IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

______________________________________________________________________________

DEVIN G. NUNES, Related Case No: 5:19-cv-04064-CJW-MAR

 (N.D. Iowa)

Plaintiff,

v.

RYAN LIZZA and HEARST MAGAZINE

MEDIA, INC.,

Defendants.

______________________________________________________________________________

RYAN LIZZA and HEARST MAGAZINE Case No: 9:22-mc-81070-DMM

MEDIA, INC.,

Petitioners,

v.

TRUMP MEDIA & TECHNOLOGY

GROUP CORP.,

Respondent.

______________________________________________________________________________

RESPONDENT’S OPPOSITION TO PETITIONERS’

MOTION TO COMPEL COMPLIANCE WITH SUBPOENA

LIPPES MATHIAS LLP

Alessandro A. Apolito, Esq.

10151 Deerwood Park Blvd.

Jacksonville, Florida 32256

P: 904-660-0020

F: 904-660-0029

E: aapolito@lippes.com

Scott S. Allen, Esq., pro hac vice

50 Fountain Plaza, Suite 1700

Buffalo, NY 14202

P: 716-853-5100

F: 716-853-5199

E: sallen@lippes.com

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Preliminary Statement, Procedural History, and Factual Background

The matter presently before the Court, and the subject of this Opposition, stems from a

defamation lawsuit brought by former United States Congressman Devin G. Nunes, which is

presently pending in the United States District Court for the Northern District of Iowa. See Nunes

v. Lizza, et al., No. 5:19-cv-04064-CJW-MAR (N.D. Iowa). Mr. Nunes’s lawsuit alleges that

Defendants/Petitioners defamed him and caused him to incur monetary damages, based upon

various representations and assertions contained in an Article published in Esquire magazine, and

the ensuing republication thereof by Defendant/Petitioner Lizza.

In April 2022, Defendants/Petitioners served a subpoena duces tecum upon nonparty

Respondent, Trump Media & Technology Group, Corp. (“TMTG”), a Delaware Corporation with

a principal place of business in Sarasota, Florida, through service upon its registered agent located

at 801 US Highway 1, North Palm Beach, Florida. (Doc. 1-3). The subpoena sought, inter alia,

various documents and non-public information concerning Mr. Nunes’s employment, recruitment,

and engagement as the Chief Executive Officer of TMTG. On May 27, 2022, TMTG issued its

written responses and objections to Petitioners’ subpoena. Thereafter, counsel for both parties met

and conferred, and the parties continued to maintain an open dialogue regarding the nature and

substance of TMTG’s responses, and related matters.

On June 23, 2022, counsel for Petitioners informed TMTG that it “w[ould] be moving to

compel production and for an order overruling TMTG’s unspecific and uninformative boilerplate

objections” and, moreover, that counsel intended “to file the motion next week . . . [unless] TMTG

intend[ed] to supplement its responses and produce all responsive documents imminently (i.e. in a

matter of days, not months or even weeks).” (Doc. 1-3, Ex. K). In response, on the same day,

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TMTG advised Petitioners of its position that it had properly responded and/or objected to

Petitioners’ subpoena and, therefore, stood by its responses and objections, as issued. (Doc. 1-3).

On July 22, 2022, Petitioners filed the pending motion to compel in this Court. (Doc. 1).

Notably, the subject motion to compel was filed 29 days after the June 23, 2022 email exchange

wherein the parties hereto had last discussed Petitioners’ claimed issues with TMTG’s responses

to the subpoena, notwithstanding Petitioners’ representations during that exchange that such

motion would be filed “the following week” and that the issue needed to be resolved “in a matter

of days” and/or “imminently”. (Doc. 1-3, Exhibit K). In this regard, late in the afternoon on July

26, 2022 – the very day that nonparty TMTG’s registered agent was actually served with the

motion papers – Petitioners filed a corresponding motion seeking an expedited briefing schedule.

(Doc. 6). Specifically, Petitioners requested an order of this Court mandating that TMTG fully

brief and file its opposition to Petitioners’ motion to compel, on or before August 1, 2022. (Doc.

6). On July 29, 2022, TMTG filed its opposition to Petitioners’ motion for expedited briefing and

adjudication of its motion to compel compliance with its subpoena. (Doc. 12).

On August 1, 2022, the Court granted Petitioners’ motion in part and denied it in part.

(Doc. 13). Specifically, the Court directed TMTG to file its substantive opposition to Plaintiff’s

motion to compel on or before August 4, 2022. (Doc. 13). The Court, in turn, designated August

10, 2022, as the deadline for Petitioners to file its corresponding reply brief. (Doc. 13).

However, the subject motion to compel remains procedurally defective, in the first

instance, for having not been brought in the District Court in the district wherein the sought

documents are located and where TMTG is headquartered. See Fed. R. Civ. P. 45(d)(2)(B)(i);

Doc. 1-3. As provided by the Florida Division of Corporations records, TMTG maintains its

principal offices at 401 N. Cattlemen Road, Suite 200, in Sarasota, Florida, and that is, therefore,

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where any responsive documents sought by the subpoena would be located. (Doc. 12-1; Doc. 12-

2; Doc. 12-3). Additionally, Petitioners’ subpoena, itself, is defective because it specifies the place

of compliance as 2101 Vista Parkway, Suite 4006, West Palm Beach, Florida, which is more than

100 miles away from TMTG’s headquarters in Sarasota. See Fed. R. Civ. P. 45(c)(2)(A)

(identifying a permissible place of compliance for a subpoenaed nonparty as being “a place within

100 miles of where the person resides, is employed, or regularly transacts business in person.”).

