12:11pm PT by Eriq Gardner
Kesha Argues Dr. Luke's $40M Defamation Lawsuit Undercut by Way He Continues to Earn Millions
After four years of battling over a rape allegation, the defamation case brought by music producer Lukas "Dr. Luke" Gottwald against pop star Kesha Rose Sebert has hit a critical stage. In New York court, summary judgment motions have already been submitted, but those court papers haven't been made public yet as both sides fight over what will remain confidential. On Friday, however, Kesha's attorneys revealed some of what's in those summary judgment papers when they inadvertently filed a public court brief that was meant for sealing. Before that memorandum was then switched to restricted status, The Hollywood Reporter obtained a copy.
For allegedly smearing Dr. Luke in dozens of statements, Kesha is facing the prospect of paying an estimated $40 million in damages. That is, if the judge puts the dispute in a jury's hands and doesn't wrap up the case on summary judgment.
Under intense legal pressure, Kesha isn't backing down from her allegation of being raped. That's not surprising, as truth always provides a defense to defamation. Both sides have presented evidence about whether a rape occurred a decade ago when she was an up-and-coming artist taken under his wings.
Now, Kesha's attorneys say Dr. Luke wants to seal evidence that "corroborates Kesha's rape and abuse allegation" and also that Dr. Luke's own summary judgment papers include "highly biased testimony from his friends and business partners that sexual misconduct is inconsistent with his character."
The truth isn't the only way to defeat a defamation claim. If Dr. Luke can't establish he was damaged, that also provides a defense for Kesha.
Related to this, Kesha doesn't think Dr. Luke should be able to keep private the names of the artists with whom he has worked since 2014. (Though the names are redacted in the main brief, the exhibits point to artists including Iggy Azalea and Ne-Yo.)
"Dr. Luke may not want the public to know that he continues to earn millions of dollars and work with the music industry's most coveted artists — while Kesha remains trapped in a 13-year-old contract under which she earns little-to-no record royalties — but that preference alone does not warrant sealing," states the court brief.
Kesha's attorneys at O'Melveny & Myers also write that she seeks summary judgment on the basis that "New York statutory and common-law privileges protect her from defamation liability about Dr. Luke's sexual misconduct and emotional abuse," and in particular, Kesha is looking to shield herself after her reps leaked to TMZ a draft copy of the lawsuit she filed in California.
Dr. Luke's team continues to present that since-dismissed California complaint as a "sham" maliciously filed solely to defame him as part of a campaign to renegotiate her contracts. His attorneys argue that no litigation privilege attaches to that document.
Kesha's side disagrees, and in the midst of an argument over what evidence should be sealed, her lawyers make the point that it is "very common in celebrity litigations for litigants to send a single press outlet an advance, embargoed copy of a pleading, to enable a particular reporter to publish the first story about the case, and ensure immediate distribution of the party's press statement."
The case continues to be a back-and-forth where each side accuses the other of leveraging connections in the media to paint the preferred picture of what's happening — and this potentially becomes relevant on the issue of actual malice, a requirement that public figures must demonstrate in order to prevail on defamation claims. Dr. Luke, in particular, has seized upon Sunshine Sachs strategy documents and emails. Kesha's team responds this amounts to "no actual evidence of Kesha's purported malice" and adds that Dr. Luke's own PR consultant, Michael Sitrick, "was working toward the same goal" on his behalf.