiff provides no explanation to show how the tweets are now relevant although he cites Cowman v. LaVine, 234 N.W.2d 114, 121 (Iowa 1975) as support for both the relevance and admissibility of the tweets. (Doc. 100 at 3 n.2.) Plaintiff’s reliance on Cowman is misplaced. Cowman dealt with the admissibility of evidence that would otherwise be privileged to address a defendant’s wrongful motive. Cowman, 234 N.W.2d at 121. There, the Iowa Supreme Court explained that “defamatory publications similar to the one charged are generally admissible on the issue of actual malice, provided they are not privileged” so that actual malice may be inferred because republication may be “probative of the declarant’s state of mind.” Id. That approach to actual malice is not relevant here because the Iowa Supreme Court discarded it. “We discard the old common law wrongful motive standard and adopt . . . the New York Times ‘knowing or reckless disregard’ definition of ‘actual malice.’” Barreca v. Nickolas, 683 N.W.2d 111, 120 (Iowa 2004) (citing Price v. Viking Penguin, Inc., 881 F.2d 1426, 1433 (8th Cir.1989)) (“[A]ctual malice focuses upon the attitudes of defendants vis-à-vis the truth of their statements, as opposed to their attitudes towards plaintiffs.”). Despite this, Plaintiff attempts to inject his subjective beliefs about Defendants’ attitudes at every turn. Plaintiff has only alleged actual malice as to the November 20, 2019 tweet because Defendant Lizza was on notice when he made it. Despite knowing this, Plaintiff has failed to allege actual malice as to the other six tweets. Thus, Cowman is inapplicable. Regardless, the Eighth Circuit already considered similar tweets and found that Plaintiff only adequately alleged actual malice as to the November 20, 2019 tweet. These six tweets also have nothing to do with the issue of actual malice or the rest of Plaintiff’s claims and are irrelevant.

The end result is that Biss is told to try, try again. And without the conspiracy stuff or irrelevant arguments about the Mueller report (yes, really).

And so, Biss has now submitted yet another amended complaint, which is only slightly less bombastic. But, finally, it doesn’t have the excess tweets or the conspiracy claims.

Meanwhile, over in another venue entirely, this same case is causing other problems for Nunes. You see, Nunes keeps claiming that Lizza’s article — and now just the tweet, since that’s all that’s left of the case — has caused him real damage. So, Lizza and Hearst’s legal team have subpoenaed Truth Social’s parent corporation, Trump Media and Technology Group (TMTG), Nunes’ employer, to seek evidence about the “damage” to Nunes’ reputation, and arguing that his hiring by Trump showed the opposite. TMTG has tried not to actually comply with the subpoena, so Lizza’s team had to go to court in Florida to try to enforce the subpoena.

Nunes’s hiring is inconsistent with his claimed reputational harm, a central issue in his Action. Petitioners therefore subpoenaed TMTG, seeking documents relating to its recruitment and hiring of Nunes. Petitioners anticipate that the subpoenaed documents will show that Nunes has not suffered reputational harm. They will instead show that Nunes, a recent recipient of the Presidential Medal of Freedom, maintains a sterling reputation among people who matter most to him: Those willing to pay him a lot of money to do an important job, in the limelight, as part of a project that advances political objectives.

Although the relevance of the requested documents is obvious, TMTG responded to the Subpoena with evasive and improper objections and responses. It refused to remedy the defects in its responses or meaningfully meet and confer with Petitioners. It refused to produce a single document. Its objections should be overruled, and it should be ordered to produce all documents responsive to the requests at issue

TMTG sought to convince the court not to enforce the subpoena, but on Monday, that failed. The court has told Truth Social to cough up the necessary documents.

The ruling rejects TMTG’s arguments systematically — including rejecting TMTG’s claim that the case was filed in the wrong court (in Palm Beach), because TMTG is actually based in Sarasota, which is at the other end of the state. But, as the magistrate judge notes, TMTG only recently changed its official location to Sarasota, and at the time that the subpoena was served, it was still officially in Palm Beach (oops).

But, more importantly, the court says that TMTG’s substantive arguments for why the subpoena is too broad and burdensome… are nonsense. The judge did remove one of the unanswered requests, but orders TMTG to respond to five other document requests:

Here, the Court finds that request #2 does not seek documents that are relevant or proportionate to the claims or defenses in the underlying action pursuant to Federal Rule of Civil Procedure 26(b)(1). Therefore, TMTG shall not be required to respond to request #2.

The Court does, however, find that requests #3, 4, 5, 6, and 7 do seek relevant and proportionate documents and also finds that TMTG and Nunes’ remaining objections to these requests are without merit and are overruled. Therefore, TMTG shall be required to respond to requests #3, 4, 5, 6, and 7 on or before August 22, 2022. TMTG shall produce all non-privileged, responsive documents by that date and also amend its written responses to the subpoena so that they clearly state what is being produced, whether any documents are being withheld, and, if so, why the documents are being withheld. Finally, as discussed at the discovery hearing, TMTG shall only be required to produce DWAC documents to the extent that they are in TMTG’s possession, custody, or control

So, yeah, that’s also probably not very good for Nunes’ big case back in Iowa, as Lizza and Hearst should soon have useful evidence debunking the idea that Nunes was actually harmed by Lizza’s tweet.

