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An excerpt from today’s long Report and Recommendation by Judge Marty Fulgueira Elfenbein in Fontainebleau Florida Hotel, LLC v. Jacob:

This action arises from an encounter between Defendant and then-hotel guest Faiz Akbar … in the lobby of Plaintiff’s hotel in December 2024. The Parties sharply dispute the nature of the encounter, who initiated or escalated it, and whether Plaintiff responded appropriately to Defendant’s subsequent complaints.

Plaintiff’s operative First Amended Complaint alleges that Defendant published false statements concerning the incident and Plaintiff’s response to it, including statements that Plaintiff discriminated against Defendant because he is Jewish, knowingly permitted an antisemitic assault to occur on its premises, removed Defendant rather than the alleged aggressor, and refused to cooperate with law enforcement. Based on those allegations, Plaintiff asserts claims against Defendant for defamation and tortious interference with business relationships.

Defendant filed a Counterclaim and Third-Party Complaint asserting claims against Plaintiff and naming Jeffrey Soffer … and Akbar as Third-Party Defendants. Defendant’s Counterclaim alleges, among other things, that he was subjected to an antisemitic verbal attack at the hotel, that Plaintiff failed to protect him or adequately cooperate with the ensuing investigation, and that Plaintiff thereafter excluded him from its properties. Defendant asserted claims under federal civil-rights statutes and a claim for tortious interference with business relationships….

The merits of the Parties’ competing claims are not directly before the Court in the Motion for Sanctions. Instead, the dispute concerns Defendant’s conduct during the litigation, the meaning and scope of the District Court’s February 20, 2026 Order …, and whether Defendant’s subsequent social-media activity violated that Order in a manner warranting sanctions under Federal Rule of Civil Procedure 16(f) or the Court’s inherent authority….

On March 11, 2025, Defendant served a subpoena on the Miami Beach Police Department seeking video footage of the underlying incident that Plaintiff previously provided to the department. The Miami Beach Police Department produced responsive surveillance footage to Defendant’s counsel on March 26, 2025, and counsel thereafter transmitted that footage to Defendant. On April 2, 2025, before the entry of a protective order, Defendant posted an excerpt of the surveillance footage to his public Instagram account, which had more than 90,000 followers. On April 7, 2025, the Parties jointly moved for entry of a stipulated protective order governing discovery in this action. The Court entered the Parties’ Stipulated Protective Order on April 9, 2025.

The Protective Order provides that material produced by a nonparty is automatically treated as “Outside Counsel Eyes Only” for thirty days following production without the need for an affirmative designation by a party. The Protective Order further prohibits the use of discovery material for any purpose unrelated to this litigation, including any public, commercial, business, or personal purpose. The Protective Order restricts access to material designated as “Highly Confidential” or “Outside Counsel Eyes Only” to specified persons and does not permit unrestricted public dissemination of such material….

On April 10, 2025, one day after entry of the Protective Order, Defendant again posted the surveillance footage to his social-media accounts. On April 16, 2025, Plaintiff formally designated the materials produced by the Miami Beach Police Department as “Highly Confidential,” and Plaintiff’s counsel communicated that designation to Defendant’s counsel. Defendant’s counsel then informed Defendant of the designation, after which Defendant removed the footage. Defendant contemporaneously published a social-media post acknowledging that he was “required under the rules to remove the video.”

Notwithstanding his knowledge of the Protective Order and Plaintiff’s confidentiality designation, Defendant again posted the surveillance footage on September 17, 2025…. Although Plaintiff requested severe evidentiary and litigation-ending sanctions [over this], the undersigned concluded that those sanctions were not then supported by the record because a lesser sanction had not previously been imposed for the violation. The undersigned instead awarded Plaintiff its reasonable attorney’s fees and costs attributable to the sanctions motion and expressly admonished Defendant that the Protective Order was not optional. The undersigned further warned Defendant that any future violation of the Protective Order would be treated with the utmost seriousness, including case-dispositive sanctions.

After further proceedings concerning the amount of the award, the Court ordered Defendant to pay Plaintiff $15,000.00 no later than April 26, 2026….

Separate from the Protective Order dispute, the District Court addressed Defendant’s social-media activity in connection with pretrial scheduling and discovery matters. On February 10, 2026, Plaintiff moved for an extension of time to take Defendant’s deposition and represented that Defendant had repeatedly scheduled and cancelled depositions based on asserted physical limitations while simultaneously publishing social-media content showing him engaged in activities including ice skating, kayaking, and bicycling. The District Court granted Plaintiff additional time to take Defendant’s deposition and stated that it was “deeply disturbed by this trend.” The District Court cautioned Defendant that sanctions, “potentially including the striking of Defendant’s pleadings,” would be imposed if the conduct continued….

