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In Rich Case Against Fox News Now Dismissal With Prejudice On Consent With No Appeal

By Matthew Russell Lee, Patreon
BBC - Guardian UK - Honduras - The Source

SDNY COURTHOUSE, Nov 24 – In the politically charged lawsuit of Mark Rich's parents against Fox News, on July 13 the news gathering privilege was invoked but only partially vindicated.

  U.S. District Court for the Southern District of New York Magistrate Judge Sarah Netburn held the July 13 proceeding (and another on August 4, see below). Fox's lawyers cited the privilege; Rich's parents' lawyers said it was too late for that.

But now on November 24, they have dropped the case with prejudice: "IT IS STIPULATED AND AGREED by and between Plaintiffs Joel and Mary Rich and Defendants Fox News Network, LLC, Malia Zimmerman, and Edward Butowsky, that pursuant to Rule 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure, the claims by Joel and Mary Rich against all Defendants are dismissed with prejudice, and each party waives all right to appeal and to seek attorneys’ fees and costs. Dated: November 24, 2020." Inner City Press aims to have more on this.

 On September 11 Judge Netburn, who also handles an SDNY September 11 case, held another proceeding. Inner City Press live tweeted it: "Magistrate Judge Netburn just said she will be recommending to Judge Daniels to *not* dismiss the case.

 And on September 27 into the docket this, from Judge Daniels: "MEMORANDUM DECISION AND ORDER: re: [102] MOTION to Dismiss Amended Complaint filed by Fox News Network LLC. Fox Defendants' motion to dismiss Plaintiffs' claims for conspiracy and aiding and abetting IIED, (ECF No. 102), is GRANTED. The Clerk of Court is directed to close the motion accordingly. SO ORDERED. (Signed by Judge George B. Daniels."

Butowsky's lawyer says he will have an expert saying the DNC emails could not have been hacked externally... and may want to use Julian Assange's testimony.

 Fox's lawyer: We are working with the UK to schedule Mr. Assange's deposition. But he can present objections to it occurring. We are actively working to schedule it this fall.

The proceeding is over."

On August 4, Judge Netburn held another proceeding, and Inner City Press live tweeted it

Judge Netburn begins by noting a "request for letters rogatory to seek the deposition of Julian Assange."

Judge Netburn: You say you have a liability expert, to testify about the practices of Fox News?  Richs' lawyers: They call what they do "garden variety news gathering." We want to focus on outrageousness. We have an expert on journalistic standards.

 Joseph Terry for Fox: We'd have an expert on that as well.  Eden Quainton for Butowsky: We'd have an expert to say the leak was from a DNC insider - and that a story to that effect is not outrageous, but founded in fact. Judge Netburn: So, a hack expert.

Judge Netburn: What about we extend fact discovery to the end of the year, but keep expert discovery to that limit as well? Arun Subramanian for Joel and Mary Rich: We've be fine with that, subject to speaking with our brain trust (laughs).

 Judge Netburn: A personal favor, if I can have a three minute recess. Our wind storm is acting up and I just have to deal with one thing. "No problem."

[With Judge Netburn off the line, both / all sides' lawyers confer and agree they are missing much of what she says. One says, I tried wi-fi but I still couldn't hear her.]

Judge Netburn comes back on: "I muted but I could hear you.... I'll do my best."

Eden Quainton for Ed Butowsky: Our defense will be accuracy... So we'll need for confer with many. And there are medical issues.

Judge Netburn: I hope those improve. But I think five months should be enough. Discovery closes January 31. 

Judge Netburn: On Julian Assange, I understand that the Plaintiffs questioning the relevant, but don't object. So I'll sign that order. Anything more?

 Butowsky's lawyer: We'd ask you to rule on the motion to dismiss, one way or the other. Adjourned.  

Back on July 13 Judge Netburn asked, Why not just turn over the 600 documents at issue? Ultimately she gave Fox two days to make two filings.  Inner City Press live tweeted it:

Fox' lawyer Meeks says she's prepared to give a hit log about a set of documents, not the documents themselves. 

Judge Netburn: We're talking about fewer than 700 documents that contain key players in this case. I have a hard time believe these are not relevant... These 700 documents contain hits on Butowsky and Wheeler - how are they not relevant? 

Meeks: Wheeler was a consultant, Bukowsky was a guest. Many of the hits are about news that has nothing to do with this case, or the DNC leaks. 

Judge Netburn: But isn't there one document - it's confidential so I won't speak about it here - that is in fact related to this case?  Meeks: Yes, the one about Seth Rich and Wikileaks, we produced in redacted form. The rest was about other news reports. 

Judge Netburn: But haven't the plaintiffs said they need to rebut Fox's argument that it was not working with Butowsky on a day to day basis? 

Meeks: We're producing the documents about Ms. Zimmerman, so plaintiffs have enough information...  These documents are protecting by the news gathering privilege. This is a significant question under New York law. The standard is, according to the 2d Circuit, the documents have to be critical and necessary to their claim. They'd have to show this information is not available from any other source. They will be able to take Mr Butowsky's deposition.   Meeks' colleague Joseph Terry: We could put in a letter about the non Seth Rich documents we withheld. 

Judge Netburn: Let me ask Ms. Barron [plaintiffs' lawyer]... 

Barron: If Fox stipulates that it regularly worked with Mr. Bukowsky on politically motivated stories maybe we don't need the documents. Meeks: But they are not alleging negligent supervision. The complaint here alleges that Joel and Mary Rich "becam[e] collateral damage in a political war to which they were innocent bystanders."

 Judge Netburn: Could you respond to Fox's claim of privilege? Barron: No

Judge Netburn: I am going to direct that the defendants produce a full privilege log, and a letter on privilege, by Wednesday. If I think I need to see documents in camera I'll request that.  Barron: Nothing further from plaintiffs. Judge: We're adjourned.  

The case is Rich et al v. Fox News Network LLC et al, 18-cv-2223 (Daniels / Netburn)


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