Filed Under: defamation, devin nunes, reputation, ryan lizza, steven biss
Companies: hearst

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

8th Circuit's Bizarre Ruling In Devin Nunes' SLAPP Suit Against Reporter Ryan Lizza

from the wait,-what? dept

Rep. Devin Nunes has kept up his suing news organizations (and satirical internet cows). He has been mostly losing. Lately, we’ve been writing a fair bit about the lawsuit Nunes’ family has (using the same lawyer, Steven Biss) against reporter Ryan Lizza, which has gone somewhat off the rails. There’s been more nonsense since we last wrote about it, but I’m kind of waiting on the judge to actually rule before I go into the details.

Still, if you’ll recall, there were actually two separate lawsuits here. The one we’ve been writing about was filed by Nunes’ family. Nunes had filed a separate one on his own behalf but the judge correctly dismissed it as absolute nonsense, noting that nothing in it was directly defamatory towards Nunes. Nunes and Biss appealed and the 8th Circuit put out a truly bizarre decision (first pointed out by Josh Gerstein at Politico), which mostly upholds the lower court, but allows the case to continue against Lizza because of his tweeting. But even in upholding the lower court ruling, the judges go out of their way to make a really confused analysis of defamation law. The lower court found no defamatory implication in the story, but the appeals court says it’s there.

Based on the article?s presentation of facts, we think the complaint plausibly alleges that a reasonable reader could draw the implication that Representative Nunes conspired to hide the farm?s use of undocumented labor. See Manzari, 830 F.3d at 889; Stevens, 728 N.W.2d at 827. In reaching a contrary conclusion, the district court relied on the location of the relevant facts in the article. The court determined that the facts about Nunes conspiring to hide the farm?s move and the facts about the farm?s use of undocumented labor were ?scattered at disparate points? and thus not ?juxtaposed.?

But defamation-by-implication claims, like defamation claims generally, must be analyzed by considering the article as a whole. Toney, 85 F.3d at 396. Although the Iowa court in Stevens posited a defendant who ?juxtaposes a series of facts,? 728 N.W.2d at 827 (internal quotation omitted), we do not believe the theory is limited to situations in which the implication arises from, say, consecutive sentences. ?It is well settled that the ?arrangement and phrasing of apparently nonlibelous statements? cannot hide the existence of a defamatory meaning.? Church of Scientology of Cal. v. Flynn, 744 F.2d 694, 696 (9th Cir. 1984) (quoting Kapellas v. Kofman, 459 P.2d 912, 919-20 (Cal. 1969)). When a reader, ?connecting the dots,? could reasonably arrive at the implication, the author may be accountable. Elias v. Rolling Stone LLC, 872 F.3d 97, 109 (2d Cir. 2017). Whether the ?arrangement and phrasing? of facts creates a defamatory implication depends on the particular context; an intervening section break does not necessarily avoid liability.

The court also does a really bizarre analysis of how the article might be defamatory. This contradicts nearly every other ruling on what is and what is not protected opinion:

Nunes alleges that the article implies the existence of a ?politically explosive secret? that he ?conspired with others? to hide the farm?s use of undocumented labor. A conspiracy is an agreement that requires knowledge?here, knowledge that the farm employed undocumented labor and a knowing agreement to cover up that politically embarrassing fact. Yet the Congressman?s complaint says that he was ?not involved? in the farm?s ?operations,? had ?no knowledge of who the dairy farm hired,? and thus ?was not involved in any conspiracy or cover-up.? Whether Nunes knew about the farm?s hiring practices, including the potential use of undocumented labor, and whether he agreed with others to keep that information secret, are issues of verifiable fact. We thus conclude that the implication is ?sufficiently factual to be susceptible of being proved true or false,? so it is not a protected opinion.

That seems like a huge stretch. What saves it (and kills the core defamation lawsuit) is the actual malice standard. Nunes, on appeal, tried to argue that the actual malice standard is wrong, and you kind of get the feeling the judges here agree, but feel obliged to live under it:

On appeal, Nunes suggests that the actual malice standard of New York Times v. Sullivan should be reconsidered,… but of course we are bound to apply it. Under that demanding standard, we agree with the district court that the complaint is insufficient to state a claim of actual malice as to the original publication.

And then it gets dumber. Note that they say that with regards to “the original publication.” The court claims the same does not apply to Lizza’s later tweets about the article.

The district court went further, however, and ruled that the complaint does not state a plausible allegation that Lizza acted with actual malice by republishing the article on his Twitter account after this lawsuit was filed. On this point, we respectfully disagree.

The court then claims that tweets are different from the original publication, which is a bizarre perversion of the single publication rule (that says that a single publication of an article can only count as a single defamation), and that each tweet can be a separate “publication.” And then says that Lizza’s tweets after the lawsuit was filed could meet the actual malice standard, since by that point Lizza was, in effect, on notice that Nunes felt the information in the article was false.

Nunes?s initial complaint was filed on September 30, 2019. The complaint alleged that the ?strong defamatory gist and false implication? of the article was that he ?was involved in, covered-up, used his office to cover up, conspired with others to conceal, or was aware of criminal wrongdoing.? The next paragraph of the complaint makes clear that the ?criminal wrongdoing? to which Nunes referred was the farm?s alleged use of undocumented labor. The complaint denied that Nunes had any involvement in the farm?s ?operations,? denied that there was a ?secret? involving the farm?s move to Iowa and his alleged hypocrisy on immigration policy, and denied that he ?was involved in, covered-up, . . . conspired with others to conceal, or was aware of criminal wrongdoing.?