[In a] February 20 Order, the District Court observed that the communications between the Parties had become “toxic,” particularly in light of Defendant’s online communications, and agreed with Plaintiff that the time had come for the matter to proceed toward resolution. The District Court stated that it was “deeply disturbed by Defendant’s conduct,” including his “continued social media attacks aimed at Plaintiff and its counsel” and his attempt to effect service at an address he knew belonged to Soffer’s child. The District Court then expressly “DIRECT[ED] Defendant to cease such harassing conduct and social media references to Plaintiff and its counsel during the course of this litigation.” …

In the Motion for Sanctions, Plaintiff contends that Defendant continued to publish social-media content referencing Plaintiff, Plaintiff’s counsel, and this litigation almost immediately after entry of the February 20 Order. Plaintiff identifies multiple occasions between February 26 and May 28, 2026, on which Defendant allegedly violated the Order. [For more details, see the opinion, but here’s one example. -EV] …

The May 24, 2026 social media publications constitute perhaps the most egregious violations of the February 20 Order. To recap, in one video, Defendant alleged that a member of his family was confronted and threatened in Jerusalem by an individual who invoked Plaintiff’s counsel. Defendant specifically identified Plaintiff’s counsel as the attorney representing the hotel in this action and asserted that this lawsuit was filed to “intimidate and silence him” after he publicly alleged that he had been threatened with murder in an antisemitic attack. Defendant further stated that it “remains unknown whether anyone connected to the ongoing litigation had prior knowledge of, encouraged, or otherwise played any role in the confrontation” and that he “has endured nearly two years of legal and public harassment by [Plaintiff’s counsel] and the hotel in an effort to financially and personally destroy him after speaking out about the alleged antisemitic attack.”

In the other May 24, 2026 post, Defendant referred to Plaintiff, Soffer, and Plaintiff’s counsel, Burstyn, by name, and questioned whether Burstyn appeared in materials associated with Jeffrey Epstein. The post also referenced Burstyn’s representation of another client, questioned Burstyn’s role in events preceding the death of Virginia Giuffre, criticized Burstyn’s representation of Plaintiff, and concluded with an assertion concerning public distrust of attorneys, stating that Plaintiff’s counsel “is the reason that 84% of Americans believe that attorneys are scumbags.”

These posts did not merely allude to Plaintiff—they expressly identified Plaintiff, Plaintiff’s counsel, and the upcoming trial. They therefore violated both components of the District Court’s directive. They constituted social-media references to Plaintiff and Plaintiff’s counsel, and they also plainly continued the very social-media attacks that prompted the District Court’s intervention. These publications therefore fall squarely within the conduct the District Court sought to halt and cannot reasonably be characterized as compliance with the February 20 Order….

And the Magistrate Judge therefore recommended sanctions against the Defendant:

The totality of the record demonstrates that Defendant willfully chose to disregard a clear judicial command. It is undisputed that Defendant knew of the District Court’s February 20 Order. Nevertheless, Defendant continued making prohibited social-media references over approximately three months.

The violations were not confined to a single publication or a single day. Instead, Defendant repeatedly returned to social media to discuss Plaintiff, Plaintiff’s counsel, and the pending litigation. That pattern is inconsistent with negligence or misunderstanding….

Further, Defendant knew the significance of an order, the requirement that he comply with an order, even if he disagreed with it, and the consequences for failing to follow an order. Not only has Defendant already been sanctioned for violating an order of this Court, but Defendant was also warned about the potential for graver consequences if he violates any other orders….

Turning to the issue of whether lesser sanctions would suffice, the record contains multiple warnings of escalating specificity. The District Court first warned Defendant on February 10, 2026 that continued misconduct could result in striking Defendant’s pleadings. Then, on February 20, 2026, the District Court directed Defendant to cease social-media attacks and references to Plaintiff and its counsel. Less than one week later, the undersigned warned Defendant that Court Orders are not optional, that Defendant could not take matters into his own hands, and that future violations would be treated with the utmost seriousness, including the potential for Rule 37(b)(2)(A) sanctions. Those warnings did not produce compliance. Another admonition would repeat a measure the record has already shown to be ineffective with Defendant.

Further, the Court previously imposed a sanction in the form of a $15,000.00 fee award based on Defendant’s knowing violation of the Protective Order. The violations of the February 20 Order followed that ruling and the accompanying admonition…. [T]he prior monetary sanction did not deter Defendant from again disregarding a pretrial directive….

At his deposition, Defendant admitted under oath that his social-media publications were intended to cause Plaintiff and Plaintiff’s counsel to reconsider their conduct and litigation strategy. Consistent with that testimony, Defendant’s May 24 and May 28 posts publicly accused Plaintiff of attempting to destroy him through this litigation, attacked Plaintiff and Plaintiff’s counsel personally notwithstanding the Court’s directive prohibiting such conduct, and attempted to rally public opinion by requesting “your support” in his trial “Against ‘that Hotel’ in Miami” where he will “absolutely defeat the antisemitism-deniers.”

