This first article of a three-part series will deal with the letter to the Honorable Denny Chin, Judge for the Southern District of New York, in Manhattan from Rita Cosby’s attorney Elizabeth McNamara dated November 26. This letter was endorsed by Judge Chin and made into an Order regarding the extra pages in the Motion and Reply to Motion for Summary Judgment that both Cosby and Hachette Books will be allowed to file in this defamation case with extra pages in the Reply by Howard K. Stern and put on PACER on December 2.
Many of us wondered when the column by Thomas Zambito appeared in the New York Daily News dated December 3, why the attorney for Howard K. Stern, L. Lin Wood did not release a statement refuting Mr. Zambito’s article. It could be argued that this column could potentially taint any jury pool of this case, which has for the most part subsided from the mainstream media.
I have no answer for that but let’s talk about the sensationalism of the title; “Anna Nicole Smith’s pal Howard K. Stern is beyond being libeled”. The short column goes on to state in part that “…Stern’s reputation is so bad that not even… claiming he and Smith’s boyfriend were gay lovers is libelous, the author’s lawyer claims.” The column quotes from the letter by Ms. McNamara to Judge Chin stating, “Given the mountain of negative news stories that were previously published about plaintiff, Mr. Stern is libel-proof.” The column ends with a strange reference of, “He [Stern] cites one in which Cosby quotes actress Jackie Hatten claiming she walked in on Stern performing oral sex on Larry Birkhead - the father of Smith’s baby.” Whoa Mr. Zambito, what a finished and by the way do you know where Jackie Hatten is, and has Cosby found this important witness that she might need to appear if this case goes to trial?
Mr. Zambito seems to have the “celebrity beat” of federal suits in the Manhattan Federal Courts. In 2005, Elizabeth McNamara gave Mr. Zambito a couple of quotes from another suit she was involved in with the Manhattan Federal Court.
So both articles aside in this first of a three part series let’s look at what Ms. McNamara is stating will be the blond ambitious Rita Cosby’s main claims in the Motion for Summary Judgment.
1. Lack of actual malice
2. Parts of the passages are not defamatory
3. Parts are substantially true or constitute protected opinion
4. Given the mountains of negative news stories that were previously published about plaintiff, Mr. Stern is libel proof.
“Actual malice in United States law is a condition required to establish libel against public officials or public figures and is defined as “knowledge that the information was false” or that it was published, “with reckless disregard of whether it was false or not.” Reckless disregard does not encompass mere neglect in following professional standards of fact checking. The publisher must entertain actual doubt as to the statement’s truth.” That is a tough one to overcome for a public person such as Howard K. Stern has become since the death of Anna Nicole Smith.
The next issue to address in McNamara outline of defenses is, “Parts of the passages are not defamatory”. “In law, defamation (also called calumny, libel, slander, and vilification) is the communication of a statement that makes a false claim, expressly stated or implied to be factual, that may give an individual, business, product, group, government or nation a negative image. …Related to defamation is public disclosure of private facts which arises where one person reveals information which is not of public concern and the release of which would offend a reasonable person. “Unlike libel, truth is not a defense for invasion of privacy.”
Next is Cosby’s claim that parts of her book is covered by a basis in law calling those passages as “constitute protected opinion”. However, the Supreme Court has ruled that a statement that is provable true or false, for example, is not an opinion. In the 1990 Supreme Court decision of Milkovich v. Lorain Journal, simply put is that, “The Supreme Court said that newspaper columns and other forms of commentary may be libelous if they “imply an assertion of objective fact” that the plaintiff can prove is false.” (I. E. can Stern prove that the allegations of the gay sex tape that made up the part of Cosby’s book that made it a best seller as being “false”.) That is an overly simple example in the above decision. In that decision, Chief Justice Rehnquist gave an example. He said the statement, ”In my opinion Mayor Jones is a liar,” would be actionable, while the statement, ”In my opinion Mayor Jones shows his abysmal ignorance by accepting the teachings of Marx and Lenin,” would be protected opinion. Simply put if the person suing can prove that the “opinion was stated as fact” and that statement can be proved as false, then there is a serious chance the court will not find that statement as being “constitute protected opinion.” Remember at the beginning of this case, Judge Chin simplified this into “the book speaks for itself, either it is true or it is false”. Add to that Ms. Cosby has openly admitted that she did not interview anyone with a different “opinion” as to where she wanted her book to go because she knew they would try to prevent the book from being published. That in itself should have given a seasoned reporter that knew the basic rules of vetting sources and checking “facts”, some pause of concern. You can also read the Oral Arguments in front of the Supreme Court in relations to this case in our download section.
