Government

Nunes Family Defamation Suit Goes Udderly Off The Rails

Don't have a cow, man!

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Devin Nunes and his sparklemagic libelslander lawyer Steven Biss took their SLAPPstick clown show to Iowa last week, all but chewing the furniture during a deposition in the Nunes family’s defamation case against reporter Ryan Lizza and Hearst Magazines.

In 2018, Hearst published an article in Esquire by Lizza entitled Devin Nunes’s Family Farm Is Hiding a Politically Explosive Secret which implied that the congressman’s family dairy might have employed undocumented immigrants. Apparently unaware that they’d have to verify the falsity of this claim before collecting damages, the Nunes family sued in January of 2020. Since then, Biss and the Nunes plaintiffs have attempted to extract all of Lizza’s reporting materials, while simultaneously seeking to block depositions of NuStar Farms’ employees and avoid disclosure of the company’s employment records.

They also dropped subpoenas on Fusion GPS of “dossier” fame, on the apparent theory that Lizza was put up to the story by the congressman’s arch nemesis. It just makes too much sense!

Last week, the congressman, who is not a party to the case, was deposed by Hearst’s lawyer, Jonathan Donnellan. At the conclusion of his questions, Biss attempted to play a recording of Lizza’s conversations with sources, despite the fact that said recordings are covered by a court-imposed protective order.

“I’m going to end the deposition,” Donnellan said, when Biss refused to back down, insisting that Donnellan asking the congressman if he’d heard the tapes effectively unsealed them for purposes of the deposition.

“Why don’t you want him to hear what’s on the tapes? What are you afraid of?” Biss demanded belligerently.

At which point Nunes himself, never one to let someone else be the most aggressive numpty in the room, jumped in.

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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 sat 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.

Who the hell do you think you are?

Again let us note that Mr. Nunes is a non-party to this case. And a non-lawyer.

Noting that disclosing the material would violate the court’s protective order, Donnellan threatened to move for sanctions and contempt if it were disclosed at the deposition, suggesting that Biss and his clients seek approval from the court if they want the material unsealed.

“This witness has a right to know what’s on those audiotapes, just like the public does,” Biss shot back, promising to file his own motion for sanctions.

After several more minutes of hooting and hollering, the deposition ended without the protected material being disclosed. But Biss did make good on his threat, filing this bananapants motion to compel discovery, in which he described it as “unethical” to object to disclosure of protected materials. He did not, however, move to unseal the materials themselves.

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“It violates every tenet of the Federal Rules of Civil Procedure and the First Amendment,” Biss moaned. And, lo, lightning did not strike him there on the spot.

“Hearst and Lizza know what is on those audiotapes. They know the truth. This was an intentional effort to obstruct discovery and to conceal material facts from a witness,” he wrote.

Which is rich coming from a lawyer who was just benchslapped by the judge for his own inappropriate behavior at a deposition of NuStar employees, at which Biss himself shut down the proceedings when deponents attempted to invoke their Fifth Amendment rights.

As we described it at the time:

In an apparent attempt to bollix up depositions of NuStar employees, Biss first asserted that it was illegal to depose them, then claimed to represent the witnesses as employees of the dairy and agreed to accept service of process. At the deposition itself, he decided he did not represent them after all, but then disrupted the proceeding in some fashion so shocking that it is being blacked out of the court filing.

The employees’ testimony as to why they showed up for the deposition without the subpoenaed documents is redacted, but it immediately precedes a section captioned “The Court Should Direct Plaintiffs’ Counsel to Abide by Federal and Ethics Rules.”

It appears that something outrageous or possibly outright criminal happened at that deposition, justifying imposition of an extreme remedy by the court.

The court declined to impose the requested sanctions, but it did order Biss to let the employees’ counsel do their job without interference and instructed him in no uncertain terms that the Federal Rules of Civil Procedure are not suggestions.

Meanwhile, it appears we’re not the only ones who noticed that something crazy is going on here. Professor Eugene Volokh of UCLA’s First Amendment Clinic has filed a motion to intervene, seeking to unseal the unredacted versions of the motions relating to whatever crazy shit went down before, during, and after that deposition.

Fun times!

Nunes v. Lizza [Docket via Court Listener]

Elizabeth Dye lives in Baltimore where she writes about law and politics.

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