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

Defamation

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