Dear Ms. Lin: I would prefer not to

In “Trumplaw tolls for me” I wrote about the letter and draft subpoena served on me by Tana Lin of the Keller Rohrback firm’s Seattle office in the “travel ban” case pending before Judge James Robart in the United States District Court for the Western District of Washington in Seattle. I responded to Ms. Lin’s letter this morning. This is the text of my message:

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. [I should have added: Do you think I left the juicy parts out of my posts?] 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.

I intend to retain counsel to represent me in the event that the stay in your case is lifted and you serve me with a valid subpoena. I will advise you of the name and address of counsel as soon as I have made the arrangements. In the meantime, you may respond to this message directly via email.


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