from the abusing-the-subpoena-process dept
A few weeks back, we wrote about a bizarre situation in which Rep. Devin Nunes’ lawyer, Steven Biss, appeared to be using his subpoena power to seek out info about Twitter accounts related to some of Devin Nunes’ lawsuits — but in an unrelated case. The whole story was crazy. As you’ve likely heard, Nunes has been suing (among other things) an account holder of the satirical @DevinCow Twitter account. While that case continues to plod on, Biss tried to subpoena Twitter for the account holder’s identity (along with information on political consultant Adam Parkhomenko) in a totally unrelated case, involving breach of contract claims following a settlement of an earlier defamation lawsuit involving a well-known civil liberties lawyer, Jesselyn Radack, and a PR guy, Trevor FitzGibbon.
Part of the claims in that breach of contract lawsuit is that Radack may have been communicating with third party accounts to say things about FitzGibbon, after the settlement involved an agreement not to speak publicly about him. So, there could be some reasonable areas in which Biss might seek evidence that Radack is communicating about FitzGibbon, but (1) so far most of the fishing expedition seems to be based on pure random speculation, (2) sending a subpoena to Twitter, rather than the users in question, is simply the wrong way to do things, and (3) most importantly, the inclusion of the Devin Cow account and the Parkhomenko account — when there appears to be zero public evidence that either the cow or Parkhomenko even knew who Radack or FitzGibbon were — is especially questionable.
Indeed, in moving to quash the subpoena, Twitter called out Biss’ fishing expedition, claiming that the attempt to unearth the details behind the @DevinCow appeared to have been done “for an improper purpose: to end-run around discovery disputes in an unrelated lawsuit.”
Incredibly, along with that filing, Twitter included quite an incredible email from Biss to Twitter’s outside counsel, Pat Carome from Wilmer Hale:
As I said during our conference call on Friday, I am interested in obtaining the name(s) of the public interest groups behind Mom and the cow. I am not interested in delay.
Having said that, and in light of the fact that your client will not agree to any less drastic alternative, I will withdraw the Subpoena and either submit to the process set forth in section 407.1 or server Twitter with discovery requests or both.
Ultimately, your client will be required to divulge the identities of the dummies and stooges it permits to use its platform.
Steven S. Biss
We’ll see about that, Steve. We’ll see about that.
Anyway, it appears that Biss is not at all happy about Twitter’s motion to quash and last week filed quite the opposition. It is pages upon pages of bluster and nonsense. It begins by claiming that the litigation process is “a search for the truth” as if that allows for any fishing expeditions possible. That’s not how it works. Then it engages in a bizarre, systematic attempt to smear Jesselyn Radack. It’s not often you see legal filings with the following statements:
Radack is not what she seems to be. She does not behave like an attorney. She
behaves as if she is a political operative or an undercover government agent. Radack
openly, proudly and publicly admits that she uses ?drug dealer tactics? in her
representation of whistleblowers and leakers…
She meets with people in person.
She pays in cash, and she uses ?burner phones?. She admits to having ?multiple
computers, including an air-gapped computer that?s not hooked up to the Internet, so that
I can use encrypted communications if we?re not able to meet in person.? [Id.]. Radack
admits that she uses encrypted messaging services, including Signal,9 to cloak and hide
her communications with third-parties. It is virtually impossible to get any useable
evidence from Radack.
This is all presented as nefarious evidence of her hiding the key evidence in this case. Of course, what it leaves out is that Radack mainly represents government whistleblowers and leakers, and the reason for these actions is to protect her clients. It’s actually good lawyering, rather than “not behaving like an attorney.”
Of course, reading between the lines, what Biss appears to be trying to say is that he actually has no evidence to back up his fishing expedition in this case (which is relevant to a wholly unrelated case), and if he can just convince the court that the reason he has no evidence to back up his claims is because Radack is sneakily hiding the evidence, perhaps the court will let him go forward with the fishing expedition and force Twitter to “divulge the identities of the dummies and stooges.”
Much of the filing is just a rehashing of the original claims in the case, rather than any actual responses to Twitter’s motion to quash. Nowhere does it ever explain how the @DevinCow account has anything to do with any of this. Instead, bizarrely, in explaining how Twitter works to the judge, Biss keeps using @DevinCow in hypothetical examples for no clear reason. For example:
A ?tweet? is a message posted to Twitter
containing text, photos, a GIF, and/or video. A tweet appears on the sender?s profile
page and home timeline and on the home timeline of everyone who follows the sender.
