from the you did what now? dept
The saga of Devin Nunes’ family’s lawsuit against reporter Ryan Lizza and Esquire Magazine got even more bizarre last week. Back in June, we had written about some heavily redacted documents in the case that suggested that Nunes’ lawyer, Steven Biss, was playing some very dangerous games in order to try to keep the employees of the NuStar Farms (owned by Nunes’ relatives) from testifying as to their immigration status. As you may recall, the only part of the lawsuit that was still going on were defamation claims regarding the implication that the farm might employ undocumented workers, which would be noteworthy, considering Devin Nunes hardline stance on immigration.
As we covered back in June, after first making it difficult to set up a deposition with the employees, when that deposition finally occurred, the lawyer for the employee recommended he take the 5th, at which point Biss (who was not representing the employee) paused the deposition for quite some time, before insisting that the employee would not take the 5th. From the filing:
Defendants noticed the
depositions of six of Plaintiffs’ current employees and had them served with subpoenas
duces tecum that required them to bring identification to their depositions. Plaintiffs’
counsel, Steven S. Biss, accepted service of the subpoenas on behalf of the employees,
but Plaintiffs arranged for separate counsel, Justin Allen, to represent the deponents.
F.S.D. was the first such witness to be deposed on May 12, 2021.
While Defendants’ counsel was questioning F.S.D. about his purported signature
on various documents, Mr. Allen stated, “I’ve advised my client to invoke his Fifth
Amendment right regarding questions about this document. [F.S.D.] — ” (Doc. 103-8
at 20 (Dep. pp. 71-72).) Mr. Biss then interrupted stating, “Hold on. Hold on. Can we
go off the record for just a minute? I’d like to talk to Justin before we do this.” (Id. (Dep.
p. 72).) 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.
I am not going to allow [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.
(Id. at 21 (Dep. pp. 74-75).) 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.
Still, much of the information remained redacted. Law professor Eugene Volokh filed a brief asking the court to unseal some of the documents in the case, and late last week the court agreed. So now we get to see a lot more, and as Elizabeth Dye at Above the Law points out, the new details show that this lawsuit “is even grosser than expected.”
The newly unredacted documents highlight the evidence Hearst has found, through the discovery process that at the very least strongly calls into question the immigration status of employees of NuStar Farms. Considering that’s the only issue left in the case, it seems quite incredible that the farm and Nunes’ family would continue to push this lawsuit — though, as other recent filings have shown, it’s unclear how much Nunes’ family actually knows about the lawsuit that was filed in their name. A failed deposition redaction notes that family members admitted to not knowing who was paying for the lawsuit, and that they weren’t looking for any money in return (even though the lawsuit requests $25 million).
According to the filing:
In addition, Plaintiffs’ apparent lack of investment in prosecuting their own lawsuit was
buttressed by their deposition testimony admitting they have not incurred out-of-pocket
payments to counsel, with the exception paying $500 to former local counsel Joe Feller, and their
document production of financial records indicating the same lack of payments to counsel for
costs or fees, save the payment to Feller. Consider further that Plaintiff Anthony Nunes III,
testifying as the 30(b)(6) corporate representative of NuStar, answered the question “[W]ho is
funding the lawyers for this lawsuit?” with “I have no idea.” NuStar 30(b)(6) Anthony Nunes III
Plaintiffs have had little involvement in the prosecution of their own case. See NuStar 30(b)(6)
Corporate Rep. Tr. at 10:9-15:18 (corporate representative testifying that he never saw the
30(b)(6) topics and did not prepare); Lori Nunes Tr. at 185:3-22 (testifying that she did not
review SSA records ordered to be produced to Plaintiffs); Anthony Nunes, III Tr. at 303:8-
308:11 (same); Anthony Nunes, Jr. Tr. at 97:13-100:15 (same); Lori Nunes Tr. at 117:23-124:9
(testifying that she did not know where information in interrogatory response came from but
suspecting it came from counsel); see also Toni Dian Nunes Tr. at 86:10-89:17, 112:25-116:6
(testifying that she never saw subpoena directed to her and accepted by Plaintiffs’ counsel and
that some records produced in response were not actually hers).
And yet the case pushes forward on the issue of the immigration status of the employees of the farm, and the formerly redacted, but now unsealed, bits of Esquire’s filing are incredibly eye opening and would make most people question why this lawsuit is being fought in the first place. From the now unsealed filing:
To defend against those allegations, Defendants obtained in discovery from NuStar records concerning its hiring of workers. These include (i) USCIS Forms I-9 and accompanying employee identification cards for most current and former employees, and (ii) two “No-Match letters issued to NuStar by the U.S. Social Security Administration (“SSA”)… Defendants also obtained from the SSA, pursuant to this Court’s order… a chart indicating whether or not the Social Security Numbers (“SSNs”) that the workers provided to NuStar matched the SSA’s records…
Those documents demonstrate that the six subpoenaed NuStar employees—who were employed by NuStar before, during, and after the article was published, according to NuStar’s verified response to Interrogatory No. 1, could have criminal exposure under 8 U.S.C. §1324c, and that their testimony may incriminate them. What follows is a small sampling of the reasons.
