| Kevin Spacey
Charged With Raping Rapp Filed Expert's
CV, Judge Won't Draw Line in Advance
By Matthew
Russell Lee, Patreon Stand-up
BBC
- Guardian
UK - Honduras
- ESPN
SDNY COURTHOUSE,
Oct 4 – Anthony Rapp's lawsuit
against Kevin Spacey was
removed to Federal court in
November 2020, and an
anonymous co-plaintiff C.D.
was added.
Spacey wanted to
make C.D.'s name public, to
order to conduct discovery, he
says. C.D.'s lawyers
opposed it, letter on Patreon
here.
On May 26, 2022
U.S. District Court for the
Southern District of New York
Judge Lewis A. Kaplan held a
hearing, with Spacey
testifying, on Rapp's motion
to remand the case. Judge
Kaplan at the end said it is
his present intention to deny
the motion to remand, and that
the trial will start in
October. Inner City Press
attended then tweeted here.
[Then video
here]
On
October 3, Spacey
through
counsel filed
his exhibit
list,
including "Jan 24,
1986
Handwritten
note re loans
to Mr. Fowler [Spacey]," Excerpt
from "Anything
Goes" by
Anthony Rapp,
Dr.
Elizabeth
Loftus' CV,
and "Email Chain
dated October
29, 2017."
On
October 4,
Judge Kaplan
ruled: "Defendant's
in limine
motion no. 2
is granted
with respect
to the
incident
described at
pages 7
through 9 and
otherwise
denied. The
third point
trenches upon
a slightly
murkier area.
Experts often
may be
permitted to
explain the
bases for
their
opinions,
subject to
some
qualifications.
But there is a
line, not
always clearly
delimited,
where experts
sometimes pass
from
appropriate
explanations
of the bases
for their
opinions to
conduits for
circumventing
the rules on
hearsay.
Attempting to
draw that line
in the
abstract in
advance of the
trial would be
inappropriate.
So too would
be attempting
to generalize
as to whether
proposed
testimony that
has not yet
even been
described in
general goes
beyond the
scope of the
expert's
report. The
Court declines
to do either
here. The
Clerk shall
terminate Dkts
231 and 255.
SO ORDERED.
(Signed by
Judge Lewis A.
Kaplan on
10/04/2022)."
Back on
September 17,
Spacey through
counsel filed
a letter
seeking to limit
the
anticipated
testimony of
Dr. Lisa M. Roccio - who
also testified for
the
prosecution in
US v. Ghislaine
Maxwell:
"Defendant
Kevin Spacey
Fowler (“Mr.
Fowler”) will
and hereby
does move this
Court, before
the United
States
District Judge
Lewis A.
Kaplan, in the
United States
District Court
for the
Southern
District of
New York,
located in the
Federal
Courthouse,
500 Pearl
Street, New
York, NY
10007, on
October 6,
2022, or a
date to be set
by the Court,
for an order
in limine to
preclude
plaintiff
Anthony Rapp
from offering
expert
testimony on
credibility
issues and
other improper
opinions of
his expert
witness, Lisa
Rocchio, Ph.D.
Under Federal
Rule of
Evidence
401-403,
701-702, and
other
applicable
law, Mr.
Fowler brings
this motion to
preclude Dr.
Rocchio from
testifying at
trial about
opinions or
information
that would
invade the
province of
the jury and
are otherwise
inappropriate
for expert
opinion. Dr.
Rocchio’s
report
includes
opinions and
conclusions
that purport
to opine on
the
credibility of
Plaintiff and
his
allegations,
as well as the
purported
corroboration
of other
evidence. This
is plainly
improper. Dr.
Rocchio also
provides
impermissible
expert
opinions
constituting
legal
conclusions
and a
narrative
description of
hearsay
statements of
which she has
no personal
knowledge.
Relatedly,
Plaintiff’s
counsel should
be precluded
from asking
questions of
Mr. Fowler’s
rebuttal
witness,
Alexander
Bardey, M.D.,
about
credibility
issues,
including
without
limitation
allegations of
unrelated
alleged
misconduct of
Mr. Fowler.
