Rich et al v. Fox News Network LLC et al

Redacted Version of Dkt. 183 Plaintiff's Letter dated July 20, 2020

Southern District of New York, nysd-1:2018-cv-02223

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Susman Godfrey l.l.p. a registered limited liability partnership 32ND FLOOR 1301 AVENUE OF THE AMERICAS NEW YORK, NEW YORK 10019-6023 (212) 336-8330 FAX (212) 336-8340 www.susmangodfrey.com __________ Suite 5100 Suite 1400 Suite 3800 1000 Louisiana Street 1900 Avenue of the Stars 1201 Third Avenue Houston, Texas 77002-5096 Los Angeles, California 90067-6029 Seattle, Washington 98101-3000 (713) 651-9366 (310) 789-3100 (206) 516-3880 __________ __________ __________ Elisha Barron E-Mail EBarron@susmangodfrey.com Direct Dial (212) 729-2013 July 20, 2020 Via E-Mail and ECF The Honorable Sarah Netburn United States Magistrate Judge Thurgood Marshall Courthouse 40 Foley Square, Room 430 New York, NY 10007 Re: Rich v. Fox News Network LLC et al., No. 18-cv-2223 Dear Judge Netburn: In response to the Court's order last week, Fox agreed to produce a subset of the documents Fox withheld, which they now concede are not privileged. 1 Fox also produced a document-by-document log of 615 documents, for which it continues to assert a claim of privilege, in the custodial files for Malia Zimmerman, Adam Housley, and Greg Wilson. Plaintiffs appreciate the Court's assistance in obtaining certain documents and a log for three custodians confirming Plaintiffs' allegation that Fox and Butowsky collaborated extensively on a shared political agenda. Plaintiffs at this time seek limited further relief: (1) that Fox either produce, or furnish a document- by-document log for the remaining documents raised by Plaintiffs' letter motion to compel; (2) that Fox produce 16 of the 615 withheld documents because they relate directly to Rich/Wikileaks newsgathering (see Ex. A); and (3) that Fox produce documents reflecting Wheeler's appearances on Fox (including 19 documents reflected on Fox's log), because they are highly relevant and not protected newsgathering (see Ex. B). This limited relief is fair and necessary to preserve 1 Fox included these documents in a production of over 3,500 documents produced a few hours before the filing of this letter, and declined to segregate or identify the documents relevant to this motion to compel. Therefore, Plaintiffs do not know how many documents there are or any other details about the documents. July 20, 2020 Page 2 Plaintiffs' right to seek, at the appropriate time, any remedies relating to Fox's improper use of the privilege as a both a sword and a shield. A. The Court Should Order Fox to Produce or Log the Remaining Documents at Issue on Plaintiffs' Motion Plaintiffs respectfully request that Fox be ordered to produce or log the remainder of the documents it has withheld, and which were presented in Plaintiffs' prior letter motion. 2 Consistent with this Court's ruling, and as Fox's log of the Zimmerman, Housley, and Wilson documents confirms, the documents are relevant because they address Fox's interactions with Wheeler and Butowsky during the precise time period Fox and Butowsky collaborated on the Seth Rich articles. The documents have already been collected based on agreed custodians and agreed search terms; and there are far fewer than 2,000 documents remaining in the set. There is no basis under Rule 26 for Fox not to produce or log the remaining documents. Without a log of these documents, Plaintiffs will be unable to challenge any improperly withheld documents, or to ensure that Fox does not make arguments to which the withheld documents would be relevant. There is a reason Fox attempted to avoid producing a document-by- document log of even the Zimmerman, Housley, and Wilson documents. Fox's limited log shows what Plaintiffs have always alleged: Reporters and editors at Fox worked extensively with Wheeler and Butowsky to fuel a number of politically motivated conspiracy theories before and during the time Fox published the Seth Rich articles. These include claims that the State Department was responsible for the consulate attack in Benghazi and alleged Clinton foundation theft, as well as the Seth Rich/Wikileaks conspiracy. 3 Far from an aberration, this was Fox's modus operandi. In fact, as the unredacted document attached to Plaintiffs' June 23, 2020 letter already shows, these different theories were part of a unitary political agenda shared by Butowsky and Fox. 6/23 Letter, Ex. H (filed under seal). Fox's letter confirms that it will "vigorously dispute" that it worked with Wheeler and Butowsky on "politically motivated" stories, 7/15/20 Fox Letter at 3 (Dkt. 162), but the privilege log itself lays that argument to rest. These other stories cannot be neatly quarantined from the Seth Rich story. For example, Wheeler testified that at his first in-person meeting with Zimmerman and Butowsky about Seth Rich on February 28, 2017, also present was "a former military guy. I think he had something to do with Benghazi." Wheeler Deposition Tr. 11-18-19 at 73-74 (Ex. C). Fox's redactions of produced documents confirm that Butowsky and Zimmerman worked together extensively in 2016-2017 on an agenda of which Seth Rich was one part. For example, FoxNews0003935 is a February 14, 2017 email from Zimmerman to Butowsky about 2 These remaining documents hit on the terms "Butowsky" and "Wheeler" in the custody of the agreed custodians other than Zimmerman, Housley, and Wilson. 