In Other Media-eg New Statesman, AJE, FP, Georgia, NYT,  Azerbaijan, CSM Click here to contact us     .

By Matthew Russell Lee, Patreon
BBC - Guardian UK - Honduras - ESPN

SDNY COURTHOUSE, Sept 9 – 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 February 2 U.S. District Court for the Southern District of New York Judge Lewis A. Kaplan held a proceeding. Inner City Press live tweeted it, here and below.

Now on September 9, 2021, Judge Kaplan held a proceeding about 60 new names, and sealed affidavits. Inner City Press live tweeted it here:

Judge Kaplan: You say they recently identified new people? A: Yes, 40-plus new witnesses, disclosed on August 9.

Judge Kaplan: Have you provided me with a list of these people and the alleged prior consistent statements? A: Yes, those in our supplement disclosure.

Judge Kaplan: Do you have for each of them a date on which Rapp allegedly made the statement to them? A: Yes.

 Judge Kaplan: Have you provided it to me? A: We didn't include our entire interrogatories -- Judge Kaplan: Please provide it to me Monday.

Spacey's lawyer: Mr. Rapp has confused events that took place in a play he acted in in 1986. Judge Kaplan: I once met Mr. Herman, at a cocktail party. He is gone from this Earth and I never discussed this case with him.

 Judge Kaplan: Is there a script with the director's blocking instructions? A: Yes, it's been produced in discovery... The court should not allow plaintiff to fabricate evidence. Rapp's lawyer: My client was 14 at the time. They claim his memory is faulty.

 Rapp's lawyer: Rule 801 allowed prior consistent statement to rebut, or to rehabilitate a witness. You asked Mr. Scolnick and he said, Faulty memory. Mr. Rapp has been talking about this since high school, like to Christopher Hart. We gave them 46 more names

Judge Kaplan: You were obliged to give them the names of people you might use to support your claims.  Rapp's lawyer: I'm not suggesting we'd be calling 59 witnesses. Back in February we disclosed a trove of text messages that disclosed all of the names

 Rapp's lawyer: If they have a memory expert, it's relevant if he said the same thing 30 years ago. Dozens of boys & young men have made allegations against Mr. Spacey. Judge Kaplan: This invited 59 separate trials. Rapp's lawyer: Every witness is subject to cross.

 Rapp's lawyer: In 1990, this case was time barred. Now, he's claiming punitive damages... We're not on the eve of trial. We'll work with the court to make sure Mr. Spacey has a fair opportunity in discovery.  Judge Kaplan: Mr. Scolnick, have you deposed the 13?

Scolnick: No... Five or six turned to 13 then to 60. They all give wildly inconsistent accounts.

Judge Kaplan: Spare me the rhetoric. Scolnick: One witness is evading service. He refuses to come to the bottom of his building.

 Judge Kaplan: Mr. Steigman will not call 60 witness. I would not let him - that's an off handed remark, not a ruling. But producing a mini telephone book is not how to get to a fair shot. Scolnick: They're not relevant. Judge Kaplan: I'm not sure I know that yet.

Scolnick: I've deposed Aaron Quill (sp), the only one before that is Chris Hart. Judge Kaplan: I'm not going to rule today. I want the list of all of these people and the best info you have as to when it is they claim Mr. Rapp told him whatever he told them

Judge Kaplan: I'm going to ask you both to sit down and talk, masked or otherwise, the whole drill, and talk this out. Then propose an extension of the discovery period, three or four months worst case. I'll look at the recency issue and we will see.

Judge Kaplan: Let's go to the other time, privilege. My understanding Mr. Steigman is you have a privilege list except for Item 12. The argument that they waived, that dog is not going to hunt in this field. On Number 12, the objection made was general...

Judge Kaplan: Number 12 is the London Metropolitan Police. Disclosure would violate UK law. Has anyone been prosecuted for that? A: I don't have the answer to that. Judge Kaplan: It's significant. The Supreme Court said a foreign prohibition is not a defense Judge Kaplan: I think I wrote a book about this, years ago. A: I haven't read that --

Judge Kaplan: It wasn't a best seller.

 Scolnick: There was no meet and confer on this issue, they just pulled the trigger.

Rapp's lawyer: On information and believe, dozens of boys and young men have accused Kevin Spacey of sexual abuse. We are entitled to discovery, to know what Mr. Spacey says. There was allegation of rape, but the anonymous plaintiff dropped out. There are many more

Spacey's lawyer: This does not meet the definition of sexual abuse. Judge Kaplan: Why not? Spacey lawyer: 413 to 418 defines it. The deposition testimony shows Mr. Rapp is not alleging Mr. Fowler [Spacey] touched his genital. So the statutory definition is not met

Judge Kaplan: Let's pass over that issue for now and go to the 15 documents, from that 24 hour period. In the absence of the case I decided some years ago, would there be an argument for privilege? Scolnick: Judge Friendly's logic remains compelling today

Scolnick: From the beginning legal issues were at the forefront. It is difficult representing a high profile client. There was a case in Nantucket, that resulted in a criminal charge. And Mr. Rapp's. There was momentum in the #MeToo movement.