Dr. Bardey was
not designated
to opine about
credibility
issues or
anything to do
with a
psychological
evaluation of
Mr. Fowler.
Nor was Dr.
Rocchio. And
other
allegations of
sexual
misconduct are
entirely
irrelevant to
either
expert’s
opinion.
Finally, Mr.
Fowler seeks
an order
precluding Dr.
Rocchio from
testifying at
trial about
any opinions
not stated by
her in her
report or at
her
deposition."
Full letter
on Patreon here.
On
September 9,
in the run up
to the October
6 trial,
Spacey through
counsel
indicated he
wants to make
public Rapp's sexual
history. From
his filing:
"I write
to inform Your
Honor that Mr.
Fowler will be
filing a
motion in
limine that
bears on the
Court’s
consideration
of Plaintiff’s
objections to
transcript
designations
submitted on
September 8,
2022." Complete
filing on
Patreon here.
On
September 22,
Spacey asked
to file only
under seal depositions
about
"third parties"
- " my
firm
represents
Defendant
Kevin Spacey
Fowler. I
write to
request
permission to
file under
seal certain
deposition
transcript
excerpts to be
submitted with
Mr. Fowler’s
motions in
limine, which
are due on
Monday,
September 26th
and we would
like to file
as soon as
tomorrow. The
Court
previously
limited
Plaintiff’s
ability to ask
Mr. Fowler in
discovery
about alleged
accusations
made against
Mr. Fowler by
accusers not
publicly
identified.
But, at
deposition,
Plaintiff’s
counsel asked
Mr. Fowler and
his expert
witnesses
about other
accusations or
rumors
reported or
loosely
asserted in
the media. Mr.
Fowler denied
these
allegations
and, for the
reasons set
forth in the
forthcoming
motions in
limine, none
of these
issues are
relevant to,
or should be
referenced at,
the upcoming
trial. This
case is about
Plaintiff’s
claims, not
any other
rumors or
accusations
made by third
parties.
Because the
information
has no
relevance to
this case, the
public’s right
to access such
materials is
low. See,
e.g., Toretto
v. Donnelly
Fin.
Solutions,
Inc., 583
F.Supp.3d 570,
(S.D.N.Y.
2022) (stating
“presumption
of public
access is low”
where
materials are
irrelevant to
the matter).
Further,
public
disclosure of
these
transcripts
will cause
some intrusion
on the privacy
interests of
Mr. Fowler and
third parties" -
full filing on
Patreon here.
On
September 23
Rapp's lawyer
opposed
any
sealing,
saying that
Spacey's
lawyer "has neither
told us or
shown us his
proposed
redactions."
Back
on June 6, Judge Kaplan issued
two orders: one dismissing
Rapp's first cause of action
but not the rest of the
complaint, the second denying
his motion for remand (argued
below). The first order
recounts Rapp's allegation
that when he was 14, Spacey
put him back down on a bed,
"grazing" his buttocks. Order
on Patreon here.
On August 25,
this: "TRIAL ORDER: The Clerks
Office is scheduled to provide
the Court a jury panel for
this case on Thursday. October
6, 2022. On that day, the
parties must be present in
Courtroom 21B by 9:30 AM ready
to begin jury selection and
proceed immediately to trial.
You are instructed to take the
following steps in connection
with the trial as further set
forth in this Order.
( Jury Selection set for
10/6/2022 at 09:30 AM in
Courtroom 21B, 500 Pearl
Street, New York, NY 10007
before Judge Lewis A. Kaplan.)
(Signed by Judge Lewis A.
Kaplan on 8/25/22)."
As to jury
selection, Judge Kaplan on
September 7 ordered, "ORDER.