Moreover, pursuant to the Southern District of Florida’s Local Rule 26.1(g)(1), Petitioners’ motion

to compel is also untimely, for having not been brought within thirty days of receipt of (or even

conferral with counsel on) TMTG’s responses and objections to the subpoena. L.R. § 26.1(g)(1).

In light of these procedural defects, alone, Petitioners’ motion to compel should be denied.

Finally, Petitioners’ requests are substantively improper and unduly burden TMTG. As

detailed below, they are consistently overbroad in time and scope, facially not relevant and/or not

reasonably calculated or tailored to produce relevant information, vague, and/or seeking

documents more reasonably and readily available from a party to this lawsuit. See generally Fed.

R. Civ. P. § 26(b)(1). Therefore, Petitioners’ requests pursuant to its subpoena directed to nonparty

TMTG, and at issue herein, are all wholly objectionable, and - to the extent the Court reaches the

merits of Petitioners’ motion - warrant quashing or modification.

Argument

I. Standard of Law

Federal Rule of Civil Procedure 45(d)(2)(B)(i) provides that “[a]t any time, on notice to

the commanded person, the [subpoena] serving party may move the court for the district where

compliance is required for an order compelling production or inspection.” Fed. R. Civ. P.

45(d)(2)(B)(i). Motions to compel responses in connection with a Rule 45 subpoena are governed

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by Fed. R. Civ. P. 37(a), which provides that “[a] motion for an order to a nonparty must be made

in the court where the discovery is or will be taken.” Fed R. Civ. P. 37(a); see also Rink v. VICOF

II Trust, 2021 WL 317941, *3 (W.D.N.C. July 27, 2021); Europlay Capital Advisors, LLC, v.

Does, 323 F.R.D. 628, 629 (C.D. Cal. 2018). Furthermore, “[a] subpoena made on a non-party

must state the place where compliance is required, which must be within 100 miles of where the

subpoenaed non-party resides, is employed, or regularly transacts business in person.” Koenig v.

Johnson, 2020 WL 635772, *1 (D.S.C. Feb. 11, 2020); Fed. R. Civ. P. 45(c)(1)(A).

Pursuant to Fed. R. Civ. P. 45, “a court may quash or modify a subpoena if it (1) fails to

allow a reasonable time for compliance; (2) requires a person who is not a party to travel more

than 100 miles from where the person resides; (3) requires disclosure of privileged or protected

matter; or (4) subjects a person to undue burden.” TIC Park Centre 9, LLC, v. Cabot, 2017 WL

9988745, *2 (S.D. Fla. June 9, 2017) (quoting Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812,

817-18 (5th Cir. 2004)). “Whether a burdensome subpoena is reasonable ‘must be determined

according to the facts of the case,’ such as the party's need for the documents and the nature and

importance of the litigation.” Wiwa, 392 F.3d at 818 (quoting Linder v. Dep't of Def., 133 F.3d 17,

24 (D.C. Cir. 1998)).

In determining if a subpoena imposes an undue burden, courts look to six factors: “(1) [the]

relevance of the information requested; (2) the need of the party for the documents; (3) the breadth

of the document request; (4) the time period covered by the request; (5) the particularity with which

the party describes the requested documents; and (6) the burden imposed.” Wiwa, 392 F.3d at 818;

see also United States ex rel. Willis v. SouthernCare, Inc., 2015 WL 5604367, *9 (S.D. Ga. Sept.

23, 2015); In re Domestic Drywall Antitrust Litigation, 300 F.R.D. 234, 252 (E.D. Pa. 2014). In

cases where document requests are made to nonparties, the court will also consider the resultant

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“expense and inconvenience to the nonparty.” TIC Park Centre, 2017 WL 9988745, at *2 (quoting

Wiwa, 392 F.3d at 818). “As part of this inquiry, ‘[a] trial court has broad . . . discretion in

evaluating the circumstances of a case when considering . . . oppressiveness [of a subpoena];

[accordingly], [i]t must carefully examine the circumstances presented to it and, when appropriate,

consider the possibility of modifying the subpoena rather than quashing.’” TIC Park Centre, 2017

WL 9988745, at *2 (quoting Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395, 403

(D.C. Cir. 1984)).

“In assessing these considerations, special weight should be given to the burden on nonparties of producing documents to parties involved in the litigation.” Cohen v. City of New York,

255 F.R.D. 110, 117 (S.D.N.Y. 2008) (internal quotation omitted); see also Amini Innovation

Corp. v. McFerran Home Furnishings, Inc., 300 F.R.D. 406, 409 (C.D. Cal. 2014) (“concern for

the unwanted burden thrust upon non-parties is a factor entitled to special weight in evaluating the

balance of competing needs in a Rule 45 inquiry”) (internal quotation omitted); Dart Industries

Co., Inc. v. Westwood Chemical Co., 649 F.2d 646, 649 (9th Cir. 1980) (“[w]hile discovery is a

valuable right and should not be unnecessarily restricted, the ‘necessary’ restriction may be

broader when a non-party is the target of discovery”). A “Court should be particularly sensitive

to weighing the probative value of the information sought against the burden of production on

[a] nonparty.” Fears v. Wilhelmina Model Agency, Inc., 2004 WL 719185, *1 (S.D.N.Y. April 1,

2004). While, “discovery should not simply be denied on the ground that the person or entity from

whom it is sought is not a party to the action.... [the optimal] approach is for the court to take steps

to relieve a nonparty of the burden of compliance even when such accommodations might not be

provided to a party.” Wertheim Schroder & Co. v. Avon Products, Inc., 1995 WL 6259, *6

(S.D.N.Y. Jan. 9, 1995).

