When Devin Nunes’s family sued Hearst Media and Ryan Lizza over a 2018 Esquire article entitled Devin Nunes’s Family Farm Is Hiding a Politically Explosive Secret, they seem not to have understood that a whole lot of their secrets might wind up coming out in litigation.
The California congressman and his family, which owns a dairy farm in Iowa, both filed defamation complaints against Hearst and Lizza over the reporter’s story about getting chased around the town of Sibley when he tried to report on the family business, NuStar Farms. Devin Nunes’ claim was dismissed, since he could hardly claim injury from allegations about his a business he had no stake in. But his father Anthony Nunes, Jr. and brother Anthony, III, as well as NuStar itself have one surviving claim for defamation arising out of Lizza’s suggestion that the dairy might have employed undocumented immigrants.
The case has been a spectacular shitshow with fireworks to rival the Iowa State Fair thanks to SLAPPhappy libelslander lawyer Steven Biss, whose most recent antics include attempting to play a sealed recording of Lizza’s interview with a witness during a deposition of Devin Nunes.
A partial transcript of that deposition was published on the docket when Hearst moved for sanctions on Biss. And even more of it was made public yesterday when Hearst failed to successfully redact a motion to compel discovery on the question of who exactly is paying Biss to chew the furniture in this case.
As Business Insider was first to note, simply copy-pasting the redacted passages from the motion removed the black bars. Which is how we know that Anthony, III testified that the family’s total legal expenditures thus far amount to $500 paid to local counsel Joe Feller.
“[W]ho is funding the lawyers for this lawsuit?” asked the lawyer running the deposition.
“I have no idea,” the younger Nunes responded.
His wife Lori Nunes confirmed that the family has very little to do with the case, and the pair agreed that they’d played no role in answering interrogatories and seemed unaware that Hearst had obtained NuStar’s Social Security records. Anthony, III went so far as to testify that he wasn’t interested in receiving any money, despite being party to a suit seeking $25 million in damages.
As Hearst noted in the motion, “The record is replete with evidence that Plaintiffs are not controlling or directing this lawsuit and that the range of relief sought does not advance the interests they articulate.”
But there is one person who seems to be taking quite an active interest in the case, despite not being party to it …
“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,” Rep. Nunes shouted when Hearst’s lawyer Jonathan Donnellan shut down his deposition rather than allow Biss to introduce sealed evidence.
“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,” he ranted. “Who the hell do you think you are?”
Thanks to Donnellan and his team’s redaction screw up, we know that Nunes also bragged about teaming up with Biss to file a raft of garbage defamation lawsuits.
“[A]nd now my policy is, and I have a new policy, that if you defame or slander me, I take you to court,” he said.
Hearst suggests that the real interested party here may be Nunes himself, in which case the plaintiffs must satisfy the “actual malice” standard for public figures from New York Times v. Sullivan.
The issue of third-party litigation funding raises a multitude of questions about Plaintiffs’ public figure status and whether they injected themselves or were drawn into a public controversy or matter of public concern through their relationship to Congressman Nunes, by a willingness to share control and proceeds of a libel claim with others, or even through inserting themselves into an orchestrated campaign of suing the press in concert with their son/brother and the lawyer they share with him.
Noting that US District Judge Charles J. Williams previously “expressed reservation about the discoverability of third-party litigation funding information,” Hearst argues that Plaintiffs may be in violation of Federal Rule of Civil Procedure 17(a)’s mandate that “[a]n action must be prosecuted in the name of the real party in interest.”
“Plaintiffs admit making no payments to Biss for his services in this lawsuit, and presumably Biss does not work for free,” the Defendants write. “This prompts the question of whether Plaintiffs are the real party in interest, particularly if they do not stand to materially benefit from its outcome.”
We’re not going to speculate on the value of Counselor Sparklemagic Libelslander’s legal work here [cough cough]. But a quick glance at Rep. Nunes’s annual financial disclosure does not suggest a deep reservoir of cash to fund endless rounds of litigation. Brass tacks: he’s not Peter Thiel, and no one is going to mistake Steven Biss for Charles Harder.
But someone is paying for this goat rodeo. And if Judge Williams grants this motion to compel, we might just find out who it is.
Nunes v. Lizza [Docket via Court Listener]
Elizabeth Dye lives in Baltimore where she writes about law and politics.