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In Ed Henry Sex Harassment Suit No Discovery Until Fox Motion to Dismiss Is Resolved

By Matthew Russell Lee, Patreon Podcast
BBC - Guardian UK - Honduras - ESPN

SDNY COURTHOUSE, April 20 – Jennifer Eckhart and Cathy Areu sued Fox News, Ed Henry, Sean Hannity and others.

 On October 7, 2020 U.S. District Court for the Southern District of New York Judge Ronnie Abrams held a proceeding. Inner City Press covered it. 

 The complaint has a label, "Trigger Warning: This Document contains highly graphic information of a sexual nature, including sexual assault."

Eckhart states that Ed Henry "asked her to be his 'sex slave'... On July 1, 2020, Fox News disclosed to the public that it had terminated Mr. Henry." 

 Now on April 20, 2021, SDNY Magistrate Judge Gabriel W. Gorenstein held an oral argument as to whether Judge Abrams' stay on discovery should remain in place until Fox's motion to get out of the case is decided. Inner City Press live tweeted it here: (podcast here)

Ed Henry's lawyer: My client is out of a job for months, unable to clear his reputation. The fact that Fox is pointing to document in its system that might help Mr. Henry is not the point. We need the case to move forward. I agree with the plaintiffs on that.

 Ed Henry's lawyer: We need the plaintiff's emails, with us and others. Maybe there's a way to limit the nature of the discovery we get as to Fox.

Judge Gorenstein: OK, I'll give Fox a chance to reply. Fox's lawyer: We don't think Fox should be dragged into it

Magistrate Judge Gorenstein: Defendant's argument with dismissal as to it have support. I am sympathetic to Plaintiff's wish to move forward, and Henry's, to try to defend his reputation. But there is not much prejudice, like elderly witnesses...

 Judge Gorenstein: As to the breadth of discovery, there are limits to what a third party has to produce, versus a party. Electronic discovery is expensive to re-do. So, I conclude the stay previously ordered by Judge Abrams should remain in place.

So: there will still be a stay on discovery, until Fox's motion to get out of the case is decided.

 Back on October 30, 2020 Henry through counsel opposed Eckhart saying she'll file a second amended complaint: "Re: Jennifer Eckhart v. Fox News Network, LLC, et al., Civil Case No. 1:20-cv-05593 Dear Judge Abrams, I am writing with regard to Michael Willemin’s letter dated October 28, 2020 informing the Court of Plaintiff Jennifer Eckhart’s intention to file an amended complaint. Ed Henry objects to Mr. Willemin’s unilateral pronouncement of his intention to amend. Federal Rule 15 specifically provides that “a party may amend its pleading once as a matter of course” and otherwise “a party may amend its pleading only with the opposing party’s written consent or the court’s leave.” As this Court knows, Ms. Eckhart filed her original complaint on July 20, 2020. She then filed her first amended complaint as of right on September 11, 2020. Having filed that amendment as of right, any other amendment requires the opposing party’s written consent or leave of the court, neither of which Ms. Eckhart has obtained. Mr. Willemin suggests in his letter that the Court already authorized the filing of another amended complaint in the October 7 conference. However, although I understand Mr. Willemin asked the Court to confirm that the filing of the Second Amended Complaint (filed to effectuate the severance from Cathy Areu) would not impact his ability to file another amended complaint, I am not aware of any order permitting the Plaintiff to ignore the requirements of Federal Rule 15. Mr. Willemin should have reached out to defense counsel."

  Later on October 30, Eckhart fired back, requesting sanctions and/or costs: "We further respectfully request that an award be issued against Defendant Henry and in favor of Wigdor LLP for the costs and fees incurred in drafting and litigating this issue. The latter request is based on: (i) we gave Ms. Foti an opportunity to withdraw her letter, and she refused to do so; and (ii) Ms. Foti’s own statements to the Court establish, without question, that her request is frivolous. Ms. Foti seeks to compel Plaintiff to file a motion for leave to amend, arguing that she has waived her right to do so as of right. This argument is squarely refuted by Your Honor’s Individual Rules, as well as Your Honor’s prior express acknowledgment that Plaintiff has not waived her right to amend as of right. More to the point with respect to the request for costs and fees, at the recent October 7, 2020 teleconference, Ms. Foti acknowledged and agreed that Ms. Eckhart has the right to file an additional amended complaint."

