his best friend, Bubba Clem, engaged in sexual relations with Bubba’s wife, Heather. As crazy as it sounds, Bubba encouraged the two to have sex because Hogan was depressed over his impending divorce. • In September 2012, Gawker received an anonymous package containing a DVD that showed Hogan having sex with Heather. The original video was 30 minutes long. Gawker edited the video to 1 minute and 40 seconds, which it published on its website. Only 9 seconds of the portion used showed actual sex. The rest showed awkward conversation. • Gawker also posted an article written by its editor, A. J. Daulerio, that described the tape.
against the Clems and Gawker, its editor A.J. Daulerio, and its owner Nick Denton. • The basis of the suit was that Hogan claimed he DID NOT KNOW he was being filmed and, therefore, the release of the material online was an invasion of his right to privacy.
Bubba and Hogan. Hogan admits to Howard Stern that he had sex with Heather but he didn’t know about the camera. Bubba goes on Howard Stern asserting Hogan was aware of the camera. • Days later, Bubba switches to claiming Hogan did not know. Hogan and Bubba settle their dispute. Hogan dismisses as to Bubba. Bubba formally transfers the copyright of the sex tape to Hogan. • Hogan also settles with Heather and she is dismissed. • Only Daulerio, Denton and Gawker remain in the lawsuit asserting free speech as a defense for releasing the materials.
an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
denies an injunction request, ruling that the validity of the copyright was in question and that since Hogan had already put his private life in the public arena, the video might be protected by fair use. • “… the balance between the First Amendment and copyright is preserved, in part, by the doctrine of fair use.”
files in Florida State Court. • Hogan obtains a preliminary injunction. Gawker takes down the sex tape but refuses to remove the article on First Amendment grounds. • The injunction is stayed on appeal. The Court of Appeal found that the injunction as an unconstitutional prior restraint of speech under the First Amendment.
of Bollea, for $115 million in compensatory damages, $60 million for emotional distress, and $25 million in punitive damages. • May 2016, the judge denied Gawker’s motion for new trial. • Gawker filed a motion for stay of execution pending appeal. • Gawker filed Chapter 11 BK. Denton filed for BK protection. • Univision Communications purchased Gawker’s assets at BK auction. Sale did not include the main Gawker website, which was shut down.
a very unusual element concerning a third party financial backer lawsuit revealed … • Gawker SETTLED all issues foregoing appeal by agreeing: to pay Bollea $31 million; AND taking down three articles, including Daulerio’s article on Bollea.
Paypal and current Facebook board member, had paid $10 million to finance Bollea’s lawsuit. • In 2007, Gawker had “outted” Thiel as being gay. Thiel called his support of Bollea “one of my greater philanthropic things that I’ve done…” AND Thiel believed that Gawker “…ruined people’s lives for no reason.”
Section 6068: “It is the duty of an attorney to do all of the following: … (g) Not to encourage either the commencement or the continuance of an action or proceeding from any corrupt motive of passion or interest.”
A.J. Daulerio Testimony • Deposed for 8 hours. • At deposition, he was asked a short series of questions, to be discussed later, that became the high point (or low one for Gawker) of the trial.
Bad? • The Questions: Q. What sort of celebrity sex tapes would not be newsworthy? A. I couldn't say specifically. Q. Well, can you imagine a situation where a celebrity sex tape would not be newsworthy? MR. BERLIN: Objection, speculation, but you can answer.
Change Deposition Transcript. • Motions in Limine: None filed based on our research to keep this material out. • Although this case was venued in Florida, we are going to apply California law.
California Code of Civil Procedure section 2025.520, subparts (b) and (c) allow the deponent to change the deposition transcript after review. • “(b) For 30 days following each notice under subdivision (a) [that the deposition transcript is available for review],. . .the deponent may change the form or the substance of the answer to a question, and may either approve the transcript of the deposition by signing it, or refuse to approve the transcript by not signing it. • “(c) Alternatively, within this same period, the deponent may change the form or the substance of the answer to any question and may approve or refuse to approve the transcript by means of a letter to the deposition officer signed by the deponent which is mailed by certified or registered mail with return receipt requested.”
Basis to file a motion in limine: arguably the prejudice here substantially outweighed its probative value. • California Evidence Code section 352: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” • “Undue prejudice,” under statute allowing court to preclude evidence where its probative value is outweighed by its prejudicial value, occurs when the jury is emotionally inflamed against a party without regard to the issues in the case; undue prejudice does not occur merely because evidence is admitted that might hurt a party’s case. Smalley v. Baty (2005) 128 Cal App. 4th 977, 979.
Reason to exclude it: present case is about whether or not Hogan’s sex tape was newsworthy, not any other speculative ones; and this line of questioning evokes an emotional bias against defendant as outlined above in the Smalley case. • Reason to let it in: the initial question related to whether a celebrity sex tape was newsworthy, which was the central issue here, and the state of mind of Mr. Daulerio in reaching that conclusion. The question was asked in the context of “a situation where a celebrity sex tape would not be newsworthy?” • Conclusion: if motion filed, its is undisputed that a child tape is not newsworthy and the only thing that comes from this line of questioning is inflaming the jury. No real probative evidence here with that question.
Instead, describe it. Draw it. Create a funny puppet sketch. • 4. Don’t forget to change bad testimony after reviewing your deposition transcript. • 3. Don’t joke about child pornography. • 2. Don’t make an enemy of a billionaire. • 1. Don’t have sex with your best friend’s wife … at least at her house.
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