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“I don’t know why we’re in federal court to begin with. I don’t know why this guy thought it was smart to file a lawsuit and lay out all of his private intimate details in an appendix to the complaint.” U.S. District Judge Paul Friedman — April 5, 2006
It’s your worst dating nightmare. You meet someone, the attraction is immediate, the sex is scorching, and — hold on — you think you might be falling in love. Two weeks later, you find out your new lover is sleeping with five other people and also keeping a Web diary of her relationships — including yours — in vivid and lurid detail. And let’s just say that some of those intimate details are not entirely accurate, either. Oh, and what had been a private Web page known only to three or four friends has just been surreptitiously e-mailed to Wonkette, Washington’s favorite gossip maven who also runs the town’s most popular Web site. “Sorry,” says the now ex-lover. “I had nothing to do with that.” The embarrassment is mortifying, especially when you’re the easiest of the six lovers to identify. But you soldier on, masking your embarrassment with a bravado that friends of Robert Steinbuch, the man in question and a former Judiciary Committee counsel to Sen. Mike DeWine (R-Ohio), said they found astonishing. That was May 2004. The blogger, a DeWine intern named Jessica Cutler who was fired for using a Senate computer to write about her sex escapades, turned her 15 minutes of fame into a mini-media explosion, including a book, which HBO has optioned and is in development by Sarah Jessica Parker’s production company, Pretty Matches. Eventually, like anything else, the names Robert Steinbuch and Jessica Cutler (who maintains a little-read blog used to publicize her book) receded from public discussion. Last year, Steinbuch, 38, started a new life as a law professor at the University of Arkansas at Little Rock. His friends from the Senate Judiciary Committee arranged for him to testify this spring at a product liability hearing; Steinbuch sat next to the eminently respectable tort reform advocate Victor Schwartz. He also testified at a House Judiciary Committee death penalty hearing on March 30. Steinbuch, it appeared, might be moving on. But not really. Rather than let the matter drop, Steinbuch, a Columbia Law School graduate with a master’s in political theory from the University of Pennsylvania, is pursuing a lawsuit that will force him to revisit the entire episode once again — this time under oath. In May 2005 he sued Cutler, 28, for invasion of privacy, with a complaint that reprints and quotes extensively from her blog. Last month, U.S. District Judge Paul Friedman denied Cutler’s motion to dismiss the case, effectively permitting the lawsuit to proceed. The next step: depositions by the opposing attorneys of both Cutler and Steinbuch, with an aim, according to Steinbuch’s attorney, Jonathan Rosen, of correcting what he says are the various falsehoods littered throughout the blog. It’s hard to know why anyone would care to set the record straight about whether he is able to ejaculate with or without a condom or whether he likes to spank or be spanked. But Rosen says that’s exactly what Steinbuch intends to do. “There are graphic and intimate details which are not true,” he said in a telephone interview. “Those are facts that are going to be litigated.” In a May 4 joint report for the court filed with Cutler’s lawyer, John Umana, Rosen wrote that, “At this point, plaintiff is currently aware of over 30 potential witnesses other than plaintiff that he believes he will call to demonstrate defendant’s tortious actions and plaintiff’s damages.” Rosen also said he was adding as defendants both Wonkette’s founding editor, Ana Marie Cox, and the “somebody else” whom Cutler says passed on her original URL to Wonkette. Cox was the editor of Wonkette when it published Cutler’s blog and, therefore, could be considered a “republisher” potentially liable for invading Steinbuch’s privacy, says Baker Hostetler media law expert Bruce Brown. Cox, who retired from the Web site earlier this year, could not be reached for comment. The Steinbuch case is not entirely voyeuristic. There are several novel legal issues involved. For example, how is the statute of limitations applied to a blog? Can an Internet Web site address in fact be private? Are there any legal boundaries for the dissemination of information over the Internet? �OH, MY GOD, IT’S STEINBUCH’ Former colleagues of Steinbuch agree that the complaint, on many levels, defies logic. So they cite Steinbuch’s personality and the magnitude of the scandal when it erupted as possible reasons for him bringing suit. Steinbuch clearly labored over the decision; why else would he have waited until two days short of a year from the last blog entry? — a move that could potentially time-bar the earlier and possibly more damaging postings from