The newest nine papers filed in the Texas State Court lawsuit that we have access to, are now up. ALL OF THE EMAILS IN ANY OF THE EXHIBITS REQUESTING PRODUCTIONS OF PERSON’S PRIVATE EMAIL HAVE BEEN REDACTED AND THOSE PAGES HAVE BEEN REMOVED FROM THE EXHIBITS BEFORE I UPLOADED THEM ALSO MOST OF THE NAMES OF INDIVIDUALS HAVE BEEN REMOVED OR THE PAGES THEY ARE ON HAVE BEEN REMOVED WHERE WE COULD AND STILL KEEP THE ANSWER TO THE QUESTION IN TACT. If you see something additionally that should be redacted please email us and we will redact those as well.
Howard K. Stern’s Response to Virgie Arthur’s Opposition has a couple of new and interesting facts alleged.
Virgie Arthur filed a Second Amended Original Petition has been filed with the latest alleged new facts and attempting to add Larry Birkhead as a defendant but the date to join additional parties was December 1. There is no way to predict if the Court will allow additional joiner of parties this late lawsuit.
The rest as you know we cannot comment on because one of the co-owners of Rose Speaks.com is a defendant currently in the lawsuit.
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 Florida Federal Court Issued twoOrders approving both Howard K. Stern’s Unopposed Motion for Leave to have an additional 10 pages in his Memorandum of Law due on October 27, as well as his Opposed Motion for 5 additional pages in his filing of “Material Facts” due also on October 27. In the New York Case we also have the filing of notice of move by Douglas Maynard on behalf of the Akin, Gump, Straus, Hauer and Feld Law Firm.
On October 23, the Florida Court also issued an Order, granting the Request to withdraw as counsel of William V. Custer, Nicole J. Wade, Eric P. Schroeder and Benjamin T. Erwin, from the Florida suit, noting that the plaintiff Stern had no objection. We will never know what these people contributed behind the scenes as preparations for trial as I cannot find any declarations or affidavits filed in this case or any of the other cases pending in multiple jurisdictions filed by any of the lawyers now withdrawing. I did notice that Nicole J. Wade is still listed in New York as well as a new lawyer from Powell Goldstein added to the New York case on behalf of Howard K. Stern. Stern now has the same number of lawyers on his Florida team as does John O’Quinn and the O’Quinn Law Firm as this Florida Case rounds the final couple of corners and is set for trial on December 29.
In other filings, Stern is asking to file his Response and Memorandum of Law on the Motion for Summary Judgment for failure to prove actual malice under Seal, and his Memorandum of Law on “Material Facts” that he alleges will prove the actual malice under Seal. Stern filed a Memorandum of Law and a Declaration by John Patton in the first Motion, and a Memorandum of Law and a Declaration by Luke Lantta in the second Motion.
In these filings we get a glimpse of an odd combination, in my opinion, looking at the extensive witness list and knowing that in New York there has been a lot of depositions and Subpoenas Duces Tecum, issued and completed. Judge Chin’s ruling on October 20 was a huge win for Howard K. Stern as the ruling allowed the crossover of not only the defendant party, Rita Cosby’s materials but also that of all third party witnesses in the New York case that Stern wanted to use in the Florida case for his Response.
I am not surprised by Rita Cosby’s deposition and confidential documents that are to be filed in the Florida Suit as we got a look at that occurring from the letters and Orders that came from the New York Court. I am also not surprise that the Wilma Vicedomine’s deposition and documents including all screen monikers she posted under, all sites she posted on and allegedly is still posting on if the posters on Topix.net are to be believed. Vicedomine was to also turn over any chat channels she might have posted in and specifically any and all requests of fellow posters to blitz TMZ.com with posts and asking that fellow posters launch writing campaigns on behalf of Vicedomine and since she is an agent of the O’Quinn Law Firm, allegedly at the direction of someone in that firm. I remember getting posts sent to me by an “Oh Really” on TMZ.com that seemed to know what was about to happen and be knowledgeable of upcoming events as far back as May 2007. Oh how I would love to know if “Oh Really” was in fact Vicedomine. The reason I would love to know this is the writing campaigns to multiple agencies, from the Bahamas, to Florida officials, to California officials, to FOX network hosts of shows, to advertisers to federal agencies. If Stern can connect those to the O’Quinn Law Firm via Vicedomine’s posting and via forensic computer specialists he might be able to prove that the defamation of him was a very well orchestrated “hate campaign” to have him convicted of horrid crimes to further the agenda of either Cosby or O’Quinn. Wouldn’t it be stunning if Vicedomine were the key that would link California, Florida, and the federal government of the U. S. as well as the Bahamas and show the conspiracy to keep the defamation going via Cosby and online “volunteers”, right back to the lap of O’Quinn so to say? Sadly, I predict that we will never know if that can be proved because of the extensive Protective Orders in place in both suits.