Then we have the claim that “Mr. Stern is libel proof.” I think that will be a slippery slope for Ms. Cosby and her publisher. On February 12, 2007, we have Star Magazine David Caplan on MSNBC, stating, “Nothing was really known about Howard K. Stern and so after Anna Nicole Smith’s death everyone began to investigate who Howard K. Stern really was”. That statement shows that nothing horrendous was known about Howard K. Stern at the time of Anna Nicole Smith’s death. Then we have the February 14, 2007 interview of Rita Cosby with Virgie Arthur where it was Rita Cosby who was the first one in a husky whisper to say, “Howard K. Stern facilitated a murder or was an accomplish”. It was at this time that Dan Abrams, a lawyer and Cosby’s boss, gave a warning about those type of statements could lead to a libel suit. It was soon after that interview that MSNBC announced Cosby’s contract would not be renewed. We also have Cosby saying she only researched the book from April to June 2007 that could be a problem also for Cosby.
Add to that the pesky rulings in the past of, “However, a court will not dismiss a defamation action merely because the plaintiff already has a bad reputation. Schiavone Construction Co. v. Time, Inc., 646 F. Supp. 1511, 1516 (D.N.J. 1986), rev’d, 847 F.2d 1069, 1072-73 (3rd Cir. 1988). Finklea, 742 S.W.2d at 516 (“[E]ven the public outcast’s remaining good reputation is entitled to protection.”) Rather the statement upon which the defamation claim is based should relate to the same matters upon which the prior bad reputation was founded, or to substantially similar matters.
In extreme cases, a plaintiff’s general reputation may be so bad that a court will hold a plaintiff libel-proof on all matters. For example, Charles Manson or Adolph Hitler could not be damaged by defamatory statements. Langston v. Eagle Publishing Co., 719 S.W.2d 612, 623 (Tex. App. 1986). I don’t think any of us think for a minute that Stern rises to the element of Manson or Hitler.
So perhaps the mantra led by John O’Quinn and company that Howard K. Stern “murdered” two people will get a pass from the court. However, the gay allegation and the “absolute statement that the tape existed with no doubt about that” is what sold Cosby’s book now that is going to be a tough sell to any court in my opinion.
The couple of things Cosby has going for her is that Lin Wood has never taken a defamation case all the way to trial, whereas Cosby’s lawyer Elizabeth McNamara has taken cases all the way to trial and won (I. E. The Da Vinci Code). Wood also admits that the “Actual Malice” is an almost impossible standard to meet. He also stated in that same article though that one day the right case to take to trial will present itself. Hopefully Wood will take this case all the way to trial.
Those things being said, I just don’t think that gay tape and that Howard K. Stern was Larry Birkhead’s gay lover without proof of that is going to pass the smell test of getting this case dismissed on a Motion for Summary Judgment by Cosby and Hachette.
Part 2 of the 3 part series will be a look at what Lin Wood has been able to do for his list of high profile clients and what they ended up with as a result of Wood taking their cases. The final part will be my personal take on why the Florida case settled out of court so quickly once they met with the mediator on October 30, 2008.
Join us tonight in chat to discuss this case and tell us what you think is going to happened with the blond ambitious Cosby. You do have to be a registered member of the chat, but we think you will enjoy both the company and the topics.
Remember that the documents for the cases/trials we cover are in our download section, opened to ALL, not just members of Rose Speaks.com.
This article is the sole property of Rose Speaks unless otherwise stated. This article as with other articles is based on the opinion of Rose Turner, or our guest authors if so indicated. Please remember we are not lawyers and those opinions expressed here are each of our individual opinions and should not be taken as legal advice and/or legal opinions. The comments following this article are the opinions and sole property of the site members and do not necessarily reflect those of the site owners.
This article will be enlarged tonight with more of my thoughts about these Motions coming up and what we will be allowed to see.
We now have the rules for the Motion for Summary Judgment to be filed by Rita Cosby and Hachette Books and the Reply of Howard K. Stern to those Motions. Wonder if this is why we have those seven pages released from the Florida suit on Don Clark.
On December 2, 2008, New York Southern District Federal Court sets page limits on Rita Cosby’s Motion for Summary to 50 from the normal 25 Judgment and then Howard K. Stern’s reply can be 75 pages; Hachette intends to use the 25-page limit per the Civil Rules of Procedures.
So now, our attention shifts in part to the New York as Florida is officially closed even on PACER as of today.
