Extremely large EC v. DA update, part IV of ??? #notchilled

Reminder: I make this post on behalf of myself, and not any other entity.

Recap: Over a year ago (god, really?) Ellora’s Cave sued Jane Litte and Dear Author, alleging that DA had defamed EC in a blogpost that detailed layoffs, failure to pay contract employees and authors, among other things. Lots of things have happened, like we moved to federal court, and then there was discovery (but maybe not all of it), and motions for summary judgment.

Here are the issues that are still pending:

A. The claim by EC against DA alleging defamation.
D. The claim by DA against EC alleging abuse of process.
E. The motion by Ann Jacobs (hereafter AJ) proposing to intervene as a permissive counterclaimant in the litigation.
F. A bunch of stuff related to the discovery period.

This part of the update will start to talk about DA’s motion for summary judgment, but won’t really get into the substance. But before we get there, a not-so brief update on another pending matter.

F. What is going on with discovery?

What’s gone on thus far: More detail here, but for those who don’t want to recap: Preliminary discovery ended, according to case management, on July 15th. DA asked the court to clarify that discovery was still open; EC said it didn’t need any clarity, as it was sure discovery was completely closed. DA then filed a motion saying, “Okay, we move that you say discovery is still open, and toll the timeline for responding to their summary judgment motion until they actually respond to our shit.”

EC has filed their response to this motion. They make two arguments:

(1) This is a motion to compel discovery, not a request for further discovery, and since it is a motion to compel, it does not comply with Local Rule 37.1.

Some tiny background information: A “motion to compel” is a motion that says “we asked the other side to provide X information; they didn’t do it; make them cough it up.”

Here is Ohio Local Rule 37.1. It states that: “Discovery disputes shall be referred to a Judicial Officer only after counsel for the party seeking the disputed discovery has made, and certified to the Court the making of, sincere, good faith efforts to resolve such disputes.” It further explains that “No discovery dispute shall be brought to the attention of the Court, and no motion to compel may be filed, more than ten (10) days after the discovery cut-off date.”

EC then explains that they have not, in fact, failed to produce discovery. They explain that they have not been unwilling to schedule depositions (I said earlier that there was obviously some response missing here–I have not seen evidence of refusal to be deposed from EC at this point), and that they were willing to produce the documents that were requested, and they include emails to that effect.

Nice emails. One of the things that this demonstrates is that EC simply has not complied with its burden to produce documents. The email, sent September 3rd, postdates EC’s filing of its motion for summary judgment, and is absolutely an admission that EC has not met their burdens.


So the real question: Is this substantively a motion to compel?

The remedy requested in a motion to compel is, “Make them give X information.”

The remedy requested in DA’s motion is: (1) Tell EC that discovery is still open; (2) Toll the statute of limitations until they comply. Since Local Rule 37.1 states “no motion to compel may be filed, more than ten (10) days after the discovery cut-off date,” the question of whether discovery is still open must come before a motion to compel. If DA filed a motion to compel at this point, EC would have said that that should be stricken, because it came more than ten days after the cut-off date.

Right now, there are several possible underlying factual scenarios:

  1. Randazza did not push hard, or follow up on, deposition requests and document production because he did not believe EC would be filing a motion for SJ, and believed in good faith that discovery would still be open after July 15; EC believed in good faith that discovery would not be open after July 15, and acted accordingly;
  2. Both EC and Randazza believed discovery would not be open after July 15, and Randazza nonetheless dropped the ball.
  3. Randazza believed in good faith that discovery would be open after July 15; EC knew he believed this, and encouraged this belief, and actively planned to use the July 15 date to avoid discovery.

#3 would clearly suggest discovery should still be open for DA; #2 should suggest that discovery should not be open; and #1 would require further inquiry. One of the ways where it’s clear to me that EC’s lawyer is just…not very good, is a repeated failure to weave a convincing factual narrative about what has actually happened. But Randazza isn’t being as good as he otherwise could here, either, so I’m left with a lot of questions as to what actually transpired from both sides of the story.

(In all fairness, I say “not very good” but my standards are absurdly high on the brief-writing front–while I appreciate MR’s usual clarity, he’s no Carter Phillips. But I forgot (read: blocked out) how terrible diversity jurisdiction cases really are in federal court–so we are probably above average, as much as it pains me to admit that. Yours truly is just a massive snob.)

In any event, I am having a hell of a time trying to figure out the facts from the bunch of inconclusive emails filed by either side. Eye-roll; this case is apparently deciding to be a diversity jurisdiction case all of a sudden. I hope the court has some better idea what is going on.

(2) DA also claimed that new evidence has surfaced which would support additional discovery. I barely touched on this, and didn’t talk about the legalities underlying it, and I don’t want to do that much now here, because it’s boring. But basically, some new shit happened, DA says “even if you don’t think discovery is still open, you should reopen it for this,” and EC responds, “eh, doesn’t meet the standards.”