Nonetheless, on November 20, 2019, Lizza posted a tweet with a link to the article. Lizza?s tweet stated: ?I noticed that Devin Nunes is in the news. If you?re interested in a strange tale about Nunes, small-town Iowa, the complexities of immigration policy, a few car chases, and lots of cows, I?ve got a story for you.? As discussed, the complaint plausibly alleges that the article defames Nunes by implication.

Lizza and Esquire pointed out that this tweet is not even remotely republication (because it’s not). And nothing in that tweet by itself can possibly be defamatory. But.. for reasons that I cannot fathom, the court felt otherwise.

Lizza and Hearst contend that Lizza?s tweet of a link to the original article does not constitute republication of the article. They cite Sundance Image Technology, Inc. v. Cone Editions Press, Ltd., No. 02-CV-2258, 2007 WL 935703 (S.D. Cal. Mar. 7, 2007), which held that providing links to previous publications on a website, without more, was not republication. Id. at *7. And other courts have concluded that ?mere reference to an article,? In re Phila. Newspapers, LLC, 690 F.3d 161, 175 (3d Cir. 2012), or a ?mere hyperlink,? Lokhova v. Halper, 995 F.3d 134, 143 (4th Cir. 2021), without more, is not a republication. But these decisions do not hold categorically that hyperlinking to an original publication never constitutes republication.

The complaint here adequately alleges that Lizza intended to reach and actually reached a new audience by publishing a tweet about Nunes and a link to the article. In November 2019, Lizza was on notice of the article?s alleged defamatory implication by virtue of this lawsuit. The complaint alleges that he then consciously presented the material to a new audience by encouraging readers to peruse his ?strange tale? about ?immigration policy,? and promoting that ?I?ve got a story for you.? Under those circumstances, the complaint sufficiently alleges that Lizza republished the article after he knew that the Congressman denied knowledge of undocumented labor on the farm or participation in any conspiracy to hide it.

This is just wrong. It ignores basically all precedent on how the single publication rule works. The story itself has not been republished. It’s the same story. The whole point of the single publication setup is that unless the story changes, all that matters is the original publication date. Reuter’s chief counsel highlights how this is just flat out wrong:

Centrally, the panel conflates publication of the contents of a tweet with *providing a link to* an already-published article.

The article itself was untouched.

There simply is no ?republication? of the article on these facts.

— katharine larsen (@katharinelarsen) September 15, 2021

The ruling is complete nonsense. It’s not how this works at all. Just because Nunes claims the article is defamatory does not put Lizza on notice that it is false, or that pointing people to that article meets the actual malice standard of publishing something knowing that it was false or with reckless disregard for the truth. It seems clear that Lizza still stands by the story and believes that what’s in there is true. So everything about this is screwy. The perversion of the single publication rule. The claim that actual malice can apply for any statement after the filing of the lawsuit. Even the elements for what is an opinion are kinda weird.

The likely end result of this is that Lizza now has to go through this process all over again in the district court, focusing on actual malice, and gets the case dismissed again, but that’s a hugely expensive and time exhausting process.

Politico quotes law professor Chip Stewart noting just how weird all this is:

“It?s certainly a novel application of a couple of important libel doctrines, and a potentially troublesome one if the 8th Circuit?s ruling is allowed to stand,” said Chip Stewart, a professor at Texas Christian University. “It?s an odd kind of bootstrapping argument. Nunes claims the underlying article is false. He sues over it. Lizza tweets the exact same story after the lawsuit is filed. And what was originally not actual malice now all of a sudden is, at least plausibly enough for a lawsuit to advance to further costly litigation. All over a tweet that changed nothing about the original story.”

Politico also suggests that this ruling would open up the possibility that Nunes could sue anyone who retweeted the article, but this is almost certainly wrong. Here’s what Gerstein wrote:

One curious aspect of the ruling is that it appears to open the door to lawsuits against anyone who tweeted or retweeted the original story with knowledge of Nunes’ lawsuit, and to similar claims over members of the public or those with significant social media followings tweeting or retweeting stories after learning that the subject of the story is disputing it in some way.

Except, that shouldn’t be true, because for everyone but Lizza (and Esquire), Lizza’s article is 3rd party content, and (while people forget this), Section 230 protects users who share 3rd party speech. Remember, the law is that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” So, all those other tweets should be protected under Section 230.

Still, this is a bizarrely dumb ruling that allows a clearly vexatious SLAPP suit to continue. Even if the district court (hopefully) tosses out the case again on summary judgment, this whole process is extremely wasteful and the ruling on the books in the 8th circuit is completely upending how the single publication rule works — making it a dangerous place for defamation claims.

Filed Under: 1st amendment, 8th circuit, actual malice, anti-slapp, defamation, devin nunes, esquire, free speech, retweets, ryan lizza, single publication, slapp, steven biss
Companies: hearst, twitter

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 Asks Appeals Court To Invalidate Bedrock Supreme Court 1st Amendment Ruling

from the protect-and-defend-the-constitution dept

A year and a half ago, Supreme Court Justice Clarence Thomas indicated that he thought that NY Times v. Sullivan was wrongly decided. This is perhaps the most important 1st Amendment ruling from the Supreme Court ever, and establishes the “actual malice” standard for defamation of public figures. There’s more to it than this, but the ruling basically says that for it to be defamation of a public figure, whoever is making the statement should more or less know that the information they’re passing along is false. It’s a high standard, but that’s in order to protect the 1st Amendment. Unfortunately, Thomas seems to think that it’s time to revisit the issue:

We should not continue to reflexively apply this policy driven approach to the Constitution. Instead, we should carefully examine the original meaning of the First and Fourteenth Amendments. If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we.