A ?retweet? is a tweet that is shared publicly with a user?s followers. Retweets can be
published with or without comment. ?Likes? are represented by a small heart and are
used to show appreciation for a Tweet. Likes appear on the sender?s profile page and can
be accessed by anyone simply by clicking or tapping into the Likes tab. ?Mentions? or
?tags? are tweets that contain another account?s username, preceded by the ?@? symbol.
For example: ?Hello @DevinCow?. ?Tagging? someone is a way of including them in a
conversation. Tags appear on the sender?s profile page of public tweets and in the
recipient?s notifications tab and will appear on the recipient?s home timeline view if the
recipient of the tag follows the sender.
Why even mention @DevinCow there?
The only attempt at evidence that Biss has that Radack has somehow communicated with the DevinCow and Adam Parkhomenko accounts is a tweet she made after Biss had already filed this subpoena, which merely lists some of Biss’ various questionable lawsuits.
Note that that tweet is on January 8th of this year. The original subpoena filed by Biss seeking info on @DevinCow and Parkhomenko dates back to at least December of last year, when Radack first mentioned it online. It takes quite a lot of chutzpah by Biss to file a subpoena in this case, with absolutely no evidence that Radack and DevinCow or Radack and Parkhomenko were communicating, and then use her mentioning this subpoena as evidence that now they are communicating.
But that’s what Biss appears to be doing.
No one forced Radack to tweet or to tag @DevinCow or @RVAwonk or
@AdamParkhomenko. Radack chose to breach the settlement agreement and to defame
Fitzgibbon to these third-parties. She chose to follow these accounts and she chose to tag
them in tweets that were none of their business. Radack made this case the business of
@DevinCow and many, many other third-parties. She chose to broadly tag Twitter users
with massive followings, such as @DevinCow, because she wanted to increase the
audience and, therefore, exacerbate the pain and suffering she inflicted with each foul
That’s not how any of this works. But Biss is digging furiously to now claim that because of his subpoena leading Radack to tweet at @DevinCow, that now means that @DevinCow is a “witness” and thus can be subpoenaed:
As Radack?s own tweets demonstrate, Radack intentionally mentioned or tagged
@DevinCow and other anonymous users repeatedly in tweets that violated the settlement
agreement and constitute defamation. The user or users operating these Twitter accounts,
including @DevinCow, are witnesses to Radack?s wrongdoing. Fitzgibbon is entitled as
a matter of law to discover their identities so he can take their depositions in this case.
The reason she tweeted at them was because you put them in the subpoena, dude.
Then, on Tuesday, Biss filed a “statement of additional evidence” which consists of… evidence that Jesselyn Radack has used Twitter’s DM function. But not with @DevinCow.
Twitter wasted very little time in responding to Biss’ nonsensical filing:
Plaintiff?s 59-page Opposition misapprehends the law and fails to provide any justification
for the invasive discovery he demands from Twitter about 23 accounts on the Twitter platform.
First and foremost, Fitzgibbon?s arguments completely disregard the First Amendment rights of
Twitter?s anonymous users (Requests 1, 2, 3). Courts across the country have agreed that an online
service provider, like Twitter, can, and is often best positioned to, assert its users? rights to
anonymity. Fitzgibbon cannot intrude on these rights without proving, among other things, that
unmasking these particular anonymous speakers is necessary to advance his core claims and
defenses?including by demonstrating that these speakers have highly relevant information that
Fitzgibbon cannot obtain elsewhere.
The Opposition confirms that Fitzgibbon cannot come close to satisfying this demanding
standard to unmask @DevinCow. Indeed, the Tweets that purportedly demonstrate @DevinCow?s
relevance, if anything, underscore that @DevinCow is embroiled in this dispute only because
@DevinCow is the defendant in another, unrelated state-court action in which Fitzgibbon?s
counsel represents a different plaintiff and has sought repeatedly, without success, to discover the
identity of the account holder of @DevinCow. Fitzgibbon has not demonstrated that @DevinCow
is even relevant to his case, let alone that he will be unable to pursue his claims against Radack
without unmasking @DevinCow.