Finally, a note as to a footnote in this response. Screen Shot 2015-09-20 at 10.22.25 PMTina has made this argument before. “How chilled can your speech be if you keep speaking?!”

So let’s put a little nuance out there. I realize that some people aren’t great at nuance, but this is…not exactly a knock-down argument. It’s not even actually a responsive argument.

The hashtag is literally called #notchilled; do you think that might be because we recognize that our speech has not been chilled? The hashtag was aspirational when it was started. But we made a hashtag and we enumerated the chilling effects of this lawsuit and we crowdfunded legal fees (not all of them) and we urged people to speak in numbers where there is safety. And we did all that so that the authors who stuck their necks out wouldn’t be hung out to dry.

None of this would negate the fact that EC may have filed the suit for an illicit purpose, because I’m fairly certain that EC had no idea the romance community would rally around Jane. I suspect that EC had never heard the words “Streisand effect.”

So, yes. It’s entirely possible that EC tried to chill speech and failed. The entire point of the hashtag was that EC was trying to chill speech, and the hashtag was called #notchilled because we (me, at least) wanted EC to fail.

The fact that EC failed to chill the speech of the authors who gave depositions has nothing to do with what they were trying to do and everything to do with their incompetence at succeeding.

One last point:  EC spent months shouting about how they’re going to take on Amazon The Great Enemy Who Also Made Them A Shitload of Money. They accomplished this by…redoing their website so that customers lost all faith in their company and decided to never shop directly with them again. So “tried and failed” would be consistent with prior practice.

A. The claim by EC against DA alleging defamation.

Look, I vaguely imagined that I would post all the evidence in DA’s motion for summary judgment, but it’s been weeks and I still cannot be arsed to do it. There are 54 exhibits. I do not want to link everything. Luckily, Deirdre has already done it, so if you want to go and read those, they’re here–scroll down to item 46 on the docket.

I just want to talk about one of the exhibits right now–substance will wait for another day–and that is Jane’s nearly 300 page deposition. There are a lot of things in there–for instance, the lawyer in question asks Jane whether her husband has a family in another country, which is a strange, bizarre, irrelevant, and rude question.

Here are some general thoughts/answers to questions.

Are depositions usually this invasive?

They definitely can be. It depends on the subject matter of the lawsuit. If the subject matter of the lawsuit touches on family or finances, it will definitely be invasive.

For instance, if/when Marc Randazza gets around to deposing Tina, he’ll probably ask her a lot of questions about how much shopping she did and where. That’s an issue that Ellora’s Cave has mentioned in this lawsuit, and so we should be aware of it.

Did Jaid Black/Tina Engler/Patty Marks ask that Jane be treated this way?

I doubt that they understand litigation strategy, or the law, or depositions, well enough to be giving that specific a direction to the attorney, and I doubt the attorney would accept that level of direction from them.

Asking about her daughter? What purpose does that serve? How is that okay?

I’ll say more about the litigation strategies that may be in play here in a moment.

I have almost zero deposition experience—which is to say, evidentiary challenges to depositions almost always end up being dealt with at the district court level. I attended a deposition someone else was running when I was a summer associate. So, as I said, little experience on my end.

That being said, last weekend two weekends ago, I was at a friend’s wedding, and that friend was a lawyer, and that meant that many of the guests were lawyers.

So I asked them what they thought about this. General answer was: What the hell is this, this is a terrible thing. Someone wondered if, perhaps, this was a way to set Jane at ease and make her less guarded in her responses. Most people actually like talking about their family, and so asking about a kid is a friendly thing to do, something that puts someone off their guard. It relaxes them.

And possibly, I might give that some credence. Having taken some time to think it through from the point of view of someone who still refers to romance novels as “female romance novels,” it’s possible that the attorney here thought it was a harmless, irrelevant question. He has no idea what it’s like to be a woman on the internet who occasionally writes about sexual matters and who doesn’t want her daughter drawn into a horrible dispute with thousands of witnesses. He’s not really thinking about the fact that hundreds of people will be reading this, and so isn’t thinking about what is appropriate for public consumption.

Maybe? Giving Mastrantonio the full benefit of every possible doubt. But then…

How about the crack about her husband having an affair/a family in another country?

Totally a douchebag move. And coming so closely on the heels of the question about her daughter, it’s extremely difficult to imagine a lawyer who wanted to set Jane at ease asking this question.

That being said, total douchebag moves are a litigation strategy. It’s not a great litigation strategy, but it surely is one.

Depositions serve multiple purposes. I don’t pretend to know them all; I’m hardly an expert at trial strategy. But there are at least two purposes to which lawyers put depositions.

