By Matthew Russell Lee, Patreon, thread, II
SDNY COURTHOUSE, Dec 18 – Roy Moore's defamation lawsuit against Sacha Baron Cohen, which has survived a motion to dismiss, was on for a conference on July 31 before U.S. District Court for the Southern District of New York Judge Andrew L. Carter. Inner City Press live tweeted it, here.
On December, with the case reassigned to new(er) SDNY Judge John P. Cronan, another conference was held, which Inner City Press also covered and live tweeted, here.
Now on December 18, a long argument on whether Klayman for Moore can depose Cohen, and on what. Ultimately, Judge Cronan allows one hour, limited to corporate entities. Klayman asked him to certify it for appeal: denied. Inner City Press will continue to cover it, the December 18 live tweet is here, podcast here, email spat on Patreon here:
CBS / Cohen lawyer McNamara: We are proposing a protective order like one agreed to by SDNY Judge Koeltl... It would cover commercially sensitive business info, private information, and information confidential by contract. Here, we want it to cover the entire action
McNamara: We want it to cover info about the development of the show, and financial info and marketing plans.
Moore's lawyer Klayman: Court proceedings are to be in the public. This is not a Wall Street case - this is non complex
Klayman: Why should internal emails about Judge Moore and his wife be made public. How they viewed him, whether they thought that he was a pedophile or not - this is relevant information
Klayman: Mr Cohen is a rich man, his lawyers cost $3000 an hour, put together. They want to designate anything, then we put our time in, it's a strategic method of keeping my client on defense, even though he's the plaintiff
Klayman: I helped break up AT&T. This is not like that. It's about fraud and intentional infliction of emotional distress. We are not Islamic Republic of Iran, we don't have Star Chambers.
Judge Cronan: We will be entering the order, if any problem I'll revisit
Klayman: I'm here on a contingency fee basis. I'd like attorney's fees and costs if this protective order is abused.
Judge Cronan: You'd be welcome to make an application. Let's turn to the issue of Mr. Cohen's deposition. On Dec 3 I ordered limited discovery
Judge Cronan: The defendants are saying this is satire and political commentary. CBS/Borat lawyer: Exactly. [And the contractual language]
Judge Cronan: Malice will not be relevant, citing FN 4 of Ms. McNamara's letter - Inner City Press photo below McNamara: Mr. Cohen is not knowledgeable on corporate structure here... He played no role, other the signing them..
Judge Cronan: So Mr. Klayman, why do you need to depose Mr. Cohen? Klayman: You said discovery on "1st Amendment" and what we need to oppose motion
Klayman: Mr. Cohen is not the Secretary of Commerce, he's no different than you or me. We have to put him under oath. Your Honor's been a lawyer for a long time, you know how important deposition are. Mr. Cohen knows why he set these structures up
Klayman: They've asked to depose Judge Moore, to find out if he's a pedophile. That's what's at issue here. This case is not like Borat. This is not routine satire, this is about destroying someone's life and reputation. They just don't want Mr. Cohen embarrassed Klayman: There is an impression you are being overly protective of Mr. Cohen and large corporate entities. Judge Cronan: Mr. Klayman, that comment is as insulting as it it inaccurate.
[Note: Klayman got into some trouble in SDNY in the past, before Judge Chin, in 1997, as Inner City Press reported here]
Judge Cronan: They are saying the contract preclude this. Inner City Press @innercitypress · 53m Klayman: There is no reason to preclude the deposition of Sacha Baron Cohen because he is a movie star. Judge Cohen: It's that others have more direct knowledge. Have you deposed the other two? Klayman: I'm a lawyer since Pearl Harbor Day. I start at the top
CBS/Cohen lawyer: The other two could provide any information about the corporation. [Note: she must be pretty happy about the spat between Klayman and Judge Cronan on inappropriate deference to Borat]
Judge Cronan: What if the deposition of Mr. Cohen is allowed, but limited to the questions of his knowledge of the corporate entities? He was the owner, he had some level of knowledge. [Inner City Press would ask: Who would police this deposition? Film/stream it?]
McNamara: The fact is, those question would only take a few minutes. Why not do the other two people first? [She cites Judge Preska and 2d Circuit in the "boRAT' decision, mispronouncing it, perhaps on purpose]
McNamara: If he stands by his allegations, we don't need the deposition [of Moore - seems they'll say anything to avoid deposition of Sacha Baron Cohen, or, that's their marching orders. Will Judge Cronan allow limited depo? Did Klayman allegation help?