Later still, Henry surreplied: "Re: Jennifer Eckhart v. Fox News Network, LLC, et al., Civil Case No. 1:20-cv-05593 Dear Judge Abrams, I write on behalf of Defendant Ed Henry in reply to Plaintiff Eckhart’s letter, Dkt. No. 109. In that letter, Mr. Willemin argues that somehow the legitimate steps Mr. Henry takes to defend himself should not be permitted, but Mr. Willemin should be permitted to manipulate the court process without consequence. First, Mr. Willemin argues that he preserved his right to amend during the August 28, 2020 conference. What Mr. Willemin conveniently fails to recall is that the August 28 conference dealt with the need for Cathy Areu to file an amended complaint to address issues raised by Defendant Fox’s Rule 11 motion. Mr. Willemin specifically stated that he did not want that amendment to be considered as of right because he did not need to amend at that time on Ms. Eckhart’s behalf... Plaintiff’s attorney appears to believe that Ed Henry is not entitled to defend against Ms. Eckhart’s meritless allegations and that somehow simply because she makes the allegations, we should sit back and concede defeat. However, Ms. Eckhart’s allegations are not true, and Mr. Henry is entitled to seek all appropriate relief from this Court as he tries to defend himself against these scurrilous claims. Plaintiff already took undue advantage of the court process by attempting to join Ms. Eckhart’s claims with those of Ms. Areu, when the two should never have been filed together. This Court should not allow her to take even greater advantage by filing amendment after amendment."

Now on November 4, Judge Abrams has granted permission to amend, until November 9: "ORDER re: [108] Letter, filed by Ed Henry, [110] Letter, filed by Ed Henry. In light of the fact that this would be Eckhart's first substantive amendment to the complaint, the Court will, as it indicated at the August 28th conference, allow her to amend again at this time. She has until November 9, 2020 to do so. SO ORDERED. (Amended Pleadings due by 11/9/2020.) (Signed by Judge Ronnie Abrams on 11/4/2020)."

We'll have more on this.

 On October 19, Ed Henry had fired back, including "7. Attached hereto as Exhibit D is a true and correct copy of email correspondence between Ed Henry and Jennifer Eckhart, dated October 21, 2015. 8. Attached hereto as Exhibit E is a true and correct copy of a message, dated January 2, 2016, from Jennifer Eckhart to Ed Henry sending him a “Playlist” of songs via Dropbox. Included in this “Playlist” are songs like “Coffee (Fucking)” (which features the lyrics “Fucking in the morning . . . I’ve never felt comfortable like this . . . Sweet dreams turn into fucking in the morning”) and “Cockiness (Love It When You Eat It)” (which features the lyrics “I want you to be my sex slave . . . Set my whole body on fire”). 9. Attached hereto as Exhibit F is a true and correct copy of email correspondence Jennifer Eckhart sent to Ed Henry, dated January 13, 2016, with a link to a picture of a man’s tattoo, as well as a screenshot from that webpage. 10. Attached hereto as Exhibits G-U are true and correct copies of photographs Jennifer Eckhart sent Ed Henry in 2017. In exhibits I, J, M, and Q, Plaintiff’s intimate parts have been purposely obscured. Dated: New York, New York October 19, 2020."

