White nationalists involved in planning a deadly 2017 rally in Virginia must hand over their phones and computers for forensic analysis, the judge in a lawsuit on behalf of the victims ordered Wednesday.
The planners behind the Charlottesville “Unite the Right” rally had hitherto resisted subpoenas aimed at uncovering their full communications leading up to the marches that August weekend. Even after losing on a motion to dismiss the suit entirely earlier this year, the organizers have fought discovery subpoenas vigorously.
Today’s motion should end that resistance, co-lead attorney for the plaintiffs Karen Dunn told ThinkProgress. “The judge is making it clear in this order that the defendants are going to turn over their devices with relevant information, and we are entitled to get the evidence in their possession,” Dunn said. “It [has been] an unreasonable amount of time.”
Portions of the materials covered by today’s order that have previously ended up on the web show rally planners and attendees discussing the potential for violence at length, including conversations about the legality of driving a car through crowds of protesters blocking thoroughfares.
Former KKK leader David Duke, an honored guest at the rally but not a direct target of the suit, tried unsuccessfully to excuse his own correspondence from the case earlier this year. Other defendants, including original rally organizer Jason Kessler and the movement’s modern, media-savvy national face Richard Spencer, had only partially complied with discovery subpoenas.
Such absolutism is unusual in a civil trial’s discovery phase. Normally, parties are trusted to decide what materials are covered by subpoenas and furnish copies to opposing counsel. In this case, lawyers for the plaintiffs persuaded the judge that those decisions about relevance shouldn’t be left to the right-wing racist organizers but made instead by third-party vendors who will image the defendants’ communications devices and then share the results with the court.
That the discovery process has taken these convoluted turns does not mean the contents of the rally organizers’ phones will necessarily become public. The defendants can tag materials they believe should be kept confidential under the court’s current orders, at which point any subsequent motions or filings that cite discovery materials deemed sensitive by the court would be filed under seal. Attorneys rarely use filings to dump wholesale discovery materials into the public sphere via attachments, though it does happen occasionally in instances where an attorney decides it’s useful.
Spencer himself has made one such decision, attaching reams of text messages between himself and other Unite the Right organizers to a motion that was not filed under seal earlier this year.
But most of the defendants have both fought discovery of their cell phones and laptops, and withheld their consent to delay the turning over of logs from the online chat service Discord. The tech company says it is ready to comply with subpoenas of the white supremacists’ chatter on that platform pending the legally required consent of the participants, but up to now, the Charlottesville defendants have refused to provide it.
It’s unclear how much new information the public might glean from Discord’s eventual response to subpoenas, as cited in future public filings. Significant portions of the “Unite the Right” preparatory chatter on the service have been published by the alternative news site Unicorn Riot already. Once the lingering issue of Spencer’s consent to Discord is resolved, though, lawyers representing people injured at various locations around the Charlottesville area by the people Kessler, Spencer, and others convened for the rally would have a complete and unfiltered version of that correspondence.
Wednesday’s order also hints that nobody seems to know what’s become of defendant Elliott Kline, who has long used the neo-nazi nomme du guerre Eli Mosley in race-hate online forums and writings.
“Kline’s former counsel shall provide to the Court and Plaintiffs’ counsel Kline’s contact information, including any address, telephone number, and email address that counsel may possess,” U.S. Magistrate Judge Joel Hoppe ordered.
Recently, reporters from the New York Times exposed Kline for lying about having seen combat duty in Iraq – just one example from the litany of very public disgraces, setbacks, and criminal troubles that prominent white supremacist mouthpieces linked to the Charlottesville chaos have experienced. Kline’s former counsel did not return calls for comment.
Wednesday’s court order gives all the defendants seven days to provide the consent forms, except for Spencer, who has one week to lodge a formal objection to giving his own consent.
Spencer was carved out from the Discord consent-giving only because his lawyer wasn’t prepared to address the issue on the conference call where it came up, while all other counsel agreed to talk it through. John DiNucci, Spencer’s lawyer, told ThinkProgress he never discusses active cases with the press as a matter of personal policy.
The other lawyers did tell the judge they needed his help to make their clients comply on the Discord issue, another person on the call said. The gist of their response on the matter, the person said, was that they knew as a matter of law there was no argument to justify withholding consent — they’d just been unable to persuade their clients of that, and said it would take a court order to get them to sign the relevant papers.
That sort of stubbornness seems to typify the case, which was filed more than 13 months ago. Discovery does not usually move so slowly or so painstakingly, Dunn said.
“It’s not typical to order parties to turn over their actual devices as opposed to just voluntarily turning over their documents,” Dunn said, adding that it’s taken “an unreasonable amount of time” to get basic discovery compliance here.
As for the idea that the white supremacists who took violent actions that weekend were only defending themselves, as they’ve consistently claimed, Dunn isn’t impressed.
“All the evidence points the other direction,” she said. “If you know you’re doing something unlawful, you might try to say well let’s talk about it this way because then people might not think it’s unlawful after the fact. But I actually think many of those post-hoc excuses and rationalizations underscore how much they knew that what they were doing was unlawful. When a jury sees the evidence in this case, they will not believe that.”
However the self-defense claims might ultimately fare in court, the broader notion that “alt-right” brawlers and gunmen are reacting rather than initiating violence took another public blow days ago. A D.C. resident who attended the Charlottesville rally was arrested Friday on gun and drug charges after family members alerted law enforcement they were worried he might be planning an attack. The man, an avowed neo-Nazi whose brother had recently died in an apparent suicide, was in touch with Pittsburgh synagogue shooter Robert Bowers online, and both he and his brother had earned a reputation for in-person harassment of political enemies in D.C. Jeffrey Clark had called Bowers’ Pittsburgh attack “a dry run” in a post on Gab, the preferred online outlet for white supremacists and the site where Bowers apparently announced his massacre.
A trial date in the Charlottesville suit is set for July. Should further delays arise, whether due to Spencer or his cohorts acting to delay the discovery process or any other unforeseen circumstance, it is likely the victims’ claims will not be heard until fully two years after the men and women who rallied to Kessler, Spencer, and Mosley’s siren allegedly assaulted the plaintiffs.