Law360, New York (September 11, 2020, 10:15 PM EDT) -- A Manhattan federal judge Friday waved off excuses from a former Fox News commentator to delay a lawsuit by the family of slain Democratic National Committee staffer Seth Rich, expressing doubts Wikileaks founder Julian Assange would sit for a requested deposition.
Fox News aired and then retracted a May 2017 story implying Rich was murdered in July 2016 for leaking political emails. The story spawned a tangle of litigation, including at least six lawsuits involving the network and its contributors — and recently roped in Assange after U.S. Magistrate Judge Sarah Netburn agreed in August to request the famous prisoner's deposition from the U.K. as he faces extradition to the U.S. for espionage.
On Friday, Judge Netburn cleared the way for discovery to continue in Joel and Mary Rich's suit against the network during a teleconferenced hearing in New York, notifying onetime Fox News commentator Ed Butowsky that she would recommend U.S. District Judge George B. Daniels deny his attempt to dismiss the case over jurisdictional issues and brushed off his attempt to push or soften deadlines by suggesting his expert wants Assange's testimony.
"One of our experts will opine as to the hacking or the leaking of the DNC emails, and our expert is going to say the emails could not have been remotely hacked by Russian military agents, it was a local download — which is relevant to the whole story at issue here," said Butowsky's attorney Eden Quainton, a claim that stands in stark contrast to computer experts and U.S. government agencies who have repeatedly stated Russia was responsible for the DNC hack.
"The issue that I see in timing," Quainton continued, "is our expert may feel that Julian Assange's testimony is something that is highly relevant to that report."
"Does anyone have any reason to believe that that deposition is actually going to happen?" Judge Netburn said, her voice rising in skepticism.
Fox News counsel Katherine Petti of Williams & Connolly LLP piped up to add that the network was "working to schedule Mr. Assange's deposition with the United Kingdom" and that the bureaucratic process was in motion and that she is "hopeful that it will occur" but that "a date for that deposition is not yet set."
Assange's ongoing extradition proceeding, already delayed by the pandemic, was interrupted again on Thursday after an American government attorney reported possible exposure to COVID-19. The reclusive activist has thumbed his nose at U.S. authorities for years and is fighting his extradition.
"So that there's no confusion here," the judge stated firmly, "unless there is some reasonable certainty that the deposition is actually going to happen, I don't intend to modify any discovery deadlines set today based on the hope that Mr. Assange is going to sit for a deposition."
An attorney for Assange did not immediately respond to a request for comment on Friday.
The court had appeared more sympathetic to Butowsky's last request to delay discovery.
Butowsky reported he "clinically died" on Aug. 4 — but was resurrected by a "reanimation team" — and argued that given his recent "critical organ failure" and pending hip surgery it would be "extremely harsh (indeed, inhuman) to hold Mr. Butowsky to interim fact deadlines" in a joint letter filed Aug. 7.
Butowsky filed a doctor's note confirming he had suffered a heart attack.
The judge and plaintiffs relayed sympathy for the ex-commentator's health woes in the hearing, and Butowsky's attorney confirmed that he would, with difficulty, be able to meet a set of deadlines to hand over 2,000 pages of phone records, a statement about data he destroyed, and documents that were due on the day he had went into cardiac arrest.
The Rich family claims Fox News, its reporter Malia Zimmerman and Butowsky are liable for intentional infliction of emotional distress for exploiting their son's death by concocting a conspiracy theory that he stole DNC emails, passed them to Wikileaks and was killed for it, painting him "as a criminal and a traitor to the United States."
Police publicly stated the killing was a botched robbery, according to the amended complaint.
The complaint claims that Butowsky and Fox News pursued a political agenda in an attempt to deflect and discredit reports, which were eventually corroborated by special counsel Robert Mueller, that Russians had stolen embarrassing emails from the DNC to benefit then-candidate Donald Trump.
Assange's attorney has claimed Trump offered his client a pardon in August 2017 if he would say Russia had nothing to do with leaking Democratic emails during the election campaign and that the espionage prosecution for leaks in 2010 and 2011 is payback for his refusal.
Judge Daniels dismissed the Riches' claims in August 2018, but the Second Circuit revived the lawsuit in September 2019, finding "we have no trouble concluding that — taking their allegations as true — the Riches plausibly alleged what amounted to a campaign of emotional torture."
The parents' lawsuit is only one among many sparked by the retracted Fox News story.
Seth Rich's brother Aaron Rich is also suing Butowsky for defamation by reporting that he conspired with his brother to steal the DNC data and that they received money from WikiLeaks.
The private investigator Butowsky introduced to the Riches also sued Fox News, Zimmerman and Butowsky for allegedly misquoting him in the story. His lawsuit was dismissed in 2018.
Butowsky has filed several suits over the story himself, including one accusing The New York Times of defaming him by suggesting a court ruled he exploited the grieving Rich family to spread a fake story.
The Rich family is represented by Leonard A. Gail and Eli Johnson Kay-Oliphant of Massey & Gail LLP and Arun Subramanian, Elisha Barron, and Beatrice Franklin of Susman Godfrey LLP.
Fox News is represented by Katherine Moran Meeks, Katherine Anne Petti and Joseph M. Terry of Williams & Connolly LLP.
Butowsky is represented by Eden P. Quainton.
Zimmerman is represented by David H. Stern of Dechert LLP.
The case is Rich v. Fox News et al., case number 1:18-cv-02223, in the U.S. District Court for the Southern District of New York.
--Additional reporting by Pete Brush. Editing by Brian Baresch.
Clarification: This story has been updated with additional information about the status of the private investigator's lawsuit.
Correction: A previous version of this article misstated the defendants in Aaron Rich's lawsuit. The error has been corrected.
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