Defendant therefore used repeated violations of the Court’s Order as an extrajudicial litigation tactic designed to influence whether, and under what conditions, Plaintiff continued to prosecute its claims against him. That objective directly implicates the integrity of the judicial process. The pattern of Defendant’s repeated, willful violations of the February 20 Order when coupled with his stated intention behind his social-media posts and his history of sanctions and admonitions demonstrate that lesser sanctions will not suffice.

Accordingly, the undersigned concludes that striking Defendant’s Answer and Affirmative Defenses, dismissing his Counterclaim with prejudice, and entering default judgment as to liability on Plaintiff’s well-pleaded claims constitute appropriately tailored remedies that address the institutional harm caused by Defendant’s abuse of the judicial process. {This recommendation is not based upon any determination that Defendant’s affirmative defenses or Counterclaim lack substantive merit. Rather, it is based upon Defendant’s willful violation of this Court’s Order, his deliberate use of those violations as a litigation tactic, and the demonstrated inadequacy of lesser sanctions to secure compliance or preserve the integrity of these proceedings.}

With that said, the recommendation of entry of default judgment would not, by itself, establish the amount of Plaintiff’s damages. Plaintiff would remain obligated to establish any unliquidated damages through appropriate evidence and further proceedings and Defendant would be able to defend against such damages claims….

[T]he Court [also] finds it appropriate to award Plaintiff its reasonable attorney’s fees and expenses incurred as a result of litigating the Motion for Sanctions. The amount should be determined through a separate fee submission with Plaintiff bearing the burden to establish the reasonableness of its counsel’s hourly rate along with the reasonableness of the requested fees….

Sean A. Burstyn (Burstyn Law PLLC) represents the hotel.

The post Magistrate Judge Recommends Massive Sanctions on Rabbi Shmuley Boteach for Violating Court Order in Anti-Semitism Lawsuit appeared first on Reason.com.

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When former FBI Director James Comey used Instagram to share a photo of seashells arranged to form the numerical slogan “86 47” last year, federal prosecutors claim, he was publicly threatening to assassinate President Donald Trump. Yet before Comey posted that picture, Amazon vendors had offered more than 200,000 products featuring that supposedly homicidal phrase or variations on it, including “86 46” (referring to Joe Biden) and “86 45” (referring to Trump during his first term).

How many federal law enforcement inquiries did the sale or purchase of those products generate? Zero.

In a motion they filed on Tuesday night, Comey’s attorneys cite that information from Amazon to support their argument that the April 28 indictment charging him with threatening the president should be dismissed because the prosecution is selective and vindictive, driven by Trump’s personal animus against a longtime nemesis. They also submitted an affidavit in which Patrick J. Fitzgerald, one of Comey’s lawyers, summarizes evidence that the defense obtained from the government through discovery. That evidence confirms that the Secret Service illegally surveilled Comey after he posted the seashell picture, and it contradicts Acting Attorney General Todd Blanche’s account of how the case unfolded.

After Trump fired Attorney General Pam Bondi on April 2, Blanche was so desperate to secure his nomination to replace her that he eagerly pursued a legally absurd case against Comey based on a ubiquitous expression of opposition to the president that is clearly protected by the First Amendment. By posting that seashell photo, Blanche claimed with a straight face, Comey had committed two federal felonies punishable by up to 10 years in prison.

Comey took the picture at the center of the indictment while vacationing in North Carolina. He posted it on on May 15, 2025, with the jokey caption “cool shell formation on my beach walk.” He took the post down within a few hours, offering this explanation: “I posted earlier a picture of some shells I saw today on a beach walk, which I assumed were a political message. I didn’t realize some folks associate those numbers with violence. It never occurred to me but I oppose violence of any kind so I took the post down.”

We already knew that the Secret Service tailed Comey and his wife as they drove back to their home in Virginia the day after the Instagram post. That was ridiculous enough, since it suggested that the former federal prosecutor, deputy attorney general, and FBI director might pose an active threat to the president’s life. The new filings show that the Secret Service also submitted an “emergency” request for cellphone location information from Verizon so it could track Comey as he made his way back to Virginia.

The day of the Instagram post, a Secret Service special agent in charge (SAIC) “asked me about the possibility of pinging Comey’s cell phone,” an assistant to the SAIC (ATSAIC) reported in an email the next day. “I said it could be done, but it would be a bad idea.”

Why? Under 18 USC 2702, a cellphone provider generally may not “knowingly divulge” customer records, but there is an exception when a “governmental entity” asks for the information if “the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of communications relating to the emergency.” In this case, there was no evidence to support such a belief.

“To declare an exigency exception” to the usual warrant requirement, the ATSAIC noted, “we needed to believe that there is an imminent threat to life or limb.” At the time, he added, “we did not believe that anyone’s life was in immediate danger,” so “legally it was a bad idea to ping the phone.” The ATSAIC said he “argued against taking this option” because it was “legally questionable.” The SAIC “agreed with me but said we might do it anyway.”