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In this regard, “[a] court may prohibit a party from obtaining discovery from a non-party

if that same information is available from another party to the litigation.” Rocky Mountain Medical

Management, 2013 WL 6446704, *4 (D. Idaho Dec. 5, 2013); see also Brown v. City of

Syracuse, 648 F. Supp.2d 461, 466 (N.D.N.Y. 2009) (finding that, in balancing hardships between

requesting party and nonparty, a court should look to whether there are other sources for obtaining

the sought material); Arthrex, Inc. v. Parcus Medical, LLC, 2011 WL 6415540, *6 (S.D. Ind. Dec.

21, 2011) (“[a] party's ability to obtain documents from a source with which it is litigating is a

good reason to forbid it from burdening a non-party with production of those same requests.”).

II. The Motion to Compel and Underlying Subpoena Are Procedurally Defective and

Invalid

“Both Rule 37 and Rule 45 require that when a party seeks to compel a non-party’s action

pursuant to a subpoena duces tecum, the party must file its motion to compel in the district where

the sought documents are located, not in the district where the subpoena was issued.” Koenig,

2020 WL 635772, at *2. “A subpoena that requires a non-party's compliance outside of Rule 45’s

geographical scope is invalid.” Koenig, 2020 WL 635772, *1 (citing Miller v. Holzmann, 471 F.

Supp.2d 119, 121 (D.D.C. 2007)). Moreover, the geographic limitation in Rule 45 “unequivocally

applies . . . to being required to produce documents at a distance of more than 100 miles from one’s

home . . .[i]t draws no distinction whatsoever between being compelled to testify and being

compelled to produce documents at a certain place.” Miller, 471 F. Supp.2d at 121; see also Selee

Corporation v. McDanel Advanced Ceramic Technologies, LLC, 2016 WL 4546446, at *4

(W.D.N.C. Aug. 31, 2016) (subpoena ordering “production of documents at location greater than

100 miles from [nonparty’s] office” was unenforceable); U.S. Equal Opportunity Commission v.

Bojangles’ Rest., 2017 WL 2889493, *5 (E.D.N.C. July 6, 2017) (subpoena “exceeds the

permissible 100 mile geographical limit imposed by Rule 45 by a distance of approximately 30

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miles . . . [t]his flaw requires quashing or modifying subpoena”); Nieman v. LinkedIn Corp., 2013

WL 685203, *2 (N.D. Cal. Feb. 25, 2013) (“nonparties cannot be required to produce documents

at a location more than 100 miles from their home or business”).

As set forth above, TMTG maintains its primary office location at 401 N. Cattlemen Road,

Suite 200, in Sarasota, Florida. This information is, moreover, a matter of public record, and

remains available upon simple consultation of the State of Florida’s Division of Corporations

website. (See Doc. 12-1; Doc. 12-2; Doc. 12-3). Notwithstanding this publicly available

information, Petitioners designated its offices at 2101 Vista Parkway, Suite 4006, West Palm

Beach, Florida, as the place of compliance on the subpoena. (Doc. 1-3). Notably, the Sarasota

address wherein TMTG is actually headquartered, transacts business, and coordinates day-to-day

operations, and where the requested non-public business records and documents would be located,

is over 144 miles from the designated place of compliance in West Palm Beach, Florida. (Doc.

12-1). As set forth above, to be valid, enforceable, or compliant pursuant to the Federal Rules, a

subpoena may “only” be issued “within 100 miles of where the [subpoenaed nonparty] resides, is

employed, or regularly transacts business in person.” Fed. R. Civ. P. 45(c)(1)(A) (emphasis

added); see also Koenig, 2020 WL 635772, at *1; Miller, 471 F. Supp.2d at 121; Selee, 2016 WL

4546446, at *4; Nieman, 2013 WL 685203, *2. As such, Petitioners’ subpoena is facially invalid,

in the first instance, as it commands production by nonparty TMTG well in excess of 100 miles

from its headquarters and the location of the documents sought by way of the subpoena.

Furthermore, while the designated place of compliance in West Palm Beach is within the

boundaries of this District Court, the discovery which is subject of this motion is in Sarasota, and

is thereby within the District Court for the Middle District of Florida. Therefore, assuming,

arguendo, that Petitioners contend that their subpoena is valid as issued and argue that it requires

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TMTG’s compliance and production, then Petitioners’ motion to compel compliance should have

been brought in the Middle District of Florida pursuant to the Federal Rules, since TMTG’s

primary and registered Florida office location is in Sarasota (within the Middle District of Florida).

See Fed R. Civ. P. 37(a) (“[a] motion for an order to a nonparty must be made in the court where

the discovery is or will be taken”) (emphasis added); Koenig, 2020 WL 635772, at *2 (“[i]n other

words, a party wishing to compel a discovery response from a non-party must file its motion to

compel in the district where the discovery materials are located”). Petitioners have ostensibly

acknowledged this reality, as they have since re-issued the exact subpoena at issue herein, but with

a designated place of compliance in the Middle District of Florida. Although this second subpoena

was issued on August 1, 2022, Petitioners have not withdrawn their first subpoena or this motion.