I think now is a time to debunk the rest of chapter 13 of the real blond ambitious, Rita Cosby.
You can find all of the documents in our download section, opened to all not just members of Rose Speaks.com.
This article is the sole property of Rose Speaks unless otherwise stated. This article as with other articles is based on the opinion of Rose Turner, or our guest authors if so indicated. Please remember we are not lawyers and those opinions expressed here are each of our individual opinions and should not be taken as legal advice and/or legal opinions. The comments following this article are the opinions and sole property of the site members and do not necessarily reflect those of the site owners.
On October 21, 2008, a Court Order from the Federal Court for the Southern District of New York has ruled that Stern can use Rita Cosby’s deposition and confidential documents because her attorneys and Hachette had not objected at the September 26 hearing. However BECAUSE Rita Cosby and Hachette’s counsel had no objection as long as the discovery materials were filed under seal the Court has found that Stern can also use third party depositions and documents. The Court noted in its Order that because “Defense counsel had not clarified that defendants cannot waive any objections that non-parties who have produced confidential materials may have. Any confidential discovery materials utilized from the present matter as well as any excerpts or paraphrasing of that confidential discovery material, must be filed under seal in the related action to protect the producing non-parties’ interests”.
This means the New York Court has found that there can be a limited crossover of using the non-parties material in the Response to the Summary Judgment in Florida. Examples would be using Larry Birkhead, Pol’ and Patrik, Mark Speer, and say Don Clark and Wilma Vicedomine’s depositions and documents supplied during their deposition and discovery for the New York case. Makes me wonder why allegedly Wilma Vicedomine was out blogging about a “chat that occurred in Sun’s chat channel” especially from what has been sent to me she or others allegedly on her behalf stated the date was off by at least a month if not two months.
In other news the Florida Southern District Federal Court Granting the Unopposed Motion for extra pages in Howard K. Stern’s Response giving him 30 total pages, and granting John O’Quinn and the O’Quinn Law Firm a total of 20 pages in their Reply.
Will Stern’s legal team use the nannies, Mark Speer, Tom Bednarek, and/or Larry Birkhead’s depositions or excerpts of them? What do you think Howard K. Stern will use and from those confidential files? Will he use Wilma Vicedomine and/or Don Clark’s deposition? Did Vicedomine, [Vice], and Clark think they were safe because their depositions were ONLY for the New York case and so “they thought” they would not be used for the Florida Suit. How will this affect the filing coming up by Howard K. Stern due October 27 in Florida?
On October 22, 2008, there is a Court Order from the Southern District Court in Florida, granting Stern’s request for 5 additional pages on Response of Material Facts for a total 15 pages.
This article is the sole property of Rose Speaks unless otherwise stated. This article as with other articles is based on the opinion of Rose Turner, or our guest authors if so indicated. Please remember we are not lawyers and those opinions expressed here are each of our individual opinions and should not be taken as legal advice and/or legal opinions. The comments following this article are the opinions and sole property of the site members and do not necessarily reflect those of the site owners.
In the Southern District Federal Court for Florida, on Friday, October 17, Krista Barth and Robert Klein squared off and argued on behalf of their clients for an hour and half.
The hearing was in connection to John O’Quinn and the O’Quinn Law Firm Motion for Protective Order for the financial information with the O’Quinn legal team wanting to wait until 30 days before trial to turn that information over. The O’Quinn legal team is also requesting that Howard K. Stern does not have access to the information because Stern “can’t be trusted”. The Minutes of the Court Proceeding states the Court read the Motions, Memorandum of Law submitted by both side, had the hearing and took the matter under consideration and will issue an opinion in the near future.
In other news the Southern District Federal Court of Texas, issued an Order for a November 4 hearing on the status of the case, and the discovery progress in that case between the parties. That hearing is scheduled for November 4 at 4:00 PM.
The Texas State District Court in Houston, the Honorable Tony Lindsey issued an Order on October 15 setting a hearing on the Motions for Art Harris and Bonnie Stern to hear oral arguments on the Jurisdictional issues brought up by the co-defendants. That hearing per the Court Docket, is set for 1:30 PM on November 21, however the court has also issued in its Order that the parties may request a hearing sooner then November 21.
Howard K. Stern’s Answer to the O’Quinn’s Motion for Summary Judgment based on Stern is a public figure and as such cannot prove “malicious intent”, still appears to be due on October 27.
The New York Federal Court has Order that all depositions of the last five witnesses, Don Clark, Wilma Vicedomine, Mark Speer, and both nannies must be completed by Monday, October 20 in preparation for that trial.
