Late last year, I wrote about an abusive subpoena that California Congressman Devin Nunes was pursuing in Virginia state court, seeking to identify the owner of a satirical Twitter account that makes fun of Nunes, referring to his family history in dairy farming, by using the Twitter handle “@Devin Cow” and including various puns referring to cow body parts, cow noises, and cowboys. We filed an amicus brief urging the state court judge to use the Dendrite standard to decide whether to compel Twitter to identify Nunes’ online detractor, and arguing that there was no basis for overcoming the Cow’s right to parody anonymously. The motion to quash that subpoena is still pending.
Nunes’ lawyer, Steven Biss, has recently tried another route to achieve the same objective. He is representing a communications specialist based in North Carolina named Trevor Fitzgibbon, who has been engaged in a protracted dispute with a Washington, D.C. lawyer named Jesselyn Radack who is, in turn, one of several women who have accused Fitzgibbon of untoward sexual conduct. Their first round of litigation, filed in the Eastern District of Virginia even though neither side lives there, ended in a harsh settlement that included a six-figure payment by Radack to Fitzgibbon as well as a clause forbidding each to talk about the other publicly. Fitzgibbon has again sued Radack in the Eastern District of Virginia, accusing her of breaching the settlement agreement, of fraudulently inducing him to sign that agreement in the first place, and of defamation. The complaint charges Radack with conspiring with various other people to defame Fitzgibbon, but only Radack is named as a defendant. Radack has counterclaimed against Fitzgibbon, making much the same accusations of breach of contract, fraudulent inducement, and defamation.
Although Fitzgibbon and Radack are entitled to their mutual antagonism, and to slug it out in federal court if they must, it is the abuse of the subpoena power that engages our attention. Supposedly for the purpose of pursuing his claims against Radack, Biss has served yet another subpoena on Twitter, claiming the right to be provided with identifying information about the owners of some twenty-two Twitter accounts.
Most of these accounts have been used to take part in the online discussion of the Fitzgibbon/Radack charges and countercharges, but the Twitter account holders are not named as defendants in the litigation. Fitzgibbon’s papers strongly suggest that he resents the participation of these Twitter users, and that he believes that some tweets have wrongly taken Radack’s side against him. However, but the asserted purpose of the subpoena is not to bring them into the litigation as defendants but only to ascertain whether they have information that he can use to establish Radack’s liability or to increase the level of damages he can seek.
The 2theMart Standard
Given that stated purpose, his subpoena is not subject to the Dendrite standard, but rather to a somewhat older, but less used standard, first adopted in a federal court decision from Seattle called Doe v. 2theMart, that governs subpoenas seeking to identify anonymous online speakers so that they may be asked to provide evidence in cases in which they have not, themselves, been accused of wrongdoing. The question presented by this new subpoena is whether a party to an online controversy can, simply by suing one detractor whose online statements are strongest and, perhaps, most susceptible to litigation, successfully sweep into the maw of the litigation everyone else who discusses the controversy online, just by saying that they are potential witnesses who must be interrogated about how they came to form their online opinions and whether they ever have communicated with each other privately. Needless to say, if that were enough reason to compel the identification of online speakers, the result could be a significant level of deterrence against participation in online discussions. An exhibit to our filing is an affidavit from one the Twitter account holders sought by the subpoena, explaining why she is afraid of having her information revealed.
Yet another one of subpoena targets, though, is @DevinCow, who has never said anything about Fitzgibbon, at least so far as we could see from Fitzgibbon’s brief. That Twitter user’s only involvement with the controversy appears to be Radack’s having expressed appreciation for something that @DevinCow said in a tweet; Radack's having listed the lawsuit against @DevinCow as one of a large number of lawsuits filed by Steven Biss that she considers abusive; and Radack’s speculation that a conservative Silicon Valley investor may be financing all of Biss’s litigation campaign. Considering the limited basis for identifying @DevinCow as a witness in the Fitzgibbon/Radack litigation, there is a good reason to infer that Biss maybe abusing his ready access to the federal court discovery process to attempt an end run around the roadblocks he has encountered to identifying @DevinCow in the state court litigation. And the 2theMart standard, unlike Dendrite, calls for explicit consideration of whether the subpoena has been served in good faith.
We have now filed an amicus brief urging that the very fact that Fitzgibbon’s attorney has included a demand for identification of @Devin Cow who seems to have little bearing on the Fitzgibbon / Radack quarrel, but who is a defendant in another lawsuit entirely, could be reason enough to condemn the subpoena as a product of bad faith. We also explain why the trial court should adopt the 2theMart standard and explain how it should be applied in this case even apart from the highly suspicious aspect of the subpoena aimed at @DevinCow.
As with our previous amicus brief in the Nunes litigation itself, I am grateful to Matt Kelley of Ballard Spahr for participating as Virginia co-counsel on the amicus brief.