Then we have learned that Vicedomine did not agree to be deposed for the Florida Suit, only the New York case however, Don Clark did agree and was deposed in both cases. However, the big surprise to me was why is the Jack Harding deposition so important? We know his story was ever changing. We even know that Harding changed his story in interviews; we know that because of all of the changes as y’all pulled transcripts and videos showing that in the end he had talked to Jackie Hatten, Don Clark and that allegedly O’Quinn had offered to pay his way to the Bahamas to testify at the Inquest of Daniel Smith. This is if Harding’s ever-changing story is to be believed.
Stay turned folks as we round the bend in both suits and head for trial. I am a tad miffed and disappointed that after months of labeling Stern as a murderer, blackmailer, abduction of a child for ransom, gay with tapes to prove it, a pimp, an illegal drug obtainer, etc. related to Anna Nicole Smith, Daniel Smith and Dannielynn Birkhead. Now we find out that all of the upcoming documents involving the very people that are alleged to have done this with “actual and provable malice”; want to; insisted on and have been granted Protective Orders to prevent both the media and us, the public from knowing the truth until the trials.
Pick up the latest documents in these cases in our Download Section, opened to ALL, not just members of Rose Speaks.com and then come back and share your thoughts and takes on why Jack Harding is so important in the Florida suit as well as in your opinions did Vicedomine come clean so to say during her deposition and production of documents.
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 statements.
Omnibus Order Page 52 and 53 After careful consideration of these issues, including the briefs presented and the arguments made during the August 13, 2008, hearing, the Court has made a determination with respect to the scope of Vicedomine’s deposition duces tecum. As discussed previously, the Court finds that Defendants put at issue the investigation conducted by Vicedomine and Clark and, thus, waived any work-product protection associated with those materials through the date of O’Quinn’s last alleged statement on March 27, 2008. Likewise, the Court finds that Vicedomine (and Clark) waived any applicable work product protection when they disclosed certain details of her investigation to Rita Cosby and third-parties on Internet web-sites. This waiver applies to all materials actually disclosed by Vicedomine or Clark, including information disclosed after the date of O’Quinn’s last alleged statement on March 27, 2008. Finally, the Court concludes that Plaintiff is entitled to discover the underlying facts that pertain to the truth or falsity of any of the alleged statements set forth in the First Amended Complaint. If, however, these underlying facts are set forth in work-product protected documents that were created after O’Quinn’s last alleged statement on March 27, 2007, Plaintiff must obtain the information through means other than document production. Consequently, Plaintiff may inquire into these materials during Vicedomine’s deposition, but Vicedomine is not required to provide any work-product protected documents created after March 27, 2007, that contain underlying facts.
Omnibus Order Page 53
Accordingly, Defendants’ Motion for Protective Order [D.E. 111] is denied, at least to the extent that it seeks a wholesale ban on Vicedomine’s deposition. With respect to the duces Tecum attachment to the Vicedomine subpoena, the Court acknowledges that some of the document requests are extremely over broad. Indeed, at the August 13, 2008, hearing, Plaintiff’s counsel conceded that the requests were overly broad. Nevertheless, it is undeniable that certain documents that fall within a narrower subset of the requests are discoverable. To summarize, Plaintiff may proceed with the deposition of Vicedomine and may pursue the following areas of inquiry:
(1) All underlying facts regarding the truth or falsity of the eight statements allegedly made by O’Quinn (i.e., the causes of the Smiths’ deaths and other allegations pertaining to Stern made in the statements at issue);
(2) All information (including work-product materials) regarding the Firm’s investigation up through March 27, 2008 (the date of O’Quinn’s alleged last challenged statement); and (3) With respect to investigative materials or information gathered after March 27, 2008, Plaintiff may inquire about any otherwise-work-product-protected information where, as determined by the Court, a waiver of the protection has occurred through disclosure to third-parties. These categories include (a) anything disclosed by Vicedomine to Rita Cosby (whether or not such information was ultimately published in Blonde Ambition) and (b) any statements regarding the investigation, Stern, or the Smiths, as disclosed by Vicedomine on publicly accessible Internet websites.