Of course, if we go back and “carefully examine the original meaning of the First and Fourteenth” Amendment, it’s possible one could conclude that all of defamation law violates the 1st Amendment in suppressing speech (the 14th Amendment part just extends the 1st Amendment restrictions beyond Congress to state laws as well). But still, as we discussed at the time, this was surprising from Thomas, as there seems to be basically no interest anywhere else in revisiting the NYTimes v. Sullivan ruling. It’s not like other instances where you have a bunch of people itching to revisit old cases.

The question, then, is whether or not anyone would take up Thomas’s publicized desire to revisit this standard. And apparently he’s found a taker in… Rep. Devin Nunes. As you’ll recall, Devin Nunes has been filing a series of SLAPP suits against the media and his critics. The cases haven’t been going well for him at all. A couple of months ago, a judge easily tossed out one of Nunes’ cases. This one, filed in Iowa (a state without an anti-SLAPP law) against Esquire magazine and reporter Ryan Lizza over a great article, “Devin Nunes?s Family Farm Is Hiding a Politically Explosive Secret.

As the judge pointed out, nothing in the complaint alleges anything possibly defamatory.

The statements at issue also do not assert provably false facts, nor do they imply the existence of undisclosed facts. The statements that plaintiff has a secret, hid or concealed his family?s move, or conspired with others to hide the move do not have ?precise core meaning for which a consensus of understanding exists.? … There is no precise meaning for how many people can know a fact for it to remain a ?secret? nor is there an accepted line between ?hiding? or ?concealing? a fact and simply declining to publicize it. Likewise, in this context there is no precise meaning of ?conspiracy.? For the same reasons, the challenged statements are not ?objectively capable of proof or disproof[.]?…

Nunes and his lawyer, Steven Biss, have since appealed that ruling to the 8th Circuit appeals court (first noted by Nunes’ hometown Fresno Bee, whose parent company Nunes is suing in a different case). The full appeal is not yet public (for reasons I don’t understand it shows in the docket, but is not available to download). What is available, however, is a Designation and Statement of the Issues, which at least details what Nunes will be arguing in the appeal. And the key point? They’re attacking the NYT v. Sullivan standard:

1. Did the District Court follow the proper standard in evaluating Nunes?s amended complaint or did the District Court view the amended complaint in a light most favorable to the Defendants?

2. Is New York Times v. Sullivan, 376 U.S. 254 (1964) good law? Does the United States Constitution require public figures to satisfy an actual-malice standard in state-law defamation suits? Should Sullivan be reconsidered and overturned?

3. Did the District Court err in applying Sullivan in this case?

4. Did Nunes plausibly allege that the Defendants published the Article with actual malice?

Those are the first four of 14 issues with the other issues basically saying that even if Lizza’s articles don’t state any defamatory facts, Nunes wants the court to say that “rhetorical questions” in the article “imply the existence of defamatory facts.” All of this seems unlikely to be successful. Extremely unlikely.

In general, courts will avoid dealing with deeper constitutional questions, especially when cases can be dealt with in a more straightforward manner, and this case can be (and was) easily dismissed because nothing in the article is a defamatory statement of fact. And, of course, it’s not for an appeals court to tell the Supreme Court that its earlier ruling was “bad law.” Of course, the goal here seems to be to get the Supreme Court to revisit NYT v. Sullivan, as Thomas as suggested is necessary. So, chances are they know this is a loser in the appeals court, but are hoping that they can then appeal it to the Supreme Court later. That… also seems unlikely to work. While Thomas has indicated he’s interested in revisiting this standard, it would be surprising if any of the other Justices agree. And it seems likely that the entirety of the media industry would blow its lid if this issue was up for revisiting at the Supreme Court.

But, really, this is quite telling. Nunes seems to think that he — a public elected official — should not have to face mean comments about himself. That’s ridiculous. He’s a public official. He should grow a thicker skin, not try to destroy the 1st Amendment because his ego can’t take people highlighting his family trying to quietly hide the fact that they moved their farm from California to Iowa.

Filed Under: 1st amendment, 8th circuit, actual malice, clarence thomas, defamation, devin nunes, esquire, free speech, nyt v. sullivan, ryan lizza, steven biss

Judge Rejects Devin Nunes' SLAPP Suit Over The Esquire Article He Really, Really Doesn't Want You To Read

from the have-you-read-it-yet? dept

A federal judge has happily dismissed one of Devin Nunes’ many SLAPP suits. This isn’t much of a surprise given what the judge had said back in May regarding Nunes’ Iowa-based SLAPP suit (reminder: Iowa has no anti-SLAPP law) against Esquire Magazine and reporter Ryan Lizza. The lawsuit was over this article that Devin Nunes really, really doesn’t want you to read: Devin Nunes?s Family Farm Is Hiding a Politically Explosive Secret. Reading that will make Rep. Devin Nunes very, very sad.

Back in May, the judge made it clear that he didn’t think there was much of a case here, but gave Nunes a chance to try to save the lawsuit. As you can already tell, his lawyer, Stephen Biss, has come up empty in his attempt. The court easily dismisses the case with prejudice. First, the judge goes through the various statements that Nunes/Biss claim are defamatory and says “lol, no, none of those are defamatory.”