In the Federal Court for South Carolina of the Estate of Anna Nicole Smith vs. G. Ben Thompson and Stancil Ford Shelley, there are two filings due, one by Monday October 20, 2008 of the Rule 26(f). The other required filings in the South Carolina Federal Court are due on November 3, 2008 and includes the Rule 26 & 26 (a).
It looks like October and November is going to be two months of many happenings in all cases, in all jurisdictions with filings due and hearings happening. Be sure to keep up with our calendar on the front page of Rose Speaks.com as we keep up with all upcoming dates in all of these cases.
I will have the debunking of the blond ambitious, Rita Cosby, chapter 13 part 2 up tomorrow and I will also have my predictions about the upcoming trial of Howard K. Stern vs. Rita Cosby and Hachette Books.
This article is the sole property of Rose Speaks unless otherwise stated. This article as with other articles is based on the opinion of Rose Turner, or our guest authors if so indicated. Please remember we are not lawyers and those opinions expressed here are each of our individual opinions and should not be taken as legal advice and/or legal opinions. The comments following this article are the opinions and sole property of the site members and do not necessarily reflect those of the site owners.
The Southern District Court in Florida issued an Order on October 14, 2008 for a hearing on October 17, 2008 at 1:30 PM. The hearing is to address John O’Quinn and The O’Quinn law firm’s Motion for Protective Order in relation to releasing financial information to Lin Wood except they are willing to release those 30 days before trial. The Motion before the Court is also asking that Howard K. Stern have no access because of “trust issues”.
The Court also issued an Order on October 15 to reset the Calendar Call Date from December 24 at 10 AM to December 23 at AM, due to a Court holiday.
Following the Wilma Vicedomine deposition on October 13, an alleged friend released the following information on October 14, which was sent to me.
“Per Targets (on Topix.net)
Wilma’s deposition was a smashing success and Stern and Wood are not happy about it.
…The depo lasted 10 hours and Wilma was represented by her own private attorney. Wilma told the truth and, just as we have been predicting all along, her testimony sucked the life out of Stern’s case.
…Klein is representing Clark today. [October 14]
…And that, my friends, is all I can say about it because that’s all I know. The contents of the depo itself is under seal. If any of it gets leaked, someone is going to jail.”
I am gathering from the above statement that Howard K. Stern in spite of his intense dislike for Texas and Houston in particular that he did in fact, [not as I predicted], go to Houston Texas to look Wilma Vicedomine eye to eye. It appears from Targets statement that Howard K. Stern overcame his dislike of Texas to see what Wilma had to say about her actions over the last year plus in his life and that of Anna Nicole Smith, Daniel Smith, Dannielynn Birkhead, etc.
Glad I did not have any money down on my bet. REMEMBER folks, anyone being deposed can share anything they want about the deposition, just as Pol’ and Patrik did to us, some of what they said following their depositions was published and some of it was off the record. There is NOTHING wrong with Wilma Vicedomine sharing the above information “on the record” via an alleged friend, spokesperson, to post on the internet. It is the parties, Howard K. Stern, Rita Cosby and Hachette that cannot release any information on any of the discovery, depositions etc.
It would appear if Targets statement turns out to be true that Wilma Vicedomine felt very good and confidant about her deposition.
I wonder if we will hear something from a “spokesperson” on behalf of Don Clark. Will Don Clark allow someone to address his deposition on the record and permit that “statement” to be put on the internet on his behalf?
In other news in the New York Court Howard K. Stern has added an additional attorney to his legal team, Amy Stewart of POGO filed for Pro Hac Vice status on October 1 and the Court approved that request with an Order on October 8, 2008.
Remember you can pick up all documents for all cases we are following in our download section, opened to ALL, not just members for Rose Speaks.com.
This article is the sole property of Rose Speaks unless otherwise stated. This article as with other articles is based on the opinion of Rose Turner, or our guest authors if so indicated. Please remember we are not lawyers and those opinions expressed here are each of our individual opinions and should not be taken as legal advice and/or legal opinions. The comments following this article are the opinions and sole property of the site members and do not necessarily reflect those of the site owners.
Most of us expect that Wilma Vicedomine or her alias of Wilma Vice is present in a deposition today. However, I have some questions and would like to have your input.