Consistent with the Rule, the
Court will examine prospective
jurors, as it does in all
cases, and will take the
parties' helpful joint
questionnaire into
consideration in formulating
its own examination. Upon
conclusion of the Court's
examination, it will afford
counsel adequate opportunity
to suggest additional
questions and ask any that the
Court considers proper. The
request to have prospective
jurors complete a written
questionnaire in writing is
denied. Among other reasons,
it agrees that "jurors tend[]
to understand written
questions differently from
those who draft[] the
questions, leading to
substantial difficulty in
parsing their responses."
United States v. Treacy, 639
F.3d 32, 47 (2d Cir. 2011). SO
ORDERED. (Signed by Judge
Lewis A. Kaplan on 9/7/22)."
Back on August 9,
Judge Kaplan ruled: "Fowler's
motion to compel is GRANTED to
the extent that it seeks (a)
production of Vary's pre-2017
communications with Rapp, 2021
communications with Darlow
Smithson Productions, and
documents regarding any
interactions between Vary and
Fowler and (b) a supplemental
deposition. Vary shall sit for
a supplemental deposition not
to exceed four hours and
answer, to the extent
consistent with this
Memorandum Opinion, all
questions he refused to answer
at his initial deposition and
all reasonable follow up
questions and questions about
or relating to the newly
produced documents and matters
disclosed therein. The
documents shall be produced no
later than August 15, 2022.
The supplemental deposition
shall take place on a date
mutually acceptable to Vary
and the parties, which shall
be on or before September 9,
2022."
Back on September
9, 2021, Judge Kaplan held a
proceeding about 60 new names,
and sealed affidavits. Inner
City Press live tweeted it here
and below.
On
October 4 Spacey asked to seal the UK High
Court's Order which, he says, orders him to
destroy material by October 7. Full letter on
Patreon here.
On
December 9 at 4:30 pm, six hours after the US v.
Ghislaine Maxwell trial was paused at
least for one day due to an ill prosecutor,
Judge Kaplan held another proceeding
in Rapp v. Spacey (or Fowler)
and Inner City Press
live tweeted it here,
podcast (including on
Maxwell and UN) here.
On December
10, Rapp's
lawyer
wrote to Judge
Kaplan and asked
that his forthcoming
protective order
including an order
prohibiting
disclosure of names
of those alleging
abuse by Spacey -
full letter on
Patreon here.
On
March 10, 2022 a
trial date was
set: "ORDER,
This case is set
for trial on
October 4, 2022
at 9:30 a.m.
subject to any
changes
warranted by
pandemic
circumstances."
On March
14, digging in
Miscellaneous
cases, Inner
City Press
came upon satellite
litigation
between Spacey
and Adam Vary,
who citing
the First Amendment
and shield
laws declined
to answer
questions at a
deposition.
Judge
Kaplan ordered
Vary to answer
the subpoena by
May 31. On May 23,
Vary's counsel
asked for
reconsideration
or a two week
stay in order
to appeal.
On May 27
Vary's counsel
filed another
letter,
including
"nearly all of
the materials
contain
unpublished
newsgathering
information
that we
maintain is
privileged and
shielded from
production,
but we
acknowledge
was not
provided
or
obtained
subject to
promises of
confidentiality.
However, there
are a handful
of source
names
and
information
that was
provided
pursuant to
promises of
confidentiality.
Our
understanding
is that the
confidential
sources
corroborate
Mr. Rapp’s
account, but
do not want to
have
their
information
exposed.
Although we
maintain that
both
non-confidential
and
confidential
unpublished
newsgathering
materials are
privileged and
shielded from
disclosure,
there
are
special
protections
and
considerations
for
confidential
source
materials."
Full letter
on Patreon here.
On June 7,
Judge Kaplan
offered this secord
clarification:
"ORDER denying
[23 in
22-mc-0063]
Letter Motion
for Discovery;
denying [24 in
22-mc-0063]
Letter Motion
for Discovery.
On May 19,
2022, this
Court ordered
that Mr. Vary
submit, under
seal, for in
camera review
various
materials that
he may be
withholding
from
production in
order to
inform its
analysis of
whether he has
satisfied his
burden of
showing that
the materials,
if indeed
there are any,
should be
produced to
the defendant.
