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

from the what-a-bizarre-case dept

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

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

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

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

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

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

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



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

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

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

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

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

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

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

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

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


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  • icon
    bhull242 (profile), 27 Jan 2020 @ 1:06pm

    It’s pretty hard to think of a nonmalicious reason to be targeting these two accounts with subpoenas in this particular lawsuit. There doesn’t even appear to be a tenuous connection between either of those two accounts and either Radack or FitzGibbon at all. The only connection between either of the accounts and anyone involved in this suit is Biss. It’s hard to see that as a coincidence.

    reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 27 Jan 2020 @ 1:12pm

      Biss better hope no one brings the subpoena up with the judge(s) in Nunes’s case(s). This move seems like a surefire way to get on a judge’s bad side — never mind any sanctions that might arise from this sleazy bullshit.

      reply to this | link to this | view in chronology ]

    • identicon
      bob, 27 Jan 2020 @ 4:02pm

      Re: a slim possibility.

      Since Biss works with both clients its possible somebody did a bad copy-paste job. But I'm betting the probability of that being the reason is very low. And then the mistake either wasnt noticed or they figured hey it's worth a shot. Neither reflect well on Bids.

      Real question is what did Biss do after being alerted to the problem?

      reply to this | link to this | view in chronology ]

      • icon
        Stephen T. Stone (profile), 27 Jan 2020 @ 4:48pm

        One has to wonder how that legal team could mistakenly place names related to an entirely different client from an entirely different case in a legal filing for this one. Cut through the bullshit with Occam’s Razor and the only explanation is “this was no mistake”.

        reply to this | link to this | view in chronology ]

  • icon
    Stephen T. Stone (profile), 27 Jan 2020 @ 1:09pm

    Of all the things I figured Nunes would step into, a soap opera was not one of them~.

    But (lame) jokes aside: Yeah, this subpoena reads like Biss and Co. are making a sleazy attempt to sneak through a back door when they couldn’t (yet) walk through the front. If a judge doesn’t see through the move, they should have their fitness as a judge called into question.

    reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 27 Jan 2020 @ 1:43pm

    We can only hope...

    that Biss will Carreon.

    reply to this | link to this | view in chronology ]

  • icon
    ScottJohnson3 (profile), 27 Jan 2020 @ 4:09pm

    When have attorneys not been able to subpoena?

    This seems to shed light https://medium.com/@TrevorFitzgibb1/a-statement-ed4be1023fe1

    ESP towards the end: “ Any and all actions taken are when and where irrefutable evidence exists of an individual’s participation in the almost four-year smear operation.

    To my critics who believe that my actions are unwarranted, I kindly suggest they may feel differently if they found themselves as the target.”

    reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 27 Jan 2020 @ 4:43pm

      Whether attorneys can subpoena is not the issue. What one of the attorneys in this situation is doing with a subpoena for parties wholly unrelated to the situation itself is the issue. If Biss can’t provide a substantive link between Parkhomenko/@DevinCow and the case involving Fitzgibbon, what the hell is Biss doing by trying to subpoena Twitter for information on those accounts? Because his actions here come off as sleazy at best and outright career-destroying at worst.

      reply to this | link to this | view in chronology ]

      • icon
        Mike Masnick (profile), 27 Jan 2020 @ 4:52pm

        Re:

        Beyond that, if there actually is some sort of connection, it's possible (though not definite) that there could be a conflict of interest for the lawyer that he would need to disclose to his clients, since details of one case might overlap on another.

        "Scott Johnson's" comment (and separate email to me) shed no actual light on any actual connection. Just bare claims of "irrefutable evidence," none of which has been shared.

        reply to this | link to this | view in chronology ]

        • icon
          Stephen T. Stone (profile), 27 Jan 2020 @ 5:25pm

          Scott Johnson

          I wonder why someone would make an account to comment only on this article and only with a link to (and partial quote from) Fitzgibbon’s self-serving statement on this case~. Hmm. I wonder~. 🤔

          reply to this | link to this | view in chronology ]

        • icon
          That One Guy (profile), 27 Jan 2020 @ 6:36pm

          Re: Re:

          "Scott Johnson's" comment (and separate email to me) shed no actual light on any actual connection. Just bare claims of "irrefutable evidence," none of which has been shared.