Fitzgibbon?s arguments regarding his other requests are also meritless. He fails to address
Twitter?s arguments that the Stored Communications Act (?SCA?) prohibits it from producing a
user?s address book (Request 4) and Tweets, Retweets, Likes and replies (even redacted) in
response to a demand for communications containing certain words (Request 5). Nor does
Fitzgibbon address Twitter?s argument that the Subpoena imposes an undue burden in violation of
Federal Rule of Civil Procedure 45(d) by demanding that Twitter manually redact communications
between @JesselynRadack and other users that, once redacted, would be (at best) barely relevant
to his claims because they would show nothing more than the accounts from or to which each
message was sent and the time and date of each message (Request 6).
Moreover, recognizing that these three requests (Requests 4, 5, 6) seek Radack?s own
documents, Fitzgibbon concedes that he has other options. He could, for example, move to compel
the discovery he seeks from Radack. Fitzgibbon never explains why he did not pursue?and still
has not pursued?this less burdensome alternative.
Twitter points out that Biss appears to confuse the standards for 1st Amendment protections of anonymity with the 4th Amendment’s privacy protections:
Fitzgibbon errs in suggesting that the First Amendment provides no protection to
Twitter?s anonymous users because they ?have no reasonable expectation of privacy in their noncontent
subscriber information.? Opp. 54. Although that test may be relevant to a Fourth
Amendment analysis, it is not the First Amendment test for unmasking an anonymous speaker.
Rather, the applicable First Amendment test requires a litigant to prove, among other things, that
unmasking the anonymous speaker is necessary to advance his claims?including by
demonstrating that there is no other way for the proponent of the subpoena to obtain information
essential to his case…. That is true whether the anonymous speaker is
an actual (or prospective) defendant in the underlying litigation, or merely a potential source of
It also goes into more detail about the utter (or should that be udder?) nonsense involved in the opposition regarding @DevinCow and highlights (as I mention above) that the “evidence” of Radack and DevinCow communicating is almost entirely them tweeting after the subpoena was issued, which appears to be what first put them in touch.
Fitzgibbon has not come close to making the exacting showing necessary to unmask
@DevinCow. Fitzgibbon fails to show that @DevinCow has any evidence of Radack?s alleged
wrongdoing, let alone that @DevinCow is uniquely in possession of critically important evidence
on which the success of Fitzgibbon?s claims depends. See Ex. A (collecting all of the images of
Tweets that Fitzgibbon has put forward as allegedly showing a connection between @DevinCow
and Fitzgibbon?s case). Fitzgibbon does not dispute that the pleadings in his case never mention
@DevinCow. And he nowhere explains how either of the two screenshots his counsel previously
shared with Twitter?s counsel show that @DevinCow is a ?potential witness to Radack?s
breaches of the settlement agreement? or a ?participant in the conspiracy to defame? him. Opp.
53; see Ex. A at 4. As explained in Twitter?s opening brief, these Tweets involved unilateral
outreach by @JesselynRadack to @DevinCow, commenting on entirely different subject matter.
They do not suggest, even remotely, that @DevinCow was involved in, or witness to, any of the
alleged misconduct in the Fitzgibbon Litigation.
Nor do any of the four recent Tweets relating to @DevinCow highlighted in Fitzgibbon?s
Opposition suggest any connection between @DevinCow and Radack?s alleged defamation of
Fitzgibbon. All these Tweets were posted after Twitter had notified all of the users affected by the
Subpoena, and seem to have been prompted by the happenstance?created by Fitzgibbon and his
counsel?that the Subpoena seeks information from a group of Twitter accounts that includes
@JesselynRadack and @DevinCow. See Opp. 30, 35-36, 40, 41. Three of the four Tweets appear
to involve unilateral outreach from @JesselynRadack, or one of these other accounts, without any
statement or response from @DevinCow. See Opp. 30, 35-36, 40. In one, @DevinCow was
unilaterally ?tagged? (i.e., mentioned by account name) by the author of the Tweet along with
many other accounts whose information is also demanded by the Subpoena. See Opp. 35-36. The
remaining three Tweets refer to the fact that Fitzgibbon?s counsel (Steven S. Biss) also represents
Congressman Devin Nunes in a defamation action against @DevinCow (as well as several other
plaintiffs prosecuting other defamation suits). See Opp. 30, 40, 41. The possibility that
@DevinCow and @JesselynRadack may (or may not) have a reason to communicate with each
other about being targets of different lawsuits filed by the same lawyer hardly shows that
@DevinCow can provide testimony or information that is essential to the success of Fitzgibbon?s
claims. And even if @DevinCow did have some knowledge or information about Radack?s
alleged conspiracy, Fitzgibbon still could not satisfy the First Amendment standard because he has
not tried to compel Radack to produce that information and has not shown that unmasking
@DevinCow is truly necessary.