And so they did. On May 16, an agent filled out a form asking Verizon for Comey’s location information, averring that the surveillance was “relate[d] to an emergency involving danger of death or serious physical injury to a person, necessitating disclosure without delay of information relating to that emergency.” The agent, whose name is redacted in the copy of the form that Comey’s lawyers filed in the U.S. District Court for the Eastern District of North Carolina, certified that “the foregoing is true and correct.”

That agent said he “was asked by the SAIC to ping the cellphone of James Comey via exigency.” He added that he did so “with hesitation.” An assistant agent in charge (ASAIC) reported that “the # 3 guy at DOJ ‘wanted to ping the cellphone via an exigency request.'”

The Secret Service also interviewed Comey by phone the day of the Instagram post and again, in person, at the agency’s headquarters in Washington, D.C., the next day. That interview, according to Fitzgerald’s affidavit, “was attended in person by the General Counsel for Homeland Security, the General Counsel for the Secret Service, a Deputy Chief Counsel for the Secret Service, an Assistant U.S. Attorney from the Eastern District of Virginia, an ATSAIC from the Secret Service and a Special Agent from the Secret Service.”

During a Fox News interview that morning, Trump had declared that Comey’s seashell picture “meant assassination” and “says it loud and clear.” Comey, he averred, was “calling for the assassination of the president.”

A couple of hours after that interview, the Secret Service decided to start treating the phrase “86 47” as a potential indicator of violent intent. “Effective immediately, please include ‘8647’ in manual keyterm searches for threats to POTUS,” the directive said, because those four digits “could be coded threat language for ‘kill the 47th President.'” Although “we will be in for a surge of discoveries/reports,” it added, “please keep management informed and we will help manage the surge.”

By the end of the day, the Secret Service had ditched that new policy. “As we figured,” an assistant director said at 11:12 p.m., “this is a lot and we can’t, nor should be expected to document all of these references to 8647. We should go back to business as usual, unless someone is inciting violence along with those numbers or adding egregious and threatening language.”

Meanwhile, Trump was keenly interested in the Secret Service interview with Comey. In an email, SAIC John Bush, who was in charge of the Presidential Protective Division and traveling with Trump, said he was “getting LOTS of questions” about the interview and asked if he could “get an immediate readout.” A Secret Service supervisor replied that he would “ask for the preliminary interview notes as soon as they are available.” Around 12:15 p.m. that day, a Secret Service timeline noted, “POTUS was requesting a copy of the interview notes to use in his 6 pm press conference.” Bush said “it is a hot topic on the plane and [the president] is very interested.”

Bush received a summary of the 45-minute interview around 9:30 p.m., three hours after it was concluded. According to the Secret Service, Comey “presented a professional appearance, was eager to speak and agreed to the consensual conversation.” He “answered all questions posed to him, and his attorney never stopped the interview.”

The Secret Service had closed its investigation by November, classifying it as a “non-referred matter,” meaning “the determination can be made based upon initial investigation that there is no risk of an unwanted outcome and there is no judicial outcome.” But then the FBI launched its own investigation.

The day that Comey posted the seashell picture, FBI Director Kash Patel said his agency was “aware of the recent social media post by former FBI Director James Comey, directed at President Trump.” He added that “primary jurisdiction is with [the Secret Service] on these matters and we, the FBI, will provide all necessary support.”

Apparently unsatisfied with the outcome of the Secret Service investigation, the FBI shifted from support to instigation. But although its probe officially started on October 30, the flurry of investigative activity that Fitzgerald describes did not begin until April 13, about two weeks before the indictment, when the FBI finally got around to interviewing “Person-1,” a hostile acquaintance of the Comeys whom the Secret Service had interviewed the previous May.

Person-1 had exchanged text messages with Comey’s wife, Patrice, that resulted in the decision to take down the Instagram post. Patrice Comey reported that “Person-1 had contacted her to advise her that the post was being viewed by some as a call to violence against President Trump.” Person-1, who had worked in the restaurant business, initially interpreted the “86” in Comey’s photo in light of that experience (“like we’re 86 on broccoli”). But after seeing right-wing reactions to the picture on social media, Person-1 decided that Comey’s message had violent connotations.

Person-1 said that impression was reinforced by comments that former Trump lawyer Rudy Giuliani had made during a podcast five days after the Instagram post. Comey was “guilty as hell,” Giuliani said. Given Comey’s experience as a prosecutor in organized crime cases, Giuliani averred, he would have known that eighty-six means kill in mafia lingo. But Giuliani, who also had worked on organized crime cases as a federal prosecutor, conceded during a Newsmax interview the same day that “I didn’t know what it meant until my boys told me.”

