An Albemarle County judge will require a media company to answer some discovery requests before ruling on whether to dismiss a $150 million defamation suit from U.S. Rep. Devin Nunes, a Republican from California.
Charlottesville-based attorney Steven Biss filed the lawsuit in Albemarle Circuit Court in April on behalf of Nunes, alleging the McClatchy Co. — which owns several newspapers across the country, but none in Virginia — conspired with Virginia-based Republican operative Elizabeth Mair to defame the congressman and interfere with his investigations into Hillary Clinton’s 2016 presidential campaign and Russian election interference.
The suit was spurred by a May 2018 article from The Fresno Bee — titled “A yacht, cocaine, prostitutes: Winery partly owned by Nunes sued after fundraiser event” — that details a 2016 lawsuit filed a California winery partially owned by Nunes. In the suit, a former employee alleged she suffered civil rights violations, intentional infliction of emotional distress and sexual harassment while working a charity cruise.
Despite Nunes, The Fresno Bee and McClatchy all being based in California, Biss has argued Virginia is an appropriate venue because the company distributes to Virginia and is an investor/property owner in the Charlottesville-based company Moonlighting.
In September, after being served the lawsuit, McClatchy filed a motion to dismiss, arguing that Virginia was an improper venue because the company does not direct activities in the state. In a later filing, McClatchy claimed it does not own any property in Charlottesville and “wrote off” their investment in Moonlighting in 2017, before the alleged defamation took place.
Biss again argued in October that Virginia is a proper venue, citing the involvement of Mair, who lives in Arlington. Citing various cases, Biss claims that McClatchy has not provided any evidence that it does not operate in Virginia.
In an opinion letter issued Wednesday, Albemarle County Circuit Court Judge Cheryl Higgins wrote that though McClatchy has submitted sworn statements denying the venue allegations, she would need answers to some of the plaintiff’s discovery requests in order to rule on the motion to dismiss.
“This court is not aware of any Virginia case law that permits it to determine this issue based on sworn declarations,” Higgins wrote.
Though discovery will be allowed, it will be limited to a few questions and submitted under seal, Higgins wrote.
Lawyers for McClatchy have previously requested a protective order, arguing in part that the plaintiff’s discovery requests are too broad and are an attempt to “circumnavigate” the Henrico County Circuit Court in another defamation case Nunes and Biss filed.
In the Albemarle case, Biss has requested communications related to two Twitter accounts, “DevinCow” and “DevinNunesMom,” both of which are named as defendants in the Henrico defamation case along with Twitter.
Discovery related to those two Twitter accounts is not within the bounds of what Higgins’ order allows.
In April, several legal experts posited that Nunes likely chose Virginia as the venue for this suit because of the state’s comparably weak anti-Strategic Lawsuit Against Public Participation statute, which is less robust than California’s. Legislation to strengthen Virginia’s anti-SLAPP laws is currently being considered by the General Assembly.
Higgins’ order also indicates that discovery alone may not provide the court all necessary information and so parties will be given the option to choose a date between April 15 and May 15 to present oral testimony and argument.