The statements at issue also do not assert provably false facts, nor do they imply the existence of undisclosed facts. The statements that plaintiff has a secret, hid or concealed his family?s move, or conspired with others to hide the move do not have ?precise core meaning for which a consensus of understanding exists.? … There is no precise meaning for how many people can know a fact for it to remain a ?secret? nor is there an accepted line between ?hiding? or ?concealing? a fact and simply declining to publicize it. Likewise, in this context there is no precise meaning of ?conspiracy.? For the same reasons, the challenged statements are not ?objectively capable of proof or disproof[.]?…

The context of defendants? statements also weighs in favor of being protected opinions. The context of the publication includes the ?social context? of the publication, which includes the style of writing and the intended audience…. The Article is written in a first-person perspective and includes numerous instances of Lizza?s subjective mental impressions. This weighs against the statements being reasonably construed as statements of fact as opposed to Lizza?s characterizations or opinions.

Incredibly, the ridiculous, performative, hyperbolic language that Biss employed in the lawsuit — calling Lizza a “left-wing political journalist, well known for his extreme bias towards Plaintiff” comes back to bite Nunes in this case:

The context also includes ?public context or political arena in which the statements were made.?… Plaintiff alleges that Lizza is a ?left-wing political journalist, well known for his extreme bias towards [p]laintiff.? …. At the time defendants published the Article, plaintiff was a sitting Republican congressman running for re-election…. In this public context, the Court must construe the Article in light of this nation?s ?profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.? … Accepting plaintiff?s allegations as true, any reasonable reader would construe the Article in light of Lizza?s well know political bias. Thus, any reasonable reader would understand defendants? use of terms like ?secret? or ?conspired? as the type of hyperbole that is to be expected in the political arena rather than an insinuation of fact…. In this public context, no reasonable reader could construe Lizza?s statements as facts rather than opinions.

Nunes would have lost either way, but it’s hilarious to see the ridiculous, over-the-top language his lawyer used come back directly to bite him.

Also, the judge points out that Lizza’s articles support the conjecture that Nunes is so upset about all this pretty strongly:

Finally, the statements at issue cannot be construed as implying undisclosed defamatory facts because Lizza disclosed the basis for his conclusions. As to the statements that plaintiff?s family?s move was a ?secret? or was ?concealed,? the Article states that Lizza was unable to find any mention from plaintiff or the press in plaintiff?s district mentioning the move…. The Article also mentions a Wall Street Journal editorial which discussed plaintiff?s family?s dairy farm and featured a Tulare, California dateline…. Nothing in the context of the Article otherwise implies that defendants? characterization is based on any other undisclosed facts.

Similarly, as to the conclusion that plaintiff and others conspired to hide the move, the Article points to two specific instances that support the statement. First, the Article notes that plaintiff appeared at a town hall with Congressman King in a town fifty miles from Sibley. The press release for the event did not mention plaintiff?s family ties to the district, and instead stated that plaintiff?s ?family has operated a dairy farm in Tulare County, California for three generations.? … Second, the Article discusses how the Dairy Star article about NuStar mentioned several members of the Nunes family, but omitted plaintiff…. Nelson told Lizza he omitted plaintiff at plaintiff?s family?s request…. These facts show the basis for defendants? conclusion that plaintiff and others ?conspired? to hide plaintiff?s family?s move, but do not imply the existence of other facts. The reader is ?free to accept or reject [defendants?] opinion based on their own independent evaluation of the facts.?

As for the statement in the article about Nunes trying to discredit the Russia investigation and “protect[ing] Donald Trump at all costs, even if it means shredding his own reputation and the independence of the historically nonpartisan committee in the process” is deemed rhetorical hyperbole:

This statement is a protected opinion for two reasons. First, the statement is ?rhetorical hyperbole? and is thus protected by the First Amendment. In, Adelson v. Harris, 774 F.3d 803, 807 (2d Cir. 2014), the court held that statements that plaintiff?s money was ?dirty? and ?tainted? was non-actionable rhetorical hyperbole protected by the First Amendment. Terms like ?battering ram,? ?at all costs,? and ?shredding? are similar rhetorical hyperbole as well.

Second, this statement also has no ?precise core of meaning for which a consensus of understanding exists? and thus is not objectively capable of proof or disproof….. There is no core meaning about what it means to use a committee as a battering ram, protect someone at all costs, or shred one?s own reputation. Even if these terms had a precise meaning, plaintiff has not explained how such statements could be proved or disproved. Plaintiff argues these statements ?accuse Plaintiff of abusing his position as Chairman of the House Intelligence Committee, obstruction of the Russia investigation, prejudice, impartiality and unethical behavior.? …. Plaintiff fails, however, to identify any provably false facts implied by the Article that would lead to these conclusions. Also, for the same reasons discussed in the previous section, the context of defendants? statements, particularly these statements about issues of fundamental public importance, must be construed as opinions entitled to protection in the context of political debate concerning a public official.

Another statement — regarding Nunes’ family selling their California dairy farm and moving to Iowa for a new farm — the judge notes that Nunes made no effort to claim that this statement is false, even though it was listed as one of the defamatory statements in the lawsuit:

Plaintiff has not alleged that any aspect of this statement is false, nor does plaintiff?s brief articulate how this statement is defamatory. Plaintiff appears to admit the statements to the extent it alleges that plaintiff?s parents, brother, and sister-in-law currently live and work in Sibley, Iowa…. Regardless, nothing about this statement is defamatory. None of the facts about plaintiff?s relation to various individuals and their real estate transactions tends to harm plaintiff?s reputation. As a matter of law this statement is not defamatory.

One by one the judge rejects each and every claimed defamatory statement for reasons like these. Another one gets rejected because it’s about Nunes’ family, not himself. Another for being “substantially true.” Basically just as we said when this suit was filed, none of this is even remotely defamatory.