   The exhibits was in PACER, and public - then on the morning of October 20, they were not available. Jennifer Eckhard's lawyer wrote in:

"we made an emergency application to the ECF Help Desk to temporarily seal these exhibits pending a formal application to Your Honor, which was granted early this morning. Case 1:20-cv-05593-RA Document 91 Filed 10/20/20 Page 1 of 2 The Honorable Ronnie Abrams October 20, 2020 Page 2 While we expect that Defendant Henry will attempt to draw a false equivalency between the text messages that Plaintiff included in her Amended Complaint in an effort to justify his behavior, there is obviously no comparison between words sent by a party and disseminating nude images of someone to the general public. Indeed, in New York, public dissemination of nude images in this manner is actually unlawful. See N.Y. Penal Law § 245.15. Notably, we are not seeking to redact or seal any of the non-image related exhibits that Defendant Henry filed with his motion to dismiss (notwithstanding the fact that this material is also irrelevant at the motion to dismiss stage). These pictures also represent the type of confidential and sensitive information that are normally sealed in the course of litigations. In re N.Y. Times Co., 828 F.2d 110, 116 (2d Cir. 1987). Courts have identified particular examples of “higher values.” See e.g., Giuffre v. Maxwell, No. 15 Civ. 7433 (RWS), 2017 WL 1787934, at *2 (S.D.N.Y. May 2, 2017)"

 Will this citation to Maxwell work? On October 22 Ed Henry fired back: "Re: Jennifer Eckhart v. Fox News Network, LLC, et al., Civil Case No. 1:20-cv-05593 Dear Judge Abrams:  We write on behalf of Defendant Edward Henry in response to the October 20, 2020 letter motion filed by Plaintiff Jennifer Eckhart, requesting that this Court seal certain documents filed by Mr. Henry in connection with his motion to dismiss Plaintiff’s Second Amended Complaint and for a more definite statement. See Dkt 91. Mr. Henry opposes Plaintiff’s request to seal these documents from the public.  As an initial matter, Plaintiff’s application should be denied for improper use of the Court’s “Emergency Sealing” process and for her offensive and meritless argument that under New York law the “public dissemination of nude images in this manner is actually unlawful,” citing to New York Penal Law 245.15. (See Plaintiff letter at 2.) In actuality, the Emergency Sealing Request is intended for instances when a party mistakenly files its own confidential information, not to hide from public view documents that the party finds embarrassing. See SDNY Electronic Case Filing Rules & Instructions § 21.7 (April 1, 2020). Plaintiff, therefore, had no right to seek emergency sealing through the ECF office. Moreover, Plaintiff has no need to seek relief on an emergency basis. In her letter, Plaintiff falsely contends that Mr. Henry did (212) 880-9530 October 21, 2020 Case 1:20-cv-05593-RA Document 94 Filed 10/21/20 Page 1 of 4 The Honorable Ronnie Abrams October 21, 2020 2 not inform Plaintiff about the photographs prior to filing. To the contrary, as far back as July, Mr. Henry’s counsel informed Plaintiff’s counsel that Mr. Henry was in possession of the photographs which we believed proved the fallacy of Plaintiff’s claims. Plaintiff obviously knew the nature of the photographs she had sent Mr. Henry and could have sought relief from their becoming public prior to the filing. She chose not to do so. Her decision instead to utilize the Emergency Sealing mechanism is a blatant misuse of the court system and requires that the temporary stay be lifted immediately."

