Dakota Pipeline operator subpoenas Unicorn Riot over coverage of demonstrations

The Minnesota Court of Appeals ruled on May 6, 2024, that the company behind the Dakota Access Pipeline project cannot subpoena Unicorn Riot and its reporter Niko Georgiades for documents, according to court records reviewed by the U.S. Press Freedom Tracker.

Energy Transfer LP subpoenaed the nonprofit media outlet and Georgiades in March 2021 for documents related to the 2016 and 2017 protests against the pipeline project, then filed a motion to compel after they refused to comply. In December 2022, a district judge ruled that the Minnesota Free Flow of Information Act, or MFFIA, protected both the documents themselves and Unicorn Riot as a media organization but ordered Unicorn Riot and Georgiades to produce logs of the privileged documents and the documents for “in camera” inspection, or private review by the judge, if asked.

Energy Transfer appealed the ruling in September 2023; Unicorn Riot filed a brief in October challenging the privilege log requirement as a violation of both MFFIA and the First Amendment.

The appeals court agreed in May 2024 that the information related to Unicorn Riot’s coverage of the pipeline protests is protected by the MFFIA. It also ruled, reversing the district court’s order, that the same information should be shielded from in camera review and inclusion in a privilege log.

That said, the court also ruled, “The privilege extends not to Unicorn Riot as an entity, but only to the disclosure of unpublished newsgathering information and information that may disclose the source and means of newsgathering.” It remanded the case to the lower court to determine whether the subpoenas demand any nonprivileged information, which Unicorn Riot might then be compelled to disclose.

“The Court of Appeals handed down a resounding win for the free press,” Christopher Proczko, the attorney who represented Unicorn Riot in the appeal, told the Tracker. “Chalk up another one for the good guys.”

The company behind the Dakota Access Pipeline project appealed a Minnesota court’s decision quashing subpoenas for documents from Unicorn Riot and its reporter Niko Georgiades on Sept. 27, 2023, the media outlet reported.

Energy Transfer LP subpoenaed the nonprofit and Georgiades in March 2021 for documents related to the 2016 and 2017 protests against the pipeline project. The move was part of legal efforts targeting various Minnesota environmental groups and activists who had participated in the protests. When Unicorn Riot and Georgiades refused to comply, Energy Transfer filed a motion to compel.

Then, in December 2022, a district judge ruled that the Minnesota Free Flow of Information Act, or MFFIA, protected both the documents themselves and Unicorn Riot as a media organization. At the same time, he also ordered Unicorn Riot and Georgiades to produce logs of the privileged documents and the documents for “in camera” inspection, or private review by the judge, if asked.

In response to Energy Transfer’s appeal, Unicorn Riot said that it would file a brief before the end of October 2023, supporting the court’s previous ruling and “challenging its requirement that we produce a privilege log in violation of our rights under the MFFIA and the First Amendment.”

Forcing the media to serve as sources of discovery in private litigation “can have drastic effects on newsrooms’ budgets,” said Christopher Proczko, the attorney representing Unicorn Riot in the pending appeal, “especially if they must constantly fight subpoenas from people or companies who do not like the coverage they receive — which takes away from the resources they can devote to reporting the news.”

A Minnesota judge quashed subpoenas on Dec. 16, 2022, demanding documents from Unicorn Riot and its reporter Niko Georgiades related to protests around the Dakota Access Pipeline.

Energy Transfer LP, the company behind the pipeline project, subpoenaed the nonprofit media organization and Georgiades in March 2021 as part of its legal efforts against environmental groups and activists in that state who protested the project in 2016 and 2017. In denying the subpoenas, District Judge Joseph R. Klein ruled that the documents sought by the energy company were deemed privileged under the Minnesota Free Flow of Information Act. The state statute also protects Unicorn Riot as a media member from disclosing unpublished information.

In denying Energy Transfer LP’s motion to compel, or force, Unicorn Riot and Georgiades to comply with the subpoena, Klein ordered that they produce a log of all privileged documents and, if requested, present the files to the court for an in-camera review.

Neither Unicorn Riot nor Georgiades responded to requests for comment.