Nunes v. NBCUniversal Media, LLC

Background

Devin G. Nunes sued NBCUniversal Media, LLC, over a March 18, 2021, broadcast on The Rachel Maddow Show. The broadcast stated: “[Devin Nunes] has refused to hand [the Derkach package] over to the F.B.I.” Nunes contends that he did not accept a package from Andriy Derkach, but that the package came to the House Intelligence Committee and was immediately turned over to the Federal Bureau of Investigation.

During the deposition of Nunes’s former communications director, Jacob Langer, counsel for the House Permanent Select Committee on Intelligence (HPSCI) repeatedly objected to questions concerning the package. The objections invoked the Speech or Debate Clause privilege, which protects legislators and their aides from being questioned or required to provide documents about legislative acts. The disputed subjects included the package’s receipt, handling, and transfer; communications with HPSCI members; and a July 29, 2020, HPSCI business meeting.

Privilege Issues

The court explained that the Speech or Debate Clause provides both immunity from liability for legislative acts and an evidentiary privilege against questions or documents concerning those acts. This order addressed the evidentiary privilege. The court stated that the privilege is personal to the legislator involved and may be asserted by the legislator or an aide on the legislator’s behalf. It also stated that the privilege may be waived only through an explicit and unequivocal renunciation.

The parties’ briefing focused on the scope of the privilege asserted by HPSCI counsel but did not address who held the privilege applicable to Langer’s testimony. The court therefore requested briefing on whether Nunes alone held the privilege, whether filing the lawsuit waived the privilege as to all relevant matters, and, if not, whether Nunes could selectively waive the privilege for some matters but not others. The court also requested discussion of any fairness and due-process concerns and any other issue relevant to deciding the privilege questions.

Document Preservation and Production

The parties disputed whether Nunes had preserved and produced relevant documents. The statement was published on March 18, 2021, and Nunes sent NBCUniversal a retraction demand on April 5, 2021. The opinion states that Nunes did not issue a written preservation request to his staff. Nunes testified that he told staff to preserve relevant communications and documents, but some staff members disputed that account.

The court noted that relevant documents had been produced, including an email between Langer and a staff member of Representative Rick Crawford and text messages between Nunes and Langer. The court stated that these productions suggested other documents might have existed but were not preserved. Nunes also stated that HPSCI records had been maintained. Because the privilege dispute might affect the preservation issue, the court requested additional information about withheld documents.

Order

The court requested additional briefing rather than resolving the privilege or preservation disputes. HPSCI and Nunes were ordered to file supplemental letters by March 29, 2024, and NBCUniversal was ordered to file a response by April 5, 2024. Unless the court ordered otherwise, each letter could not exceed five pages.

The court further ordered HPSCI and Nunes to produce privilege logs for documents withheld under the Speech or Debate privilege, or explain why logging was not warranted or why the Federal Rules of Civil Procedure did not apply. Nunes was also ordered to explain why his document search did not uncover the email between Langer and Representative Crawford’s staff member. The opinion reminded counsel of their obligations under Federal Rule of Civil Procedure 26(g)(1) and (3). The order did not decide the underlying lawsuit or determine whether the privilege had been waived.