First, the SSA responded that the Social Security numbers reported by NuStar as associated with each of the subpoenaed employees does not match the SSA’s records…. This authoritative, self-authenticating document from the United States Government confirms that the SSA has no record of having issued to these workers the SSNs that NuStar recorded at the time of hire.
Second—and consistent with this—NuStar received letters from the SSA in 2019 (for tax year 2018) and 2020 (for tax year 2019) notifying them that the majority of SSNs provided on their employees’ Forms W-2 did not match the government’s records. That is, in 2018, 20 out of
27 employees came back as a “no match,” and in 2019, 14 of 19 came back as a “no match.”… Those letters stated that NuStar could use a free
online portal to learn which employees’ numbers did not match, and to thereafter follow up with
the respective employees to correct the errors on the W-2 forms…. This is important if the
employees are here legally, as otherwise the SSA will not be able to accurately account for their
Social Security benefits. Tellingly, Plaintiffs did not produce any documents indicating they had
Third, the Forms I-9, social security cards, and identification documents are, in many
instances, insufficient and/or fraudulent on their face. This was on stark display in the (yet-completed) deposition of [REDACTED], the first NuStar employee to testify.
As AboveTheLaw notes correctly, having a No Match letter does not mean that an employee is an undocumented immigrant. But, it certainly raises some questions about their documentation. And, if the Nunes family’s main concern about the Lizza article was it suggesting the farm might have employed undocumented workers (which, to be clear, the article never actually says — it merely highlights how the industry relies on undocumented workers, and it is quite common for such undocumented workers to be employed on farms around the Nunes’ farm), perhaps the dumbest move Nunes and family could make is to sue for defamation over those very claims. Because unlike an old Esquire article that doesn’t actually accuse the farm of hiring such workers, now (1) it’s definitely in the news again, and (2) there’s more evidence coming, and what’s been shown so far does not look good at all.
Indeed, the filing goes even deeper in raising serious questions about the documentation status of NuStar’s employees.
On his I-9, bearing a date in 2007, [REDACTED] stated that he was a United
States citizen…. However, before his attorney (from the Brown
Winick firm in Des Moines, who met his client for the first time that day) advised him to invoke his Fifth Amendment right, [REDACTED] testified that he was not a United States
citizen and, instead, was and is a legal permanent resident holding a government-issued green
card…. This, of course, suggests [REDACTED]
made a false statement under penalty of perjury on his Form I-9.
Moreover, Section 2 of the Form I-9 is not filled out by the employer, and the signature
on the Form I-9 does not appear to match the signature on the produced 2017 Form W-4 for [REDACTED]
…. This raises questions as to how [REDACTED], who does not read English, was able to complete the form without assistance, and
whether someone at NuStar completed it for him without disclosing that fact as required on the
form itself. These are questions Defendants’ counsel intended to explore, until [REDACTED]
counsel from the Brown Winick firm instructed his client to assert his Fifth
Most significantly: The resident alien card that [REDACTED] proffered to
NuStar in order to gain employment is, on its face, fraudulent. [REDACTED]
proffered card states that his class of admission to the United States is “W16.” … “W16” is limited to persons who entered the United States without inspection
prior to January 1, 1982, and were subsequently granted legal permanent resident status. See
Dep’t of Homeland Security, Immigrant Classes of Admission,
visited May 15, 2021); … However, date of birth, as
stated on his proffered card and as he testified, is [REDACTED]…. It is impossible for [REDACTED] to have been
granted permanent resident status under the W16 class of admission, as he was born almost three
years after the cut off for that class.
If the entire case hinges entirely on whether or not Lizza had no basis to believe that the farm employed undocumented workers, this is… probably not the way to make that case.
Also unsealed was Steven Biss’s response to this filing, claiming that none of the above matters:
The fact that the social security numbers reported by NuStar did not match
the SSA’s records is irrelevant. Inclusion of a worker’s name on a no-
match letter makes no statement about the worker’s immigration status.
Mismatches can result from a variety of reasons, including typographical
errors (misspellings), clerical errors, mis-transposition of a number, an
incomplete W-4, mistakes by the SSA, name changes, fraud/identity theft.
There’s also a lot of table pounding about how (1) the article is false and quotes were “fabricated” by Lizza, (2) that none of the documents suggest the employees are undocumented or face criminal exposure, (3) that the only “misconduct” was from Lizza and Hearst, and (4) all of this is intended to “harass” the plaintiffs. You can read the filing for yourself at the link above or embedded below, but to me they are wholly unconvincing. The filing also insists that (1) Biss and NuStar are not pressuring its employees to not take the 5th, and also that (2) they “will not assert the Fifth Amendment or refuse to answer any questions.” That seems quite odd given that the one transcript that has been released certainly showed the then lawyer of the employee suggesting the employee assert his 5th Amendment rights.
