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.
Welp. I just received a letter from Twitter’s legal team notifying me that Devin Nunes’ attorney Steven S. Biss has subpoenaed Twitter for my DMs.
If any attorneys out there want to help me file a motion to quash I’ll buy you a vegan doughnut.
How’s your Friday going?
— The Sparrow Project (@sparrowmedia) January 25, 2020
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.
Biss and Fitzgibbon’s abusive targeting of Radack is compounded by their abuse of the discovery process which they’ve turned into a dragnet of influencers with no connection to Radack like @DevinCow, @RVAwonk, @AdamParkhomenko, @jimmysllama and @charliearchy (redactions by me). pic.twitter.com/nZPC8Gl223
— The Sparrow Project (@sparrowmedia) January 25, 2020
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.