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Further Support of Motion to Strike

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Related Links
_ Clinton Side Accuses Jones of 'Sabotage' (Washington Post, March 31)

_ Jones March 28 Filing

_ Full Text of Other Legal Documents

_ Full Coverage: Clinton Accused

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Released on Monday, March 30, 1998

Following is the full text of the Clinton legal team's March 30 brief. It was filed in response to the March 28 filing in which the Jones team reported an unsubstantiated hearsay claim that a woman, who they named, had been raped by Clinton 20 years ago.

PRESIDENT CLINTON'S REPLY IN FURTHER SUPPORT OF MOTION TO STRIKE AND FOR ADDITIONAL RELIEF

PRELIMINARY STATEMENT

Plaintiff has again abused the good offices of this Court by using the opportunity to respond to our Motion to Strike for the improper purpose of loading up the public record with additional immaterial, inadmissible calumnious matters. Plaintiff's purpose for doing this is obvious, and highly objectionable: this pleading is part of plaintiff's ongoing plan to taint the jury pool and to use these civil proceedings as a stalking horse for the investigation being conducted by the Independent Counsel.

There can be no other explanation for including, in a public filing, patently inadmissible unsworn statements from an individual making the outrageous and false claim that the President raped a woman two decades ago – a claim which the purported victim denies under oath. Nor can there be any other explanation for including, in response to a Motion to Strike, page upon page of unfounded accusations of criminal conduct and irrelevant citations to criminal statutes. Plaintiff's inflammatory allegation that the President improperly withheld documents pertaining to Kathleen Willey is equally baseless.

Plaintiff's recent filing is an act of desperation intended to forestall summary judgment or trial on the merits of her claims. Striking these materials, however, obviously is no longer sufficient to deter plaintiff's counsel or to offset the prejudicial impact of plaintiff's spurious pleadings, which defy numerous orders of the Court, sabotage the fairness of these proceedings, and damage the dignity and the authority of the Court. Accordingly, greater sanctions are required, up to and including holding plaintiff's counsel in contempt.

   


ARGUMENT

1. PLAINTIFF'S OPPOSITION TO THE NOTION TO STRIKE IS PART OF A CONTINUING EFFORT TO TAINT THE JURY POOL.

Plaintiff has included in her Opposition all manner of scurrilous materials, none of which is relevant to the Motion to Strike. Plaintiff also misused this pleading to file what is in effect an impermissible surreply on summary judgment. For the same reasons discussed at length in our Reply brief on summary judgment and in the Motion to Strike, however, none of the matters included in plaintiff's recent filing is material to the issues raised on summary judgment. None of the information relates to Paula Jones, the events that did or did not occur in the Excelsior Hotel on May 8, 1991, Ms. Jones, subsequent employment at AIDC or any emotional injury she purports to have suffered. None of it satisfies plaintiff's burden to point to evidence in the record to support her claims. It is reasonable to conclude, therefore, that these materials were included for the sole purpose of trying to bias the jury pool.

This intent is evident from counsel's conduct in placing these materials in the public record. First, plaintiff attaches an unsworn statement and unsigned letter from an individual named Phil Yoakum to support an outrageous assertion that the President raped a woman in the late 1970s. Plaintiff's counsel did so with the knowledge that this claim is directly contradicted, under oath, by the purported victim, referred to in previous court papers as Jane Doe #5. (See Ex. I (selected pages of deposition of Jane Doe #5; Ex. 2, Affidavit of Jane Doe #5). Not surprisingly, plaintiff omitted to attach this testimony to the opposition.1 Plaintiff's counsel, moreover, knows full well that Yoakum's unsworn, unsubstantiated hearsay cannot be used to oppose summary judgment, and would never be allowed in evidence at any trial. Thus, plaintiff could have no legitimate reason for including this allegation – a recycled rumor from President Clinton's past campaigns – in a legal pleading.