In Europlay, 323 F.R.D. at 629, the District Court for the Central District of California

evaluated a motion to compel production from a nonparty (Google) and concluded that, inter alia,

the motion should have, instead, been brought in the Northern District of California because “the

Northern District of California . . . is within 100 miles of where (1) Google is headquartered, [and]

(2) Google's custodians of records reside, are employed, and regularly transact business in person.”

Id (citing Music Group Macao Commercial Offshore Ltd. v. Does, 82 F. Supp.3d 979, 984 (N.D.

Cal. 2015), for the proposition that “there is ‘no question’ that the proper district to hear a motion

to compel compliance with a Rule 45 nonparty subpoena is where the nonparty is headquartered”).

Similarly, here, the discovery materials sought by Petitioners are most likely located at

TMTG’s office, which is also where a plurality of its executives and leadership team maintain their

offices; therefore, a motion to compel production of such materials needs to be made in the judicial

venue wherein such materials reside, which is the Middle District of Florida, in this case. Whereas,

when a motion to compel is brought against a nonparty in a venue other than where the nonparty

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is headquartered (and, in turn, where the requested records would be) the “Court has no jurisdiction

over [the] motion to compel”. Europlay, 323 F.R.D. at 629.

The facts and circumstances that the District of South Carolina confronted in Koenig is

further illustrative in this regard. 2020 WL 635772, at *2. There, the motion to compel a response

to the subpoena was brought in the District Court where the subpoena required compliance

(Columbia, SC), however it was more than 100 miles away from the nonparty respondent’s

headquarters in Pittsburgh, PA. Id. The Court observed that:

[Petitioner] is caught between a procedural Scylla and Charybdis. If he

argues that he brought this motion to compel in the correct district because

his subpoena requires compliance in Columbia, South Carolina, then his

subpoena fails because it requires [respondent]'s compliance more than

100 miles away from where [respondent] is located. If, however, he argues

that the subpoena requires compliance in Pittsburgh, then he has brought

his motion to compel in the wrong district, as the Federal Rules would

require that the Western District of Pennsylvania hear the dispute. Either

way, the court must deny the motion. Because of the subpoena's fatal

procedural shortcomings, the court need not reach its substantive merit.

Id. (emphasis added).

Finally, in the event the Court determines that it can reach the merits of Petitioners’

application, pursuant to Local Rule 26.1(g)(1), the instant motion to compel is facially untimely.

Specifically, Local Rule 26.1(g)(1) provides that “[a]ll disputes related to discovery shall be

presented to the Court by motion . . . within (30) days from the: (a) original due date (or later date

if extended by the Court or the parties) of the response or objection to the discovery request that

is the subject of the dispute . . . or (c) date on which a party first learned of or should have learned

of a purported deficiency concerning the production of discovery materials.” L.R. § 26.1(g)(1).

Here, TMTG served its responses to the Subpoena on May 27, 2022. (Doc. 1, p. 5). Thereafter,

on June 2, 2022, the parties conferred regarding Petitioners’ stated issues with TMTG’s responses

and objections, which are the subject of this motion. (Doc. 1, p. 5). However, the instant motion

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to compel compliance with Petitioners’ subpoena was not filed by Petitioners until 50 days,

thereafter. As such, Petitioners’ motion to compel compliance is untimely pursuant to Local Rule

26.1(g)(1), and should, therefore, be denied. See 4Demand, LLC v. G4S Secure Solutions, Inc.,

2020 WL 3266102, *2 (S.D. Fla. June 17, 2020) (“[i]t is therefore apparent that Petitioners’ motion

to compel fails as it is untimely under Local Rule 26.1(g)(1); see also Ramones v. AR Resources,

Inc., 2020 WL 10728841, *2 (S.D. Fla. Oct. 22, 2020); Sprint Communications, Inc. v. Calabrese,

2019 WL 9598506, *2 (S.D. Fla. Aug. 20, 2019).

In light of these various procedural defects, Petitioners’ motion to compel must be denied.

III. Requests Nos. 2, 3, 4, 5, 6, and 7 in Petitioners’ subpoena directed to TMTG seek

documents beyond the permissible scope of discovery, are unduly burdensome

on TMTG, and are not tailored or proportional to the allegations in this case.

To the extent the Court reaches the merits of Petitioners’ motion to compel, there are six

specific document demands contained within Petitioners’ subpoena which form the basis of this

dispute; each of these demands transcends the permissible bounds of discovery and are therefore

objectionable. Pursuant to Local Rule 26(g)(2), these demands, together with TMTG’s responses

and objections thereto, are enumerated and addressed seriatim, below.

REQUEST NO. 2. All documents relating to the solicitation and recruitment of

candidates for the position of Chief Executive Officer of TMTG, including but not limited

to communications with or about candidates or potential candidates, job descriptions, job

posting, job listings, and job application forms.

Response: TMTG objects to this Request as unduly burdensome and overly broad as

to timeframe. Specifically, this Request seeks information from the beginning of time to

the present. In addition, TMTG objects to this Request as irrelevant and not proportional

to the needs of the case. Specifically, the information requested has no bearing on any of

the claims or defenses in the subject litigation.