Biss tried to get around the fact that none of the actual statements are defamatory by arguing that the article as a whole implied defamatory things and… that’s not how any of this works. And the judge knows that.

Plaintiff fails to state a claim for defamation by implication for two reasons. First, no reasonable person could draw plaintiff?s asserted implication from the Article. Second, even if a reasonable person could draw the implication, there is no indication that defendants intended or endorsed the implication.

He also suggests there are “defamatory inferences,” and again, the judge points out that the article does not support this claim:

Reading the entire Article in context, no reasonable reader could reach plaintiff?s alleged implication because the Article negates those implications. The Article states that plaintiff ?has no financial interest? in NuStar. … The Article also makes clear plaintiff is not involved in managing NuStar. … (noting that the Dairy Star article stated that NuStar was managed by Anthony Jr. ?with his son and wife? and noting in the next paragraph plaintiff is not mentioned anywhere in the Dairy Star article). No reasonable reader could understand the Article to imply the exact opposite of its text, i.e. that plaintiff had some financial or managerial interest in NuStar.

Likewise, no reasonable reader could read the Article to imply plaintiff conspired with others to hide NuStar?s use of undocumented labor. The Article is clear the conspiracy was ?to hide the fact that [plaintiff]?s family sold its farm and moved to Iowa[.]? …. Similarly, no reasonable reader could find the ?politically explosive secret? referenced in the title of the Article is NuStar?s use of undocumented labor. The Article states ?[s]o 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.? … Given these express statements, no reasonable reader could infer that plaintiff was involved in a conspiracy to hide NuStar?s use of undocumented labor.

Then after all of that, the court also notes that Nunes failed to show actual malice, which, of course, is necessary in defamation cases involving public figures. And, as a reminder, “actual malice” does not mean “he didn’t like the guy.” It has a very specific meaning: that the statements were made knowing they were false or with reckless disregard for whether it was false or not. And, as the judge notes, there was no evidence to support this at all.

The cases plaintiff cites in support of his argument highlight the factual insufficiency of his complaint. For example, plaintiff asserts defendants acted with actual malice because they failed to observe journalistic standards, conceived of a storyline in advance and sought to find evidence to confirm that story, and relied on unreliable or biased sources in researching the Article…. These allegations, however, are ?naked assertion[s]? devoid of ?further factual enhancement,? and ?labels and conclusions,? that fail to plausibly assert actual malice….

[….]

The Court will not reiterate every factual deficiency in the amended complaint, but some examples are illustrative. Plaintiff alleges defendants ?relied on sources, including anonymous and unnamed persons, they knew were wholly unreliable and had an axe to grind against Plaintiff and his family.?… Plaintiff does not identify the sources, what axe the sources had to grind with plaintiff, or any factual basis from which the Court could plausibly find that defendants? sources were unreliable or that defendants knew or should have known they were unreliable. To the contrary, the Article itself refers to two unnamed, but not anonymous, sources who had firsthand knowledge of NuStar?s use of undocumented labor…. This is fundamentally different than the cases upon which plaintiff relies. See Duffy v. Leading Edge Prods., Inc., 44 F.3d 308, 315 n.10 (5th Cir. 1995) (noting that evidence of an ulterior motive can ?bolster an inference of actual malice,? and citing specific facts about the relationship between the parties from which the jury could have found that defendant made defamatory statements with actual malice); AdvanFort Co. v. Mar. Exec., LLC, No. 1:15-cv-220, 2015 WL 4603090, at *8 (E.D. Va. July 28, 2015) (finding that plaintiff could plausibly allege actual malice if plaintiff specifically asserted that defendant knew the author?s relationship with plaintiffs had ?gone sour? after their past ?unsuccessful business relationship?); Barreca, 683 N.W.2d at 123 (reversing summary judgment when record established defendant made defamatory statement based on one anonymous and unverified phone call, and portions of the statement at issue arguably showed defendant ?entertained serious doubts about the truth of the phone call?).

Similarly, plaintiff alleges defendants acted with actual malice because they republished the Article…. The amended complaint asserts defendants republished the Article by tweeting links to it…. This argument fails both factually and as a matter of law. Publishing a link to an existing story is not a republication of the story…. Even if tweeting links to the Article constitutes republication, the cases plaintiff cites are inapposite here.

For what it’s worth, the judge also makes a brief mention of the language that Biss used in the lawsuit to smear Lizza, regarding some rumors that went around about him. We had pointed out earlier that these claims seemed much more “defamatory” than anything Lizza wrote about Nunes. Lizza’s lawyers had asked the court to strike those statements from the motion, which the court denies as moot (since the whole case is being tossed) but does note:

The Court notes, however, the material identified by defendants … is immaterial, impertinent, and scandalous. Plaintiff?s personal attacks on Lizza have no bearing on this case. This is apparent because plaintiff never refers to the challenged allegations in resisting defendants? motion to dismiss. The allegations likewise are prejudicial to Lizza and have criminal overtones.

The one annoying part of the ruling has to do with anti-SLAPP laws. Even though, as noted, Iowa has no anti-SLAPP law, Lizza and Hearst sought to say that California’s strong anti-SLAPP law should apply (seeing as any reputational damage to Nunes would occur in California). The court rejects that on procedural grounds, saying that standard 12(b)(6) motion to dismiss procedures (and other rules of federal civil procedure) “pre-empt” California’s anti-SLAPP law, since they grant the same basic protections in getting cases tossed out early. That’s an argument that comes up frequently in anti-SLAPP cases. And while it’s true that a motion to dismiss can — at times — serve a similar purpose to an anti-SLAPP motion to strike, there are important procedural differences that protect free speech, including the attorney’s fees award that goes along with most anti-SLAPP laws, including California’s. Unfortunately, here, the court says that cannot apply.

