Journalist subpoenaed for testimony about confidential sources 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.

Seymour “Sy” Hersh | Investigative reporter

Hersh, who was investigating Seth Rich’s death, contacted Butowsky during the course of his reporting. Butowsky recorded one call between the pair, without Hersh’s knowledge, in which the investigative journalist said that he’d heard about an FBI report that said that Rich had contacted WikiLeaks to sell the DNC emails. Hersh later told NPR that he was fishing for information from Butowsky, and that he never published about the case because the claims could not be proved.

• Aug. 18, 2019: Couch lists Hersh in his initial disclosure statement as someone who is likely to have discoverable information, alleging that the journalist “has knowledge of the leaking of the DNC emails to WikiLeaks and the FBI’s report relating to the leaked DNC emails.”
• December 2019: Butowsky informs the court of his intention to subpoena Hersh.
• Feb. 29, 2020: Butowsky re-notices the subpoena against Hersh, citing previous failures to serve it to him. The subpoena orders Hersh to appear for a deposition on March 13.
• March 11, 2020: Butowsky informs Rich that he has been unable to serve the subpoena and the deposition will likely not take place on the scheduled date.
• April 23, 2020: District Judge Richard Leon approves a request by the defendants’ attorney to depose Hersh. Leon also approves Rich’s attorney’s request to cross-notice Hersh — functionally extending the length of the deposition to allow both the plaintiff and the defendants the opportunity to question the witness without limitation on subject matter.
• May 8, 2020: Attorneys for the defendants issue a new subpoena with identical requests, stating that the initial deposition date had passed. The new subpoena directs Hersh to appear on June 15.
• July 15, 2020: Hersh appears for a deposition wherein he asserts the reporter’s privilege to protect confidential sources.
• Oct. 2, 2020: Defendants’ attorneys file a motion to compel Hersh to comply with the subpoena.

Status of Subpoena

• With the case closed, any outstanding subpoenas would become moot. Hersh’s attorneys confirmed to the Tracker over email that Leon never ruled on the motion to compel. Therefore, the Tracker is listing the status of the subpoena as “dropped.”