Fox News subpoenaed for documents in defamation suit

In the early hours of July 10, 2016, Seth Rich, a 27-year-old staffer with the Democratic National Committee, was fatally shot while walking to his home in Washington, D.C. His death, while unsolved, is believed to be the result of a robbery gone wrong. It quickly, however, became a flash point for conspiracy theories: that Rich had been behind a DNC email dump to WikiLeaks and its founder, Julian Assange, and that he’d effectively been assassinated because of it. None of the claims have ever been substantiated.

On March 26, 2018, Rich’s brother, Aaron, filed a defamation suit in the U.S. District Court for the District of Columbia against a slew of defendants — Texas businessman and then-frequent Fox News guest Ed Butowsky, the Washington Times, America First Media Group and its founder, Matt Couch — who he’d alleged had shown a “reckless disregard for the truth” and falsely linked both himself and his brother to the email leak.

During the course of three years of litigation, attorneys for both sides collectively subpoenaed nearly a dozen news outlets and members of the press. The U.S. Press Freedom Tracker documents all subpoena requests individually; Find a complete overview of the known subpoenas for this case in the blog post, “Nearly a dozen journalists, outlets and third parties subpoenaed in defamation suit.”

In January 2021, both Couch and Butowsky publicly apologized and retracted prior claims made about the Rich brothers, though Butowsky deleted his statement of contrition almost immediately, according to Law & Crime. Couch and Rich reached a settlement agreement on Jan. 19; Butowsky and Rich reached an agreement on March 22. The lawsuit was terminated officially when District Judge Richard Leon granted Rich’s motions to dismiss the charges against the defendants on March 29. The details of the settlement agreements were not made public.

Fox News Network

Fox News published an article written by Malia Zimmerman in May 2017 that reported on the conspiracy surrounding Seth Rich’s death. The outlet retracted the article a week later. Both Zimmerman and Fox reporter Adam Housley were also subpoenaed during the course of litigation, which the Tracker documented separately.

• Jan. 7, 2020: Aaron Rich issues Zimmerman a deposition subpoena that orders her to testify about her communications with Butowsky, any knowledge she may have as to whether he acted intentionally or recklessly, and Fox News’ decision-making process behind the retraction. Zimmerman allegedly communicated regularly with Butowsky in the weeks leading up to publishing the article and used Butowsky as a source, though he was not quoted in the piece.
• Jan. 15, 2020: Fox and Zimmerman move for a protective order barring the reporter’s deposition on the basis of news-gathering privilege under the First Amendment and New York’s reporter shield law.
• March 25, 2020: District Judge Richard Leon denies the motion. In an April 9 order explaining the decision, Leon states that the privilege does not apply because Butowsky was not her source.
• April 22, 2020: Fox and Zimmerman file a motion for the court to reconsider the denial. In the motion, they argue that Leon took an “unduly narrow” view of what is protected by reporter’s privilege, including that the decision to retract an article is made through the same editorial process as the decision to publish.
• April 23, 2020: Leon notes in his ruling that Rich had served Fox News itself with a document subpoena and grants him permission to file appropriate motions — such as a motion to compel — as necessary. It is unclear when the subpoena was served to the outlet.
• Sept. 28, 2020: Fox and Zimmerman withdraw their motion for reconsideration, as well as the initial motion for a protective order, as part of an agreement with Rich. It is unclear whether the agreement also pertained to the documents requested of the outlet.

Status of Subpoena

• With the case closed, any outstanding subpoenas would become moot. Attorneys for Fox News did not respond to the Tracker’s emailed request for comment, and it is unclear from the court filings alone whether the outlet contested the subpoena. Therefore, the Tracker is listing the status of the subpoena as “unknown” until further information is available.