In an effort to support a sinister interpretation of Comey’s picture, the FBI’s Charlotte field office searched the agency’s database of investigations. “These searches produced inconclusive results regarding the use of ’86’ or ‘eighty-six’ as a slang term,” it reported. “Additionally, the searcher was unable to determine if the subject [Comey] would have had access or been exposed to any potential files meeting the search parameters.”

The FBI also searched records related to United States v. John Gambino, an organized crime case that Comey prosecuted in 1993, and United States v. Salerno, which Giuliani had prosecuted in the mid-1980s. Those searches, which continued into the night before the indictment, likewise found no “86” references.

On May 6, about a week after the indictment, the FBI case agent conducted telephone interviews with two retired agents. One agent, who “had worked organized crime cases in New York and was specifically assigned to the FBI squad that investigated the Gambino crime family,” reported that he “was familiar with the term ’86’ and used it and heard others use it throughout his life.” He “never understood the term ’86’ to mean to kill.” He “did not recall any instances in which he heard organized crime subjects or sources use ’86’ to mean to kill someone.”

The other retired agent, who “had worked organized crime cases in New York for
a ‘very long time,'” could not recall “any instance where ’86’ was used in the organized crime context to mean ‘kill.'” He “understood the term to be used by organized crime to mean ‘get rid of things.'”

The day after those interviews, at the direction of W. Ellis Boyle, the U.S. attorney for the Eastern District of North Carolina, the FBI “conducted both open-source queries and artificial intelligence searches—namely, on Google AI and ChatGPT—about the term ’86,'” Fitzgerald says. Regarding the government’s premise that eighty-six means kill, one result said “many career law enforcement officials, including former FBI agents, have publicly disputed this, stating they never heard ’86’ being used for murder in 35+ years of duty, considering it purely a restaurant or bar [term] for removal.” Another query “returned a document indicating that the Merriam-Webster dictionary does not officially enter a violent meaning for ’86’ because ‘it is relatively recent and lacks widespread use compared to its hospitality meanings.'”

In a May 8 telephone interview with the case agent, by contrast, Salvatore “Sammy the Bull” Gravano, a cooperating witness in United States v. John Gambino, “stated his belief that Mr. Comey had to know what the term ’86’ meant ‘as it related to killing someone.'” You would not expect that term to show up in legal or investigative records, Gravano said, because “members of organized crime families refrained from using terms such as ’86’ that were commonly used in day-to-day business in the presence of law enforcement officers.”

Regardless of how often gangsters use eighty-six to mean kill, it is fair to say that is one of the verb’s possible meanings. But it is by no means the only or most common usage. The term, which originated in the mid-20th century as a reference to banning unwanted bar customers, has since been extended to many other contexts. Generally speaking, it means to “reject” or “discard,” which explains why federal law enforcement agencies have never previously viewed phrases like “86 47” as grounds for criminal charges.

Since 2007, the FBI has maintained a database of “all communicated threats received by the FBI, comprised of thousands of images of letters, envelopes, and other communications.” Comey’s lawyers asked the government how many times eighty-six had appeared in that database prior to his indictment. The answer: zero.

To convict Comey, prosecutors have to prove beyond a reasonable doubt that he “consciously disregarded a substantial risk that his communications would be viewed as threatening violence,” the minimum First Amendment standard for “true threats” under the Supreme Court’s 2023 ruling in Counterman v. Colorado. One of the charges requires more: The government has to prove that Comey wanted people to view his seashell picture as a threat to kill the president.

In a Meet the Press interview five days after he announced Comey’s indictment, Blanche conceded that the phrase “86 47” is “posted constantly” without triggering criminal charges. But in Comey’s case, he said, it was “not just the Instagram post” that led to the indictment.

“This was an investigation that lasted 11 months,” Blanche said. “If the only facts that existed was the posting of the Instagram [message], obviously that wouldn’t have taken 11 months.” The investigation, he claimed, turned up “witnesses,” “documents,” and “materials” that will be used to “prove intent.”

That account glosses over the fact that the Secret Service, which Patel said had “primary jurisdiction” in the case, closed its investigation after concluding that there was “no risk of an unwanted outcome” and no basis for criminal charges. And when Blanche suggested that the government already had enough evidence to convict Comey, the FBI was still scrambling to shore up the government’s case.

The post-indictment investigation that Fitzgerald describes, including the interviews with former FBI agents and the A.I. queries, mostly undermined that case. And while the Sammy the Bull interview supports the idea that eighty-six can have a murderous meaning, such evidence is a far cry from proving Comey understood that when he posted his picture, let alone that he intended it to be interpreted that way.

Still, Blanche was telling the truth when he said it is “not just the Instagram post” that underlies Comey’s indictment. The decision to charge Comey with two federal felonies based on constitutionally protected speech would be inexplicable but for Trump’s personal vendetta against him and Blanche’s eagerness to exact revenge at his boss’s behest.

The post Records Show the Government Illegally Surveilled James Comey and Confirm the Absurdity of Its Case Against Him appeared first on Reason.com.