Omnibus Order Page 54
With respect to the duces tecum demand attached to the Vicedomine subpoena, Plaintiff can obtain documents that fall within the categories announced above, except for facts which may be set forth in work-product protected documents that were created after O’Quinn’s last alleged statement on March 27, 2007, and which were not otherwise disclosed by Vicedomine to Cosby. Plaintiff must obtain this category of information through means other than document production (i.e., interrogatories or depositions).
Omnibus Order Page 55 Defendants must produce responsive documents that would otherwise be protected as work product if such documents were created after March 27, 2007, if the documents were disclosed to Rita Cosby or on the Internet.
Omnibus Order Page 56
Although the Court recognizes Defendants’ objection on the basis of work product, as noted above, the Court finds that Defendants waived any such protection by placing the investigation at issue in this case. Therefore, the Court finds that Plaintiff is entitled to discover all Investigation Materials and O’Quinn Materials through the time of O’Quinn’s last statement (i.e., March 27, 2007). Additionally, Plaintiff is entitled to discover any Investigation Materials and O’Quinn Materials created after March 27, 2007, if such documents have been disclosed to Rita Cosby or on the Internet.
Omnibus Order Page 56 and 57
With respect to Firm Requests for Production 15 and 16 (O’Quinn Requests 20 and 21), Plaintiff seeks documents concerning communications with Rita Cosby or her representatives, as well as all documents concerning Blonde Ambition. Defendants object to the requests as overly broad with respect to the time frame involved and assert that the request is not limited in scope to this litigation. Defendants also object to the requests on the grounds that the requests seek to breach the work-product protection. The Court agrees that the request is overly broad in scope since it is not limited to issues presented in this case. However, the Court finds that Defendants have waived some of the work-product protection when Vicedomine disclosed facts of the Firm’s investigation to Rita Cosby, the author of Blonde Ambition.
Omnibus Order Page 57 Based on this waiver by disclosure, the Court finds that Plaintiff is entitled to discover any communications made to Rita Cosby regarding the investigation conducted by the Firm, whether or not those communications or materials were included in the Blonde Ambition book.
Omnibus Order Page 58
Therefore, the Court finds that Plaintiff is entitled to discover all of the Investigation Materials and O’Quinn Materials through the time of O’Quinn’s last statement. Additionally, Plaintiff is entitled to discover any of the Investigation Materials and O’Quinn Materials created after O’Quinn’s last statement if they have been disclosed to Rita Cosby or on the Internet.
Omnibus Order Page 59
Although the Court recognizes Defendants’ objection on the basis of work product, as noted above, the Court finds that Defendants waived any such protection through March 27, 2007, by placing the investigation at issue in this case. Therefore, the Court finds that Plaintiff is entitled to discover all of the Investigation Materials and O’Quinn Materials through the time of O’Quinn’s last statement. Additionally, Plaintiff is entitled to discover any Investigation Materials and O’Quinn Materials created after O’Quinn’s last statement if they have been disclosed to Rita Cosby or on the Internet.
So with the highlights here of the August 29, Omnibus Order outlining the context of the depositions, what would you ask Wilma Vicedomine in those seven hours? In addition, state in priority what those should be and why. Remember 7 hours with Wilma Vicedomine, make the questions count and tell us what you would ask her. If you cannot download the documents that you need email me and I will email these documents to you so you can participate this weekend in this “game”.
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.
During a hearing on September 4, the California Federal Criminal Court, Judge Wu, issued decisions on two of three Motions to Dismiss by the defense team of Lori Drew.
The Court ruled that the USA [government prosecutors], had met the burden of proof under two of the defenses Motions to Dismiss. Those two was the “Defendant’s Motion to Dismiss Indictment as the Unconstitutional Delegation of Prosecutorial Power”, which was DENIED by Judge Wu on September 4. The other was the “Defendant’s Motion to Dismiss Indictment for Vagueness”, which was also DENIED by Judge Wu. The Court took under advisement the “Defendant’s Motion to Dismiss Indictment for Failure to State an Offense”. Those present in the court have reported the judge’s only question on that final “Failure to State an Offense”, was could the USA prosecute Lori Drew if the government cannot prove that Lori Drew specifically “read MySpace.com Terms of Service/Use”.