Who is there today, we know Lin Wood is there and any lawyer that Mr. Wood picks to be there to represent Howard K. Stern. We know that Rita Cosby’s lawyer is there, Elizabeth McNamara, and Hachette Books lawyer Douglas Maynard is probably there as well. Wilma Vice is being represented by Neil McCabe now as an “agent” [employee and therefore a party in the Florida lawsuit], of the O’Quinn Law Firm and Neil McCabe can invite any other lawyer that is listed to be there for the deposition from The O’Quinn Law Firm.
However is Robert Klein there, since he is not representing anyone in the New York case? His September 29 letter to Lin Wood said he would be in Houston this past weekend to prep for Don Clark’s deposition on October 14, but if that deposition is ONLY about Cosby’s book will Mr. Klein be allowed to sit in on these depositions.
The main parties have a right to be present also, that would be Rita Cosby and Howard K. Stern, would they show up? We know that Howard K. Stern loves Texas, NOT, so my bet is he is not there and would not step foot in Texas not even to look the woman in the eye that spent over a year trying to destroy him. My bet is that he will watch the video of this deposition to “meet” Wilma and not be there today. However, will Rita Cosby be there to support Wilma Vicedomine and Don Clark? Why did Cosby who fought so hard to keep everything she said and all of her documents in the New York suit to be held as confidential and never shared with anyone else or in any of the other lawsuits, suddenly changed her mind about handing all of that over to The O’Quinn Law Firm? The fact that her lawyer was willing to do that, addresses the Amended Complaint that Stern filed in Florida in which he alleged in part that people in The O’Quinn Law Firm “conspired” with Cosby on her book. Did Cosby and her lawyer prep for this deposition over the weekend with Wilma Vice? Was Wilma shown the video deposition of Cosby and all of Cosby’s confidential documents to prep for today? I am still amazed that Cosby would take a chance of handing over everything to the O’Quinn Law Firm in regards to her suit in New York, could this end up biting Cosby.
What are your thoughts on is Cosby there today to encourage her source for her book? Did Cosby hand over everything to help her sources? Who do you think are in that room today during the deposition?
Give us your thoughts we want to hear what you think is going on today behind those close doors in Houston Texas?
Then there is the question all of us would love to see the answer to, will Wilma throw any of her alleged email, chat buddies, or blogging buddies under the bus today? Will she hand over those that Wood alleges she gave instructions to post certain things on TMZ.com? Will we know their names as the Florida Suit and New York suit goes forward? How did those excerpts of Cosby book find its way to TMZ.com before the book was even released?
This article is the sole property of Rose Speaks unless otherwise stated. This article as with other articles is based on the opinion of Rose Turner, or our guest authors if so indicated. Please remember we are not lawyers and those opinions expressed here are each of our individual opinions and should not be taken as legal advice and/or legal opinions. The comments following this article are the opinions and sole property of the site members and do not necessarily reflect those of the site owners.
On Monday, October 13 and Tuesday, October 14, in Houston Texas all of the big gun lawyers in the Rita Cosby suit will meet and deposed Wilma Vicedomine and Don Clark. Those that will have the right to be present during the depositions is Elizabeth McNamara for Rita Cosby, Douglas Maynard for Hachette Books, Lin Wood, and any of the lawyers he decides that can be present that are on record in the Cosby suit for Howard K. Stern. Neil McCabe for Wilma Vicedomine and Don Clark and for some reason when you review the letters filed and dated September 29, Robert Klein will be present, unless Wood excludes him because the depositions are ONLY about the Cosby suit. I did notice that in Robert Klein’s letter he stated that he would be in Houston this whole weekend to “prep” Don Clark for his deposition. I am not sure why Robert Klein would have access to this deposition unless as I state below after the 7 hours allowed for the Cosby suit, Clark agrees to extend the deposition into late that night for the O’Quinn suit. However, my prediction is since the Court will not Compel the deposition in the Florida suit, the Clark/Vicedomine will be only 7 hours each and only address the Cosby suit.
Below is an outline of what Lin Wood has access to in documents from Wilma Vicedomine in regards to her conversations with Rita Cosby, her postings on the internet and in a chat channel, and any “orders” she directed other posters to go out to sites like TMZ.com to allegedly promote Wilma Vicedomine’s agenda to destroy Howard K. Stern.