Scolnick: There was the potential that there was a Federal prosecution in the works. Federal jurisdiction is just a phone call away. The attorneys conferred withmedia consultants. Under your 2003 decision, these are privileged documents.

Judge Kaplan: It's not as compelling as the case I decided, with a sitting grand jury and a grand jury subpoena. Steigman: When Spacey is contacted, there's no criminal case. It's an actor on a big TV show, he's trying to protect his career.

Steigman: I don't have the unredacted logs. Judge Kaplan: Why not? Let Mr. Steigman see the affidavits. Scolnick: I disagree. The information is privileged. It should not be on the table. "They should be able to respond to our claims without looking at them."

Judge Kaplan: Produce, hard copy, to the court, by Monday. And a memo why you think parts of the affidavits are privileged. The declaration of Mr. Lowenstein, Paragraph 2 - I'm going to put it on the record - "I was working as Mr. Fowler's manager"

Judge Kaplan: I'm going to be unsealing a lot of these. I'm all for aggressive lawyering but there's a requirement of reasonableness. It's getting close to time to set a trial date. Adjourned.

Back on May 3, Judge Kaplan denied C.D.'s motion. Ten days later on May 13, C.D.'s lawyer say that due to news reports and unwanted attention, "we will not be filing an amended complaint in his name."

They added they would like to sever C.D.'s case and appeal, while staying Rapp's case - and that Spacey does not agree.

On May 24 Spacey moved to dismiss - with prejudice. Spacey's lawyer states that C.D. "repeatedly refused to attend his properly noticed deposition or to submit to a required mental examination." Watch this site.

Judge Kaplan's order noted that C.D. told an unknown number of people about his "relationship" with Spacey, and told Vulture. Full order here.

Now on August 23, 2021, Spacey has moved to preclude Rapp from eliciting testimony about statements he made to third parties about the "alleged" incident - there are THIRTEEN potential witnesses. Watch this site.

 On February 23 in the Spacey case Inner City Press is tracking, another proceeding, an oral argument. Inner City Press live tweeted it here:
and below; now, Anthony Rapp Feb 3, 2021 deposition transcript on Patreon here

 On February 24 Rapp's lawyer filed a collection of messages he received after accusing Spacey, many full of profanity, and "what u did is a sick way to gain attention."

  On February 25, Spacey's lawyers filed to try to get the social media posts and declaration stricken as "not authorized by the Court." They say that 98% of the messages Rapp got were positive.

  On March 2 plaintiffs' counsel wrote in that Spacey's "papers make other uninformed and speculative statements. It is simply not the true that C.D. has widely broadcast or disclosed his allegations to others. C.D. did speak to New York Magazine in 2017... He did so to refute Spacey's assertion that the sexual assault of Anthony Rapp was an isolated drunken incident."

On March 3, Spacey through counsel wrote to oppose "offers for plaintiff D.C. to speak to Your Honor in camera... C.D. claims he may dismiss his claims if the Motion is not granted... that is no one's decision but his."

On March 22, a proposed extension of expert discovery time by two weeks: WHEREAS, the current deadline to disclose rebuttal expert witnesses in this action is April 12, 2021;  WHEREAS, the parties agree that additional time is needed to complete the depositions of Plaintiffs’ recently-disclosed expert witnesses and the medical examinations of Plaintiffs so as to allow for the disclosure of any rebuttal expert witness(es) and for such expert(s) to complete a report by the disclosure deadline; and  WHEREAS, the parties recognize a potential need to extend the rebuttal expert disclosure date further, especially as to any delays in the deposition or medical examination of plaintiff C.D. or his expert witness; WHEREAS, this is the first such request for an extension of time in which to disclose rebuttal expert witnesses.  IT IS NOW HEREBY STIPULATED AND AGREED, by and between the undersigned counsel, and subject to the Court, as follows:
The deadline to disclose any rebuttal expert witness(es) under Federal Rule of Civil Procedure 26(a)(2) is continued by two weeks and is now April 26, 2021." This has been proposed.

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.

***

Your support means a lot. As little as $5 a month helps keep us going and grants you access to exclusive bonus material on our Patreon page. Click here to become a patron.

Feedback: Editorial [at] innercitypress.com
SDNY Press Room 480, front cubicle
500 Pearl Street, NY NY 10007 USA

Mail: Box 20047, Dag Hammarskjold Station NY NY 10017

Reporter's mobile (and weekends): 718-716-3540

Other, earlier Inner City Press are listed here, and some are available in the ProQuest service, and now on Lexis-Nexis.

 Copyright 2006-2021 Inner City Press, Inc. To request reprint or other permission, e-contact Editorial [at] innercitypress.com