Of all the branches of government, the judiciary is the most opaque. There’s no central depository for court filings throughout the country, and the sources that do exist for ostensibly public material sometimes require subscriptions, aren’t particularly easy to navigate and can be quite expensive. Sometimes, reporters are assisted by lawyers, and it will come as no surprise to anyone that some lawyers and publicists can be self-interested individuals who look to shine their clients (and themselves) in the best possible light. Now, Lukas “Dr. Luke” Gottwald is making a move against pop star Kesha Rose Sebert in his ongoing defamation lawsuit against her that could impact how word spreads of matters being litigated in courtrooms.
For nearly four years, Dr. Luke has been pursuing Kesha for allegedly smearing him with false rape allegations. He alleges that her attorneys cooked up a “sham” lawsuit complaint in order to extradite herself from contracts. Kesha’s allegations hardly need any introduction at this point, and the legal dispute has already made its mark on jurisprudence. The judge’s conclusion that “every rape is not a gender-motivated hate crime” upon dismissing Kesha’s counterclaim over something that happened in 2008 has been cited in other cases where plaintiffs look to plead around statute of limitations for sexual abuse with exotic claims.
Although Kesha is now playing defense in the legal dispute, the significance of this case continues to grow. On Monday, Dr. Luke submitted a motion to amend his complaint for a third time and presented New York Supreme Court Justice Shirley Kornreich with a big decision to make.
In prior iterations of Dr. Luke’s complaint, he was somewhat less than fully clear on which of Kesha’s statements qualified as defamatory. Sure, he’s attacking the overall notion of committing sexual abuse and targeting Kesha for sending a draft copy of her complaint to Sony Music’s general counsel as well as how she allegedly pushed allegations to the individual who promelgated #freekesha on social media. But in casting such a wide net without identifying all defamatory statements with particularity, he arguably left an opening for Kesha to poke holes in Dr. Luke’s case for being awarded significant damages even if he shows the statements were untruthful.
In any event, Kesha instructed Dr. Luke to identify the specific statements that he’s alleging as false and the manner in which such statements were published. Responding to the demand for a bill of particulars, Dr. Luke began outlining the entire “smear campaign” including something that recently became a hot news item: In a text message to Lady Gaga, Kesha asserted that Dr. Luke had raped Katy Perry.
While salacious, the Perry statement might be less consequential than what else was in Dr Luke’s response.
Dr. Luke is now alleging that statements that essentially echo what was in Kesha’s filed complaint are defamatory — and not just the draft version sent to the general counsel of Sony Music. Indeed, Dr. Luke wants to hold Kesha accountable for media reporting about her lawsuit. According to Dr. Luke, Kesha’s public relations agents at Sunshine Sachs game-planned how to achieve negative publicity for Dr. Luke and provided an advance copy of the complaint to TMZ before it was actually filed. Then, her then-attorney Mark Geragos made the media rounds and reiterated many of the statements found in the complaint.
Kesha’s side is objecting to how Dr. Luke now seeks to hold her liable for 44 “new” defamatory statements in his bid for $50 million in damages. She has submitted a motion to strike his response to the bill of particulars, which has now caused Dr. Luke to both oppose the motion and try to amend his complaint to make it perfectly clear that such statements are within the ambit of his lawsuit.
Here’s where it’s getting provocative.
Kesha argues that many of the statements are published on television, in news articles, and on social media. Her attorneys at O’Melveny & Myers write, “Many were even in court filings, which, if allowed, would chill rape and domestic-violence victims from reporting to authorities or filing a complaint out of fear that they will be sued for exercising their litigation right.”
Statements made by lawyers in the course of litigation are often deemed privileged and non-actionable. And when reporters themselves publish what happens in government proceedings (like lawsuits), that, too, is protected under what’s known as the “fair report privilege.”
But there are always exceptions, and Dr. Luke now beseeches Kornreich to limit the assertion of privilege over what in his mind amounted to a “sham” complaint.
Dr. Luke’s attorney Christine Lepera points to what turned up in discovery in this case, and in particular, the “press plan” to destroy her client’s reputation and get him to settle without any real intention of pursuing her sex abuse claims in court. (She did bring a case in California and counterclaims in New York, but eventually dropped her efforts and decided to only appeal contract counterclaims rather than her assault or tort allegations.) Lepera argues that Dr. Luke isn’t improperly attempting to hold Kesha liable for “new” statements, but rather, Dr. Luke is merely providing additional details about the “scheme” to broadcast the rape assertion.
“The judicial privilege afforded to statements made in the course of a judicial proceeding is not unlimited and may be lost if the privilege is abused,” adds Lepera in her brief. “Importantly, no such privilege applies where the lawsuit was a sham. Similarly, Civil Rights Law §74 ‘does not insulate the report of a sham complaint maliciously distributed for the purpose of defaming.'”
In a footnote, Lepera adds, “Defendant has also presented (unavailing) legal arguments to try to shield her agents’ disclosure of a draft of the California Complaint to the press prior to filing — showing Defendant fully comprehended such disclosure was within Plaintiffs claims.”
Depending on how all of this plays out, dissemination of scandal under the protective cover of what has happened or will be happening in court may become less commonplace.