Most troubling, plaintiff publicly disclosed Jane Doe #5's name, in total disregard for her privacy. This disclosure violates both the letter and spirit of several orders of this Court attempting to preserve the privacy of a number of women whom plaintiff has selfishly dragged into the vortex of this case, against their will. In so doing, plaintiff's counsel also violated their own promise to the Court, contained in a letter of March 12, 1998, not to disclose the names of any woman who requested confidential treatment. (Ex. 3).

Plaintiff's allegation that the President's legal team wrongfully withheld documents pertaining to a collateral witness, Kathleen Willey, is similarly unfounded and prejudicial. The President responded fully to all subpoenas directed to him personally, to the point of voluntarily producing responsive documents contained not only in his personal files, but in the files of his 1992 and 1996 campaigns as well. These included, as plaintiff acknowledges, correspondence relating to Ms. Willey. Accordingly, there is no basis to claim that the President failed to comply with any document request directed to him in this case.

Nonetheless, plaintiff contends that the President should have produced documents pertaining to Ms. Willey from official White House files.2 This complaint is disingenuous. As plaintiff has repeatedly stated to this and other courts, this is a private lawsuit against the President in his personal capacity. Neither the President nor any other government employee sued in a private lawsuit is obliged to produce documents contained in government files in response to a personal subpoena. That plaintiff's counsel understands this distinction is apparent from the fact that plaintiff twice prepared subpoenas for the White House, which indeed included some requests that overlapped the document requests served on the President personally. Neither of the White House subpoenas was enforced. The first, dated July 25, 1997, was withdrawn pending settlement discussions and was never reinstated. The second, dated January 22, 1998, was quashed at the request of the Office of Independent Counsel. Most significantly, neither of them called for documents relating to Ms. Willey.

Furthermore, the contention that the President's legal team would improperly withhold these records is ludicrous on its face. The documents substantially undercut plaintiff's contentions with respect to Ms. Willey and are supportive of the President. They would have been produced without hesitation had Ms. Jones' lawyers issued an appropriate request to the White House for them.

We submit that the inclusion of this baseless charge in plaintiff's recent pleading was simply a publicity stunt, as evidenced in last Sunday's Washington Post. In a front-page story bearing the headline, "Clinton Didn't Yield Letters When Asked In Jones Case," plaintiff's counsel is reported to have submitted the brief on a Saturday – when, as is well known, the Court is closed – for the express purpose of achieving maximum coverage in the Sunday papers and the Sunday television news shows. (Ex. 4).3

The misuse of the Court's processes in this manner is consistent with other evidence we have received of plaintiff's improper efforts to influence prospective jurors. Specifically, plaintiff's press agent Susan Carpenter McMillan, in pitching her services to a litigant and his lawyer in another case, stated that her responsibilities in connection with the Jones litigation included a public relations effort aimed at " 'poison[ing] the jury pool' so that no potential juror would like President Clinton," and that she did so "by using the media at every opportunity." (Ex. 5, Aff. of Benjamin Scott Baker, at ¶5). Plaintiff's most recent pleading is simply a continuation of that effort.4 We respectfully submit that the Court should act now to curb this misconduct.

II. SERIOUS SANCTIONS ARE WARRANTED.

The Supreme Court permitted this case to proceed against a sitting President despite the admitted threat of "litigation directed at a President in his unofficial capacity for purposes or political gain or harassment." Clinton v. Jones, 117 S.Ct. 1636, 1651 (1997). It did so in reliance on the "availability of sanctions" to thwart such abuses. Id. The plaintiff's latest filing is pure harassment and should be sanctioned in accordance with the Supreme Court's instruction.

All of the materials appended to plaintiff's Opposition to the Motion to Strike should be stricken along with the irrelevant, scurrilous attachments to plaintiff's Opposition to summary judgment.5 Striking these materials, however, cannot erase the prejudicial effect of plaintiff's recent pleadings, and will not deter plaintiff's counsel from similar conduct in the future. The Motion to Strike asked the Court for whatever further relief the Court "deems appropriate;" we respectfully submit that the events of the past few days have demonstrated that greater sanctions are appropriate. Accordingly, we ask the Court to issue an order to show cause why plaintiff's counsel should not be held in contempt for violating the Court's Orders, and to require plaintiff to file all further pre-trial papers under seal.

