Update, Tuesday, May 26: Counsel for Fox News responded with a filing of their own, saying that lawyers for Seth Rich’s family “rush[ed] to Court” and wrongly accused the network last Friday of hiding documents and violating the Federal Rules of Civil Procedure:
The documents that Plaintiffs seek to compel consist entirely of attorney-client communications between Ed Butowsky and the attorneys representing him in two other lawsuits, including one filed by the Plaintiffs’ son, Aaron Rich. Because those documents appeared to be inadvertently-produced privileged documents, counsel for Fox News, consistent with our ethical obligations, inquired of Mr. Butowsky’s counsel in those matters whether he in fact intended to produce the documents as part of a production to Fox News. Counsel for Fox News advised Plaintiffs that we were awaiting an answer from Mr. Butowsky’s counsel and would also be willing to submit the documents to Your Honor for in camera review and guidance. Three hours later, Plaintiffs filed the instant letter motion, which was almost immediately picked up by a legal publication under the headline: “Seth Rich’s Family Accuses Fox News of ‘Hiding’ Documents and Breaking Federal Law.”
Regardless of Plaintiffs’ motive in rushing to file this letter—or in seeking to compel the production of attorney-client documents relating to their son’s litigation—their request is clearly meritless. Contrary to Plaintiffs’ assertion that Fox News is attempting to “hide” these documents and make “unilateral determinations about Butowsky’s privilege,” Fox News has (1) agreed to promptly produce all nonprivileged documents (and plans to do so this week) and (2) proposed submitting the privileged communications for in camera review. As Fox News advised Plaintiffs, it has twice contacted Mr. Butowsky’s lawyer and not yet received his response on how to address the seemingly inadvertent production of privileged communications. A response from that lawyer could easily resolve this dispute. Plaintiffs have not explained why they are unwilling to wait for the lawyer’s reply or why they have not considered contacting him, either directly or on a joint call with Fox News, before rushing to Court.
Read the filing here.
Joel and Mary Rich, the parents of deceased Democratic National Committee (DNC) staffer Seth Rich, want Fox News to turn over documents in an ongoing lawsuit–and they want them yesterday.
In a three-page motion filed Friday, the Rich family accuses the cable news network of “hiding” relevant documents and making “baseless” legal challenges to producing the requested information–saying their withholding of those documents “strikes at basic fairness.”
“Fox’s position is contrary to the law of privilege and the Federal Rules of Civil Procedure,” the filing goes on to allege.
The underlying issues here begin with the murder of Joel and Mary Rich’s son in the summer of 2016.
A conspiracy theory pushed by far-right elements posited that Seth Rich was gunned down at the age of 27 in Washington, D.C. over his alleged but never once substantiated connection to the 2016 DNC email scandal. To hear the baseless talkers tell it, Rich provided Wikileaks with a tranche of damaging DNC emails and was subsequently taken out to keep quiet–or something to that effect.
The wild suppositions made their way across social media for awhile via their own momentum and later ramped up after the Rich family–by way of sidelong outside machinations–enlisted the help of third-party investigator and former homicide detective Rod Wheeler.
On May 17, 2017, Fox News seemingly legitimized some aspects of the conspiracy theory by publishing a Malia Zimmerman story titled, “Seth Rich, slain DNC staffer, had contact with WikiLeaks, say multiple sources.”
The first paragraph of that piece laid out the thesis:
The Democratic National Committee staffer who was gunned down on July 10 on a Washington, D.C., street just steps from his home had leaked thousands of internal emails to WikiLeaks, law enforcement sources told Fox News.
Less than a week later, the story was retracted and Fox News issued a statement in its place saying the piece “was not initially subjected to the high degree of editorial scrutiny we require for all our reporting” and had “since been removed.”
A slew of interested parties filed competing legal claims which eventually culminated in various cases–including the current controversy before the U.S. District Court for the Southern District of New York which names Fox News as a defendant.
A separate–though somewhat factually related–lawsuit was filed in the U.S. District Court for the District of Columbia by Aaron Rich, Seth Rich’s brother. The other lawsuit, which is an ongoing flashpoint of hot-button First Amendment issues, tangentially implicates the cable news channel but does not name Fox as a defendant.
GOP donor and Fox News guest Ed Butowsky, one of the defendants in the D.C. court case, is widely believed to be the impetus behind the network’s since-retracted story. He’s also definitely the person behind Wheeler offering his services to the Rich family in order to investigate their son’s tragic death.
According to Joel and Mary Rich, Fox News has refused to share discovery documents–provided to the network by Butowsky–with them.
“The dispute concerns Defendant Fox’s refusal to provide Plaintiffs with documents produced to Fox—but not to Plaintiffs—by defendant Ed Butowsky in this case,” the Friday motion notes. “The parties last conferred on this issue on May 22, 2020 and were unable to resolve the dispute.”
“Plaintiffs first learned that Butowsky produced documents to Fox in this litigation when the parties were preparing the status update submitted to the Court on April 24, 2020, over one month after Butowsky produced the documents on March 20, 2020,” the filing continues. “Fox told Plaintiffs and the Court that Butowsky had produced documents to Fox that he had previously produced in related litigation, where he is represented by counsel.”
According to the motion, in late March Fox said those requested documents at first appeared to be largely duplicative of other documents but insisted they were working on resolving the issues. Nearly a month passed, however, and the Rich family repeatedly inquired about the holdup. Fox eventually replied that, after consideration, some of the documents “appeared to be privileged communications with [Butowsky’s] attorneys in another case.”
“We are awaiting a response from Mr. Butowsky’s counsel in that matter as to how he wishes to handle this issue,” Fox said on May 18.
The Rich family “responded on May 19, 2020 that it was improper for Fox to withhold documents from Plaintiffs purportedly on the basis that Fox believes the document Butowsky produced in a different case where he is represented by counsel may be privileged” and “requested that Fox provide the documents immediately.”
“The parties conferred on May 22, and Fox again declined to produce the document,” the motion notes.
The filing goes on to savage the network for allegedly failing to abide by the Federal Rules of Civil Procedure (emphasis in original):
It is highly improper for Fox, having received documents produced in this litigation, to hide those documents from Plaintiffs. Period. Fox’s withholding of Butowsky’s documents based on Fox’s unilateral determinations about Butowsky’s privilege makes no sense. Butowsky should have produced these documents to Plaintiffs (whose discovery requests to Butowsky long preceded Fox’s) when he produced them to Fox. Instead, Butowsky (and his counsel in other cases) has consistently told Plaintiffs that he is unable to respond to any discovery requests, including Plaintiffs’ requests that he produce the exact documents at issue here – documents Butowsky already produced in other litigation.
“Fox claims that it is entitled first to unilaterally curate Butowsky’s discovery based on its determinations about Butowsky’s privilege,” the filing continues. “This is not only baseless, but Fox’s hiding of produced documents strikes at basic fairness.”
Law&Crime reached out to Fox News for comment on this story but no response was forthcoming at the time of publication.
Read the full filing below:
[Image via Drew Angerer/Getty Images.]
Editor’s note: this piece has been corrected to reflect that Butowsky was an unpaid Fox News guest. A prior version incorrectly stated that he was a contributor.
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