This request is “classically overbroad,” as nothing about this request purports to limit itself

to documents relevant to Nunes’s claims or personal situation, relative to his employment with

TMTG or this lawsuit. See Willis, 2015 WL 5604367, at *9. A far cry from “narrowly tailored”

to the issues of this case, Petitioners’ request seeks “all documents” pertaining to the solicitation

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and recruitment of any candidate for the position of Chief Executive Officer for TMTG. See

Pretka v. Kolter City Plaza II, Inc., 2012 WL 12931422, *2 (S.D. Fla. June 6, 2022) (“the requests

themselves are not . . . narrowly tailored. . . [i]ndeed, Plaintiffs seek ‘all communications between

subcontractors and . . . Defendant,’ and ‘all records from the project architect,’ as well as all

finance/bookkeeping records and loan documents in [nonparty respondent]’s possession”).

Petitioners’ request for “all documents relating to the solicitation of candidates for the

position of Chief Executive Officer,” by its very terms, is unlimited in scope and extends well

beyond Nunes’s experience with being recruited, solicited, and/or interviewed for the Chief

Executive Officer position. In fact, it goes so far as to seek all “communications (apparently

internal or external) with or about candidates or potential candidates,” and therefore necessarily

includes and implicates individuals who were never interviewed for the position, never offered the

position, and even those who may have ever known that they were even under consideration for

the Chief Executive Officer position. In sum, the universe of potentially responsive documents is

inherently undefined in time or in scope, and encompasses innumerable “candidates and potential

candidates,” irrespective of how briefly, seriously, or legitimately such candidates were ever

considered for the position with TMTG. Furthermore, no candidate for the Chief Executive

Officer position is or ever was relevant to this case, aside from Nunes himself. In this regard,

“[Petitioner]s’ demands are like a bulldozer that levels an entire hill in the hopes of finding some

specks of gold.” Alig-Mielcarek v. Jackson, 286 F.R.D. 521, 527 (N.D. Ga. 2012).

As justification for this limitless request, Petitioners claim, inter alia, that such documents

“will show the qualities TMTG sought in its CEO, and why Nunes was a fit for this important role,

notwithstanding [his allegations of reputational harm].” (Doc. 1). However, “the qualities TMTG

sought in its CEO” have absolutely no bearing on this case. See Allen v. Howmedica Leibinger,

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GmhH, 190 F.R.D. 518, 521-22 (W.D. Tenn. 1999) (citing Fed. R. Civ. P. 26(b)(1)) (explaining

that the relevance burden is only met where “the party can show that the information sought

appears reasonably calculated to lead to the discovery of admissible evidence”); see also Hickman

v. Taylor, 329 U.S. 495, 497 (1947) (“[n]evertheless, the right to discovery is not unlimited, and

does have “ultimate and necessary boundaries”); Micro Motion, Inc. v. Kane Steel Co., Inc., 894

F.2d 1318, 1326 (Fed. Cir. 1990) (discovery may be denied “where, in the court's judgment, the

inquiry lies in a speculative area”). Intuitively, Nunes possesses and embodies any such “qualities”

that TMTG might seek in its CEO, as he was ultimately hired for the position. As such, whether

or not other candidates possessed such traits or qualities, or how the candidates compared relative

to one another, has absolutely no bearing on, nor illustrative value to, the underlying defamation

claim. Moreover, regardless of the extent of the defamation and reputational harm that may have

been incurred by Nunes, whether or not an individual suffers a reputational injury does not affect

or alter the objective qualities or traits that person independently possesses or may possess.

In a further audacious defense of the blatant overreach of this request, Petitioners go on to

assert that because TMTG (as Nunes’s employer) has not somehow stifled Nunes’s defense of his

character or personal rights, or otherwise ordered a withdrawal of Nunes’s defamation suit –

brought in his personal capacity before TMTG existed and entirely separate and independent from

his duties with TMTG – that this justifies discovery carte blanche for Petitioners. (Doc. 1) (“yet,

TMTG is perfectly fine with Nunes’s desire to prosecute this defamation suit, which will result in

two weeks away from his duties as CEO attending a trial . . . [r]egardless, if TMTG . . . [is] willing

to bear the burdens associated with allowing [its] CEO to be a defamation plaintiff, then among

those burdens is an obligation to respond to this . . .Subpoena”). However, the fact that defamation

plaintiff Nunes is employed by TMTG does not abrogate the rights of nonparty TMTG, nor does

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it expand the permissible scope of discovery pursuant to Fed. R. Civ. P. 26(b)(1) so as to

encompass documents that have no bearing whatsoever on the subject case.

Accordingly, Request Number 2 is overly broad and seeks information that is not relevant

to the claims at issue, and is, therefore, wholly objectionable.

REQUEST NO. 3. All documents relating to TMTG’s solicitation, recruitment, and

consideration of [Nunes] for employment with TMTG, including but not limited to

communications (both internal to TMTG and with third parties) regarding [Nunes]’s

candidacy and qualifications for the position of Chief Executive Officer.

Response: TMTG objects to this Request as unduly burdensome and overly broad as

to timeframe. Specifically, this Request seeks information from the beginning of time to

the present. In addition, TMTG objects to this Request as irrelevant and not proportional

to the needs of the case. Specifically, the information requested has no bearing on any of

the claims or defenses in the subject litigation.