Klayman: She just said, if we have a deposition it would only be a few minutes. She's under orders to keep him from testifying. He's known to be a fraudster. Ms. McNamara was being disingenuous at best - they were not supposed to get into issues of sexual conduct
Klayman: Judge Carter tried to get us to settle. [Case was transferred from Judge Carter to Judge Cronan when he joined SDNY bench. Inner City Press is still unclear on which cases get redistributed -#crowdsource?
Klayman: My client was chief justice of the Alabama Supreme Court, that's pretty good. He respects you, but wants you to mete out equal justice. And so do I. She wants, heads I win, tails you lose. We deserve to take the deposition. Then can depose Judge Moore
Klayman: We've lost two weeks already. They want a fourth bite at the apple. Judge Cronan: Ms. McNamara, why isn't the intent of setting up the corporate entity relevant? McNamara: We've produced releases. Cheney signed it. Congressmembers signed it
McNamara: The entity was set up to be non-identifiable, so it couldn't be tracked back to a corporation like Showtime. But he disclaimed reliance on that misrepresentation. He was a judge, he understands agreements, and presumably understood this one. See, Borat
Judge Cronan: Wasn't Judge Carter's point that he had to accept what was alleged in the Complaint as true? Klayman: He had the corporate documents. He said, we need more discovery. It's in the record. Judge Cronan: Ms. McNamara, what was your understanding?
McNamara: He was precluded from resolving it on motion to dismiss. I can quote from the Court's order... Klayman: Judge Carter said discovery was relevant. So we want to depose Cohen Klayman: If this case is disposed of without this deposition, this case will come back to you...
Judge Cronan: I will permit a limited deposition of Mr Cohen, along terms I'll explain. Inner City Press @innercitypress · 23m Judge Cronan: I will allow a deposition of one hour. Limited to issues limited to the forthcoming motion to dismiss. Questions about the formation of the corporate entity. It sound like Mr. Cohen will have very little info on this, according to Ms. McNamara.
Judge Cronan: I am not comfortable precluding a deposition of Mr. Cohen, given the parameters I have laid out. If it exceeds the scope, I will shut down the deposition.
Klayman: Why are you reversing yourself and precluding Firs Amendment? Judge Cronan: Mr Klayman, if you continue to cut me off, we will mute you. Klayman: You will mute me? ...McNamara: I think this is eminently reasonable and fair.
Judge Cronan: Also, no inquiry into whether the entity was set up. Klayman: But they intend to harass my clients. I would like you to certify this to the 2d Circuit. Judge Cronan: Certify what? That application is denied.
Jude Cronan: We are adjourned
When the suit arrived for a pre-motion conference back on August 1, 2019 before Judge Carter, an even more preliminary matter was raised. Moore's lawyer Larry Klayman, previously of Judicial Watch, had yet to apply to be admitted to practice in the SDNY for the case, pro hac vice.
The reason quickly came out. In a 1997 case before then District Judge Denny Chin, Klayman has asked Judge Chin about any contacts or connections with John Huang, a Democratic Party fundraiser Judicial Watch was then, well, Watching.
It seems that when Judge Chin asked Klayman "You asked questions of the court, at least in part, because of my race?" Klayman replied, "In part. And let me tell you why ... We are all human, and sometimes, sometimes subjective criteria can unwittingly, no matter how ethical, no matter how decent, no matter how honest someone is--and we believe you to be that--they can subjectively influence our decision-making. Honor has to search his own soul to a large extent."
Judge Chin imposed a condition that Klayman, on any future pro hace vice application in the SDNY would have to disclose Judge Chin's order against him in that case, Macdraw, Inc v. The CIT Group Equip, et al., 91-cv-05153 (DC). There was no sunset clause on this mandate to disclose.
Judge Carter on August 1 summoned each party's lawyers to his robing room, first together then one by one, ex parte. When they emerged a schedule was set. Klayman's pro hac vice application is due on August 8, and then on August 22 the status of the case, including if the party's consent to referral to an SDNY Magistrate Judge.
Inner City Press afterward in the hall outside Judge Carter's courtroom asked Klayman if he or his client are amenable to referral to a Magistrate. Klayman told Inner City Press that he found Judge Carter to be fair, emphasizing that was on the record, he would like it reported.
When Inner City Press asked about a separate disciplinary action pending in the District of Columbia Klayman said it was a complaint by a dissatisfied client who sued Voice of America and said he had gotten Gloria Alred, who was at the SDNY this week speaking to the press about Jeffrey Epstein, to express support for him. Klayman's Law Group, with an American flag on the business card he gave to Inner City Press, has offices in Washington and Florida. Whether the long ago interchange with Judge Chin will or should have an impact on this case in the SDNY in 2019 in a question for another day. August 8, to be precise.
This case is Moore et al. v. Cohen et al., 19-cv-4977 (Cronan).
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