3 For example: 111 entries reference Benghazi or the related "Blue Mountain, 23 entries reference "HRC" (Hillary R. Clinton), and 43 entries reference "Clinton." July 20, 2020 Page 3 (Ex. D). FoxNews0004049 is a March 4, 2017 email from Butowsky to Zimmerman with a redacted subject line, where the only text is "Good Morning. So so so much going on related to Seth rich. Please call me." (Ex. E). Exhibit H to Plaintiffs' June 23 pre-motion reply, showing Butowsky providing Housley a laundry list of political agenda items, is another example. Plaintiffs are mindful of the newsgathering privilege, but remain concerned that Fox intends to improperly use the privilege as both a sword and shield. Fox should not be allowed to raise defenses regarding the legitimacy of its newsgathering or the breadth of its interactions with Wheeler and Butowsky while withholding documents that would rebut these arguments. See Sharon v. Time, Inc., 599 F. Supp. 538, 582 (S.D.N.Y. 1984) ("[S]ection 79–h is a shield, and no more." Witness may not "insulate his reliance on sources from further inquiry merely by claiming that he has often used a source in the past and that the information he received was always reliable."); Greenberg v. CBS Inc., 69 A.D.2d 693, 709 (1979) ("At trial, if the defendants opt to rely on their statutory privilege, they should be precluded from any use of those sources and information as proof of verification or evidence of responsibility. On the other hand, if they choose to fully disclose their investigation, no limitation of the defense will occur."). At this time, Plaintiffs simply request production of whatever documents Fox now concedes are not privileged, and a full log of the documents withheld, so Plaintiffs may consider how to address these issues as they arise in the future. B. Sixteen Documents Were Improperly Withheld And Are Directly Relevant to the Seth Rich Articles Plaintiffs seek production of 16 documents (out of 615) that are directly relevant. Fox already agreed to produce documents to Plaintiffs that go to the newsgathering techniques used for the Seth Rich articles. See 3/10 Tr. at 6-7 (Fox is producing certain newsgathering materials because it "would expect that [Plaintiffs] would have argument that many of the documents they are seeking are central to the claims."). The 16 documents described below do not relate to other news stories at all – they are directly relevant to the sourcing for the Seth Rich articles and Fox's retraction. These documents have already been collected, reviewed, and logged. There is no burden on Fox, and the documents can be produced highly confidential. A list of the bates numbers for these documents is attached as Exhibit A. Wikileaks: FoxNews_Priv_273 is an email from Zimmerman to Butowsky and Housley re: "dirt on [Bernie] [S]anders from Hillary Clinton team on wikileaks" dated April 14, 2017, just one month before the publication of the Seth Rich articles. FoxNews_Priv_510 is an October 10, 2016 email from Zimmerman to Butowsky re: "Fw: thought you might want this – from Wikileaks" and attaching a "State Department Document." These documents should be produced as they hit on the term Wikileaks as well as Butowsky. July 20, 2020 Page 4 Nunes: Twelve entries on the log reflect correspondence in the relevant timeframe between Zimmerman, Butowsky, and Housley about Congressman Devin Nunes. Documents that have already been produced in this case show the relevance of Nunes, and his staffer Kash Patel (known as D-O), to the Seth Rich articles. On March 13, 2017, for example, Butowsky sent Zimmerman and Wheeler a video that prompted Zimmerman to respond, "That's why Devin Nunes needs to help us or get his guy to. . . ." Wheeler0000216 (Ex. F). Butowsky responded, "I will get very aggressive with Devin over the weekend." Id. Wheeler testified that the discussion was about "the Russian narrative or the hacking narrative." Wheeler Tr. 209–10 (Ex. C). Plaintiffs requested (and even raised with the Court) that Fox include the terms "Nunes," "Kash," "Patel" and "Dee O" in its searches of Zimmerman, Butowsky, and Housley's files. See 2/27/20 Letter at 3 (Ex. G). Fox refused. See id. Worse, after refusing, Fox redacted as a "confidential source" the name "D-O" on documents it produced showing that Patel was scheduled to meet with Wheeler and Detective DellaCamera just 4 days before the Zimmerman article was published. Compare FoxNews0004022 (Ex. H) (excerpted below) with Wheeler00000577 (Ex. I) (showing that the redacted name is "D-O"). Fox should not be allowed to unilaterally decide, over Plaintiffs' protest, that Nunes is not relevant, redact information showing otherwise, and withhold as "unrelated" documents that contradict its position. Fox's Knowledge of Butowsky's Role: Greg Wilson was a Fox editor who worked on the Seth Rich articles and their retraction. Fox argued that it is not responsible for Butowsky's conduct, and asserted that Mr. Wilson, "did not even know who Butowsky was until after the article was published" and "ignor[ed]" Butowsky's post-retraction outreach. 5/11 Letter at 2-3 (Ex. J) (emphasis in original). But FoxNews_Priv_0235 reflects a May 12, 2017 email from Wilson to Zimmerman, which hits on the term "Butowsky." This communication, 4 days before the article was published, directly rebuts Fox's claim that Wilson did not know who Butowsky was. It should be produced as should any other Wilson document relating to Butowsky. See also BUTOWSKY0003142 (June 9, 2017 email from Wilson to Butowsky post-retraction stating, "I still believe we will be vindicated.") (Ex. K). July 20, 2020 Page 5 C. Documents Reflecting Wheeler's Fox Appearances Should Be Produced as Published News Not Subject to the Privilege. Nineteen log entries are from Greg Wilson's file and reflect appearances by Wheeler on the Fox network. See Ex. B. Topics include: "Wheeler rips anti-police sentiment at DNC as 'disappointing'" and "Eric Shawn reports: Insanity or radical Islamic terrorism". Most notably, 3 of the entries occurred over 2 months after Wheeler's role in the exploitation of Joel and Mary Rich was publicly revealed. See id. (FoxNews_Priv_0247, 248, 480). Plaintiffs have repeatedly requested, including most recently on June 30, 2020, documents sufficient to show Wheeler's appearances of Fox. Fox has refused – stating that it will only provide "total payments per calendar year." Nothing in the log shows that these entries involve newsgathering at all – they appear to reflect the fact of appearances. At the very least, Fox should be required to produce evidence regarding each Rod Wheeler appearance on Fox News, regardless of custodian, so that