Devin Nunes's Cow Family F---ed Around, Is Finding Out Big Time
The thing about suing someone for defaming you by implying that you hired undocumented farm workers is that there's a high probability that you're going to have prove under oath that you didn't actually hire undocumented farm workers. This should have occurred to Devin Nunes's family before they sued reporter Ryan Lizza and Hearst Media demanding $77 million for defamation over a 2018 Esquire article describing Lizza's adventures in Sibley, Iowa, where he was tailed all over town by the California representative's family, including the congressman's brother Anthony Nunes III, who told Lizza, "I'm taking your license plate down and reporting you to the sheriff," adding later, "If I see you again, I'm gonna get upset."
But the discovery process appears to have come as a shock to the family, and also to their razzledazzle libelslander lawyer Steven Biss, of slapdick SLAPP suit infamy.
Since early spring, the media defendants have been trying to depose employees at NuStar Farms, the Nunes family dairy, to determine their immigration status. After first accepting the subpoena on the employees' behalf, Biss remembered that he didn't represent them after all. Oooopsie!
Then, on May 12, the parties convened a deposition to question the employees and examine their employment documents, at which point all hell broke loose — although the details of this litigation inferno were obscured in this heavily redacted motion to compel the plaintiffs to cut the shit and let the defense depose the farm workers.
I wrote about it at Above the Law in May:
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.
Biss responded in typical Biss fashion, filing a motion accusing the defense counsel of harassing NuStar employees and seeking to harm the Nunes family business. He also insists that he never claimed to represent those employees, despite his agreement in a May 6 email to accept subpoenas on their behalf. In this same email, he also wrote to defense counsel, "Finally, your ex-Marshall continue to sniff around Sibley. Please remind them that we are watching everything." So perfesh, bro!
Yesterday, US Magistrate Judge Mark Roberts gave us some visibility on what went down at that crazy deposition. Apparently, Biss never told the witnesses about the subpoena he'd signed for, so they showed up without the documents. Which is ... well, let's just say it's not a plus on your legal resumé.
NuStar did get separate counsel for the employees, and that lawyer, Justin Allen, advised his client to take the Fifth as soon as the defense started asking pointed questions about his immigration status. At which point, Biss practically leapt across the table and demanded to "go off the record for just a minute."
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 [dairy worker 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.["]
So Biss threw a fit when the witness's lawyer did his job and told his client to shut the hell up about his immigration status, hauled them both off into the other room, and somehow the witness has no lawyer now?
Judge Roberts described it thusly:
Here, the problem is at least the appearance of an attorney pressuring a witness not to assert a privilege and effectively canceling the deposition to obtain that result. I make no finding based on this record that such pressure did, in fact, occur. Nevertheless, the record lends itself to the appearance that [F.S.D.] may have been subject to pressure not to independently assert his rights.
Ya think? It would be inappropriate to speculate on the immigration status of an unidentified witness, but I can't help but notice that Biss's own motion goes to great lengths to point out that "the mere receipt of a no-match letter or other no-match notice [from the Social Security Administration] does not, standing alone, constitute 'constructive knowledge' on the part of an employer that the referenced employee is not work authorized." That's in a sea of black redaction bars about the defendants' subpoena of NuStar employment verification records from the SSA, so ... ¯\_(ツ)_/¯
But wait, there's more!
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.
Oh, Counselor Jennifer. She's super highly rated, one of the best in the country. You wouldn't know her.
In yesterday's order, Judge Roberts declined to appoint counsel for the witnesses, although he left the possibility open if it appears that the plaintiff is putting inappropriate pressure on "Jennifer" to stop her client from answering questions. He also declined to accede to Biss's request that "Jennifer" be barred from communicating with the defense team, lest she be bullied and intimidated by those big city lawyers.
But is the Nunes family any closer to that pot of gold at the end of the litigation rainbow? Only "Jennifer" knows, and she's pleading the Fifth. Allegedly.
[Nunes v. Lizza, docket via Court Listener]
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Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.