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.