The Court is going to issue its ruling on that in the next few days. However, if the minutes of the hearing released on September 5 as well as a Subpoena for the young girl’s medical records are any indication added to the fact the Court did not continue [reset or put on hold for the time being] the pretrial hearing on September 23. The Court as well stated in the Court’s Minutes that the Trial date of October 7 was still on the schedule. That has led to the thoughts that the judge is going to allow the prosecution to go forward with USA prosecution case and the trial of Lori Drew.
The conspiracy theory is based on the government’s argument that the government must prove in order to go forward with the trial the following under the Computer Fraud and Abuse Act [CFAA]:
1. That Lori Drew with others “conspired to access protected computers without authorization in violation of the 18 U.S.C. § 371”.
2. That “accessing the protected computers without authorization to obtain information to further a tortuous act in violation of 18 U. S. C. § 1030(a) (2)
The government maintains that the “terms “access” and “unauthorized” are not so imprecise that people of common intelligence must guess at the meaning stating that both can and have been applied in common sense fashion such that the statue itself places individuals on notice of prohibited conduct and is sufficiently definite to protect against arbitrary enforcement”. The Court agreed with the prosecution on this issue heard before the court on September 4.
The prosecution appears to have met its burden that the CFAA covers “cyber bullying which is a relatively new phenomenon, as is social networking.” The government maintains that “Congress specifically envisioned that statute as a tool to address all manner of cyber crimes”. The government in it’s argument, which the court agreed with, pointed to a case involving a student of the University of Texas. In using that case the prosecutors stated in part; “that conviction being upheld by the firth circuit of appeals stating, [c]ourts have … typically analyzed the scope of a user’s authorization to access protected computer on the basis of the expected norms of intended use or the nature of the relationship established between the computer owner and the user.” [United States v. Phillips, 477 F 3d 215, 219 5th Circuit 2007]. “Accordingly, some courts have concluded that when users access computers in violation of rules established for the user of those computers, the access is unauthorized.”
The Court agreed that the Section 1030 (a) (2) is applicable only where unauthorized access is used to obtain information. The prosecution presented the argument that, “Unauthorized access to obtain information from any protected computer if the conduct involved an interstate or foreign communication”.
The government quotes in section 1030 that Lori Drew is being tried under the following section for 1030 (a) (2):
“the section … provides: any person who intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains … information from any protected computer if the conduct involved an interstate of foreign communication … shall be subject to a fine, imprisonment or both.”
In addressing the “Defendant’s Motion to Dismiss Indictment as the Unconstitutional Delegation of Prosecutorial Power”, the government stated that the statute’s content demonstrates there is no implicit delegation. Section 1030 instead sets forth several elements that must be met before criminal liability will be imposed:
“First: The defendant intentionally committed the unauthorized access to a computer; or intentionally exceeded authorized access to a computer; or intentionally accessed a computer with;
Second: The defendant’s access of that computer involved an interstate or foreign communications;
Third: By exceeding authorized access to a computer, the defendant obtained information from a computer used in interstate or foreign commerce or communication;
Fourth: The defendant obtained the information to further a tortuous act.
One type of tortuous act that the government is using to prosecute this case, is intentional infliction of emotional distress. There are four additional things that the government would have to prove to show that defendant obtained the information to further a tortuous act:
First, the defendant acted intentionally or recklessly
Second: the defendant’s conduct must be extreme or outrageous
Third: the conduct must be the cause of
Fourth: extreme emotional distress
In relation to using the My Space.com website TOS to prosecute Lori Drew the government stated that most of the facts relevant in a prosecution under Section 1030 (a) (2) have nothing to do with the website owners.
Those facts that the government must show, therefore, exist independently of any website operator and demonstrate there is no delegation of authority.
Nor does it matter that Section 1030 criminalizes “unauthorized” access to protected computers. “The fact that the statute looks to what a website operator identifies as “authorized”, as opposed to “unauthorized access,” makes it no different from a host of other statues that likewise proscribe conduct by reference to what a private party authorizes or consents to: State trespass laws, for example, criminalize conduct where the trespasser lacks the permission of the property owner to enter onto the property.”
The prosecution attacked the defendant’s Motions to dismiss stating in part; “The essence of defendant’s argument appears to be that written terms of service are somehow different. They are not. Property owners often post signs outlining conduct that will result in ejection (backed with a call to law enforcement)”.