The primary case on which Fitzgibbon relies, Sines, 2018 WL 3730434, further
underscores that he cannot meet the First Amendment standard for unmasking @DevinCow. In
that case, the subpoena sought to discover the account information of an anonymous individual
who, according to credible evidence, had ?at [a] minimum? ?discussed preparations for the event?
that gave rise to plaintiffs? claims. Id. at *11; see also id. at *13 (?[D]iscovery from other
individuals involved in planning the ? event is highly relevant to understanding Defendants?
purpose and intent in organization it.?). The court concluded that ?[s]uch participation support[ed]
an inference that Doe could be a witness with information relevant to Plaintiffs? case.? Id. at *11.
Here, Fitzgibbon has not produced any evidence that @DevinCow even discussed Fitzgibbon with
Radack at all, much less that @DevinCow is a critically important witness to Radack?s alleged
conspiracy to defame him.
Let’s just say that one side in these filings comes across as a competent, well-reasoned legal argument. The other seems to be taking the throw as much shit at the wall and hope something sticks approach. Hopefully the judge in the case sees through the nonsense.
Oh, and Twitter even had time to respond to that bizarre “additional evidence” filing, noting that it’s meaningless regarding the issues at hand:
Just hours before Twitter?s deadline to file this Reply, Fitzgibbon filed a ?Statement of
Additional Evidence? that, he alleges, demonstrates his basis and need for the Subpoena?s
demands…. This ?additional evidence?
consists exclusively of what purport to be a series of Direct Messages pertaining to Fitzgibbon that
were supposedly exchanged between @JesselynRadack and an unidentified Twitter account
holder whom Fitzgibbon describes as a ?whistleblower.?… While Fitzgibbon says he
knows the identity of this ?whistleblower,? … he does not suggest that the
?whistleblower? has any connection to any of the Twitter accounts listed in the Subpoena (other
Fitzgibbon?s last-minute filing does not cure any of the Subpoena?s numerous defects.
Nothing in the filing demonstrates that the identity of @DevinCow (or @jimmysllama and
@Kaidinn, for that matter) is at all relevant to Fitzgibbon?s claims?let alone that he thinks he
needs to unmask these users to prove those claims. To the contrary, the filing indicates that
Fitzgibbon believes he already has sufficient evidence to prove Radack?s liability, and so, if
anything, confirms that Fitzgibbon has no such need.
Finally, Twitter once again suggests that the court should award Twitter its legals fees and costs:
Finally, Fitzgibbon offers no response to the argument that this Court should award Twitter
the fees and costs incurred in connection with its Motion under Rule 45(d)(1). Fitzgibbon?s
counsel?s offer to stipulate to a protective order does not dispel the inference of improper purpose
in his demand for identifying information for @DevinCow?a defendant in an entirely separate
lawsuit in which Mr. Biss represents the plaintiff. A protective order that limits disclosure to
counsel for the parties would still mean disclosing @DevinCow?s identity to one of the individuals
that has unjustifiably sought to invade the account?s anonymity: Mr. Biss, Fitzgibbon?s counsel.
And the inference of improper purpose is only strengthened by the complete absence of any
evidence that @DevinCow was involved in the events alleged in the pleadings of the Fitzgibbon
Litigation and Fitzgibbon?s concession that he could have?but has not?sought to compel
production of most of the demanded records from Ms. Radack herself. The Subpoena demands
the very same information that Mr. Biss has been seeking (so far, unsuccessfully) in an unrelated
action in Virginia state court. He should not be permitted to use this Subpoena to circumvent that
court?s management of ongoing discovery disputes. An award of fees and costs is needed to curtail
such abuse of the discovery tools.
Filed Under: adam parkhomenko, devin nunes, fishing expedition, jesselyn radack, steven biss, stored communications act, subpoena, trevor fitzgibbon