John Doe files motion to protect his identity in lawsuit over spying on Reno Mayor Schieve

Despite the Nevada Supreme Court ruling that a private investigator must reveal who hired him to spy on Reno’s mayor and a county commissioner, the still-anonymous “John Doe” filed a motion Thursday for a protection order to keep his identity secret.

“Put simply, John Doe has the right to engage in anonymous political conduct, including defending himself in this Court under a pseudonym, and this Court should issue a protective order shielding John Doe’s identity from disclosure,” the filing by his attorney says.

It was filed in Washoe County District Court in connection with a lawsuit by Mayor Hillary Schieve and former Washoe County Commissioner Vaughn Hartung .

Ahead of the 2022 election, the two elected officials claim their right to privacy was violated when private investigator David McNeely placed a secret GPS device on their vehicles to track the officials’ minute-by-minute movements. They want to include the person who hired McNeely in the lawsuit.

The Nevada Supreme Court looked only at McNeely's claim that he believed he didn't need to reveal John Doe's name because client names are trade secrets – a view the court rejected. It did not weigh in on John Doe’s motion for a protective order over his name.

“Lastly, we also decline to consider John Doe’s arguments, as the district court has yet to hear and decide Doe’s arguments on the merits,” the justices wrote.

John Doe’s arguments

In court filings by his attorneys, John Doe’s main argument is that his actions were protected First Amendment activity . He claims to have heard allegations of misconduct by Schieve and Hartung.

“Rather than baselessly make accusations against Plaintiffs, John Doe took a logical, reasonable, and legal step to further his First Amendment rights to speech and to petition: he hired the Investigator Defendants to investigate the Plaintiffs and determine whether there was any substance to the allegations,” his motion says, referring to defendant McNeely and his firm 5 Alpha.

The allegations against the officials and results of McNeely's investigation into these allegations have not been revealed.

The protection-order motion to keep John Doe’s name secret mentions a California case where attorney Bruce Tichinin hired a private investigator to see if two local officials were having an affair. Evidence was not found, and the city council passed a resolution denouncing the attorney and asking him to step down from a city committee.

He sued, saying the council’s actions defamed him and hurt his business.

According to John Doe’s motion, “The Tichinin Court also concluded that Tichinin’s conduct of hiring a private investigator ‘can also be considered protected under the right of free speech.’ … Permitting discovery into John Doe’s identity would chill his First Amendment activities.”

John Doe also claims that the need to subpoena him is moot because he’s participating in the case through his attorney.

“Schieve and Hartung got what they wanted, and it did not require infringing on John Doe’s First Amendment rights,” the motion says.

“John Doe has appeared in the district court case and is represented by counsel. He is now a part of the litigation. Discovery regarding John Doe’s legal identity now serves no real purpose at all — except to interfere with John Doe’s right to anonymously engage in political activity.”

Response to John Doe’s motion

As of Friday afternoon, Schieve and Hartung’s attorneys had not filed a response to John Doe’s latest motion.

But their attorneys had responded to a similar motion by John Doe almost a year ago that likely gives a preview of what’s coming.

They say Hartung and Schieve can’t know if it's true John Doe's spying was political in nature as he claims unless they have the opportunity to verify what he’s saying.

“The First Amendment would not allow John Doe’s identity to be concealed if he had ordered a private investigator to break into Plaintiffs’ homes, and it does not allow him to remain anonymous for trespassing on Plaintiffs’ vehicles,” the June 6, 2023, opposition filing says.

While secretly placing a GPS tracker on a vehicle was not illegal in Nevada when McNeely did it, the Legislature changed that last year.

The filing goes through John Doe’s legal citations in his 2023 motion to remain anonymous and shoots them all down by pointing out that the clients who hired the investigators in each case were named publicly.

“John Doe went 0 for 4,” Schieve and Hartung’s attorneys write. “He is not the only person who has used a private investigator for political purposes, but based on his own authority appears to be the only one who lacks the courage to identify himself.”

They say that courts allow plaintiffs to use pseudonyms in only three situations: when identification risks retaliatory harm, when anonymity is necessary to preserve privacy in a matter of a highly personal nature, or when the anonymous party is compelled to admit illegal conduct that could open them up to criminal prosecution.

“John Doe does not argue that he faces any risk of retaliatory physical or mental harm and he does not argue that he risks criminal prosecution,” the opposition to a protective order says.

“John Doe, at most, alleges that he has some interest in anonymous political speech.”

But if it turns out John Doe is a prominent individual who frequently publishes his political speech for general consumption, then he fails to prove an interest in staying anonymous – but this can’t be known unless his name is revealed, the attorneys argue.

“Plaintiffs need John Doe’s identity to pursue their claims and complete discovery and any minimal First Amendment claim fades away in comparison,” they write.

What’s next?

Schieve and Hartung’s attorneys will be expected to respond to John Doe’s motion.

Additional back and forth is possible.

At some point, District Court Judge David Hardy will decide on John Doe’s motion. He could grant it, in which case Schieve and Hartung’s case would proceed without it.

That said, Hardy – after consultation last year with the discovery commissioner who weighs in on matters of what each side needs to reveal in legal proceedings – already ordered McNeely to reveal John Doe’s name .

After Hardy makes a decision, John Doe would have the opportunity to appeal to the Nevada Supreme Court.

In federal court, McNeely still has a pending lawsuit against the city of Sparks claiming his rights were violated when police revealed his name to Schieve.

The city says a person’s name and occupation are not confidential.

“For all its bluster, Plaintiff’s Response still cannot manage to identify any apposite (pertinent) legal precedent or support for its implausible claims,” the city’s response to McNeely’s lawsuit says.

McNeely and the city of Sparks agreed last month to put the case’s discovery process on hold until the court rules regarding Sparks’ motion to dismiss. It's not clear when that will happen.

Mark Robison is the state politics reporter for the Reno Gazette Journal, with occasional forays into other topics. Email comments to mrobison@rgj.com or comment on Mark’s Greater Reno Facebook page .

This article originally appeared on Reno Gazette Journal: John Doe files motion to protect his identity in lawsuit over spying on Reno Mayor Schieve