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Reporter’s claim of tweet-induced seizure survives subpoena challenge

Defendant cannot quash request from internet sites, judge says

judge-gavel-330A journalist known for his epilepsy and outspoken opposition to Donald Trump can proceed – at least for now — with his subpoena of internet sites in an effort to get information about a purported defense fund for a Salisbury supporter of the president who allegedly tweeted the reporter a message intending to cause him to suffer a seizure, which he did.

U.S. District Judge James K. Bredar on Thursday rejected John Rivello’s motion to quash subpoenas reporter Kurt Eichenwald sent to Google, PayPal and Twitter.

Bredar said Rivello lacks legal standing to challenge the subpoenas because he has no “personal right or privilege” to the information sought from these “third-parties” in the personal-injury lawsuit Eichenwald has brought against him.

In a published memorandum opinion, Bredar rejected Rivello’s argument that the subpoenas must be quashed because the information gleaned could reveal the names of contributors to the purported “Rivello Defense Fund” who wish to remain anonymous.

“He (Rivello) does not … argue against these subpoenas on behalf of himself,” wrote Bredar, who presides in Baltimore and is chief judge of the U.S. District Court for Maryland. “And that is why his motion will be denied: Having put forth no reason that he has a right or interest in the information sought or that he will be burdened, embarrassed or inconvenienced in any way by this information, (Rivello) has failed to establish standing or carry his burden under Rule 26 (c)” of the Federal Rules of Civil Procedure.

The internet sites themselves could have standing to challenge the subpoenas.

However, executives at the sites “have been cooperative” in submitting information, said Eichenwald’s attorney, Steven Lieberman, of Rothwell, Figg, Ernst & Manbeck P.C. in Washington.

“This is a case involving a vicious attack on a journalist,” Lieberman said Friday. “Judge Bredar is being careful and thoughtful and innovative in dealing with issues in the case.”

Rivello’s attorney, Bruce F. Bright, did not return a telephone message seeking comment on the case Friday. Bright is with Ayres, Jenkins, Gordy & Almand P.A. in Ocean City.

Eichenwald, a former longtime reporter for The New York Times, a winner of two George Polk Awards for investigative reporting and a prolific author, has written about his epilepsy for the past three decades and in recent years has criticized via online posts Trump’s foreign business ties as a potential threat to U.S. national security.

Eichenwald alleges John Rivello’s Dec. 15, 2016, tweet stating “You Deserve a Seizure for Your Posts” contained a Graphics Interchange Format, or GIF, which had a strobe-light effect that triggered the seizure.

Specifically, the strobe contained in Rivello’s message emitted light waves that touched Eichenwald’s retina, generated an electric signal and caused the seizure, a result that can be easily discovered via an internet search, the reporter claims.

Rivello, who denies Eichenwald’s allegations, also faces a criminal charge of aggravated assault with a deadly weapon by “inducing a seizure with an animated strobe image.”

The seizure that resulted would have been more harmful had Eichenwald’s wife, Theresa, not placed him in a safe location on the floor away from furniture, according to his complaint.

The seizure also left Eichenwald susceptible to more bouts and requiring increased medication, the complaint stated.

The complaint added that Theresa replied to the malicious tweet with the statement, “This is his wife, you caused a seizure. I have your information and have called the police to report the assault.”

Police reported their investigation revealed Rivello sent the tweet under the Twitter handle @jew_goldstein, an anti-Semitic reference.

Eichenwald, a Dallas resident, claims Rivello’s inducement of the seizure constitutes battery under Texas law.

Rivello’s general denial of Eichenwald’s allegations contains many instances in which he refused to respond to specific claims, citing his constitutional Fifth Amendment privilege against self- incrimination.

The federal court has jurisdiction over the lawsuit because Eichenwald, a Texan, and Rivello, a Marylander, are from different states and the amount in controversy exceeds $75,000.

The case is Kurt Eichenwald v. John Rivello, Civil No. JKB-17-1124.

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