litigation. Steinbuch declined to comment for this article. In July 2003, Steinbuch joined the staff of DeWine’s antitrust subcommittee. Those who knew Steinbuch describe him as an intense, likable man who had spent four years litigating for the Justice Department and later served as special counsel to the Webster Commission on FBI Security, formed in the wake of FBI agent Robert Hanssen’s arrest for espionage in 2001. Like his boss, he was not a dogmatic conservative. “He was a good fit for DeWine,” notes a former counsel to a Senate Judiciary Committee member who worked closely with Steinbuch on several bills. “He never really carried himself socially or ideologically as a Republican. He was not doctrinaire; he was a little contrarian — he didn’t fit the mold of a Joe Matal or a James Galyean, of a true believer,” adds the former counsel, referring respectively to counsels for Sens. Jon Kyl (R-Ariz.) and Lindsey Graham (R-S.C.). “He was a classic New Yorker, like a �Seinfeld’ character — rapid fire, New York accent, Barney suits,” the former counsel adds. The Cutler scandal occurred near the middle of Steinbuch’s two-year tenure with DeWine, and by then, he was already making his mark as a particularly dogged counsel. When Cutler’s blog was released on Wonkette, on Tuesday, May 18, 2004, Steinbuch was in the midst of helping hammer out the 2004 Justice for All Act, a DNA-funding bill some four years in the making that required extensive negotiations among many Judiciary Committee staffers. In other words, lots of people knew Rob. “All our staff gathered around [the computer,]” the former counsel recalls. “�Can you believe it? It must be fictitious.’ But then the blog clearly described one of the guys as a DeWine judiciary staffer. �Oh, my God, it’s Steinbuch,’ somebody said.” The timing was unfortunate. The Senate Judiciary Committee typically holds its business meetings on Thursdays, and that week the 18-member panel was dealing with two nominations, a gang bill, and an intellectual property bill. So there was an especially large gathering of staff. “You could just tell every eye in the room was on Rob,” the former counsel recalls, “but he looked like he didn’t have a care in the world. Either it was a big act masking incredible humiliation and pain or he was pleased and outraged at the same time — pleased that he came out as a lady’s man but horrified that his parents would read about it.” He certainly managed to maintain a sense of humor, at least initially. Shortly after the blog broke on Wonkette, recall three Judiciary staffers who all heard the same story, Steinbuch showed up a few minutes late to a DeWine staff meeting. “Where you been?” DeWine asked. “Fighting off the paparazzi,” Steinbuch replied. DOUBLE EXPOSURE Invasion of privacy claims are by nature somewhat counterintuitive. To win, a plaintiff must bring attention to facts, the exposure of which allegedly caused the plaintiff harm in the first place. So winning a courtroom victory can actually cause greater loss of privacy than the original invasion. In most cases, says Baker Hostetler’s Brown, sheer anger goes a long way toward fueling such complaints. In Steinbuch’s case, he was left to deal with the humiliation of what happened while continuing to work for DeWine, which he did until the summer of 2005, several weeks after he filed his complaint. Cutler, on the other hand, went on to become a minor celebrity with a $300,000 advance for her book, The Washingtonienne: A Novel. Cutler was at a book signing at Olsson’s in downtown Washington when she was served with Steinbuch’s lawsuit. “There was a basic unfairness there,” says one Republican Judiciary counsel who knows Steinbuch. “Instead of putting her foot on the brakes, she’s putting her foot on the gas.” Adds another lawyer who was a colleague at the time: “He put on a good face, but I think this was eating him up inside.” David Brog, who was the Senate Judiciary Committee staff director when Steinbuch worked for DeWine, says he believes that Steinbuch was also bothered by what he said were falsehoods on the blog. “If lies are circulating about you, you want to clear the record; it’s a natural human impulse,” says Brog. “Suffice it to say, the picture that emerges from the blog is one of a sexually unusual person. My understanding is that Rob took exception to some of the characterizations.” Steinbuch’s lawyer paints the case in far more consequential terms and says his client is trying to do more than merely vindicate his own sense of being wronged. By vindicating his rights, says Rosen, Steinbuch will ultimately vindicate the rights of others. “People’s behavior is only based on actions that are enforced,” Rosen says. “That’s what defines right and wrong. The whole point of this case is to maintain Rob’s privacy, but not just for him, for everybody — that you can’t just start dating some girl and suddenly it’s on the Internet.” Except in many cases, you can. Privacy