Per the Civil Rules, Lin Wood has one day of 7 hours with Wilma Vicedomine. Let us “assume” that Lin Wood has prepared for this deposition for several months, based on the fact he has “thousands of messages in an online chat room dedicated to discussion of Ms. Smith’s death. In these alleged postings, Vicedomine allegedly discussed aspects of Defendants’ investigation, including strategy, efforts to have Plaintiff prosecuted, and conversations that she had with Arthur. Id. Further, Plaintiff alleges that Vicedomine directed chat room members to post specific statements regarding Plaintiff on the website TMZ.com.” If that allegation were true, I would bet that Lin Wood has a top forensic computer expert, which has tracked IP’s in the records subpoenaed from the chat room owner. If those IP’s track back and can be proved it came from Vicedomine via Moody International computers, home computers that Vicedomine owns, and any IP’s that track back to the O’Quinn law firm.
Below are excerpts from the Omnibus Order issued about Vicedomine and Don Clark’s deposition, which now can ONLY relate to the Rita Cosby suit and not the Florida suit. This is unless because Robert Klein is “prepping” Don Clark all weekend for the deposition on October 14, they can do the seven-hour deposition of the Rita Cosby suit, and then go into the night on the O’Quinn suit if Klein and Clark “volunteer” since they cannot be made to compel now.
So based on this, pull the subpoena for Wilma Vicedomine and decide if you were Lin Wood and had seven hours to depose Wilma about her information she gave Rita and put on the internet, what would you ask Wilma Vicedomine (Vice) during that seven hours?
Omnibus Order page 5
Thus, on October 9, 2007, Plaintiff filed a libel lawsuit against Cosby and Hachette, which is currently pending in the United States District Court for the Southern District of New York, Howark K. Stern v. Rita Cosby, et al., Case No. 07-Civ-8536 (“Blonde Ambition Litigation”). D.E. 64 at 74; D.E. 121 at 6. Through the Blonde Ambition Litigation, Plaintiff discovered that Defendants’ investigator Clark, as well as another investigator assisting Clark, Wilma Vicedomine (“Vicedomine”), served as the source for many of the statements contained in Blonde Ambition.D.E. 121 at 6.
Indeed, in the Blonde Ambition Litigation, Cosby and Hachette list Vicedomine in their Initial Disclosures as an individual likely to have discoverable information. Specifically, the Initial Disclosures state that Vicedomine has information regarding the “truth of statements in Blonde Ambition, facts refuting Mr. Stern’s allegations of fault, [and] Mr. Stern’s conduct and reputation.” See Exhibits G & H to D.E. 121. Likewise, the Initial Disclosures identify Clark as having similar information. Id. Plaintiff asserts that while the investigation was ongoing, Clark and Vicedomine revealed information from their investigation to third parties such as Cosby. D.E. 133 at 3. Additionally, Plaintiff contends that Clark attempted to persuade the Federal Bureau of Investigation (“FBI”) and Florida Attorney General to re-open the investigation into Ms. Smith’s death. See D.E. 133.
Omnibus Order page 5 and 6
Also during this same time frame, according to Plaintiff, Vicedomine posted her investigative progress on the Internet. Id. In this respect, Plaintiff asserts that Vicedomine, under various pseudonyms, shared intimate details of the Clark/Vicedomine investigation in Internet chat rooms. D.E. 121 at 10. Specifically, Plaintiff asserts that Vicedomine posted thousands of messages in an online chat room dedicated to discussion of Ms. Smith’s death. In these alleged postings, Vicedomine allegedly discussed aspects of Defendants’ investigation, including strategy, efforts to have Plaintiff prosecuted, and conversations that she had with Arthur. Id. Further, Plaintiff alleges that Vicedomine directed chat room members to post specific statements regarding Plaintiff on the website TMZ.com. Id. at 11.
Omnibus Order Page 31
Next, the Court considers Plaintiff’s additional assertion that Defendants committed disclosure waiver. Under the theory of disclosure waiver, a party waives work-product protection by disclosing to third parties information otherwise protected by the work-product doctrine. Specifically, Plaintiff contends that even if work-product protection existed for the details surrounding the investigation conducted by Vicedomine and Clark, any such protection was waived when Clark and Vicedomine disclosed details of the investigation to Rita Cosby, the author of Blonde Ambition. Further, Plaintiff argues that Vicedomine also divulged information gathered by the investigation to “countless people” via the Internet and in Internet chat rooms. D.E. 121 at 17; 133 at 14.
