By Matthew Russell Lee, Patreon Stand-up
BBC - Guardian UK - Honduras - ESPN
SDNY COURTHOUSE, Sept 22 – Anthony Rapp's lawsuit against Kevin Spacey was removed to Federal court in November 2020, and an anonymous co-plaintiff C.D. was added.
Spacey wanted to make C.D.'s name public, to order to conduct discovery, he says. C.D.'s lawyers opposed it, letter on Patreon here.
On May 26, 2022 U.S. District Court for the Southern District of New York Judge Lewis A. Kaplan held a hearing, with Spacey testifying, on Rapp's motion to remand the case. Judge Kaplan at the end said it is his present intention to deny the motion to remand, and that the trial will start in October. Inner City Press attended then tweeted here. [Then video here]
On September 9, in the run up to the October 6 trial, Spacey through counsel indicated he wants to make public Rapp's sexual history. From his filing: "I write to inform Your Honor that Mr. Fowler will be filing a motion in limine that bears on the Court’s consideration of Plaintiff’s objections to transcript designations submitted on September 8, 2022." Complete filing on Patreon here.
On September 22, Spacey asked to file only under seal depositions about "third parties" - " my firm represents Defendant Kevin Spacey Fowler. I write to request permission to file under seal certain deposition transcript excerpts to be submitted with Mr. Fowler’s motions in limine, which are due on Monday, September 26th and we would like to file as soon as tomorrow. The Court previously limited Plaintiff’s ability to ask Mr. Fowler in discovery about alleged accusations made against Mr. Fowler by accusers not publicly identified. But, at deposition, Plaintiff’s counsel asked Mr. Fowler and his expert witnesses about other accusations or rumors reported or loosely asserted in the media. Mr. Fowler denied these allegations and, for the reasons set forth in the forthcoming motions in limine, none of these issues are relevant to, or should be referenced at, the upcoming trial. This case is about Plaintiff’s claims, not any other rumors or accusations made by third parties. Because the information has no relevance to this case, the public’s right to access such materials is low. See, e.g., Toretto v. Donnelly Fin. Solutions, Inc., 583 F.Supp.3d 570, (S.D.N.Y. 2022) (stating “presumption of public access is low” where materials are irrelevant to the matter). Further, public disclosure of these transcripts will cause some intrusion on the privacy interests of Mr. Fowler and third parties" - full filing on Patreon here.
Back on June 6, Judge Kaplan issued two orders: one dismissing Rapp's first cause of action but not the rest of the complaint, the second denying his motion for remand (argued below). The first order recounts Rapp's allegation that when he was 14, Spacey put him back down on a bed, "grazing" his buttocks. Order on Patreon here.
On August 25, this: "TRIAL ORDER: The Clerks Office is scheduled to provide the Court a jury panel for this case on Thursday. October 6, 2022. On that day, the parties must be present in Courtroom 21B by 9:30 AM ready to begin jury selection and proceed immediately to trial. You are instructed to take the following steps in connection with the trial as further set forth in this Order. ( Jury Selection set for 10/6/2022 at 09:30 AM in Courtroom 21B, 500 Pearl Street, New York, NY 10007 before Judge Lewis A. Kaplan.) (Signed by Judge Lewis A. Kaplan on 8/25/22)."
As to jury selection, Judge Kaplan on September 7 ordered, "ORDER. Consistent with the Rule, the Court will examine prospective jurors, as it does in all cases, and will take the parties' helpful joint questionnaire into consideration in formulating its own examination. Upon conclusion of the Court's examination, it will afford counsel adequate opportunity to suggest additional questions and ask any that the Court considers proper. The request to have prospective jurors complete a written questionnaire in writing is denied. Among other reasons, it agrees that "jurors tend[] to understand written questions differently from those who draft[] the questions, leading to substantial difficulty in parsing their responses." United States v. Treacy, 639 F.3d 32, 47 (2d Cir. 2011). SO ORDERED. (Signed by Judge Lewis A. Kaplan on 9/7/22)."
Back on August 9, Judge Kaplan ruled: "Fowler's motion to compel is GRANTED to the extent that it seeks (a) production of Vary's pre-2017 communications with Rapp, 2021 communications with Darlow Smithson Productions, and documents regarding any interactions between Vary and Fowler and (b) a supplemental deposition. Vary shall sit for a supplemental deposition not to exceed four hours and answer, to the extent consistent with this Memorandum Opinion, all questions he refused to answer at his initial deposition and all reasonable follow up questions and questions about or relating to the newly produced documents and matters disclosed therein. The documents shall be produced no later than August 15, 2022. The supplemental deposition shall take place on a date mutually acceptable to Vary and the parties, which shall be on or before September 9, 2022."