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First, a quick summary from today’s decision by Judge Amit Mehta (D.D.C.) in Mannina v. O’Keefe Media Group:

In January 2025, Plaintiff Jamie Mannina, then a federal defense contractor, went on what he believed were two genuine dates with a woman named “Heidi.” Unbeknownst to Plaintiff, “Heidi” was actually Defendant [redacted], a person hired by Defendants O’Keefe Media Group (“OMG”) and James O’Keefe to elicit from Plaintiff details about his political views and federal employment history and to film and record his statements. Defendants used this footage of Plaintiff to create videos and articles for a series called “Dating the Deep State,” which Plaintiff alleges paint him as a Pentagon official conspiring with other federal officials to undermine then-President-elect Donald Trump and his incoming administration.

The court held that Heidi, who was sued as one of the defendants, couldn’t remain pseudonymous:

Throughout this litigation, Defendants have maintained that [Heidi Doe]’s name should be sealed…. Defendants … assert that [Heidi]’s true name must be kept under seal on the basis that her identity is protected by the District of Columbia reporter’s shield law. In the alternative, they argue that good cause exists under Rule 26(c) to maintain [her] pseudonym….

Defendants still have not shown [Heidi] is protected by the Shield Law. The District’s Shield Law prohibits the compulsory disclosure of “the source of any news or information procured by [a] person while employed by the news media and acting in an official news gathering capacity,” creating an absolute privilege for the identities of sources.

The court previously denied Defendants’ motion on the ground that they did not present any evidence—”not even a declaration”—to support treating as a source rather than as a journalist. Defendants this time come armed with a declaration from [Heidi], but the declaration only reinforces the court’s previous determination that [Heidi] is not a source within the meaning of the Shield Law.

In her declaration, [Heidi] states that she was motivated to pursue “undercover journalism” to expose corruption and promote transparency as to matters of public interest and explains that she was the one who “came up with the idea to film [Plaintiff] as a potential subject leading to important information for the public.” She was trained by OMG in the “techniques of undercover journalism,” and she received $7,000 from OMG after the publication of the videos and articles about Plaintiff “as an appreciation for [her] contribution,” describes her activities as “collecting … recordings and making observational notes,” “provid[ing] all this raw information to OMG’s team,” and “answer[ing] their questions about context,” and she compares herself to “prior undercover journalists.” Defendants refer to [Heidi] in their motion to dismiss as a “citizen journalist” or “undercover reporter,” and her activities as “undercover newsgathering,” And they describe [Heidi]’s relationship with OMG and O’Keefe as a “working relationship” wherein [Heidi] was “employed or contracted” by Defendants “to conduct an investigation of people like Mr. Mannina, and in the course of that employment she carried out the undercover news investigation.” The list goes on. All of these activities suggest [Heidi] was working for OMG and O’Keefe and was not a source.

Nothing in the declaration makes [Heidi] any more comparable to the protected “source” in Grunseth v. Marriott Corp. (D.D.C. 1994), which Defendants again cite to support their position. [Heidi]’s collaboration with OMG and O’Keefe does not at all resemble the leaking of internal records by a non-party employee of the defendant company in Grunseth. The Shield Law therefore is not a basis on which [Heidi] can proceed pseudonymously….

As for Rule 26(c), the court is not moved by Defendants’ conjecture about the harassment may face if her identity were unsealed. Rule 26(c) permits a court to, with “good cause,” withhold from the public certain information “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” In this circuit, courts balance five “non-exhaustive” factors to determine whether a party may proceed anonymously:

1. whether the justification asserted by the requesting party is merely to avoid the annoyance and criticism that may attend any litigation or is to preserve privacy in a matter of sensitive and highly personal nature;
2. whether identification poses a risk of retaliatory physical or mental harm to the requesting party or even more critically, to innocent non-parties;
3. the ages of the persons whose privacy interests are sought to be protected;
4. whether the action is against a governmental or private party; and, relatedly,
5. the risk of unfairness to the opposing party from allowing an action against it to proceed anonymously.

Because proceeding under a pseudonym is a “rare dispensation from the court,” the party seeking pseudonymity “bears the weighty burden of both demonstrating a concrete need for such secrecy, and identifying the consequences that would likely befall it if forced to proceed in its own name.” “Speculative assertions of harm will not suffice.”

Defendants chiefly focus on the second factor. They argue that public disclosure of [Heidi]’s name may invite harassment. Defs.’ PO Mot. at 9–12. [Heidi] attests that she fears [various things, all of which are redacted -EV].