This is yet another reason why we absolutely need a federal anti-SLAPP law with fee shifting as part of it. Still, overall, this is a good, clean ruling rejecting one of Nunes’ silly SLAPP suits. This result was inevitable, but still created a nuisance — which likely was the intent all along.

Filed Under: 1st amendment, anti-slapp, california, defamation, devin nunes, esquire, free speech, iowa, opinion, ryan lizza, slapp, slapp suit, steven biss

Judge Tells Devin Nunes' Dad (And Lawyer Stephen Biss) To Put Up Or Shut Up In Defamation Lawsuit Over Esquire Article

from the the-article-they-don't-want-you-to-read dept

Remember, Rep. Devin Nunes really doesn’t want you to read this Esquire article entitled, Devin Nunes?s Family Farm Is Hiding a Politically Explosive Secret. He’d be super duper upset if you read it. The article is about how Nunes, who frequently refers to his prior job as a “dairy farmer” in Tulare, California, probably doesn’t want the world to know that his family up and left California to take their farm to Iowa. The article is a worthwhile read, detailing how the information about the location of the Nunes’ family farm seems to stay hidden — including how an article that reveals the Nunes’ family presence in Iowa, published in the publication Dairy Star in 2009, suddenly disappeared from Dairy Star’s website when Lizza showed up in Iowa asking questions. The article also discusses how many farms in the area employ undocumented workers, but that’s almost a side plot.

Either way, last fall, we wrote about how Nunes sued over the article in Iowa which, notably, has no anti-SLAPP law. As we pointed out at the time, this seemed like a case that was ripe for Hearst (the publisher of the article) and Lizza to try to make use of California’s anti-SLAPP law, even though the case was filed in Iowa, because any reputational harm to Nunes would have to come in California, not Iowa. And, indeed, Hearst’s smart lawyers took my advice (just kidding, they knew it without me suggesting it) and have asked the court to use California’s anti-SLAPP law:

Iowa choice of law rules dictate that California law supplies the rule of decision in this case. Congressman Nunes pleads that he is ?a citizen of California.?… Purported harm to his reputation would be most severely felt in the 22nd Congressional District of California, where Congressman Nunes was, at the time of publication, running for re-election…. In fact, Congressman Nunes expressly alleges that the Article was published for the purpose of ?influenc[ing] the 2018 Congressional election.?… And the Amended Complaint rejects the notion that Congressman Nunes has any ties to Iowa, or to the family farm in Sibley. (?Plaintiff does not own an interest in his family?s dairy farm in Iowa, never has, and is not involved in any way in its operations.?).

For what it’s worth, the filing also makes standard 12(b)(6) arguments for why the case should be dismissed even absent the California anti-SLAPP motion to strike (which would force Nunes to pay Hearst’s considerable legal fees), pointing out that none of the contested statements are actually defamatory, and the complaint comes nowhere near pleading the “actual malice” standard. The judge is still considering that request, but should be ruling shortly.

What I had missed, however, was that earlier this year (perhaps realizing the California exposure of the Devin Nunes’ suit), Nunes’ lawyer Steven Biss filed a separate lawsuit on behalf of Nunes’ family (his father and his brother) and their Iowa farm, Nustar Farms. The complaint is also against Hearst and reporter Ryan Lizza over the same article and makes the same basic defamation claims. This one demanded 25million(Devin’slawsuitdemanded25 million (Devin’s lawsuit demanded 25million(Devin’slawsuitdemanded77.5 million). The court, recognizing the connection between the cases, has consolidated the two cases late last month. At least the second lawsuit has less of an argument for why California’s anti-SLAPP should apply, since the plaintiffs are actually in Iowa.

So, Hearst’s motion to dismiss in this case merely points out that none of the statements labelled as defamatory in the complaint are… defamatory.

Plaintiffs? Complaint follows the same cadence as that of Congressman Nunes: It is filled with bluster, hyperbole, and conclusory allegations of fabrication and misconduct, while summarily alleging that 16 statements in the Article are false. But Plaintiffs? Complaint does not explain why or how any of the 16 challenged statements are actionable, beyond simply quoting them and declaring them ?false and defamatory.? The Complaint does not provide any factual information as to what aspects of the statements?some of which are an entire paragraph in length?are false, and why that is so. Plaintiffs have therefore failed to carry their burden of pleading falsity with sufficient factual detail to make the allegation plausible, as required by Twombly and Iqbal. See Point I.A. (At a minimum, the Court should order that Plaintiffs plead a more definite statement, with details explaining precisely how and why they maintain that the challenged statements are false. See Point II.) Plaintiffs should not be permitted to subject Defendants to burdensome discovery that chills their and others? First Amendment rights without specifying facts that would support their conclusory claims of falsity.

Notwithstanding Plaintiffs? failure to satisfy Rule 8, every challenged statement is on its face not actionable for one or more reasons. Most are not statements ?of and concerning? Plaintiffs. Most are not defamatory; that is, the statements would not tend to injure any of Plaintiffs? reputations in the community. Several are actually or substantially true, as admitted in the Complaint. And others are nonactionable opinions, as evidenced by the literary journalism format of the Article and the overall context, and moreover such opinions are predicated on facts disclosed in the Article, and are therefore fair comment protected by the First Amendment….

