Twitter Moves To Quash Fishing Expedition Subpoena For Info On Devin Nunes Cow By Devin Nunes' Lawyer In Unrelated Case
from the good-for-them dept
Last week, we wrote about the details of how it appeared that Devin Nunes’ lawyer, Steven Biss, appeared to be using his subpoena power to try to unearth the identity of the parody account for “Devin Nunes Cow” in a totally unrelated case. I’m kind of amazed that no one else has really picked up on this story, because it’s crazy. Biss has been representing Nunes in his various (highly questionable) defamation lawsuits, including the very first, which was focused on trying to expose a couple parody accounts that mocked Nunes, a Congressional Representative who really needs to grow some thicker skin. We’ve highlighted how much of Nunes’ activity in that case in particular appears to be a fishing expedition to find out the identities of some of his critics.
What was so crazy about the story last week was that this new subpoena, sent to Twitter and seeking out information (including direct messages) from a variety of Twitter accounts, including @DevinCow, was in a totally unrelated case (the details of which are complex, and we tried to cover in that original post). As we highlighted, there were a bunch of questions raised by this — first, sending a subpoena to Twitter to access someone’s DMs is ridiculous. It would violated the Stored Communications Act. Twitter is barred from handing out such communications via civil subpoena. The correct process for Biss, if those communications are so vital to his case, would be to subpoena the users directly. But, of course, that would tip them off. The next big problem was that it appeared that at least two of the names on the list of Twitter accounts that were subpoenaed (and possibly more) had no connection whatsoever with the case at hand, involving a dispute between a well known lawyer and a well known PR executive. But they were relevant to the Devin Nunes suit.
On Tuesday, Twitter stepped in a filed a scathing motion to quash the subpoena, noting “a litany of substantive defects.”
The Subpoena suffers from a litany of substantive defects and must be quashed. First, the Subpoena seeks identifying information of pseudonymous Twitter accounts without satisfying the established First Amendment requirements for unmasking anonymous online speakers… Second, it violates the federal Stored Communications Act (“SCA”)… by commanding Twitter to disclose the contents of communications…. Third, it imposes an undue burden on Twitter by commanding it to produce document that could be obtained from a party to the lawsuit…. Fourth, and finally, the Subpoena imposes an undue burden on Twitter by demanding information that is irrelevant to the underlying action.
That last one is the understated way of pointing out that Biss is trying to subpoena people totally unrelated to this case. The motion makes the issue explicitly clear:
But the Subpoena is not merely defective and unlawful. One of its demands–for identifying information about the Twitter account @DevinCow–also appears to have been made for an improper purpose: to end-run around discovery disputes in an unrelated lawsuit. Nothing about the Fitzgibbon Litigation suggests that the @DevinCow account is in any way relevant to its claims or counterclaims–indeed, no reference to the account appears anywhere in any pleading. The anonymous speaker @DevinCow, however, has been named as Twitter’s co-defendant in another, unrelated state-court action in which Fitzgibbon’s counsel, Mr. Steven S. Biss, represents a different plaintiff…. Mr Biss has repeatedly sought in that other action, without success, to force Twitter and others to disclose information that might bear on the identity of @DevinCow, i.e. the very same information he is now demanding from Twitter through the Subpoena at issue here. The Subpoena’s demand for @DevinCow’s account-opening information thus appears to be an attempt to bypass the discovery process in Nunes. Such gamesmanship heightens the need for this Court to swiftly quash the Subpoena.
The motion goes on to detail the many times and many ways in which Biss has tried to unmask @DevinCow throughout the lawsuit.
It also notes that Twitter’s lawyer directly raised these issues with Biss and “Mr. Biss refused to withdraw the Subpoena” and that he pointed them to two tweets made by the defendant in this case, lawyer Jesselyn Radack, replying to @DevinCow. However, as Twitter notes, neither of those had anything to do with the plaintiff in this case, Fitzgibbon. And, considering the main points of this case are (fairly questionable) claims that Radack was conspiring with others on Twitter to defame Fitzgibbon, it seems like any such tweets would need to relate to Fitzgibbon in some manner. Later, Biss agreed to narrow the subpoena to get around the Stored Communications Act issue, saying Twitter could black out the details of communications, but he still wanted to see the metadata. And then there’s this:
Counsel for Fitzgibbon asserted both that those 17 accounts, including @DevinCow, are “obviously” relevant to the Fitzgibbon Litigation, and that he has evidence indicating that @DevinCow has privately communicated with Radack via the Twitter platform… But he flatly refused Twitter’s requests that he substantiate those assertions.
It then goes through all the many other reasons for the subpoena to be quashed, and then says that the court should award Twitter fees and costs.
The awarding of fees and costs is particularly appropriate where, as here, “a party issues a subpoena in bad faith, [or] for an improper purpose.”
It will be interesting to watch what comes next. Also, if the court does award fees, I wonder who will be paying them? There have already been questions about who’s been funding Nunes’ lawsuits. Would Fitzgibbon have to pay the fees because his lawyer tried to use his case to fish for info in another case? Is that the kind of representation that Fitzgibbon wants?