On June I,
2022 it
granted in
part Mr.
Vary's request
for additional
time within
which to
comply. (The
May 19 and
June I orders
are referred
to
collectively
as the
"Orders.") Mr.
Vary now seeks
a stay of the
Orders insofar
as they (I)
require the
submission for
in camera
review of any
withheld
materials that
contain what
he calls
"confidential
source
information"
and (2)
supposedly
require such
submission of
"post-subpoena
attorney-client
communications."
Dkt. 23. The
proposed stay,
if granted,
would remain
in effect for
"14 days after
the later of
the following
events: (a)
the Court's
ruling on Mr.
Fowler's
motion for
summary
judgment; and
(b) the
Court's ruling
on Mr. Rapp's
renewed motion
to remand. Dkt
159, 172,
20-cv-09586."
Id. The
ostensible
justification
for this
relief is to
afford Mr.
Vary's counsel
additional
time to
"consider and
possibly seek
appellate
review of
those portions
of the Court's
Orders, and
then, if Mr.
Vary does seek
appellate
review, stay
[the Orders]
until the
outcome of
such review."
Id.
Separately,
Mr. Vary
"seek[s] a
14-day stay of
any order
granting Mr.
Fowler's
motion to
compel, in
whole or in
part." Id. The
primary
request
appears to be
premised in
part on the
possibility
that ( a) a
ruling
favorable to
Mr. Fowler on
the summary
judgment
motion might
eliminate any
need for
further
discovery, and
(b) a ruling
favorable to
the plaintiff
on the remand
motion would
result in
remand to the
New York
courts and
thus possibly
result in
litigation of
Mr. Vary's
arguments in
what he
presumably
regards as a
forum more
congenial to
his position.
The Court,
however,
yesterday
denied both
Mr. Fowler's
summary
judgment
motion and the
plaintiff's
motion to
remand.
20-cv-9586,
Dkts 217,218.
Hence, the
action is
going forward
in this Court
and Mr. Vary's
apparent hopes
will not be
realized. Nor
is there any
need for him
to have a stay
for a further
two weeks
while he
considers
further
whether he
wishes to
attempt to
appeal from
the Orders. He
has been
actively
litigating the
requirement
for in camera
inspection for
17 days
already. He
does not need
any more time
to think about
whether he
wishes to
attempt to
appeal from
the Orders.
And he will be
at liberty to
seek a stay
pending appeal
from this
Court in the
event that he
does so. This
Court is not
in the
business of
giving
advisory
opinions
concerning
whether it
would grant a
stay pending
an appeal if a
litigant
decides to
file one. The
second request
is made as "a
cautionary
measure"
against the
possibility
that this
Court, if it
orders
disclosure of
any
"confidential
source
information"
and
"post-subpoena
attorney-client
communications"
following in
camera review,
would require
disclosure
without Mr.
Vary having an
opportunity to
seek review.
The request is
denied on the
ground that
the
possibility to
which Mr. Vary
alludes is at
best
speculative.
That of course
is not to say
that the Court
necessarily
would afford
Mr. Vary a
leisurely
opportunity to
seek a stay,
should he seek
to pursue such
an option. The
Clerk shall
terminate Dkts
23 and 24 in
22-mc-0063
(LAK). SO
ORDERED.
(Signed by
Judge Lewis A.
Kaplan on
6/7/2022)."
This case is
Fowler v. Vary,
22-mc-63
(Kaplan)
Inner
City Press
will continue
to follow these
cases.
From back on Dec 9: now in
Rapp v. Kevin Spacey (for
rape of 14 year-old), a
proceeding in SDNY by
phone, in a case which
Inner City Press has been
reporting on and will, in
haitus from #MaxwellTrial
which has no call-in line,
live tweet:
Spacey, defending himself
from claim he raped Rapp,
wanted get discovery into
all of his past
relationships.
