Legal news website subpoenaed in Texas employment lawsuit

Legal news website Above the Law was subpoenaed on Feb. 1, 2021, in federal court in Austin, Texas, by the defendant in an employment lawsuit, seeking documents and testimony relating to four pieces of content published by the outlet.

The legal order was struck down in April.

In the underlying case, a legal recruiting firm, MWK Recruiting, sued former employee Evan Jowers in 2017, alleging that Jowers misappropriated trade secrets and breached several contracts when he started a competing company, according to court documents reviewed by the U.S. Press Freedom Tracker.

As part of his defense, Jowers subpoenaed Above the Law, seeking communications, research and documents regarding editorial decisions, as well as deposition testimony.

Jowers and his attorney, Robert Tauler, alleged that two Above the Law articles about rulings in the case, published in April and December 2020, were unduly critical of them and were “orchestrated” by MWK Recruiting owner Robert Kinney.

A third article, from 2013, concerned another legal recruiter, while the fourth was sponsored content about Jowers placed by MWK Recruiting in 2015.

Above the Law said, however, that although the subpoena was received via email on Feb. 2, 2021, it did not receive a hard copy and the required check for the appearance fee until Feb. 17, one day before the deadline set for compliance. The outlet then made an initial motion to quash the subpoena.

On March 4, in a revised and expanded motion to set aside the subpoena, filed in federal court in New York, New York, Above the Law argued that, for the three news stories, the legal order violates New York’s reporter’s shield law, as well as the reporter’s privilege recognized by the 2nd U.S. Circuit Court of Appeals.

The outlet also said — in relation to all four pieces of content — that the legal order imposes an undue burden on a third party for information that had little bearing on the case, and that its objectives are “retaliatory and unjustified.”

Above the Law noted that Tauler, Jowers’ attorney, alleged that Above the Law’s 2020 articles interfered with the Texas court’s “deliberative process” in the employment dispute — even though the stories were based on information in the public record and cited rulings that were covered first by competing news outlets.

In a declaration supporting the motion, Above the Law’s CEO John Lerner stated that Tauler repeatedly emailed him and the reporter who wrote the articles to complain about the outlet’s coverage of Tauler. Lerner added that Above the Law updated the December article with a statement from Tauler’s own attorney.

U.S. District Judge Katherine Polk Failla set aside the subpoena April 7, finding that the journalist’s privilege applies and the legal order is unduly burdensome in relation to all four pieces of content.

Failla also awarded Above the Law attorneys fees and expenses incurred in responding to the subpoena.

Lerner did not respond to a request for comment.