Attorneys representing Twitter this week demanded that Rep. Devin Nunes’s (R-Calif.) attorney Steven Biss pay for the legal fees incurred by the company in responding to a subpoena demanding the personal details and direct message history of @DevinCow, the satirical Twitter account purporting to be one of Nunes’s cows.
While Nunes is currently suing Twitter in Virginia–one of several active frivolous lawsuits–the subpoena for @DevinCow’s identifying information was issued by Biss in a completely unrelated case with seemingly no justification.
The subpoena seeking the identifying information stems from a lawsuit filed by former public relations executive Trevor Fitzgibbon, who is suing a former colleague named Jesselyn Radack. He claims Radack falsely accused him of sexual assault. The only relation between Fitzgibbon’s case and Nunes’s case is that Biss represents both plaintiffs.
In a scathing 24-page motion to quash the “defective and unlawful” subpoena, Twitter’s attorneys identify multiple reasons why they would be barred from complying with the demand, even if it were pertinent to the case.
The motion began by pointing out that unmasking an anonymous Twitter user and providing their personal data would violate both the First Amendment and the federal Stored Communications Act, both of which Biss already knew because they were the reason his discovery requests were denied in the Nunes lawsuit.
Then Twitter’s attorneys went on the offensive.
“But the Subpoena is not merely defective and unlawful. One of its demands–for identifying information about the Twitter account @DevinCow–also appears to have been made for an improper purpose: to end-run around discovery disputes in an unrelated lawsuit,” the motion stated.
Twitter’s attorneys did not stop there:
Nothing about the Fitzgibbon Litigation suggests that the @DevinCow account is in any way relevant to its claims or counterclaims–indeed, no reference to the account appears anywhere in any pleading. The anonymous speaker @DevinCow, however, has been named as Twitter’s co-defendant in another, unrelated state-court action in which Fitzgibbon’s counsel, Mr. Steven S. Biss, represents a different plaintiff. Mr. Biss has repeatedly sought in that other action, without success, to force Twitter and others to disclose information that might bear on the identity of @DevinCow, i.e. the very same information he is now demanding from Twitter through the Subpoena at issue here. The Subpoena’s demand for @DevinCow’s account-opening information thus appears to be an attempt to bypass the discovery process in Nunes. Such gamesmanship heightens the need for this Court to swiftly quash the Subpoena.
Biss apparently attempted to shoehorn in the relevance of the subpoena by claiming that Radack and @DevinCow had communicated privately but refused to share any evidence to support the allegation other than screenshots of her “liking” or retweeting posts from the account.
“Since the outset of that case, Mr. Biss has fought repeatedly — and unsuccessfully — to unmask the identity of the person(s) speaking anonymously through the @DevinCow account,” Twitter’s attorneys continued. “And now, Mr. Biss is trying to use a federal court subpoena to effectively short circuit the Virginia state court’s ability to properly address and resolve those still-ongoing discovery disputes in the context of the Nunes case.”
The motion urged the court to force Biss to reimburse Twitter for any fees and costs associated with their response, saying the subpoena was issued in “bad faith, for an improper purpose.”
Read the full motion below:
[image via ANDREW CABALLERO-REYNOLDS/AFP via Getty Images]