Eichenwald v. Rivello
Eichenwald v. Rivello
Opinion of the Court
James K. Bredar, Chief Judge *563Plaintiff Kurt Eichenwald brought this lawsuit against Defendant John Rivello in November of 2017, alleging that Defendant intentionally harmed him by means of a strobe-light image sent to his Twitter account which allegedly caused him to have a seizure. (See Compl., ECF No. 2.) The Court stayed proceedings as a related criminal case progressed in Texas, but then partially lifted the stay and permitted third-party discovery. Plaintiff subpoenaed several third-parties, and Defendant has moved for a protective order "and/or to quash" those subpoenas. (Mot. Quash, ECF No. 32.) That motion is fully briefed and ripe. (See Opp'n, ECF No. 36; Reply, ECF No. 38.) There is no need to hold a hearing to resolve the matter. See Local Rule 105.6 (D. Md. 2016). Defendant does not have standing to challenge these third-party subpoenas, and therefore his motion will be DENIED.
I. Background
The following facts are alleged in Plaintiff's complaint: Plaintiff is a well-known journalist who was critical of then-candidate Donald Trump during the 2016 election. He also has epilepsy and has been public regarding his epilepsy. On December 15, 2016, Defendant sent Plaintiff, via Twitter, a strobing Graphic Interchange Format image ("the strobe GIF") that was intended to cause Plaintiff to have a seizure and did cause Plaintiff to have a seizure. In response, Plaintiff has sued Defendant for battery, assault, and intentional infliction of emotional distress.
Defendant's alleged actions also resulted in a criminal prosecution against him in Texas (Plaintiff is a Texas resident, and allegedly viewed the strobe GIF and suffered the seizure in Texas). As a result of the ongoing criminal matter, the Court stayed proceedings in this civil case. (See Paperless Order, ECF No. 20.) The Court then partially lifted the stay, ordered Defendant to respond to Plaintiff's complaint and permitted Plaintiff to begin third-party discovery under certain conditions. (See Order Partially Lifting Stay, ECF No. 24.)
Subsequent to that order, the Court partially granted and partially denied a motion to dismiss brought by Defendant, and Plaintiff commenced third-party discovery. He subpoenaed seven third-parties: PayPal Holdings, Inc., Richard B. Spencer, Google LLC, Charles C. Johnson, AT & T, Inc., Twitter, Inc., and Apple, Inc. Plaintiff seeks a variety of information from these third-parties, but these subpoenas primarily seek information relating to a purported "Rivello Legal Defense Fund," possible contributions to this purported fund, and statements third-parties may have made about the alleged strobe GIF assault. (See Subpoenas, Mot. Quash Exs. A-F, ECF Nos. 32-1 through 32-6.)
Defendant now seeks to quash all but one of these subpoenas.
II. Discussion
"A party generally lacks standing to challenge a subpoena issued to a third-party absent a claim of privilege, proprietary interest, or personal interest in the subpoenaed matter. A motion to quash, or for a protective order, should generally be made by the person from whom the documents or things are requested." Washington v. Thurgood Marshall Acad. ,
The Court has found no cases, and the parties have provided none, that depart from this general rule-that a party lacks standing to challenge a subpoena issued to a third-party except when the party has some interest (personal, proprietary, privilege, or so forth) in the information sought. Both parties cite a recent unpublished decision from a different judge in this Court as providing an exception to the general rule, but they misread that decision. See Fangman v. Genuine Title, LLC , Civ. No. RDB-14-0081,
Defendant makes no argument that he has a personal right or privilege in any of the information sought, and therefore he lacks standing to challenge these subpoenas.
Even if Defendant had standing, and the Court considered Defendant's motion under Rule 26(c), see Fangman ,
III. Conclusion
For the reasons stated above, Defendant's motion for a protective order and/or to quash is DENIED.
By consent of the parties, the Court dismissed a fourth cause of action in an earlier order. (See Order Granting in Part and Denying in Part Motion to Dismiss, ECF No. 35.)
According to Plaintiff, his notice of his subpoena of Apple, Inc., was provided to Defendant after Defendant filed the motion to quash. (See Opp'n at 2.) Defendant did not make an additional motion to quash this subpoena, or note in his reply that he wishes to quash this subpoena.
Reference
- Full Case Name
- Kurt EICHENWALD v. John RIVELLO
- Cited By
- 6 cases
- Status
- Published