Omnibus Order Page 32 Instead, with respect to the argument that Vicedomine’s alleged disclosure of investigatory details to Cosby and over the Internet effectuated a waiver, Defendants argue that any waiver must be limited to the information actually disclosed, and not to the entire subject matter allegedly discussed. D.E. 142 at 13. Put simply, Defendants contend that Vicedomine’s actions at most waived protection for actual facts that Vicedomine revealed to Cosby which were also published in Blonde Ambition, or statements actually posted by Vicedomine on the Internet. Since that information is available to Plaintiff, however, Defendants contend that Plaintiff should not be permitted to depose Vicedomine in order to discover all of what Vicedomine told Cosby or all of the Firm’s or Vicedomine’s work product. Additionally, Defendants argue that any waiver of the work-product protection by Vicedomine and Clark with regard to their investigation on behalf of the Firm would not constitute a waiver on the part of Arthur, its client in the related Texas Lawsuit.
Omnibus Order Page 34
While situations exist where a disclosure is essentially compelled or made through excusable inadvertence, and courts are sometimes willing to maintain the work-product protection under such circumstances, see id., this is not one of those cases. Instead, Defendants point to nothing to suggest that Vicedomine and Clark did not purposefully and voluntarily make their statements to Cosby and on the Internet. Moreover, the types of disclosures made (i.e., to the author of a book and on the Internet) are entirely inconsistent with a desire to maintain the privacy of the information disclosed. Rather, books are published and statements are posted on the Internet precisely for the purpose of making them accessible to anyone and everyone. Certainly, at a minimum, the disclosures substantially increased the opportunity for a potential adversary to obtain the protected information.
10Although Defendants have suggested Vicedomine could not have waived the work product protection by engaging in her personal capacity (as opposed to her role as an agent of Defendants) in disclosures of information from the investigation, Defendants have not asserted that Clark and Vicedomine were not acting as agents of Defendants when they spoke to Cosby or made postings of information on the Internet.
Omnibus Order Page 35
Particularly under these circumstances, it is difficult to conceive of how Vicedomine could not have intended that her Internet statements be made available to anyone who wished to view them. Such behavior plainly increased the risk that Plaintiff would learn of Vicedomine’s disclosed work product materials. In fact, Plaintiff did find such materials.
Similar reasoning applies to the disclosures made with respect to Rita Cosby, the author of Blonde Ambition. Cosby interviewed Vicedomine for the purpose of writing a book, in significant part, about the very subject matter of Vicedomine’s interview, and nothing suggests that Vicedomine did not know this. In fact, Blonde Ambition published much of what Vicedomine told Cosby. There is nothing about divulging facts to an author writing a book about the information being disclosed that is consistent with guarding the privacy of information that is otherwise protected by the work product doctrine. Obviously, such conduct increased the possibility that Plaintiff would obtain and use the material. Under the circumstances where Vicedomine voluntarily spoke to a journalist seeking to write a book on the very subject for which information was provided, there could be no expectation that Cosby would maintain the secrecy of any of the information. And, significantly, much of the information conveyed was apparently used and published in the book.
Omnibus Order Page 35 and 36
The Court therefore finds that Vicedomine’s and Clark’s actions, as agents of Defendants, are inconsistent with the maintenance of secrecy of otherwise-work-product protected materials from their adversary. The disclosures were neither involuntary nor compelled, and they were not made to sources that were assisting Defendants in advancing their case. Instead, Vicedomine and Clark made the disclosures at issue to third parties and did so in such a way as to create a substantial risk that information would be received by Defendants’ adversary. Vicedomine and Clark’s actions waived the work product protection since they could not reasonably expect that future use of the information could be limited. Finally, it is significant that Plaintiff did, in fact, learn much of the information disclosed. See Continental Casualty Co., 537 F.Supp.2d at 761 (once an adversary has become aware of information disclosed, it cannot purge that information from its mind). For all of these reasons, Defendants have waived work-product protection in these instances.
Omnibus Order Page 36 and 37
The Court agrees with Defendants to the extent that the disclosures by Vicedomine (and Clark) do not extend so far as to effectuate a waiver of the entire subject matter of the investigation. Due to the sensitive nature of work-product materials and the policy behind maintaining their secrecy, generally speaking, when work-product protection has been waived, it is “limited to the information actually disclosed, not subject matter waiver.”
Omnibus Order Page 37 and 38
Applying this principle of law to these facts, the Court finds that although several disclosures have occurred, any waiver of the work-product protection does not extend beyond those discrete disclosures. Put more simply, the Court finds that Vicedomine (and Clark) waived any work-product protection for anything they said or gave to Cosby in her accumulation of information for Blonde Ambition, and Vicedomine waived the protection for any statements she actually posted or caused to be posted on her behalf on the Internet.