          Well everyone knows that evidence is like food, the more you share it around the less of it that's availalble, and as such the best way to keep evidence 'irrefutable' is to refuse to share any of it.

          Of course there's also the possibility that if you share your 'irrefutable' proof you open up the chance for people to discover and/or point out that it's not quite as 'irrefutable' as you claimed it was, but I'm sure that's just a coincidence.

          That said I and many others I'm sure are quite open to being proven wrong, and as all it would take it actually presenting the 'irrefutable evidence' in question(rather than just asserting that it exists) I'm sure that would be a trivial task and one well worth the effort to clear things up.

          reply to this | link to this | view in chronology ]

        • identicon
          RayJoha2, 2 Feb 2020 @ 1:18pm

          Re: Re:

          Well, I guess nobody here is in doubt that Scott is Trevor Fitzgibbon. I sure recognize his activities. I'm on top of the list of those subpoenaed and I can tell you that there has been no conspiracy to defame. Aside from that 2 thirds of the Twitter accounts have nothing at all do do with the civil suit.

          Let me be transparent, Mrs Radack is a colleague and a friend, and Fitzgibbon and Biss have engaged in lawfare against her for a long time. He has also directed an harassment campaign online using socks. I have all their names and priors. We also have payments going to the "trolls" from Biss' paralegal and wife.

          Now this has spilled over into an international incident for activists and reporters.

          Why have we not colluded in a smear campaign. Well simply because what we claim is true. A smear must be a lie, no? Why? Because Fitzgibbon came at us dragging us into a law suit, was asked to stop, promised and then doubled down. Invite me into the ring and then whine about getting punched. What a weak man. And I will have Biss licence as if its the last thing I do. Sanctions, hrrrmf.

          I wrote about this subpoena and its ramifications yesterday.

          Link

          reply to this | link to this | view in chronology ]

      • icon
        ScottJohnson3 (profile), 27 Jan 2020 @ 5:25pm

        Re:

        I have no idea. But read the plaintiffs statement: “ Any and all actions taken are when and where irrefutable evidence exists of an individual’s participation in the almost four-year smear operation.”

        They must have evidence. Has anyone done a search to see if the defendant communicates or includes Adam or any of the other accounts in defaming fitzy?

        reply to this | link to this | view in chronology ]

      • icon
        ScottJohnson3 (profile), 27 Jan 2020 @ 5:28pm

        Re:

        Have any of those accounts defamed the plaintiff? I don’t know. But if they are working or communicating with the person being sued, than yea, it totally makes sense why they’d be subpoenaed

        reply to this | link to this | view in chronology ]

        • icon
          Stephen T. Stone (profile), 27 Jan 2020 @ 5:30pm

          if they are working or communicating with the person being sued

          …Biss has done a poor job of showing it to the point that would justify a court of law forcing Twitter to hand over those users’ communications — especially in light of the conflict of interest between this case and the Nunes case.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 27 Jan 2020 @ 5:54pm

          Re: Re:

          It would make sense that they’d be subpoenaed. That fails to explain why a) the “evidence” isn’t in the subpoena, and b) why Twitter was served rather than the individuals in question.

          reply to this | link to this | view in chronology ]

        • icon
          Contumacious (profile), 28 Jan 2020 @ 8:51am

          Re: Grammar Fail.

          "than [sic] yea [sic]"
          What?
          I think you meant to write "then" and "yeah".
          S.M.H.

          reply to this | link to this | view in chronology ]

    • icon
      bhull242 (profile), 27 Jan 2020 @ 6:28pm

      Re: When have attorneys not been able to subpoena?

      For what it’s worth, I have zero issues with the first lawsuit. I think the second one is rather questionable, and my experience with defamation plaintiffs is that they often see conspiracy where none exists, but I’m willing to give the benefit of the doubt over that.

      What does not make sense is the subpoena for Deven Nunes’ Cow, which contains nothing relating to either party at all. Nor why the subpoena would be sent to Twitter instead.

      And frankly, I don’t trust anyone at their word without evidence.

      reply to this | link to this | view in chronology ]

  • identicon
    ryuugami, 27 Jan 2020 @ 5:34pm

    it's extremely unclear why those two accounts (and possibly others) are included in the subpoena

    Haha, no. That, at least, is very clear!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Jan 2020 @ 3:24am

    Nunes old boy

    A malicious litigation lawsuit in the waiting.

    reply to this | link to this | view in chronology ]


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