This Court has the authority to hold plaintiff's counsel in contempt for violation of its Orders: "A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority . . . as . . . (3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command." 18 U.S.C. § 401.6 See also Monterey Development Corp. v. Lawyer's Title Ins. Corp., 4 F.3d 605, 610 (8th Cir. 1993) (relying upon § 401 in affirming district court's imposition of civil contempt sanction). Plaintiff's recent filings violated a number of Court orders:

(1) On October 30, 1997, this Court issued the Confidentiality Order on Consent of all Parties, which "prohibit[ed] disclosure directly or indirectly" of all matters relating to discovery in this case. Order, dated October 30, 1997 at 2 ("Confidentiality Order") . In so doing, the Court found that "the interests of all parties and the judicial system in obtaining a fair and impartial jury and a fair trial for all parties will be prejudiced if the existing pre-trial publicity concerning discovery in this matter were permitted to continue." The Court recently affirmed this precept when it denied motions by various non-parties and media entities to unseal discovery. See Memorandum and Order, dated March 9, 1998. Plaintiff's opposition to Summary Judgment and opposition to the Motion to Strike violate the Confidentiality Order by gratuitously disclosing substantial portions of discovery that were unnecessary to oppose either motion. As a result of this disclosure, the purpose of the Confidentiality Order – to preserve the parties, rights to a fair trial – has been gravely frustrated.

(2) Plaintiff violated the Court's oral order regarding the use of "Jane Doe" designations. Specifically, at an untranscribed conference call on March 10, 1998, the Court directed the parties to use the "Jane Doe" designation in any public filing that refers to any female witness who sought privacy with respect to this case. Plaintiff's counsel agreed to abide by that order in her briefs relating to summary judgment. See Ex. 3. Nonetheless, in what is the most outrageous of plaintiff's unsupported allegations, plaintiff refers to a purported rape victim, Jane Doe #5, by name. This offense is compounded by the fact that Jane Doe #5 denies plaintiff's allegation, as does the President. This irresponsible conduct has violated the privacy interests of Jane Doe #5 and grossly prejudiced President Clinton.

(3) The Court directed the parties to discontinue discovery on matters concerning Monica S. Lewinsky and excluded from trial all evidence concerning Ms. Lewinsky. Order, January 29, 1998; Order, March 9, 1998. Nonetheless, plaintiff's Opposition to Summary Judgment contains long passages of salacious and outrageous accusations concerning Ms. Lewinsky. Her Opposition to the Motion to Strike also contains prejudicial references to Ms. Lewinsky.

(4) On February 6, 1998, the Court "direct[ed] that any motion for summary judgment and/or response thereto which details or contains sexually explicit or salacious discovery materials not be publicly filed without first notifying the Court and opposing counsel." Order, February 6, 1998 (emphasis added) . As the Court is aware, however, plaintiff's "notice" sent via facsimile the night before her opposition to Summary Judgment was due failed to identify what she intended to place on the public record. Thus, plaintiff did not provide a meaningful opportunity for the Court to consider whether the materials (which turned out to be primarily salacious and prejudicial) should be kept under seal. With respect to her most recent filing, plaintiff gave absolutely no notice that she intended to include unsupported allegations of rape. Accordingly, both filings flagrantly violated the February 6th Order.