Omnibus Order Page 38 (THIS IS NO LONGER AN ISSUE BECAUSE THE COURT WILL NOT COMPEL VICEDOMINE FOR A DEPOSITION IN THE FLORIDA SUIT EXCEPT AS IT APPLIES TO RITA COSBY’S SUIT. HOWEVER THE ORDER ABOUT SUPPLYING ALL PSEUDNYMS HAS BEEN ORDER BY THE COURT AND SO CAN BE ASKED IN MY OPINION DURING THE SEVEN HOUR DEPOSITION) With respect to the allegation that Vicedomine disclosed otherwise-work-product protected information in Internet chat rooms, the particular statements that can be attributed to Vicedomine in this respect are not entirely clear, as the poster or posters of many of the statements at issue used pseudonyms. Therefore, Vicedomine shall verify all screen names and pseudonyms that she used on the Internet while discussing in public fora matters pertaining to the deaths of the Smiths, the paternity of Dannielynn, or Plaintiff. Defendants shall also be entitled to obtain copies of all postings that Vicedomine made in these public fora that relate to the underlying investigation conducted in furtherance of the Broward County proceedings. Furthermore, Defendants will be permitted to ask Vicedomine about these Internet postings during her deposition.
Omnibus Order Page 38 and 39 Additionally, with respect to Vicedomine’s (and Clark’s) statements made to Cosby, the Court finds that any actual statements made by Vicedomine or Clark to Cosby regarding the investigation have been waived and, thus, are discoverable. As for Defendants’ contention that discovery of this information is limited to statements that were actually published by Cosby in Blonde Ambition, the Court concludes to the contrary. Instead, Defendants are entitled to discovery of all statements Vicedomine and Clark made to Cosby relating to the investigation. Although some of the information provided by Vicedomine and Clark may not have been incorporated into Blonde Ambition, such a fact has no bearing on the scope of the waiver in this case. As noted above, Vicedomine voluntarily spoke to a journalist seeking to write a book on the very subject for which information was provided, and Defendants have not suggested that she had any expectation that Cosby would maintain the secrecy of any of the information conveyed. Consequently, Vicedomine made disclosures to Cosby in such a way as to create a substantial risk that information would be received by Defendants’ adversary.
Omnibus Order Page 39
The fact that all of the information provided by Vicedomine and Clark was not included in Blonde Ambition also refutes Defendants’ contention that the information is readily available to Plaintiff and, therefore, should not be compelled to be disclosed. See D.E. 142 at 13-14. In making this argument, Defendants contend that Plaintiff should not be allowed to depose Vicedomine in order to discover the “full gamut of her work product.” Id. Although the Court agrees that Plaintiff is not entitled to discovery of all of Vicedomine’s work product, he is entitled to information disclosed to Cosby, whether included in Blonde Ambition or not. In this regard, the Court will permit Plaintiff to ask questions during Vicedomine’s deposition about what she told Cosby relating to her investigation.
Omnibus Order Page 45 Attorney-Client Privilege
With respect to the issue of attorney-client privileged information, Defendants conceded that no such privileged materials responsive to the subpoena duces tecum directed to Vicedomine exist. See D.E. 150 at n. 2. Defendants clarified that they inadvertently discussed attorney-client privilege in their objections to discovery. After further review of the documents at issue, however, Defendants realized that only the work-product doctrine protects the information listed on the Vicedomine privilege log. Id. Defendants stated, “At this time, there do not appear to be any documents protected by the attorney-client privilege.” D.E. 152 at n. 9.
Omnibus Order Page 51 and 52 Vicedomine Deposition Duces Tecum
Defendants’ Motion for Protective Order [D.E. 111] seeks for the Court to issue a protective order precluding Plaintiff from deposing Wilma Vicedomine. According to Defendants, the investigation conducted by Vicedomine, as the Firm’s agent, and at the direction of the Firm, is subject to work-product protection. Hence, Defendants argue that Plaintiff should not be permitted to invade that privilege by deposing Vicedomine about the fruits of her investigation.
Omnibus Order Page 52
Plaintiff, in response, asserts that he should be permitted to take Vicedomine’s deposition for various reasons. First, Plaintiff argues that Defendants failed to satisfy their burden under Rule 26, Fed. R. Civ. P., to demonstrate good cause precluding the requested discovery. Second, Plaintiff contends that Defendants waived any applicable work- product protection by placing the investigation at issue. Third, Plaintiff urges that Vicedomine waived any applicable work-product protection by disclosing details of the investigation to third-parties, and finally, Plaintiff claims entitlement to discovery of the underlying facts supporting or contradicting O’Quinn’s state