Spacey's lawyer: He's only
alleging that Mr Fowler
[that is, Kevin Spacey]
picked him up and dropped
him. It's essentially
child abuse, not sexual
assault.
On January
10, 2021 Spacey's lawyer wrote
to Judge Kaplan to preclude
Rapp from calling
Justin Dawes as a
witness,
including
portions
of his
December 28, 2021 deposition.
They argue
that Dawes
withheld
information, the name of
an "unnamed
friend."
On January 12,
Rapp's lawyers
filed a 5 page
letter
including that
"Mr. Dawes, he
agreed to
voluntarily,
without a
subpoena,
testify about
how Spacey
made an
inappropriate
sexual advance
on him when he
was a minor...
" at one point
his hand was
on my leg. You
know, I
thought it was
mildly
uncomfortable.
I did not, you
know, feel
threatened,
but I thought
it was a kind
of, you know,
probing of a
sexual nature
to see how
comfortable I
was with
that.'" Full
letter on
Patreon here.
Watch this
site. Inner
City Press will stay on it
- podcast
Watch this site.
From February 23:
Lawyers for Kevin Spacey are
arguing to strike testimony of
Doctor Seymour H. Block.
Spacey is being sued civilly
for sex abuse.
Judge
Kaplan: You are asking me to
make an important decision, in
a country that values public
trials as much as we do, in
the unique circumstance of a
person who sued and also went
to the press with it. In
advance.
Plaintiffs
lawyer: When my client gave
the interview before this
case. So there was no attempt
to influence the jury. In
fact, when my client spoke to
the press this case would have
been barred by the statute of
limitations.
Judge
Kaplan: But if disclosure
would harm him, why did he go
to the press? Plaintiff's
lawyer: They did not reveal
his name. Judge Kaplan: But he
couldn't know it would work.
The publication checked his
account with others. There was
a chance he would be ID-ed
Judge Kaplan:
What's that case you're
citing? Defense: Doe, 241 FRD
154, 159 (SDNY, 2006). And
another one by Justice
Brennan, about how public
trials bring in more
witnesses. CD made his
decision. We have our due
process rights. [He calls
Spacey "Mr. Fowler"]
Judge Kaplan: On
a proper showing, the
pleadings need not contain the
name of a party, no? Defense:
They have to meet the Doe
factors. And CD has not met
his burden. Plaintiff: Doe v.
Colgate, the plaintiff went to
the press and was still
anonymous.
Judge
Kaplan: I'm going to wait
until you make your expert
disclosure. Plaintiff's
lawyer: There is a person
beyond Mr Rapp who is aware of
this. And Mr Rapp is not
seeking to withhold his name.
Judge Kaplan: You
need to file the relevant
piece of the deposition.
The proceeding ends, just like
that.
From February 2:
Spacey's lawyer says it is
unfair for C.D. to proceeding
anonymously. "While it is true
we have C.D.'s name, only if
we make it public can others
come forward with evidence
about him... this is the right
to due process."
C.D.'s lawyer:
The sealed plaintiff versus
sealed defendant factors weigh
in our favor. We are talking
about the rape of a minor. The
declaration by his therapist
shows he would suffer harm if
his name is made public.
Judge: If
it happened it's abhorrent.
But I don't have to be
reminded of what Mr Spacey is
accused of in every sentence.
CD's lawyer: Spacey said, as
to Rapp, that if it happened
he was sorry. But here he is
denying it entirely.
Judge: You're not
getting anywhere.
Judge Kaplan: Get
me your papers, and you'll get
a decision promptly. Until
then, don't disclose the name
to third parties - except to
Mr. Rapp, subject to sealing.
Spacey's lawyer:
Every day is lost time.
So Rapp's
deposition will go forward,
with C.D.'s real name said at
it but reported in the
transcript as C.D..
Inner City Press will continue
to report on this case. More
on Patreon here.
The case is
Rapp et al v. Fowler,
20-cv-9586 (Kaplan)
***
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