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 —
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 —
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