Nearly a dozen journalists, outlets and third parties subpoenaed in defamation suit

April 15, 2021

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 a dozen news outlets and members of the press.

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.

The Tracker documents all subpoenas or legal orders requiring journalists to testify in court or produce work product separately. All known subpoenas from this litigation are outlined below; use the hyperlinked names to find the individual write-ups in the Subpoena category.

Individuals

  • Julian Assange, WikiLeaks founder
    • Aaron Rich first began trying to subpoena Assange in July 2018 but was unable to do so through conventional means. Following Assange’s incarceration in the United Kingdom in April 2019, Rich asked that the court issue a letter of request for assistance from the U.K.’s court system in requiring Assange to appear for a deposition; Butowsky filed a similar request in January 2020. After initially denying both requests, District Judge Richard Leon approved the motions for international judicial assistance in September 2020.
  • Matt Couch, America First Media Group founder
    • Couch was served with Rich’s first request for production of documents on April 23, 2019, as part of the discovery process; the requested documents included copies of communications between Couch and AFM and others mentioned in the complaint and anything supporting or refuting Couch’s allegedly defamatory statements. After months of Couch being unresponsive to discovery requests, Rich filed his first motion to compel Couch’s and AFM’s compliance with their discovery obligation on July 23. Judge Leon granted that motion on July 31. Couch claimed that reporter’s privilege protected him from disclosing documents and communications with Butowsky and at least three other sources for the first time on Oct. 25, and sat for his first deposition on Dec. 12. On Jan. 24, 2020, Judge Leon once again ordered Couch to turn over documents, explicitly including those that Couch had withheld on the basis of reporter’s privilege, and ordered him to respond to questions that he refused to answer during his first deposition. Following Couch’s further failures to comply and Rich’s motions to compel, Judge Leon ruled on March 4 that Couch’s assertion of reporter’s privilege was without merit, noting that even assuming Couch had not waived that qualified privilege by failing to assert it for months of discovery and had proved that it applies to him, it would not apply, as the information sought goes to the heart of Rich’s allegations and the defendants’ defenses.
  • Cassandra Fairbanks, freelance reporter
    • On April 23, 2020, Judge Leon granted the defendants’ request to depose Fairbanks, as well as Rich’s request to cross-notice her — 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. After multiple failed attempts, the defendants notified the court on May 12 that they were able to serve Fairbanks with the subpoena; it ordered her to appear to testify on June 17.
  • Seymour “Sy” Hersh, investigative reporter
    • In the same April 23, 2020, order, Judge Leon granted the defendants’ request to depose Hersh and Rich’s request to cross-notice him. On May 8, the defendants reissued the subpoena with a new deposition date — June 15 — stating the initial deposition date had lapsed. According to subsequent court records, it appears that Hersh gave a deposition on July 15 wherein he answered some questions but refused to identify his confidential sources. On Oct. 2, the defendants filed a motion to compel Hersh to comply with the subpoena.
  • Adam Housley, former Fox News reporter
    • Housley was likely served with a subpoena around the same time as Fox reporter Malia Zimmerman (see below), and it too was placed on hold as Judge Leon ruled on a motion for a protective order barring Zimmerman’s deposition. Leon denied the motion in March 2020, and then, on April 23, ordered that the depositions of both Housley and Zimmerman could proceed.
  • Michael Isikoff, Yahoo News investigative reporter
    • On Aug. 18, 2019, Couch named Isikoff in his initial disclosures as someone likely to have discoverable information. On April 23, 2020, Judge Leon noted in a ruling on the progression of discovery in the case that while the defendants had served Isikoff with a subpoena, he had not produced any documents in response. Leon granted Butowsky and Couch permission to litigate the subpoena, but no subsequent court filings indicate that they did so. Isikoff informed the Tracker that he was never served with a copy of the subpoena and that he believes it was improperly serviced.
  • Ellen Ratner, former Fox News White House correspondent
    • On Nov. 1, 2019, Judge Leon approved Rich’s request to depose Ratner; Ratner complied with the subpoena and completed the deposition in Ohio, where she resides, on Jan. 17, 2020. On Feb. 21, Butowsky voiced a desire to cross-examine or re-depose Ratner. Butowsky ultimately filed his own deposition subpoena, which Ratner motioned to quash on Aug. 31. Butowsky filed an opposition to that motion and moved to strike the first deposition in its entirety on Sept. 14.
  • Malia Zimmerman, Fox News reporter
    • On Jan. 7, 2020, Rich served Zimmerman with a deposition subpoena for her testimony about a May 2017 article she authored about the conspiracy theories surrounding the death of Seth Rich; Fox News retracted the article a week later. The subpoena ordered her to testify about the article, the editorial decision to retract it and her communications with Butowsky. Fox and Zimmerman quickly moved for a protective order barring her deposition citing reporter's privilege, but Judge Leon denied their motion on March 25. They then filed a motion for the court to reconsider its decision on April 22. Fox and Zimmerman withdrew both the motion for reconsideration and the initial request for a protective order on Sept. 28, citing that they had reached an agreement with Rich and his attorneys. It was not immediately clear from court filings whether Zimmerman completed her deposition.

Outlets

  • Fox News Network
    • On April 23, 2020, Judge Leon noted in a ruling on the progression of discovery in the case that Rich had served Fox News with a document subpoena and authorized him to file appropriate motions — such as a motion to compel — as necessary. Fox had filed motions alongside Zimmerman to protect her from testifying prior to withdrawing its opposition on Sept. 28. It is unclear whether the agreement the outlet and Zimmerman reached with Rich also pertained to the documents requested of the outlet.
  • WikiLeaks
    • On Jan. 24, 2020, Judge Leon approved Rich’s request to serve WikiLeaks a subpoena via Twitter; Rich did so on March 13. The subpoena ordered the outlet to turn over documents and communications concerning the Rich brothers and statements made by WikiLeaks founder Julian Assange by March 27.

Third-Party Subpoenas

  • Twitter
    • On June 6, 2018, Rich’s attorney issued a subpoena to Twitter for account data, documents and communications concerning Seth Rich or his family, the DNC, the defendants and individuals, outlets and phrases connected with the alleged defamatory reporting. The list of “primary” accounts targeted included The Gateway Pundit and Fairbanks, one of its reporters, as well as Assange and WikiLeaks. It is unclear whether Twitter complied with the subpoena, and the company declined to comment on whether it opposed the subpoena; however, it has objected to similar subpoenas.

With the case closed, any outstanding subpoenas would become moot. In instances where the subpoenaed parties or their attorneys did not respond to the Tracker’s emailed requests for comment, or where it is unclear from the court filings alone whether the subpoenas were carried out, the Tracker has listed the status of the subpoena as “unknown” until further information is available.