cases are notoriously fact specific, and in this case there are several elements to the privacy tort of “publicity given to private life” that Steinbuch must prove. First he must show that Cutler’s actions provided publicity to her blog. Cutler, who declined to comment for this story, has responded that she gave the URL of her blog to just three friends. She flatly denies giving the Web address to Cox. “The key is to distinguish between the gossip you whisper to friends and something that’s more indelible and more broad,” says Daniel Solove, a George Washington University law professor. “When you put something on the Internet, it often changes the whole dynamic; it oftentimes won’t go away, and it won’t fade with memory.” “I haven’t seen much about the publicity element for stuff on the Internet. That’s not been fleshed out by the courts,” Solove adds. Steinbuch must also convince the court that his acknowledgment of his affair with Cutler to others in DeWine’s office — which happened before the story broke on Wonkette — was not the sort of waiver that would nullify an invasion of privacy claim. In addition, he must show that the facts in Cutler’s blog are indeed private, despite joking about some of them in the office. Steinbuch further must convince the court that Cutler’s blog is not newsworthy, something Friedman has already explicitly agreed with. And he must show that the contents of Cutler’s blog are highly offensive to reasonable people. Steinbuch is also suing under the so-called false-light invasion of privacy tort, which holds a person liable for publicly exposing false and humiliating information about someone else. Friedman has already ruled that each of these torts has a one-year statute of limitation, which raises a particularly nettlesome question for both sides: At what point in a blog’s life does the statute of limitations begin to run? Steinbuch filed his lawsuit on May 16, 2005, and, according to Cutler’s lawyer, Umana, that means actions relating to almost all of her blog, which began more than a year before, on May 4, 2004, are time-barred and off-limits. “Only the May 18 posting in the blog is within the one year, and all that says is that they had sex in a missionary position,” says Umana, a D.C. solo practitioner. “The fact that they were having an affair already was public knowledge; the plaintiff was joking about it.” Rosen, naturally, disagrees. “Every time you make an entry in a blog, you open the whole document,” he says. “Each posting is a new document,” he adds, that incorporates all of the previous postings on the blog. “We’re going to have substantial expert testimony on that,” he says. UNUSUAL LITIGATION Leaving aside the question of why anyone would want to litigate publicly the veracity of two-year-old statements about intimate sexual matters, Steinbuch v. Cutler has some other less-than-usual aspects. Umana, for example, is Cutler’s third attorney in a little more than a year. Her original lawyers, Thomas Wilson and Alexander Vincent of Washington’s Berliner, Corcoran & Rowe, sued Cutler last month in D.C. Superior Court, claiming she owed them $54,271.19. Cutler had already paid $35,000, they said. Cutler’s next lawyer, William Bode of Bode & Grenier, dropped out after Rosen accused him in a court filing of being one of the six sexual partners Cutler depicted in her blog. Bode denied the allegation to Legal Times last month. Umana has represented Cutler since April. He formerly rented space from Bode & Grenier but now works out of his home in Barnaby Woods in the District. As an aside, Umana is also a leading proponent of intelligent design, the belief that evolution involves the direct intervention of a supernatural being. “Darwinism is bad science,” says Umana, who has a Ph.D. in moral theory from the University of Michigan and whose book, Creation: Towards a Theory of All Things, was self-published last year. Umana had no comment on the Berlin, Corcoran & Rowe lawsuit, but says that as for himself, “I have an hourly-fee arrangement that’s between me and my client.”� So far, neither Umana nor Rosen has endeared himself to Judge Friedman, who last month issued a stinging order requiring both attorneys to read the court’s Local Civil Rules and the D.C. Bar Voluntary Standards for Civility in Professional Conduct.� As to Rosen’s request for a gag order on the proceedings, Friedman responded with barely disguised disdain in his April 14 order: “[T]he plaintiff is distressed by the fact that his lawsuit has drawn media attention. Perhaps the plaintiff should have considered that fact before he filed suit. Perhaps the plaintiff’s counsel should consider that fact before filing motions in which he repeats salacious details and allegations seemingly without regard for the distress that other persons might feel at these public filings.”
T.R. Goldman can be contacted at [email protected].

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