This request seeks disclosure of “confidential . . . commercial information” in the form of

“internal” communications of an inherently personal and sensitive nature, regarding the hiring and

recruitment of candidates for the Chief Executive Officer position with TMTG. See Fed. R. Civ.

P. 45(d)(3)(B)(i). Petitioners have also failed to establish “a substantial need for the . . . [requested]

material,” which cannot be provided without undue hardship in the absence of the Court modifying

the scope of the subpoena. See Fed. R. Civ. P. §§ 45(d)(3)(C), 45(d)(3)(C)(i). In this regard,

Petitioners state that “[t]hese documents will show that TMTG, undeterred by the allegedly

defamatory tweet, thought highly of Nunes and wanted to hire him.” (Doc. 1, p. 10). However,

any purported utility of the documents sought pertaining to the solicitation and/or hiring of Nunes,

for the purpose of demonstrating that TMTG thought highly enough of him to hire him, is obviated

by the fact that TMTG did ultimately hire Nunes as its Chief Executive Officer. Put differently,

Petitioners do not have any need for information demonstrating that TMTG “wanted to hire

[Nunes]” since they already know that TMTG did hire Nunes. Therefore, there is no probative

value of the information sought by way of this request, in the first instance, much less value that

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that could justify the time and expense incurred by a nonparty in having to review and evaluate

documents for potential responsiveness and, in turn, compile and produce any such documents.

Furthermore, as with Request Number 2, above, Petitioners seek “all documents” – this

time pertaining to “TMTG’s solicitation, recruitment, and consideration of [Nunes] for

employment – without any further limitation or tailoring to the issues of the case, whatsoever. As

such, this request is overbroad, both in terms of time and scope. See Pretka, 2012 WL 12931422,

at *2; Willis, 2015 WL 5604367, at *9 (finding that request which sought “any copies of . . .

documents” was “overbroad . . . [as] it contains no tie-ins to [Plaintiff]’s claims”).

Accordingly, Request Number 3 is overly broad and seeks information that is not relevant

to the claims at issue, and is, therefore, wholly objectionable.

REQUEST NO. 4. All documents relating to the hiring and onboarding of [Nunes] as

an employee of TMTG, including but not limited to offer letters to [Nunes] and [Nunes]’s

acceptance thereof.

Response: TMTG objects to this Request as both overly broad and vague. Specifically,

TMTG does not know what Defendants mean by “relating to the hiring and onboarding of

[Nunes] as an employee of TMTG.”

As with the preceding requests, this request also seeks an unlimited disclosure of an

exceedingly broad category of documents. Specifically, by seeking “all documents relating to the

hiring and onboarding of [Nunes]” of TMTG’s Chief Executive Officer, Petitioners ostensibly

seek every document in TMTG’s possession, since Nunes’s hiring. It is difficult to imagine a

document not either directly, indirectly, or tangentially “relating to” or in some way reflecting the

presence of the subpoenaed company’s highest ranking corporate officer. See Willis, 2015 WL

5604367, at *9 (“[Request] Number 3, which asks for all [inter-company] correspondence . . .

captures not only [potentially responsive] . . . communications, but also potentially emails about

who's bringing doughnuts to a particular meeting, not to mention myriad other pointless topics that

will never lead to admissible evidence”). In this regard, one wonders if Petitioners also seek

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documents evidencing any potential welcome luncheons held in the wake of “hiring and

onboarding” TMTG’s new Chief Executive Officer, or any number of other arguably responsive,

but patently irrelevant, topics given that Petitioners made no attempt to limit this request – either

in terms of time or scope – in any way. By definition, this request is “classically overbroad”. See

Pretka, 2012 WL 12931422, at *2; Willis, 2015 WL 5604367, at *9.

In this manner, and largely for the reasons referenced above, the request is also inherently

vague through its reliance on the phrase “relating to”. See Willis, 2015 WL 5604367, at *9

(“[Petitioner] has shown no need for ‘all documents reflecting ... any review ... of [Respondent],’

. . . and, even if he had, request no. 2 suffers from vagueness (wiggle words like ‘reflect’ and

‘relate’ often impart that quality on discovery requests) that independently justifies quashing”);

see also Fernanders v. Mich. Dep't of Military and Veterans Affairs, 2013 WL 1945985, * 1 (E.D.

Mich. May 9, 2013) (finding a request impermissibly vague which sought production of “all

documents regarding, reflecting, concerning, pertaining to, or evidencing any action... by

Defendant with respect to an employee being suspended”).

Accordingly, Request Number 4 is overly broad, vague, and potentially (and ostensibly)

seeks information that is not relevant to the claims at issue, and is, therefore, wholly objectionable.

REQUEST NO. 5. All agreements between [Nunes], on the one hand, and TMTG

and/or DWAC, on the other hand, including but not limited to any offer letters or

counteroffers, engagement agreements, employment contracts, and/or any contracts

relating to compensation or indemnification of any kind.

Response: TMTG objects to this Request to the extent it seeks information from a third

party – Digital World Acquisition Corp. In addition, TMTG objects to this Request as it

seeks confidential and proprietary information. TMTG also objects to this Request as

irrelevant and not proportional to the needs of the case. Specifically, the information

requested has no bearing on any of the claims or defenses in the subject litigation. Finally,

TMTG objects on the basis that any document to which Devin Nunes is a signatory can be

requested from Mr. Nunes, who is a party to this litigation.

