Nunes v. NBCUniversal Media, LLC

Background

The court addressed two discovery disputes in Devin G. Nunes’s case against NBCUniversal Media, LLC. The first concerned whether the Speech or Debate Clause protected deposition testimony by Jacob Langer, a former communications director for Nunes and the House Permanent Select Committee on Intelligence (HPSCI). The second concerned NBCUniversal’s request for sanctions based on Nunes’s alleged failure to preserve and produce relevant documents.

Speech or Debate Clause

The parties agreed that HPSCI’s privilege extended to Langer for questions about his work for HPSCI, but not for questions about his work for Nunes. The court also stated that Nunes had clarified that he was not invoking the privilege in this litigation, so it did not decide whether Nunes had waived it.

The court sustained HPSCI’s privilege assertions concerning questions about HPSCI’s July 29, 2020 business meeting. It concluded that the meeting involved legitimate legislative activity, including investigating alleged election interference and gathering information that could inform legislation. The court rejected NBCUniversal’s arguments that the privilege did not apply because the meeting sought to influence an executive agency or because questions asked at the meeting were allegedly improper.

The court overruled HPSCI’s privilege assertions concerning the receipt and handling of the Derkach package. It held that receiving and handling the package was administrative rather than legislative: those actions were not integral steps in the legislative process and did not bear the hallmarks of legislating or policymaking. As a result, HPSCI staffers could be questioned about Nunes’s receipt and handling of the package, including whether he gave it to the Federal Bureau of Investigation.

Because some of HPSCI’s privilege assertions were overruled, the court did not reach NBCUniversal’s request for immediate dismissal. It stated that NBCUniversal could submit a pre-motion letter to Judge Castel if, after a second deposition of Langer, it continued to believe dismissal was required.

Document Preservation

The court denied NBCUniversal’s motion for sanctions without prejudice. It explained that deciding whether sanctions were appropriate would require assessing prejudice and that the prejudice might be reduced by the order. Any renewed sanctions motion, if warranted, was to be made as part of a motion for summary judgment.

The court nevertheless directed Nunes to provide more information. Nunes had not complied with an earlier order requiring him to explain why his search did not locate email communications between Langer and Representative Crawford’s staff. The court ordered Nunes to file a responsive letter by May 13, 2024.

Disposition

The court sustained HPSCI’s privilege assertions regarding the July 29, 2020 business meeting and overruled HPSCI’s privilege assertions regarding the receipt and handling of the Derkach package. It ordered the parties to conduct a second deposition of Langer and directed Nunes to file the required letter. Judge Sarah Netburn denied NBCUniversal’s sanctions motion without prejudice and did not decide NBCUniversal’s dismissal request.