“.. the implication of defendant’s argument appears to be that website operators should not be allowed to regulate the use of access to their web sites; however, if the operators of web sites cannot identify what conduct on their property is “authorized” or, by implication, “unauthorized,” they become hostage to the whims of users, no matter how detrimental to the online communities they may wish to sponsor.”
The government’s position went on to address using the violations of My Space.com TOS to prosecute Lori Drew stating; “Although their property, defendant would deprive website owners from being able to control conduct at their websites. After all, although defendant repeats a parade of horribles related to creation of arbitrary terms of service, an alternative world which website operators could not rely on enforcement of their rules to prevent people from using the their sites to “harass, abuse, or harm” others or to seduce children would be an undesirable one indeed”.
Indeed the government disagrees with the assumption underlying defendant’s series of hypothetical. Although defendant describes a series of websites and calls them “public,” to the extent the owners of those websites seek to restrict access, enact safeguards to restrict access (including sign-in pages that require prospective users to agree to terms of service), and put the users on notice of the rules governing the website, their website cannot truly be considered “public”. Nor should it matter that the websites are attractive to prospective visitors, even if only to see why they are excluded. How strange it would be if the homeowner whose view of the ocean is the envy of others could not exclude outsiders traipsing across his property because the property was “too attractive” for people to help themselves from intentionally entering his property without permission.
The prosecution in it’s filings list cases that support the prosecution of Lori Drew for violating My Space.com TOS. Stating, “The plain terms of the statute allow a prosecution of a defendant who lies to gain access to a computer and intentionally violates the rules established by a computer’s owner for the use of that computer for the purpose of committing another crime or tortuous act. This plain reading of the statute has been embraced by courts throughout the United States, and is consistent with the statute’s legislative history. Through its development and continual expansion of the statue, Congress demonstrated its desire to address through Section 1030 the newest cyber crimes, of which cyber bullying is just one of the latest.”
The prosecution addresses the concerns of it prosecuting Lori Drew in violations of her First Amendment Rights as follows. “Second, Section 1030 does not implicate any First Amendment rights. The statue does not proscribe speech… it proscribes conduct. Specifically, a felony violation of section 1030 (a) (2) (c) requires the government to prove that:
“1. A defendant intentionally accessed a computer without authorization or in excess of authorization; 2. To obtain information 3. To further a tortuous act; 4. In addition to other jurisdictional requirements. But even if the conduct the statue proscribes is tangentially related to speech that would not justify dismissal. Courts have repeatedly recognized that there is no privilege to trespass in order to exercise First Amendment rights. Nor does the constitutional avoidance doctrine apply because no First Amendment rights are implicated and, in any event, there is no ambiguity that could invite the application of the canon of construction.”
The government also won the argument that TOS such as MySpace.com can be prosecuted under the CFAA. The government quoted part of the MySpace.com TOS as the following:
1. “Criminal or tortuous activity… Including copyright infringement…
2. “Using any information obtained from MySpace.com services in order to harass, abuse, or harm another person.
3. “soliciting personal information from anyone under 18”
4. “harass[ing] or advocate[ing] harassment of another person…
5. promot[ing] information that the member knows is false or misleading; and
6. using a photograph with out a person’s consent.
I suggest that all of you read the terms of service/use of the sites you post on, including TMZ.com, Topix.net and our site. We like other sites, (I. E. MySpace.com) when we update our TOS on the site, makes it mandatory when you sign onto the main site to read the newest version of our TOS and to agree to them. I look for more sites to be doing this as well as we post a link to our TOS at the end of each article now.
What if someone accesses a website via a proxy to not be “traced”; harvested information from the website in violation of the TOS; shared that information with others; took members identities via user names, email addresses and passwords; and then went to other sites. What if the person or persons doing that knew that the person whose identity had been taken perhaps used the same user name and password on other sites and then harvested private messages; data that a non-member would not be entitled to; and disseminated that information to others in a concerted way to harass? What if that person or persons used that information to find out other personal information and intentionally caused extreme emotional distress to others by humiliating them on other forums; in your opinion would that be covered under the CFAA?
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.
L. Lin Wood’s office sent a letter to John O’Quinn’s and The O’Quinn law firm’s lawyers, (see the file in our download section open to ALL not just members of Rose Speaks.com), saying they would provide a copy of the Order they had agreed to in the New York Southern District Federal Court to keep the Florida suit from becoming a media circus. Was this a gracious and ethical offer to the O’Quinn legal team or pure stupidity 101?