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As an initial matter, the documents sought by way of this request would naturally be in

Plaintiff Nunes’s own possession, and more readily available from him, assuming such documents

are applicable and otherwise subject to disclosure. “‘Courts are particularly reluctant to require a

non-party to provide discovery that can be produced by a party’ and, accordingly, ‘may prohibit a

party from obtaining discovery from a non-party if that same information is available from another

party to the litigation.’” In re Wood, 2019 WL 5789848, at *4 (D. Maine Nov. 6, 2019) (quoting

Amini, 300 F.R.D. at 410); see also Precourt v. Fairbank Reconstruction Corp., 280 F.R.D. 462,

467 (D.S.D. 2011) (“If the party seeking information can easily obtain the same information

without burdening the non-party, the court will quash the subpoena.”); Torres v. Johnson &

Johnson, 2021 WL 2209870, *2 (D. Mass. June 1, 2021) (“Defendants are the appropriate source

of such information [as opposed to a nonparty]; as this court has previously explained, Fed. R. Civ.

P. 34 is the means for obtaining documents disclosing [the sought] information”). Moreover, by

its very terms, this request seeks documents made by and between Plaintiff “Nunes and . . .

[nonparty] DWAC,” which, obviously, would not be within TMTG’s domain. The fact that

Petitioners are seeking records from nonparty TMTG relating to “agreements” between two other

parties (Nunes and DWAC) further suggests that this demand is not tailored to the issues of the

case or, at the very least, not directed to the proper party.

Notwithstanding the foregoing, Petitioners have also failed to demonstrate how the

documents sought through this request would have any bearing on the subject litigation and,

thereby, be within the permissible scope of discovery pursuant to Fed. R. Civ. P. 26(b)(1). This

request seeks discovery related to Nunes’s income and compensation; however, as set forth in

Nunes’s opposition filing on August 3, 2022, he is not seeking damages based upon loss of income

or compensation. (Doc. 17, p. 7). As a result, this requested discovery has no bearing on the claims

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in the underlying defamation lawsuit. Beyond this, given that Petitioners are already well aware

of Nunes’s employment with TMTG, and the capacity thereof, it is entirely unclear what further

relevant information could be derived from the “offer letters or counteroffers, engagement

agreements, employment contracts, and/or any contracts relating to compensation . . .” that

Petitioners seek, in the context of defending a lawsuit sounding in defamation (and, notably, not

in Nunes’s employment relationship with TMTG nor events deriving therefrom or associated

therewith). Here, Petitioners again seek to bulldoze an entire hill in their speculative quest for the

proverbial flecks of gold. See Alig-Mielcarek v. Jackson, 286 F.R.D. at 527.

Finally, although Petitioners admit to already being in receipt of Nunes’s employment

agreement, they are evidently dissatisfied with the contents of the document, and now seek a

duplicate copy. (Doc. 1, p. 12) (“upon reviewing this document, Petitioners’ counsel have

questions about its accuracy and completeness”). In this regard, Petitioners argue that “it is not a

burden for TMTG to produce a single, readily available document.” However, Request Number

5 purports to seek a wide swath of documents beyond Nunes’s employment agreement or, in any

event, “a single document”. Petitioners, moreover, corroborate this with their assertion that

“[r]egardless, Request No. 5 calls for more than Nunes’s employment agreement.” (Doc. 1, p. 12).

It is, therefore, entirely unclear as to what Petitioners actually seek here, given that it is difficult to

harmonize their own statements with respect to this request. Moreover, it remains altogether

unclear what the import of any of these employment-related documents would be, given that

Petitioners are already quite familiar with Nunes’s employment with TMTG, by their own

admissions. (See Doc. 1, pp. 8, 10 (“Nunes is TMTG’s highest-ranking employee, with substantial

responsibilities . . . as CEO” and “TMTG valued Nunes so highly that it was willing to pay him,

and agreed to pay him, handsomely”). Given these assertions, it is mystifying as to what further

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information Petitioners could possibly believe that they stand to gain – that would actually be

relevant to and/or have bearing on the subject lawsuit – through the expansive, voluminous, and

burdensome demands it has levied on the nonparty respondents herein.

Accordingly, Request Number 5 is overly broad, vague, seeks documents that are not

relevant to the claims at issue, and is unduly burdensome upon nonparty TMTG insofar as it seeks

documents more readily available from a party to the lawsuit (i.e. the plaintiff); therefore, this

request is wholly objectionable.

REQUEST NO. 6. All documents relating to remuneration for [Nunes], including but

not limited to negotiations regarding compensation or the process for setting compensation.

Response: At the outset, Devin Nunes’ compensation as CEO of TMTG is publicly

available information. To the extent Defendants non-public information related to Mr.

Nunes’ compensation, TMTG objects to this Request as it seeks confidential and

proprietary information. TMTG further objects to this Request as irrelevant and not

proportional to the needs of the case. Specifically, the information requested has no bearing

on any of the claims or defenses in the subject litigation. Finally, TMTG objects on the

basis that any document to which Devin Nunes is a signatory can be requested from Mr.

Nunes, who is a party to this litigation.