Back on September 9, 2021, Judge Kaplan held a proceeding about 60 new names, and sealed affidavits. Inner City Press live tweeted it here and below.
On December 9 at 4:30 pm, six hours after the US v. Ghislaine Maxwell trial was paused at least for one day due to an ill prosecutor, Judge Kaplan held another proceeding in Rapp v. Spacey (or Fowler) and Inner City Press live tweeted it here, podcast (including on Maxwell and UN) here.
On December 10, Rapp's lawyer wrote to Judge Kaplan and asked that his forthcoming protective order including an order prohibiting disclosure of names of those alleging abuse by Spacey - full letter on Patreon here.
On March 10, 2022 a trial date was set: "ORDER, This case is set for trial on October 4, 2022 at 9:30 a.m. subject to any changes warranted by pandemic circumstances."
On March 14, digging in Miscellaneous cases, Inner City Press came upon satellite litigation between Spacey and Adam Vary, who citing the First Amendment and shield laws declined to answer questions at a deposition.
Judge Kaplan ordered Vary to answer the subpoena by May 31. On May 23, Vary's counsel asked for reconsideration or a two week stay in order to appeal.
On May 27 Vary's counsel filed another letter, including "nearly all of the materials contain unpublished newsgathering information that we maintain is privileged and shielded from production, but we acknowledge was not provided or obtained subject to promises of confidentiality. However, there are a handful of source names and information that was provided pursuant to promises of confidentiality. Our understanding is that the confidential sources corroborate Mr. Rapp’s account, but do not want to have their information exposed. Although we maintain that both non-confidential and confidential unpublished newsgathering materials are privileged and shielded from disclosure, there are special protections and considerations for confidential source materials." Full letter on Patreon here.
On June 7, Judge Kaplan offered this secord clarification: "ORDER denying [23 in 22-mc-0063] Letter Motion for Discovery; denying [24 in 22-mc-0063] Letter Motion for Discovery. On May 19, 2022, this Court ordered that Mr. Vary submit, under seal, for in camera review various materials that he may be withholding from production in order to inform its analysis of whether he has satisfied his burden of showing that the materials, if indeed there are any, should be produced to the defendant. On June I, 2022 it granted in part Mr. Vary's request for additional time within which to comply. (The May 19 and June I orders are referred to collectively as the "Orders.") Mr. Vary now seeks a stay of the Orders insofar as they (I) require the submission for in camera review of any withheld materials that contain what he calls "confidential source information" and (2) supposedly require such submission of "post-subpoena attorney-client communications." Dkt. 23. The proposed stay, if granted, would remain in effect for "14 days after the later of the following events: (a) the Court's ruling on Mr. Fowler's motion for summary judgment; and (b) the Court's ruling on Mr. Rapp's renewed motion to remand. Dkt 159, 172, 20-cv-09586." Id. The ostensible justification for this relief is to afford Mr. Vary's counsel additional time to "consider and possibly seek appellate review of those portions of the Court's Orders, and then, if Mr. Vary does seek appellate review, stay [the Orders] until the outcome of such review." Id. Separately, Mr. Vary "seek[s] a 14-day stay of any order granting Mr. Fowler's motion to compel, in whole or in part." Id. The primary request appears to be premised in part on the possibility that ( a) a ruling favorable to Mr. Fowler on the summary judgment motion might eliminate any need for further discovery, and (b) a ruling favorable to the plaintiff on the remand motion would result in remand to the New York courts and thus possibly result in litigation of Mr. Vary's arguments in what he presumably regards as a forum more congenial to his position. The Court, however, yesterday denied both Mr. Fowler's summary judgment motion and the plaintiff's motion to remand. 20-cv-9586, Dkts 217,218. Hence, the action is going forward in this Court and Mr. Vary's apparent hopes will not be realized. Nor is there any need for him to have a stay for a further two weeks while he considers further whether he wishes to attempt to appeal from the Orders. He has been actively litigating the requirement for in camera inspection for 17 days already. He does not need any more time to think about whether he wishes to attempt to appeal from the Orders. And he will be at liberty to seek a stay pending appeal from this Court in the event that he does so. This Court is not in the business of giving advisory opinions concerning whether it would grant a stay pending an appeal if a litigant decides to file one. The second request is made as "a cautionary measure" against the possibility that this Court, if it orders disclosure of any "confidential source information" and "post-subpoena attorney-client communications" following in camera review, would require disclosure without Mr. Vary having an opportunity to seek review. The request is denied on the ground that the possibility to which Mr. Vary alludes is at best speculative. That of course is not to say that the Court necessarily would afford Mr. Vary a leisurely opportunity to seek a stay, should he seek to pursue such an option. The Clerk shall terminate Dkts 23 and 24 in 22-mc-0063 (LAK). SO ORDERED. (Signed by Judge Lewis A. Kaplan on 6/7/2022)."
