Last week, amid the flurry of sexual misconduct claims against high-profile individuals, director-producer Brett Ratner filed a defamation lawsuit against a woman who claims he raped her more than a decade ago. Over the weekend, The New York Times nodded to this new lawsuit. “Mr. Ratner’s suit may not only be the first,” wrote David Streitfeld. “[I]t might also be something of a test case for the whole concept of pushing back in court.”
Tell that to Lukasz “Dr. Luke” Gottwalt, the record producer accused of raping pop star Kesha Rose Sebert. For nearly three years now, Dr. Luke has been in court in his own defamation lawsuit. Is vindication even possible? In the court of public opinion, Kesha is clearly winning. Few artists will work with Dr. Luke these days. Maybe nothing will change that. But in a court of law, Dr. Luke continues to find advantage.
The latest came last week when New York Supreme Court Justice Shirley Kornreich held a hearing to determine whether the PR firm of Sunshine Sachs must produce certain documents related to Kesha’s press strategy in the early days of the litigation. Dr. Luke’s attorneys want the documents to buttress his defamation claim while Kesha’s are insisting these communications are protected from disclosure by attorney-client privilege.
According to a just-released transcript of last week’s hearing, Kornreich is favoring Dr. Luke’s position that the Sunshine Sachs documents are representative of media strategy rather than litigation strategy — and that there’s insufficient legal advice evidenced to keep them shielded.
At the hearing, Kornreich read from a “proposed press plan” that appears to have been authored by Kesha’s side just a few days before she unsuccessfully tried to sue him in October 2014. The document stated, “Our goal is to help extricate client K from her current professional relationship with person L by inciting a deluge of negative media attention and public pressure on the basis of the horrific personal abuses presented in the lawsuit.”
According to the judge, this press plan included proposed appearances on television shows and suggestions on what the response would be when Dr. Luke made his own response.
“I do have to object to reading out loud in open court,” interjected Leah Godesky, attorney for Kesha.
“I have found that that press plan is not privilege,” responded Kornreich. “It’s nothing more than a public relations piece of material. It has nothing, nothing at all to do with any kind of legal advice.”
Godesky argued otherwise.
“In the earliest stages of this litigation there was a thought that conveying to plaintiffs that Kesha would in no circumstances be recanting her allegation and leveraging public sentiment that Kesha should not have to record music with her abuser could facilitate a settlement agreement,” Godesky told the judge. “And settlement is undoubtedly legal advice.”
Kornreich shrugged it off. She remarked that putting public pressure on litigants is “pure public relations” and didn’t seem impressed with Godesky’s other argument that the press strategy was intended to preserve Kesha’s right to a fair trial in the midst of Dr. Luke’s side painting Kesha as an extortionist. “That all occurred after Kesha went public and, in fact, part of the press plan was the hope that Gottwald would respond,” said the judge.
Nevertheless, Kornreich reserved a definitive ruling because she wanted to review each of the documents at issue.
At the hearing, there was also discussion of how Sunshine Sachs was retained not by Kesha, but by her former attorney Mark Geragos, who is now representing Colin Kaepernick in a collusion claim against the National Football League. (Kaepernick’s fight is happening in arbitration behind closed doors, but the secretive nature of these proceedings hasn’t stopped word from leaking out in the past few days about the evidence being collected by Geragos.) That didn’t tip things either for Kornreich.
As this case about a case might show, having a sympathetic client wins minds, and lawyers like Geragos attempt to leverage this dynamic. But absent a settlement, the only mind that’s important at least in terms of the lawsuit is the judge’s. On the other hand, a defamation lawsuit may not achieve anything beyond getting to a jury and potentially collecting damages. The notion of any “test case” for pushing back in court seems silly.
Towards the end of the hearing and referring to Dr. Luke’s lawyer, Godesky said, “I hear her using words like unlawful, illegitimate purpose. And that only works, your Honor, if you start from the assumption that Kesha’s sexual assault allegations are lies, which we have shown in our papers is absolutely not true.”
“Frankly, I have no idea whether they’re true or a lie,” responded Kornreich. “They are totally irrelevant.”