In response Biss filed what strikes me as one of the weakest opposition motions I’ve seen. It’s hand-wavey and misleading, but this post is long enough and I don’t even need to dig into why, because, as first noted by Newsweek, Judge CJ Williams has already sided with Hearst, at least in following their “at a minimum” request that the judge make Biss and the Nunes family actually detail how the statements are false.

As you can see, Judge Williams is not convinced by Biss’s hand-waving:

Defendants argue that plaintiffs? complaint fails to identify ?what aspect(s) of each statement is supposedly false and defamatory, and . . . what Plaintiffs allege the truth of the matter to be.?… Plaintiffs contend that it is enough for the complaint to simply allege that the statements are false, and defendants can seek the factual details they want through discovery…. As a preliminary matter, the Court finds that plaintiffs must allege facts that, if proven, would show the statements to be false…. It is not enough for plaintiffs to list a number of statements and generally declare them to be false without alleging facts which, if proven, would show them to be false.

The Court then points out that all the performative hyperbole so common in Biss defamation complaints isn’t going to cut it:

The remainder of plaintiffs? complaint is bereft of any factual allegations pertaining to the truth or falsity of the challenged statements. Rather, the remainder of plaintiffs? complaint is conclusory in nature. Paragraph 15 includes the conclusory allegation that the article contains a ?defamatory gist and false implication[s].? Paragraphs 16 through 18 allege defendants republished the article. Paragraph 19 asserts that the article was ?knowingly and intentionally flawed,? that ?Lizza came to Sibley with a preconceived storyline,? and that he ?fabricated a ?secret? where none existed,? citing as authority the Federalist?s website that makes a personal attack on Lizza. Under the heading Count I ? Defamation, paragraphs 21 through 29 make assertions of defamation, republication and damages, but do not contain any factual allegations pertaining to the truth or falsity of the statements.

As for the actual statements in the article that Biss did call out, the court points out that there’s not nearly enough there for a defamation claim. I won’t go through each and every one, but the judge’s analysis of the very first alleged defamatory statement should give you the gist of all the rest:

_1. ?So why did [Devin Nunes?] parents and brother cover their tracks after quietly moving the farm to Iowa? Are they hiding something politically explosive? On the ground in Iowa, Esquire searched for the truth?and discovered a lot of paranoia and hypocrisy?.

The first two sentences in this bullet point are questions. Arguably, the first question asserts facts: Devin Nunes? parents and brother covered their tracks and moved their farm to Iowa. The word ?quietly? is an adjective arguably reflecting an opinion. The words ?covered their tracks? could be an opinion, but implies facts, that is that the Nunes performed some act to conceal the move. The third sentence appears generally to assert an opinion: Esquire searched for the truth and discovered a lot of paranoia and hypocrisy. Whether Esquire searched for the truth seems a matter of opinion, as is whether Esquire discovered facts that led it or anyone else to conclude that there was some or a lot of something considered to be paranoia or hypocrisy. Plaintiffs? complaint does not make it clear what it is in this bullet point they allege is false. In theory, plaintiffs could allege facts that would prove the first sentence to be false. That is, plaintiffs could allege that they did not move their farm to Iowa. Plaintiffs? complaint does not make it clear at all which of these statements plaintiffs are alleging are false. Plaintiffs could be asserting that it is false that the Nunes concealed any move, or they could be asserting that Esquire did not discover paranoia or hypocrisy. Nor does the complaint allege facts showing that any of the statements are false or why they are false. How defendants? answer the complaint or the defense they assert to the defamation claim turns on what it is that plaintiffs allege is false in this bullet point.

In other words, this is a classic SLAPP suit in which just quoting statements you dislike and declaring them defamatory is not nearly enough to plead a defamation claim. And each of the sixteen different statements laid out in the complaint gets similar treatment, leading to the following summary:

The tedious and laborious exercise of dissecting each of the sixteen bullet points illustrates the deficiency of plaintiffs? complaint. The complaint is not at all clear as to which facts asserted in these bullet points plaintiffs allege are actually false. Knowing which assertions plaintiffs allege are false is necessary for defendants to be able to answer the complaint and assert a defense. As the Court pointed out as it addressed each bullet point, some of the alleged facts may be defended as opinions or conclusions, others may be defended as not concerning plaintiffs, and still others may be defended as being true. Without knowing which of the facts plaintiffs allege are actually false, defendants are left not knowing how to answer the complaint. The exercise also shows that the complaint fails to allege facts which, if proven, would show that any of the alleged facts are false.

However, rather than dismiss the complaint outright for a failure to state a claim, the Judge is willing to give Biss one more chance, though you can sense the doubt that anything will come of it:

Plaintiffs are granted 14 days to file an amended complaint specifically identifying the facts in the contested article they allege are false, and to allege facts which, if proven, would show those facts to be false. If plaintiffs do not file an amended complaint, the Court may dismiss this matter without further action by defendants.

It seems likely that Biss will file such an amended complaint. It seems unlikely that it will succeed in pleading defamation to a level that won’t then be dismissed for failure to state a claim. But, of course, if the intention is just to SLAPP, then the goal is to just drag this out as long as possible anyway.

Once again, this is why Iowa needs an anti-SLAPP law, and we need a federal anti-SLAPP law as well.

Filed Under: anthony nunes, anti-slapp, california, defamation, devin nunes, iowa, ryan lizza, slapp, statements of fact, steven biss
Companies: hearst, nustar farms