  But the sealing was not lifted. Judge Abrams ruled that since she can't consider such "extrinsic" material on a motions to dismiss, the photos are not judicial documents, at least not for now: "Sealing requests are subject to the test set forth in Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir. 2006). That test requires the Court to first determine whether the documents at issue are “judicial documents” by examining whether they are “relevant to the performance of the judicial function and useful in the judicial process.” United States v. Erie Cnty., 763 F.3d 235, 239 (2d Cir. 2014). If the documents are judicial documents, then a common law presumption of access attaches, and the Court must then consider the weight of that presumption against any “competing considerations.” Lugosch, 435 F.3d at 119–120. In light of the fact that these exhibits were submitted in connection with Defendant Henry’s motion to dismiss, they would generally be considered judicial documents entitled to a presumption of public access. See City of Almaty, Kazakhstan v. Ablyazov, No. USDC-SDNY DOCUMENT ELECTRONICALLY FILED DOC#: DATE FILED: 10-21-20 Case 1:20-cv-05593-RA Document 95 Filed 10/21/20 Page 1 of 2 2 15-CV-5345, 2019 WL 4747654, at *5 (S.D.N.Y. Sept. 30, 2019) (“Documents submitted in support or opposition to a motion to dismiss are judicial documents.”). The Court nevertheless grants the motion to seal the fifteen photographs. Not only do these exhibits contain highly sensitive images that Plaintiff has an understandable interest in keeping private, cf. United States v. Amodeo, 71 F.3d 1044, 1051 (2d Cir. 1995) (“In determining the weight to be accorded an assertion of a right of privacy, courts should first consider the degree to which the subject matter is traditionally considered private rather than public.”), but they also constitute extrinsic evidence which this Court is not permitted to consider—and thus should not have been filed—in conjunction with this motion to dismiss. See Nicosia v., Inc., 834 F.3d 220, 231 (2d Cir. 2016), see also Kopec v. Coughlin, 922 F.2d 152, 155–56 (2d Cir. 1991). Hence, they are not at this time “relevant to the performance of the judicial function and useful in the judicial process.” Erie Cnty., 763 F.3d at 239. Taken together, these considerations outweigh any presumption of access, and the Court finds that—at this juncture—sealing is appropriate under Lugosch. Accordingly, it is hereby ORDERED that Plaintiff’s motion to seal Exhibits 7–21 of docket entry 85 is GRANTED, albeit without prejudice to an application to unseal the exhibits at an appropriate time. The Court will file these exhibits under seal, visible to only the parties (Jennifer Eckhart, Fox News Network, LLC, Ed Henry, Sean Hannity, Tucker Carlson, and Howard Kurtz); counsel for the parties; and court staff. The Clerk of Court is respectfully directed to terminate the motion pending at Dkt. 91." Watch this site.

 We'll have more on this, too. For now we note that the Guiffre v. [Ghislaine] Maxwell case cited above was cited elsewhere in the SDNY on October 20, in support of sealing or not docketing mere words, letters by Suspicious Activities Report leaker / whistleblower Natalie Edwards, which Inner City Press applied to unseal, October 20 order here.

  Ms. Areu says Sean Hannity threw a $100 bill on the set desk and "began calling out to men in the room and demanding that someone take Ms. Areu out on a date for drinks at Del Friscos."   

 At issue on October 7 was whether the separate the two women's cases. This will be done.

Update: After Inner City Press published the above about the October 7 proceeding, we received the following which we publish in full:

Statement from FOX News on the Cathy Areu amended complaint  “As we have maintained, the accusations against Tucker Carlson, Sean Hannity and Howard Kurtz are utterly devoid of merit. Ms. Areu’s allegation that women are not treated equally at FOX News is also provably false and yet another malicious attempt to smear the network with baseless claims. In fact, FOX News has provided more leadership opportunities for women than any other cable news network, including featuring more solo women anchors and hosts on-air and retaining a senior staff comprised of more than 50% female executives.”     

Statement from FOX News in response to Wigdor lawsuit filing:     “Based on the findings of a comprehensive independent investigation conducted by an outside law firm, including interviews with numerous eyewitnesses, we have determined that all of Cathy Areu’s claims against FOX News, including its management as well as its hosts Tucker Carlson, Sean Hannity & Howard Kurtz and its contributor Gianno Caldwell, are false, patently frivolous and utterly devoid of any merit. We take all claims of harassment, misconduct and retaliation seriously, promptly investigating them and taking immediate action as needed — in this case, the appropriate action based on our investigation is to defend vigorously against these baseless allegations. Ms. Areu and Jennifer Eckhart can pursue their claims against Ed Henry directly with him, as FOX News already took swift action as soon as it learned of Ms. Eckhart’s claims on June 25 and Mr. Henry is no longer employed by the network.”

The lead case is Eckhart et al v. Fox News Network, LLC et al., 20-cv-5593 (Abrams / Gorenstein) 


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