  1. The deposition serves as the basis for the evidence that will likely be presented at trial; as such, it can be used in motions for summary judgment.
  1. Because the deposition is sworn under penalty of perjury, it can be used at trial to discredit a witness. Specifically, if a witness says something at trial that differs from what they said in their deposition, a lawyer can pull out the deposition and ask the witness to read the (contradictory) words in their deposition. And then you get this lovely back and forth that goes something like this: “Who said those words?” “I did.” “And when did you say them?” “At my deposition in March.” “Did you solemnly swear to tell the truth, the whole truth, and nothing but the truth in March?” “Yes.” “So which is it, then? Do you believe A or do you believe B?” Even if A or B is irrelevant to the case, the fact that the lawyer can prove that the witness said one thing at trial and a different thing in the deposition reduces the witness’s credibility: they’ve been painted a liar.

Things #1 and #2 both explain why you might, hypothetically, want to be a jerk to a witness. For thing #1, the angrier the lawyer makes Jane, the more likely she is to snap. And if she snaps, she’s more likely to say something like, “I hate Tina Engler, and want to see her suffer”—anything that would provide some kind of motivation to suggest that she would purposefully, knowingly write lies. Because that’s pretty much the only hope in hell that EC has of surviving summary judgment. (More on this later.)

#2, of course, is also related. The more rattled someone is, the more likely they are to say something that’s not what they would normally say, which means you increase the likelihood that you can find a difference between what the witness says in the deposition and what the witness says on the stand.

So that’s my best guess as to why you have these incredibly rude questions. It’s a litigation strategy—the litigation strategy of being a douchebag. None of the people I talked to thought it was a good idea, and there was general agreement that it’s not done in their circles. But this is not so douchebaggy a strategy that I would say that nobody adopts it.

I mean, we probably have at least Mastrantonio.

But what about asking about Jane’s pen name? How was that relevant?

That was ugly and invasive. I’m going to give you that. And since there was apparently an agreement before hand not to ask about it, it was also a jerk move.

That being said… It’s hard to make the argument that this was not relevant to trial preparation when the defense then went and used the fact that Jane was an author herself as part of her defense, to claim that there is a common business interest.

Discovery goes to all information that would support any party’s claim. The fact that Jane was an author was clearly discoverable information. Invasive? Yes. Irrelevant? No.

So what’s your final take?

When I talked about chilling effects in the beginning, this is one of the costs that I was talking about. This litigation has been disruptive, invasive, and extraordinarily costly for Jane, and that is true on both a financial and emotional level.

Because of this lawsuit, Jane had to sit there and politely answer questions whether her husband was having an affair. She had to answer probing questions about her finances, including someone questioning why she would have problems paying tens of thousands of dollars because she potentially brought in six figures a year in income. She had a pen name that was previously secret brought out into the open, and whatever you think about that secret, that is a harm that was imposed on her by this litigation. This lawsuit cost her dearly.

There aren’t many people who could actually afford to pay those costs. The fact that those costs were imposed on someone who could pay is why we have a hashtag.

5 thoughts on “Extremely large EC v. DA update, part IV of ??? #notchilled

  1. The discovery thing had been driving me crazy for some days, so I had some time this morning and looked into it.

    My memory was that the plaintiffs would go first in discovery—then defense–as a cost-saving measure.

    Note that, while docket item 27 has both parties’ signatures on it, it was filed by plaintiffs (so that does not mean it wasn’t hinky). Note that docket item 29 is what’s signed off on by the judge.

    Note the phrasing of 6(b) on #27 p. 3: “Discovery cut-off date”: 7/15/2015

    Note the phrasing of 5 on #29 p. 1: “Preliminary discovery cut-off date”: 7/15/2015

    If plaintiffs want to stick to the schedule of #27, their dispositive motion is a month late.

  2. I guess I don’t understand why this wasn’t all laid out in the discovery order. This two-phase discovery is not typical. And to the extent it was confusing, why Randazza didn’t request clarification earlier. I’ve been burned once before by an order not matching what was discussed/agreed at a hearing and not clarifying with the court ASAP about what I thought I was allowed to do. Fortunately, it was a very minor issue in my case, if embarrassing for me. DA missing the entire discovery period would be catastrophic.

  3. Long before I was a middle aged law librarian I was a baby legal secretary, and I worked for a partner at a big firm who taught me many things. And one of the things he taught me is that crazy people tend to attract crazy lawyers, or at least not very good ones. A very good lawyer will tell a crazy person – no, this is a bad idea, you should not sue. A crazy lawyer doesn’t understand when to do that, and a not very good lawyer doesn’t have the luxury of turning down business.

    He also taught me not to listen to country music late at night after a bad breakup, and not to believe any man who says he never looks at porn.

  4. Thank you for this update. I’m interested in knowing what’s happening in this case, but not interested enough to do much digging. So — I really appreciate getting a briefing from a former Supreme Court clerk.

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