My former law partner John Hinderaker and I founded the website Power Line over Memorial Day weekend in 2002. Once we attracted a few readers, we found it a helpful vehicle through which to continue our collaboration, writing commentary for newspapers and magazines, that we had taken up as a sidelight to our law practice in 1992. Over the past 15 years, Power Line has carried us on a magic carpet ride, opening just about every door we ever dreamed of walking through. This spring, to take one prominent example, I was invited to attend President Trump’s 100-day reception for conservative media in the White House.
In a sequel to this particular magic carpet ride, however, I have now been caught up in the so-called “travel ban” litigation challenging President Trump’s executive orders “protecting the nation from foreign terrorist entry into the United States.” On June 10, I was served with a letter and draft subpoena from Tana Lin of the Keller Rohrback law firm’s Seattle office alerting me to my “document preservation obligations with respect to documents that are relevant or potentially relevant to this litigation.” Lin represents plaintiffs in Doe v. Trump, venued before Judge James Robart in the federal district court for the Western District of Washington.
Though the lawsuit had been stayed, pending a recently issued ruling from the Ninth Circuit in the parallel Hawaii v. Trump “travel ban” case, Judge Robart authorized Lin to notify me of the lawsuit and seek my confirmation by June 15 that I would preserve potentially relevant documents until such time as she sends me a formal subpoena or the lawsuit is formally resolved. Surely you jest, I thought hopefully to myself.
Leafing through the draft subpoena to ascertain what documents I could possibly have that would be relevant to the stayed “travel ban” lawsuit, I find this (capitalization in the original indicating defined terms):
1. All Documents and Communications Concerning President Donald Trump’s comments about Muslims, Christians or refugees during the April 24, 2017 reception for media at the White House which you and/or your colleagues attended. This request includes but is not limited to contemporaneous notes or recordings you made or taken [sic] of the event.
2. The notebook referenced in one of Your blog post entries regarding the April 24, 2017 reception in which You state, “Although there was some degree of difficulty writing while standing, I took notes on the questions and Trump’s answers in my new notebook from CVS.”
3. Documents reflecting your Document retention policies or procedures in effect from January 1, 2017 through the present.
What bearing could my notes on Trump’s remarks at the White House reception have on the legality of Trump’s executive orders that are before the court in the “travel ban” lawsuit? Lin’s letter reflects the weird jurisprudence that has been called Trumplaw by National Review’s David French and others. In the wacky world of Trumplaw, what might have been lawful for President Obama and others may not be for President Trump, depending on statements Trump made on the campaign trail or elsewhere. At the White House reception, as I reported on Power Line, Trump had expressed his desire to help persecuted Christians in Syria seek refuge in the United States.
Lin’s letter cited my alleged obligations under Rule 34 of the Federal Rules of Civil Procedure. In law school and in the course of my legal practice, I became familiar with the Federal Rules of Civil Procedure. The rules have a beautiful lucidity rare in federal law. Rule 34 governs certain obligations of parties to a lawsuit. Rule 45 governs subpoenas issued by a party and limits a party’s rights to seek evidence from a nonparty more than 100 miles from his residence (“a distant nonparty,” as I refer to him). I ask the indulgence of readers to let me quote my email message responding to Lin’s letter and draft subpoena without further explanation:
Dear Ms. Lin: Over the weekend I received your letter dated June 7 and the draft subpoena you enclosed in the above referenced matter. Referring to the draft subpoena, your letter advises me to preserve all documents in my custody potentially relevant to the litigation. Your draft subpoena refers to my notes and other documents pertaining to comments made by President Trump at the White House reception for conservative media that I attended on April 24, 2017. You footnote two posts I published on Power Line in connection with the reception.
I find your letter deeply offensive. You seem to think I might have left some Trump bombshell buried in my notes. As you know, the purpose of my posts was reportorial. The premise of your subpoena seems to me like glorified harassment.
You advise me that the litigation is stayed but that Judge Robart has “authorized” you to notify me to seek my confirmation by June 15 that I will comply with your preservation instruction. You may have been “authorized” to send out your letter by Judge Robart—you don’t provide me a copy of his authorization to let me take a look for myself—but as far as I can tell I have no obligation to respond. As Bartleby put it in Melville’s story, I would prefer not to. If you are aware of any rule, law or order imposing a duty on me to respond, please let me know.
The final sentence of your letter in bold type cites Rule 34(a) of the Federal Rules of Civil Procedure. Rule 34(a) applies to a “party” to litigation. I am not a party. I am a “nonparty.” As such, Rule 34(c) would apply to me. Unless I am missing something, I find your instruction to me that I am “required” to do anything under Rule 34(a) highly misleading.
Rule 34(c) cross references Rule 45. As a distant nonparty to the litigation, Rule 45 gives me certain rights once you serve me with a valid subpoena. Yet the draft subpoena you have served on me is a nullity.
This is to notify you that if and when you serve me with a valid subpoena, I intend to object to it under Rule 45. If obligated to comply, I intend to seek the protection of the other provisions of Rule 45 applicable to distant nonparties.
Once I have objected to the subpoena under Rule 45, the rule would require you to seek an order enforcing compliance in the United States District Court for the District of Minnesota. I understand that Minnesota Attorney General Lori Swanson has joined you in the litigation. Perhaps you can assign enforcement of the subpoena to Ms. Swanson. I’m sure Minnesota taxpayers would enjoy the opportunity to see up close and personal how she is expending the resources of her office to hound a journalist for his utterly superfluous notes in the service of your litigation.
In a follow-up letter, Lin confessed to having made a “typographical error” in citing my obligations under Rule 34. It was an error, all right, but not of the typographical variety.
I am in the process of seeking to retain counsel to resist the subpoena if and when it is served on me. But the thought that I would destroy my notes from a meeting with the President of the United States is bizarre. Is a “preservation instruction” really necessary? And as I am not a state agency or much more than an individual citizen journalist, why would I have a formal “document retention policy” for my own notes?
The premise of Lin’s letter is that my notes might go beyond what I reported on Power Line. I took notes to assist me in recalling what the president had said to us; Lin seems to think that I may have left the juicy parts out as part of a conspiracy to mask the president’s true motives for his executive order. The forthcoming demand for notes is, as a reasonable observer would guess, gratuitous.
To me, it all feels like glorified harassment of a conservative writer. Is it conceivable that if I had covered the reception for the New York Times, Lin would be demanding my notes? I doubt it.
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