On Wednesday, June 6, 2007, Judge C. Weston Houck held a hearing on the Summary Judgment motions of A&E Television Networks and Departure Films. Today, I received a transcript of the hearing. For the most part, the hearing seems to have been routine.
A&E/Departure argues that there was no written contract, that the verbal contract to split profits didn’t contain the terms that Richard Davis and Trademark claim, and that Richard Davis has been inconsistent in even his understanding of the agreement.
Several things of note were decided:
- The contract issues will be handled under New York law.
- The defense claims that an oral contract under New York law will fail unless it contains an express termination provision, under Burke, a case that was not fully cited in the hearing and to which my Westlaw account doesn’t provide access.
- The Court felt that an oral contract did exist between Trademark/Davis and A&E/Departure.
- If that oral contract is believed by the Jury, then it is enforceable.
- The Court ruled that issuing partial summary judgment, even if it was determined appropriate, would not reduce the discovery burden, and therefore would be denied in its entirety.
- The Court declined to restrict discovery information relating to costs and other finances to the view of only the attorneys, ruling that preventing Richard Davis from seeing this information would be fundamentally unfair.
- The Court believes that discovery should be scheduled to end within four months.
The thing that was a minor point in the hearing, mentioned at the end of the hearing only, but of significant note and concern to your humble webmaster, is the Court’s final message:
One other thing I was not going to mention today, because I just thought it might be best to ignore it, but upon reflection, I think it’s a matter of such seriousness that I do need to mention it.
It’s been brought to my attention that there is a web blog entitled Flip This Lawsuit. I haven’t looked at that blog, I haven’t studied it to see what it says. I have been told what it says.
Now, I’ve never had this happen before, and I consider it a very, very serious matter. At first blush, it appears to me to be an attempt to influence this lawsuit in an improper way. We can’t tell what’s happening there until we draw a jury.
But at some point in time, if I’m convinced that that has been the result of such a blog, in other words, if we have jurors that come in here and they’ve read that blog, and upon reading that, they cannot give the defendants a fair trial, then that is a serious matter, and it will be considered by such as this court. And an appropriate punishment and sanctions will be handed out. I’m not sure what those will be. I think you lawyers know that if you did that, what would happen to you, you would probably be looking for another profession. So that’s how I feel about that.
Now, whether what’s going on that blog is of such a nature that it in and of itself, whether members of the public read it and act on it or not, warrants a sanction by this court, and some sort of obstruction of justice, some sort of contempt of this court, I don’t know. But it’s because of those consequences that I see fit to bring this to your attention. This is a serious matter. This is a serious court. And we will not permit its function to be undermined in such an unseemly fashion.
Now, who is responsible for that blog? I don’t know. It may be that I’ll have to ask the FBI to look into it. It may be I’ll have to ask the U.S. Attorney to get the grand jury to look into it, I don’t know. Those are things down the road. But it seems to me that the information I have certainly shows that the defendants don’t have their name on this blog and that the plaintiff does.
And I would think that good, prudent action on his part would have gotten it off of there a long time ago. And that’s all I’m going to say on that. But when we get to the end of this case at some point, we’ll look at it again and see who is responsible; what the effects are and what action we should take.
But it just felt like that it is such a serious matter and such an unthinkable thing for a litigant to do in this court, that it needed to be commented on. I mean, we are not in Boy Scout camp; we are in serious court here and we don’t do business that way. And I’m not going to permit litigants in this case to do business in that way. Okay?
Thank you very much. We’ll be in recess.
I, of course, have no affiliation with Flip This House, Richard Davis, Trademark Properties, A&E Entertainment Television, or Departure Films. I don’t work for any of their attorneys, agents, or employees. The site is supported through my own funds and through revenue generated by advertising on this page.
I’m a fan, and one that was incredibly pissed off by the actions of A&E on the first night of season two. Not only did they deceive me, as a viewer, about what I was about to see by running only ads for Trademark Properties, but when I went to their website - to the place that they set aside for viewer discussion - I quickly found that my voice, and the voice of others who disliked the new cast or simply wanted to learn more information about the change, were quickly edited with the delete button. This heavy-handed moderation continues to this day, and I feel it only appropriate to provide a forum for open discussion of not only the lawsuit but also the subsequent developments in both television shows, Flip This House and The Real Estate Pros / The Real Deal.
I informed all counsel, through email on February 23, 2007 that my website was open to accepting information from any party that they wished to share with this audience. In that same email, I informed all counsel that I was not affiliated with any of the parties and requested that, if they submitted printed copies of pages from my website, that they include the entirety of the page so as to include the disclaimer which appears at the bottom of each page on this site.
The information I post here is obtained through the public records of the Court itself. Any potential juror who wished to learn these things could easily visit the courthouse themselves and check out the file or even read it through PACER in their underwear at home or from nearly any coffee shop in the world. Unlike traditional media, which filter the information provided and determine what information you deserve to know, I make it a point to report on all possible information by providing you access, for free, to all of the court documents. In this manner, you can view and decide for yourself what information is relevant - or even just interesting - to you personally.
The Court’s comments regarding this website are the subject of an item in the Charleston, SC Post and Courier, which you can read online. The article begins, “Is the Internet weaving its web into America’s court rooms? Not if a district court judge in Charleston has anything to do with it.”
I’ve pulled new documents from PACER. They are, as follows:
I will continue to report on developments in the litigation, as well as on both shows, as events unfold.
EDIT - June 15, 2007 - I have removed Plaintiffs’ Memorandum in Opposition to Defendants’ Motion for Summary Judgment and the exhibits thereto. I was informed that this document is actually a sealed document, but because of a filing error was available for public access. While I don’t believe this trial should continue being conducted behind a veil of secrecy, I do not desire to publish documents that are restricted by the Court’s order.