Though the court is sympathetic to [Heidi]’s anxieties, that is not enough to continue to proceed under a pseudonym. Defendants admit that “[n]o specific threat has been made against her yet”—only that she “could” be doxed or “could” suffer reputational or emotional harm. Defendants have not “provide[d] evidence that psychological damage or violent threats are anticipated if” [Heidi]’s identity is disclosed. [Heidi]’s fears about [redacted] is entirely speculative. And though she alleges [redacted], she does not claim any threatened violence or harm. Even [redacted] is not enough, for “[m]ere embarrassment and harassment”—much less the mere possibility of them—are “insufficient to demonstrate the sort of retaliatory harm necessary to satisfy this showing.” … “[R]equests to proceed anonymously have been denied where the [party] merely cites personal embarrassment as the basis of the need for confidentiality.” And Defendants have offered nothing but speculation that there was [redacted].

Perhaps continued pseudonymity would not materially prejudice Plaintiff, who is now aware of [Heidi] ‘s identity. But “[l]awsuits are public events.” And “[i]dentifying the parties to the proceeding is an important dimension of publicness.” The public interest in open judicial proceedings “is a legitimate reason to requiring unsealing” [Heidi] ‘s name.

The other factors either do not weigh in favor of anonymity or fail to tilt the balance in that direction. [Heidi] is a private party, but she is not a minor, and this case does not involve sensitive or highly personal matters, see In re Sealed Case II (D.C. Cir. 2020) (listing as examples of “sensitive or highly personal matters” “sexual activities, reproductive rights, bodily autonomy, medical concerns, or the identity of abused minors”). And the fact that [Heidi] engaged in First Amendment–protected journalistic activities also is not reason alone for this court to grant the “rare dispensation” of pseudonymity. On the contrary, by volunteering to work with OMG and agreeing to dupe Plaintiff knowing that her efforts could be published by OMG on the internet and thus reach a worldwide audience, she accepted some risk that her identity would be uncovered through litigation or otherwise.

The court therefore denies Defendants’ motion for a protective order. [Heidi] must proceed as a defendant in this case like any other under her true name and identity. The court, however, is amenable to a protective order keeping under seal [Heidi]’s address and contact information. The parties may jointly propose a protective order with that narrowed scope.

The court added that,

The court will unseal the entirety of its 60 Memorandum Opinion and Order, thereby disclosing Defendant Heidi Doe’s true name, unless she timely notices an appeal from the denial of the motion to permit her to proceed pseudonymously,

You can also read posts about the substance of the court’s analysis of the libel claim, the fraudulent misrepresentation claim, and the wiretapping claim.

The post No Pseudonymity for the Pretend Date in Pentagon Contractor's Suit Over Hidden Date Recording by O'Keefe Media Group appeared first on Reason.com.

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First, a quick summary from today’s decision by Judge Amit Mehta (D.D.C.) in Mannina v. O’Keefe Media Group:

In January 2025, Plaintiff Jamie Mannina, then a federal defense contractor, went on what he believed were two genuine dates with a woman named “Heidi.” Unbeknownst to Plaintiff, “Heidi” was actually Defendant [redacted], a person hired by Defendants O’Keefe Media Group (“OMG”) and James O’Keefe to elicit from Plaintiff details about his political views and federal employment history and to film and record his statements. Defendants used this footage of Plaintiff to create videos and articles for a series called “Dating the Deep State,” which Plaintiff alleges paint him as a Pentagon official conspiring with other federal officials to undermine then-President-elect Donald Trump and his incoming administration.

Mannina sued on various grounds; I discussed the court’s treatment of plaintiff’s defamation and false light claim in this post, and its treatment of the fraudulent misrepresentation claim in this post. Here’s what the court had to say about the wiretapping claim:

Plaintiff alleges that the statements made and recorded while on the dates and during the confrontation at the Wharf are oral communications intercepted for the purpose of committing a tortious act in violation of the D.C. and federal wiretapping statutes.

Under both statutes, it is unlawful to “intentionally intercept[], endeavor[] to intercept, or procure[] any other person to intercept or endeavor to intercept any wire or oral communication.” An “oral communication” is “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.”

Even where that expectation is justified, both the D.C. and federal wiretapping statutes permit the interception of oral communications as long as one party to the communication has consented to the recording. But both also provide that this single-party consent rule does not apply if the communication is intercepted “for the purpose of committing any criminal or tortious act.”

Defendants first argue that Plaintiff has failed to plausibly allege that his expectation that his statements would not be intercepted was justified, because (1) [redacted] was a “new acquaintance” with whom he was meeting for the first time; (2) the dates were in public restaurants full of other people; (3) [redacted]’s use of a phone during the dates to send texts meant Plaintiff was on notice that was in possession of a recording device; and (4) recording devices were clearly used during the Wharf “ambush.” Defendants … mistakenly ask the court to draw inferences in their favor from the facts alleged in Plaintiff’s complaint. And the inferences they urge “call[] for the consideration of a host of intensely fact-bound circumstances.” So “[a]t this early stage of the proceedings, Plaintiff[‘s] allegations are sufficient to permit an inference that the communications at issue were made with a reasonable expectation that they would not be subject to interception.”