(5) By order dated February 24, 1998, the Court gave plaintiff until March 13th to file any opposition to summary judgment, and clearly ordered that briefing with respect to summary judgment close on March 20, 1998. Plaintiff's recent filings violated this order in two ways. First, plaintiff filed her separate statement of material facts on March 17, 1998. Thus, while plaintiff's counsel had sufficient time to load its opposition with extraneous materials and hold a press conference on March 13 to sell copies of the Opposition to the media (at $78 per copy), they claim to have forgotten to file the very facts upon which they purport to rely. As a result, President Clinton was prejudiced because he had only until March 20 to reply. Second, plaintiff effectively used her opposition to the Motion to Strike to file an impermissible surreply on summary judgment, openly arguing summary judgment points in that filing. This violated the Court's clear wishes that briefing on summary judgment would close on March 20 with the filing of our Reply. As demonstrated above, plaintiff's purpose in disregarding that order was to pursue additional media coverage of her salacious claims.

These transgressions of the Court's orders clearly warrant a finding of contempt. See Doe v. Maywood Housing Auth., 71 F.3d 1294 (7th Cir. 1995) (attorney found in contempt for including in court papers real names of plaintiffs despite protective order requiring use of pseudonyms); United States v. Cutler, 58 F.3d 825 (2d Cir. 1995) (attorney held in contempt for violating rule against extrajudicial statements when rule intended to reduce prejudice and prevent tainting of jury pool); In re Dellinger, 502 F.2d 813, 816 (7th Cir. 1974) (defense counsel held in contempt for violating court order by putting before the jury information that had been ruled inadmissible).

Moreover, as demonstrated above, plaintiff and her counsel have proven beyond doubt that they will not adhere to this Court's Orders. They have shown that they will use each and every filing as a vehicle to further taint the jury pool. Accordingly, to prevent further prejudice to President Clinton, the Court also should require plaintiff to make every pre-trial filing with the court under seal. The Court can then review the materials and determine if they should be unsealed.

CONCLUSION

For all the foregoing reasons, President Clinton's Motion to Strike should be granted, and additional sanctions should be imposed as well.


FOOTNOTES

1. The fact that we do so here in no way suggests that there is a dispute about a material fact related to summary judgment; as noted above, these materials are wholly irrelevant to the issues raised on summary judgment. The testimony of Jane Doe #5 is included here, as are all the attachments hereto and to our Motion to Strike, in an effort to balance the public record and to demonstrate the improper intent of plaintiff's counsel in raising these matters.

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2. Ms. Willey was a former member of the White House staff. Following her recent appearance on the television program 60 Minutes, the White House publicly released from its files documents pertaining to Ms. Willey.

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3. The article was authored by the same Post reporter who first published the leaked deposition of the President, as well as our March 19, 1998 letter to the Court, which we responsibly submitted only to the Court and counsel, but which plaintiff's counsel admitted providing to the reporter within minutes of receipt.

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4. This effort continues with plaintiff's counsel making statements to the press on almost a daily basis extolling plans to call "12 women" at trial, including some who have never been deposed in this case and/or who have denied being sexually harassed by President Clinton. See Tom Squitieri, "Jones' lawyers want actress, dozen women to testify at trial," USA Today (March 30, 1998) at 1-A. The Court has repeatedly warned plaintiff's counsel that such conduct would not be condoned.

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5. Without citing any authority, plaintiff asserts that a "surface perusal" of Federal Rules of Civil Procedure 37 and 12(f) demonstrates that those rules cannot be applied to strike materials from an opposition to summary judgment. However, Rule 37 is clearly applicable because plaintiff violated numerous discovery orders, including the Confidentiality Order. See Pl.'s Opp. at 3 (conceding that Rule 37 applies to "discovery abuse, such as a party failing to comply with a valid discovery order."). Rule 12(f) is also an appropriate vehicle because the materials at issue are "redundant, immaterial, impertinent, [and) scandalous." See Arkansas Right to Life State Political Action Committee v. Butler, 983 F. Supp. 1209, 1216 n.3 (W.D. Ark. 1997) (applying Rule 12(f) to strike such materials from summary judgment papers).

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6. A finding of contempt is also appropriate under Rule 37(b)(2)(D) for plaintiff's violation of various discovery orders, and under Rule 56(g) for her presentation of affidavits made in bad faith.

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© Copyright 1998 The Washington Post Company

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