Once again the ones who allegedly did the horrible defaming have been offered and granted protection under the Consented Protective Order signed by the Florida Court yesterday, [September 4]; my question is why?
Certainly, when the allegations were made by John O’Quinn of the Will of Anna Nicole Smith being faxed to Howard K. Stern five days before her death thus setting the stage of why that happened unless Stern knew Anna would soon be dead; later that was proved wrong. Then there was the seven life insurance policies touted and talked about on every media that O’Quinn could get on as “motive” to murder Anna Nicole Smith; only now O’Quinn admits he was wrong. There was the constant mantra of “Motive, Means and Opportunity”, all three components to allege that Stern had in fact killed Anna Nicole and her son Daniel Smith, again later to be proved wrong. Then we have John O’Quinn saying if anyone really believed him when he said those things to Greta and Nancy Grace they could not have possibly believe that to be true, it was hyperbole. Has he read TMZ.com or Topix.net, many of his followers not only believed him but continue to push those allegations.
It matters not that Stern has been cleared by every investigative entity; the murder allegations are still a daily mantra by those that think John O’Quinn is a hero, which would never have misrepresented anything to any of them through the media. Yet O’Quinn seems to be saying if you believed my lips, then you are dumb because no one with comment sense would have believed me; and yet those people continue to type out about Stern killed two people has hidden money, cashed in life insurance policies and made off with the money.
Now though John O’Quinn the associates of the O’Quinn law firm including Wilma Vicedomine, are getting just that offered and accepted of protection from Stern’s lawyers led by L. Lin Wood. Was this the gracious, logical, ethical provision that Wood offered and O’Quinn’s lawyers took them up on or is it stupidity 101?
A note from us here at Rose Speaks.com about the feverish accusations out there on the internet, please read the two consented protective Orders out of New York and now this one out of Florida. You will note that not even everyone in the legal offices have access to confidential and highly confidential records turned over via subpoenas to the officers of the court (I. E. either legal teams attorneys). Sun NEVER sent me a list of neither IPs nor her chat record logs, Art Harris has NEVER sent me a list of IPs, and TMZ.com has NEVER sent me a list of IPs. The only lists of IPs ever sent to me were from two site owners who are considered to be in the inner fold of Red and others; therefore you might look within for what was released to lawyers if anything was and not at Rosespeaks.com, TMZ.com, Art Harris.com or Sun.
The password protected blog for regular posting members for this article can be found here.
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.
TMZ.com reports and has obtained a copy of a defamation lawsuit Howard K. Stern filed in L.A. County Superior Court today [September 2] right before the one year expiration to do so, wonder if Jackie Hatten thought she was home free?
Who’s crying now is my question. Has Howard K. Stern now located Hatten, who the agreed extension in the New York case stated Stern’s lawyers were having problems finding?
Howard K. Stern vs. Rita Cosby and Hachette Books lawsuit in New York will be going to a pretrial conference on September 26 and Wilma Vicedomine is trying to help them all she can via the Florida Suit and her alleged typing of thousands of posts on the internet via TMZ.com, other internet sites and chat channels.
In the newest suit reported by TMZ.com, Stern is suing Mark Speer(s), Debra Opri’s boy, and Jackie Hatten or known legally as Jacqueline Elizabeth Hatten per the California filings. Wonder if Opri can be brought into this is Speer(s) decides he contacted Rita Cosby for Cosby’s old friend Opri? Kind of like we are finding out was Wilma Vicedomine’s role if those allegations turn out to be true.
The newest lawsuit alleges Mark Speer(s) lies include claims that Howard K. Stern was stealing money from Anna Nicole Smith; wheeling and dealing with Larry Birkhead over Dannielynn; and the famous claim that his [Stern] parents was helping via off shore bank accounts. Now who would have believed that with even a tad of research on the Stern family which you can bet Don Clark and Wilma Vicedomine was exhausted in digging up and looking under any and all rocks would have debunked that allegation promptly and way before they made it into any book.
You can pick up the freshly filed papers via the TMZ.com article and YES, Rose Speaks.com will be adding this lawsuit with all of the rest we are covering. On a side note TMZ.com reports that Jackie’s brother Mark Hatten was arrested for DUI today, way to go Mark!!
