Fairey Motion to Postpone Depo
Fairey admitted last October that he had "submitted false images" to the AP during the civil discovery process "and deleted other images" in an effort to mislead the AP as to which photo he used as the basis for the iconic poster, which became ubiquitous during the 2008 campaign. It was revealed in a court hearing January 26 that Fairey faced a criminal investigation over his actions, but the specifics were not known until his briefs in support of his motion to postpone his deposition were unsealed. On January 27, Judge Alvin Hellerstein denied Fairey's motion to postpone or limit the deposition until the earlier of the conclusion of the investigation or six months.
Fairey indicated that he has been advised by his criminal counsel to invoke his Fifth Amendment right against self-incrimination during the deposition and refuse to answer questions about the submission of false evidence and destruction of relevant material. "If Mr. Fairey is compelled to testify and exercises his Fifth Amendment rights per his criminal counsel’s advice, the consequences of invoking those rights would severely impair his ability to defend this case on the merits — and this Court’s ability to resolve it on the merits," states the brief. Fairey acknowledges that if he does invoke his right to refuse to answer questions, the jury in the copyright case "will be free to draw adverse inferences against him on issues crucial in this litigation, in which he faces counterclaims for bankrupting damages." Again in his reply brief, Fairey warns that his refusal to answer questions at his depo "could lead to crippling liability against him based on adverse inferences rather than the facts."
And in a rather extraordinary passage, Fairey concedes that he likely faces sanctions in the civil case for his admitted wrongdoing and may face indictment:
Mr. Fairey has already admitted engaging in misconduct and accepts that he will face sanctions by the Court at a later stage of this case. But his error, however serious, should not force him to choose between abandoning his Fifth Amendment rights and forfeiting his right to testify in this civil action and to defend the action on the merits. Of course, the Court can impose sanctions upon Mr. Fairey if it deems them appropriate, and the U.S. Attorney can choose to file criminal charges against him."But," he argues, "the triple punishment of potentially crippling civil liability — based not on the merits, but on his inability to testify during this particular brief period — would be unjust."
Fairey's brief also reveals that last Nov. 9, federal prosecutors in New York served subpoenas on Fairey, his wife Amanda, and several of Fairey's businesses. The brief also accuses the AP of "play[ing] an ongoing role in encouraging charges against Mr. Fairey, through continuing communications with the U.S. Attorney’s Office that go beyond merely responding to a grand jury subpoena." (The AP's brief, whose arguments prevailed, has also been unsealed but is not available on PACER.)
Update: I now have the AP's opposition brief (whose arguments carried the day) and the supporting documents. The AP's basic argument is that Fairey's troubles are entirely of his own making, and that "[f]or Mr. Fairey now to point to the government's investigation of his own misconduct as grounds for a discovery extension...is truly the definition of chutzpah." A few interesting tidbits from the documents:
- The AP says that "Neither the AP nor its counsel played any role in initiating [the] criminal investigation.... The AP did not become aware of the investigation until after it had commenced."
- The AP itself received a document subpoena in the criminal investigation last November.
- The AP's brief quotes from a declaration from Fairey's counsel (which I have not seen) stating that "[a] resolution with the government is expected to take between three and six months." A "resolution" typically refers to a plea bargain. Of course, there's no certainty that the two sides will reach an agreement.
- A transcript of a Nov. 10, 2009 hearing in the case sheds light on how Judge Hellerstein plans to deal with Fairey's transgressions. It's clear that Hellerstein views Fairey's misdeeds as "serious," and that he will impose sanctions of some kind. But it seems doubtful that the sanctions will include issue, evidentiary, or terminating sanctions, which would actually affect the outcome of the case: "I want this case to be concluded on the merits and then we'll get into this," i.e., sanctions for Fairey's wrongdoing. And Hellerstein made clear that he plans to sanction Fairey even if the case settles: "[I]f the case is settled in some fashion, I don't want this issue to be settled." Of course, the AP still argues that Fairey's lies and evidence creation and attempted destruction are relevant to the fair use analysis because they demonstrate his bad faith. See Harper & Row v. Nation (fair use "presupposes good faith and fair dealing") and cases cited at p. 24 of the AP's brief.
- Judge Hellerstein is funny. Explaining his practice of issuing quick discovery rulings (rather than referring such matters to a magistrate judge): "I'd rather be prompt than correct." (Tr. at 18:21.) Who does he think he is, some blogger?