As with the preceding request, all of the documents sought by way of this request would

naturally be in Plaintiff Nunes’s own possession, and more readily available from him, assuming

such documents are applicable and otherwise subject to disclosure. “‘Courts are particularly

reluctant to require a non-party to provide discovery that can be produced by a party’ and,

accordingly, ‘may prohibit a party from obtaining discovery from a non-party if that same

information is available from another party to the litigation.’” In re Wood, 2019 WL 5789848, at

*4 (quoting Amini, 300 F.R.D. at 410); see also Precourt, 280 F.R.D. at 467 (“If the party seeking

information can easily obtain the same information without burdening the non-party, the court will

quash the subpoena.”); Torres, 2021 WL 2209870, at *2 (“Defendants are the appropriate source

of such information [as opposed to nonparty]; as this court has previously explained, Fed. R. Civ.

P. 34 is the means for obtaining documents disclosing [the sought] information”).

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Moreover, as TMTG pointed out in its response to this request, Nunes’s compensation as

CEO of TMTG is publicly available information. Petitioners do not refute this point and, in fact,

already seem to be familiar with Mr. Nunes’s compensation. (Doc. 1, p. 10, “TMTG valued Nunes

so highly that it was willing to pay him, and agreed to pay him, handsomely”). Insofar as

Petitioners now stipulate that they seek more “than what is referenced in [publicly available] SEC

filings” regarding Nunes’s compensation, such information would exceed the permissible scope

of discovery. Fed. R. Civ. P. 26(b)(1). Specifically, Petitioners seek, by way of example,

“documents relating to the negotiation of Nunes’s compensation. . . [to] demonstrate that nobody

involved in negotiating Nunes’s generous compensation package ‘discounted’ Nunes’s

compensation as a result [of the alleged defamatory remarks].” (Doc. 1, p. 13). Assuming,

arguendo, Mr. Nunes’s compensation was ever the source of any such “negotiations” in the first

instance, this information would not have any bearing on the lawsuit nor would it shed meaningful

light on the “discounting” issue raised by Petitioners, regardless. As set forth above, Nunes is not

seeking damages based upon loss of income or compensation. (Doc. 17, p. 7). Furthermore, the

absence of any express, written indicia of “discounting” in a hiring process that occurred well after

the statements at issue in the underlying litigation would not mean that Mr. Nunes has not been

otherwise “discounted” or suffered reputational harm elsewhere or in other contexts. Nor would

it even necessarily indicate that “discounting” did not happen subconsciously or implicitly in the

context of his hiring by TMTG. See, e.g., Cohen, 255 F.R.D. at 121 (“[h]owever, the fact that the

City did not always violate the rights of protesters is not probative of whether it ever did.”). As

such, the documentary information Petitioners claim to seek by way of this document request does

not – and, in fact, logically cannot – establish the propositions for which Petitioners seek it.

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Accordingly, Request Number 6, is overly broad, is unduly burdensome upon nonparty

TMTG insofar as it seeks documents more readily and likely in the possession of a party to the

lawsuit (i.e. the plaintiff), and seeks documents that are not relevant to the claims at issue nor

designed to elicit relevant information; therefore, this request is wholly objectionable.

REQUEST NO. 7. All communications with DWAC regarding [Nunes], including but

not limited to communications concerning [Nunes]’s candidacy and qualifications for the

position of Chief Executive Officer.

Response: TMTG objects to this Request as unduly burdensome and overly broad as

to timeframe and subject matter. Specifically, this Request seeks information from the

beginning of time to the present – and is unlimited as to scope. Finally, TMTG objects to

this Request as irrelevant and not proportional to the needs of the case. Specifically, the

information requested has no bearing on any of the claims or defenses in the subject

litigation.

Request Number 7 is entirely duplicative of Request Number 3, which seeks, inter alia:

“[a]ll documents relating to TMTG’s solicitation, recruitment, and consideration of [Nunes] for

employment with TMTG, including . . . communications . . . with third-parties . . . regarding

[Nunes]’s candidacy and qualifications for the position of Chief Executive Officer.” For the

reasons set forth in connection with Request No. 3, this request is likewise overly broad and seeks

information that is not relevant to the claims at issue, and is, accordingly, wholly objectionable.

Conclusion

For the reasons set forth above, Petitioners’ motion should be denied. Petitioners have not

adhered to the rules governing subpoena issuance and enforceability, and the subpoena and motion

to compel are both procedurally defective. This motion is, moreover, untimely pursuant to the

Local Rules of this Court. Finally, to the extent the Court reaches the merits of Petitioners’ motion

to compel, the subject requests exceed the permissible bounds of discovery and are therefore

objectionable. Accordingly, the Court should deny Petitioners’ motion to compel compliance with

the subpoena, together with such other and further relief this Court deems just and proper.

Case 9:22-mc-81070-DMM Document 20 Entered on FLSD Docket 08/04/2022 Page 21 of 22
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Dated: August 4, 2022

LIPPES MATHIAS LLP

/s/ Alessandro A. Apolito

Alessandro A. Apolito, Esq.

10151 Deerwood Park Blvd.

Jacksonville, Florida 32256

P: 904-660-0020

F: 904-660-0029

E: aapolito@lippes.com

Scott S. Allen, Esq., pro hac vice

50 Fountain Plaza, Suite 1700

Buffalo, NY 14202

P: 716-853-5100

F: 716-853-5199

E: sallen@lippes.com

Case 9:22-mc-81070-DMM Document 20 Entered on FLSD Docket 08/04/2022 Page 22 of 22