Esquire and Lizza then responded with the now unsealed document suggesting that the court really ought to appoint “competent, independent counsel” to represent the employees of NuStar farms.
Eventually the court mostly sided with Hearst and Lizza, noting that there was no harassment here:
During the deposition, Defendants’ counsel was asking
questions about documents such as a bond F.S.D. had posted and a traffic ticket he had
received that bore his signature. Mr. Biss made a lengthy speaking objection claiming
this was harassment…. Here, where the identity and
immigration status of the employees is a central issue, it is not harassing or irrelevant to
ask questions about such documents. In the context of this case, it is not conducive to
obtaining truthful answers from an employee such as F.S.D. to have his employer’s
lawyer making lengthy, animated objections to those questions
Similarly, the magistrate judge seemed at least somewhat concerned about Biss’s actions:
The most puzzling and troubling aspect of Mr. Biss’s explanation, however, is the
representation that he “sought a sidebar with counsel for the witness to determine whether
the witness wanted to take the Fifth Amendment.” (Doc. 107 at 10.) This two-hour
“sidebar” occurred immediately after Mr. Allen stated, “I’ve advised my client to invoke
his Fifth Amendment right regarding questions about this document.” (Doc. 103-8 at 20
(Dep. pp. 71-72).) Normally, one would expect the lawyer for a deponent to be in the
best position to ascertain whether the deponent desires to assert a privilege. There is no
record of the sidebar, only Mr. Biss’s protestations that the employees are not being
pressured regarding their rights under the Fifth Amendment. Mr. Biss makes bald
assurances that the employees want to answer all questions and not assert their Fifth
Amendment rights. Nevertheless, Mr. Biss’s behavior—coupled with the facts that (a)
the privilege was raised, (b) the privilege was perhaps withdrawn after a lengthy sidebar,
and (c) Mr. Allen was fired—gives me little confidence that F.S.D. could make a knowing
waiver of his Fifth Amendment rights under these circumstances.
The court, however, initially declined to appoint a lawyer for the employees, because Biss insisted that one had already been found for them, though he could not name her beyond “Jennifer.” The hearing transcript is quite incredible on this:
THE COURT: However, I understand that in this circumstance, that
Mr. Biss, or perhaps it’s the Nuneses, have arranged to
have another lawyer or lawyers appear on behalf of these
witnesses. Is that the case, Mr. Biss?
MR. BISS: Yes, sir, it is.
THE COURT: All right. Who is it that you’ve
arranged to have appear?
MR. BISS: I know her name is Jennifer. I
don’t know her full name, but I was involved in engaging
her; but NuStar engaged her, so she — and she is
THE COURT: What do you mean that she is
available? For us to talk to now or just available for
any of these depositions?
MR. BISS: She’s available for the depositions,
whenever they are scheduled.
THE COURT: Okay. I’d like you to figure out
who that person is and notify the Court and notify
opposing counsel of that today. I know you expressed
some concern that whoever would be designated to
represent these defendants would be — I don’t know if
you used the word “harassed,” but I don’t — encouraged
to assert their Fifth Amendment rights, and I don’t think
there’s — I’m not worried about Iowa lawyers who are
admitted to the bar being able to vigorously assert their
clients’ rights. I think if I were in Jennifer’s
position and someone who knew a lot more about the
underlying case — whether it was you, Mr. Biss, or
someone from the defendants who knew more about the
underlying documents and the potential jeopardy my
clients might face — was calling me to talk to me about
that, I’m not sure I would consider that harassment. It
might be somewhat welcome so that I can accurately — I
mean, effectively defend my clients in their depositions.
So that’s not a worry that I have.
Again, all of this is not how these things normally work, and it remains somewhat bizarre that Nunes’ family is still moving forward with this case.
It’s unclear what happened with “Jennifer” but a few weeks later, in early July, the court reversed course and appointed counsel to the employees:
On June 17, 2021, I entered an order declining to appoint counsel for six of Plaintiffs employees who are witnesses. Because of the distinct possibility that these witnesses may not comprehend the jeopardy they may face and because they may not be able to afford counsel, I conclude it is necessary to appoint counsel from the CJA panel for the witnesses. Therefore, I appoint John P. Greer of Greer Law Office in Spencer, Iowa to represent the employee witnesses. The prior order at 119 remains unmodified in all other respects. This Order appointing counsel is subject to Plaintiffs employees satisfying the Court of their qualifications for court-appointed counsel under 18 U.S.C. Section 3006A.
This case is certainly quite messy, but it remains difficult to see any way in which this case makes sense for the Nunes’ family beyond as a harassment technique itself. It continues to retain all the hallmarks of a SLAPP suit, and serves as a strong reminder that Iowa needs an anti-SLAPP law and we need a federal anti-SLAPP law to go with it as well.
Filed Under: anti-slapp, defamation, devin nunes, immigration, immigration status, ryan lizza, slapp, steven biss
Companies: hearst, nustar