The U.S. Department of Justice on Tuesday filed an exasperated motion in an ongoing dispute involving a voting software company that is suing an infamous right-wing pillow seller – saying one of their attorneys has “inexplicably” been subpoenaed in the case, that she has nothing of relevance to add to it, and should just be left alone.
The underlying controversy is likely familiar to readers as the $1.3 billion defamation lawsuit filed by Dominion Voting Systems against MyPillow and their CEO Mike Lindell. The stalwart Donald Trump ally repeatedly and baselessly accused two voting machine companies of rigging the 2020 presidential election.
Earlier this summer, My Pillow, Inc. filed a motion to compel the testimony of DOJ attorney, Carlotta Wells. The career government lawyer, however, was not previously involved in the civil dispute between the voting machine companies and the bedding retailer.
The DOJ’s motion says “Wells has no personal knowledge of any facts bearing on the truth or falsity of those statements” in Dominion’s defamation lawsuit – and MyPillow doesn’t even assert as much. Rather, the DOJ says, Lindell and MyPillow “subpoenaed Wells’ testimony” over “an unrelated seventeen-year-old case” between a software company and its former software designer/co-owner.
In that 2006 case, Wells worked as trial counsel for the government.
But in that software dispute, the U.S. government was only belatedly involved. The DOJ was compelled to become a third party after the plaintiff filed a cross-claim against the Department of Defense in order to have a court declare that an earlier classified nondisclosure agreement “did not preclude him from disclosing information allegedly necessary to his claims and defenses.”
Wells argued for the government in that 2006 case, successfully preventing Dennis Montgomery from relaying “state secrets” in order to vindicate certain allegations against his former company.
The case was eventually settled in 2009.
“Despite the passage of almost two decades and a lack of any connection between [the settled software case] and the 2020 election, [Lindell and My Pillow, Inc.] subpoenaed Wells in the instant matter purportedly to ‘provide information showing that Mr. Lindell’s reliance on Mr. Montgomery and the information he stated he possessed was reasonable,”” the DOJ’s motion says.
The Aug. 7 motion to compel Wells’ testimony is fairly straightforward.
“Lindell’s statements about the 2020 election being hacked were based in part on information Lindell received about the work of Dennis Montgomery,” the My Pillow, Inc. motion reads. “Lindell heard that at these companies Montgomery had developed and used computer software that allowed the federal government to monitor internet communications and to manipulate computerized voting machines used in foreign countries.”
Still, the DOJ claims, Wells shouldn’t have to testify because her would-be “testimony has no relevance to any plausible defense or claim” in the defamation lawsuit. And, at the very least, because anything Wells could possibly add is already in the public record.
The Lindell and My Pillow, Inc. motion, for its part, even appears to pre-concede at least some of the DOJ’s arguments.
“Defendants do not intend to ask Wells to disclose any information protected by the attorney-client or work product privileges, but merely to testify concerning the facts of what happened in each instance,” the motion to compel continues. “Nor does the state secrets privilege apply, because Defendants are not seeking to compel the disclosure of any secret information, but rather to obtain testimony in admissible form confirming information that is already in the public record.”
The DOJ also says that Wells may, in fact, be asked to discuss information still covered by an extant state secrets privilege – which MyPillow would never be entitled to under any circumstances.
The DOJ also says the information Lindell and MyPillow want from Wells, to the extent she could share it, “is available from a more convenient source,” by which they mean Montgomery himself – and would just be duplicative of anything the software designer could tell them.
“This Court should not countenance [MyPillow’s] inexplicable attempts to compel testimony from Wells concerning her representation of the United States as trial counsel in asserting and protecting an unrelated state-secrets privilege seventeen years ago,” the DOJ argues in summary. “By its own terms, the motion to compel does not seek any information bearing on the truth or reasonableness of the alleged defamatory statements in [Dominion v. My Pillow.] And indeed, Wells has no personal knowledge—and Movant do not contend otherwise—of the truth or reasonableness of any of the alleged defamatory statements.”
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