In a final effort, Defendants aver that the tortious-purpose exception is unconstitutional under the First Amendment, on its face and as applied. Defendants advanced the same arguments before the court in Democracy Partners v. Project Veritas Action Fund (Democracy Partners II) (D.D.C. 2020), which held that the wiretap statutes are constitutional because they are content neutral and clear intermediate scrutiny…. The court denies Defendants’ motions to dismiss on this issue but will not decide it now. This decision is currently on appeal, and the D.C. Circuit held oral arguments in January of this year. The court will revisit the issue on summary judgment, likely at that point with guidance from the Circuit. Permitting the wiretapping claims to proceed will not enlarge the scope of discovery, given that all claims rely on the same allegations.

The post A Bit on Pentagon Contractor's Wiretapping Claim Over Hidden Date Recording by O'Keefe Media Group appeared first on Reason.com.

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From today’s decision by Judge Amit Mehta (D.D.C.) in Mannina v. O’Keefe Media Group:

In January 2025, Plaintiff Jamie Mannina, then a federal defense contractor, went on what he believed were two genuine dates with a woman named “Heidi.” Unbeknownst to Plaintiff, “Heidi” was actually Defendant [redacted], a person hired by Defendants O’Keefe Media Group (“OMG”) and James O’Keefe to elicit from Plaintiff details about his political views and federal employment history and to film and record his statements. Defendants used this footage of Plaintiff to create videos and articles for a series called “Dating the Deep State,” which Plaintiff alleges paint him as a Pentagon official conspiring with other federal officials to undermine then-President-elect Donald Trump and his incoming administration.

Mannina sued on various grounds; I discussed the court’s treatment of plaintiff’s defamation and false light claim in a separate post, but here’s what the court had to say about the fraudulent misrepresentation claim:

A claim of fraudulent misrepresentation requires proof of “(1) a false representation (2) made in reference to a material fact, (3) with knowledge of its falsity, (4) with the intent to deceive, and (5) an action that is taken in reliance upon the representation.” Plaintiff alleges that [redacted] “knowingly and deliberately misrepresented herself to Mr. Mannina for the purpose of targeting and entrapping him into making remarks that could be distorted for political and harmful purposes.” Using her “inauthentic profile,” falsely represented she was romantically interested in Plaintiff, when in fact “[s]he was simply part of an intentional targeted operation against individuals perceived to be Democrats to materially and falsely discredit them.” And her false representations were “material to inducing” Plaintiff to go on the two dates with [redacted] and discuss his views and career.

{OMG and O’Keefe’s motion does not itself offer any substantive arguments [apparently referring to arguments related to the elements of the fraudulent misrepresentation claim]. It rather accuses Plaintiff of “blam[ing] a lady for not being honest as to her motives” instead of “blaming himself for having a big mouth and spilling secrets.” Apparently, his “audacity is similar to a man who kills his parents and then throws himself upon the mercy of the court, claiming that he is an orphan.”}

Defendants first appeal to the First Amendment. They contend that the First Amendment precludes a fraud claim against undercover journalists both because “a plaintiff cannot use a fraud label to end-run the constitutional safeguards that apply to speech about matters of public concern” and because the First Amendment “does not countenance using fraud claim to punish the publication of truthful information on a matter of public concern.” …

“[T]he Supreme Court has said in no uncertain terms that ‘generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news.'” Food Lion, Inc. v. Cap. Cities/ABC, Inc. (4th Cir. 1999). Thus, “far reaching as they may be,” First Amendment protections “do not place the unlawful acquisition of information beyond the reach of judicial review.” …

To be sure, it will be Plaintiff’s burden to prove that Defendants are liable for damages arising out of Plaintiff’s mental distress, loss of employment, and reputational consequences, and to establish causation as to each. “[B]ut certainly at this point it would be premature to preclude [him] from trying to do so.”

Plaintiff otherwise has plausibly alleged fraudulent misrepresentation. Plaintiff has alleged with sufficient “particularity”—as required by Rule 9(b)—that [redacted], in coordination with OMG and O’Keefe, knowingly made false representations about her political views and purpose for being on Bumble upon which Plaintiff relied to make statements that Defendants recorded, edited, and published, causing the loss of his employment.

Defendants argue that liability for fraud cannot arise out of non-commercial or transactional settings and that the particular context of a date renders misrepresentation and reliance untenable, but they offer no case law to either effect. What’s more, [redacted] ‘s conduct was not akin to simply misrepresenting herself to impress a suitor; she deliberately fabricated a persona and received a fee to elicit information from Plaintiff that she had reason to believe OMG and O’Keefe would use, at least in part, for commercial purposes. {OMG and O’Keefe embedded paid advertisements within all three Videos.} The court therefore will not dismiss the fraudulent misrepresentation claim.

The post Pentagon Contractor's Fraudulent Misrepresentation Claim Over Hidden Date Recording by O'Keefe Media Group Can Go Forward appeared first on Reason.com.

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