This case is Fowler v. Vary, 22-mc-63 (Kaplan)
Inner City Press will continue to follow these cases.
From back on Dec 9: now in Rapp v. Kevin Spacey (for rape of 14 year-old), a proceeding in SDNY by phone, in a case which Inner City Press has been reporting on and will, in haitus from #MaxwellTrial which has no call-in line, live tweet:
Spacey, defending himself from claim he raped Rapp, wanted get discovery into all of his past relationships.
Spacey's lawyer: He's only alleging that Mr Fowler [that is, Kevin Spacey] picked him up and dropped him. It's essentially child abuse, not sexual assault.
On January 10, 2021 Spacey's lawyer wrote to Judge Kaplan to preclude Rapp from calling Justin Dawes as a witness, including portions of his December 28, 2021 deposition. They argue that Dawes withheld information, the name of an "unnamed friend."
On January 12, Rapp's lawyers filed a 5 page letter including that "Mr. Dawes, he agreed to voluntarily, without a subpoena, testify about how Spacey made an inappropriate sexual advance on him when he was a minor... " at one point his hand was on my leg. You know, I thought it was mildly uncomfortable. I did not, you know, feel threatened, but I thought it was a kind of, you know, probing of a sexual nature to see how comfortable I was with that.'" Full letter on Patreon here.
Watch this site. Inner City Press will stay on it - podcast
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From February 23: Lawyers for Kevin Spacey are arguing to strike testimony of Doctor Seymour H. Block. Spacey is being sued civilly for sex abuse.
Judge Kaplan: You are asking me to make an important decision, in a country that values public trials as much as we do, in the unique circumstance of a person who sued and also went to the press with it. In advance.
Plaintiffs lawyer: When my client gave the interview before this case. So there was no attempt to influence the jury. In fact, when my client spoke to the press this case would have been barred by the statute of limitations.
Judge Kaplan: But if disclosure would harm him, why did he go to the press? Plaintiff's lawyer: They did not reveal his name. Judge Kaplan: But he couldn't know it would work. The publication checked his account with others. There was a chance he would be ID-ed
Judge Kaplan: What's that case you're citing? Defense: Doe, 241 FRD 154, 159 (SDNY, 2006). And another one by Justice Brennan, about how public trials bring in more witnesses. CD made his decision. We have our due process rights. [He calls Spacey "Mr. Fowler"]
Judge Kaplan: On a proper showing, the pleadings need not contain the name of a party, no? Defense: They have to meet the Doe factors. And CD has not met his burden. Plaintiff: Doe v. Colgate, the plaintiff went to the press and was still anonymous.
Judge Kaplan: I'm going to wait until you make your expert disclosure. Plaintiff's lawyer: There is a person beyond Mr Rapp who is aware of this. And Mr Rapp is not seeking to withhold his name.
Judge Kaplan: You need to file the relevant piece of the deposition.
The proceeding ends, just like that.
From February 2: Spacey's lawyer says it is unfair for C.D. to proceeding anonymously. "While it is true we have C.D.'s name, only if we make it public can others come forward with evidence about him... this is the right to due process."
C.D.'s lawyer: The sealed plaintiff versus sealed defendant factors weigh in our favor. We are talking about the rape of a minor. The declaration by his therapist shows he would suffer harm if his name is made public.
Judge: If it happened it's abhorrent. But I don't have to be reminded of what Mr Spacey is accused of in every sentence. CD's lawyer: Spacey said, as to Rapp, that if it happened he was sorry. But here he is denying it entirely.
Judge: You're not getting anywhere.
Judge Kaplan: Get me your papers, and you'll get a decision promptly. Until then, don't disclose the name to third parties - except to Mr. Rapp, subject to sealing.
Spacey's lawyer: Every day is lost time.
So Rapp's deposition will go forward, with C.D.'s real name said at it but reported in the transcript as C.D.. Inner City Press will continue to report on this case. More on Patreon here.
The case is Rapp et al v. Fowler, 20-cv-9586 (Kaplan)
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