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David Boies Is in Trouble with Women. Again.

Vivia Chen

December 6, 2017

Emma-Cline-art

 

First, it seemed he could walk on water. Now, it seems he's getting pulled into the gutters.

Litigator extraordinaire David Boies is in the news again—and not in a good way. (It seems I just reported on Boies' role in hiring private investigators for Harvey Weinstein to dig up dirt about the movie mogul's accusers.)

Boies latest imbroglio is his involvement in the representation of the ex-boyfriend of writer Emma Cline (above), the author of Girls, an acclaimed fictional account of a young woman's relationship with Charles Manson.

On its face, it's an intellectual property dispute in which Cline's ex-lover Chaz Reetz-Laiolo claims that she stole his writing for her book and invaded his privacy via a spyware program installed on her laptop. (Reetz-Laiolo had use of her computer during their relationship, and later bought it from Cline after their romance ended.) 

In the New Yorker, Sheelah Kolhatkar reports that Boies Schiller sent Cline and her lawyers (they include Davis Wright & Tremaine, Steptoe & Johnson and revenge porn expert Carrie Goldberg) a draft complaint that sought to stop the sale of The Girls and a movie deal based on the book. (Reetz-Laiolo is also suing the book's publisher and the movie company.) At the time, Boies Schiller was pushing to settle the matter. 

Nothing unusual about all this except that the complaint came in the form of a not-so-veiled threat—of the most tawdry sort. Reports The New Yorker:

On May 26th, Boies Schiller responded by sending a hundred-and-ten-page draft of a complaint that it said it was prepared to file in court if the two sides did not reach a settlement. David Boies’s name appeared at the top of it. Reading through the allegations, Cline was stunned to find a section titled “Cline’s History of Manipulating Older Men,” which purported to illustrate how Boies Schiller would easily discredit her arguments about her former boyfriend’s treatment of her before a jury. “[E]vidence shows that Cline was not the innocent and inexperienced naïf she portrayed herself to be, and had instead for many years maintained numerous ‘relations’ with older men and others, from whom she extracted gifts and money,” the section began. What followed were thirteen pages containing screenshots of explicit chat conversations with lovers, including one in which Cline had sent a naked photo of herself (the photo was blacked out in the letter) to a boyfriend, explicit banter with people she’d met online, and snippets of her most intimate diary entries. All of this material had been recorded by the spyware and remained on Cline’s old laptop, which Reetz-Laiolo now had in his possession.

Along with the draft complaint, Boies Schiller also sent Cline's lawyers a letter that explained why it included her sexual history: Because Cline had alleged Reetz-Laiolo abused her and justified her use of spyware by claiming that she suspected that he was unfaithful to her, she placed her "sexual conduct directly at issue." 

Let's just stop here and say that no one is coming off smelling like a rose here—not Cline, Reetz-Laiolo or their lawyers. Using spyware to monitor a boyfriend is not cool. But neither is threatening to air an ex-girlfriend's sex life.

And the lawyers? Let's just call Boies Schiller's action for what it is: Slut-shaming. While Cline might have tried (fairly or not) to portray herself as a young naif and her ex-lover as a manipulative older man, it's a stretch to say that details of her sexual exploits are relevant to this suit. I mean, did we need to know that she trolled Craig's List for hookups to assess whether she had plagiarized?

But all's fair in love and litigation, right?

Yes, except that the winds have changed. Slut-shaming might be an ugly tactic that's been more or less tolerated in the past (remember how Gibson Dunn & Crutcher portrayed Bridget Anne Kelly as an unhinged, scorned lover in the Bridgegate scandal?), but we are less apt to put up with it in the post-Harvey Weinstein era. 

And that's exactly what Cline's lawyers are counting on. Although her lawyers have had that controversial draft complaint since May, they decided to go public with it now. They are capitalizing on our collective outrage about the way powerful men abuse women and—more strategically—the negative publicity surrounding Boies and his firm's former representation of Weinstein. 

It's probably smart strategy for Cline's lawyers to suggest that Boies and company have a propensity to deploy dirty tricks to smear women. It's also transparently exploitative. Arguably, her lawyers are not acting in good faith by disclosing what went on during confidential settlement discussions. (Her lawyers did not respond to my request for comment.)

Ultimately, Boies Schiller decided to omit those sexual details in the complaint it filed on November 29. But even absent the salacious stuff, the filed documents (Cline's lawyers file a counter-complaint the same day) read like a soap opera replete with sex, betrayal and rampant insecurity.

Boies Schiller denies that it omitted Cline's sexual history because Weinstein has changed the game. Boies Schiller partner Nicholas Gravante says, "the current climate, while a factor to be carefully considered in all future tactical decisions," had little bearing on how the firm handles the suit. He adds: "When the other side makes false allegations as a defense to his or her violations of law, we are under a legal, ethical, and moral obligation to vigorously defend our clients by pointing out the truth, even when the false allegations consist of fabricated sexual abuse."

That's a convoluted way of saying that the firm will do what it's got to do to defend its clients.

Which brings us back to Boies. While it's clear that the firm has deployed some unseemly tactics in this case, is it fair to put the spotlight and blame on Boies? 

Not according to his firm. A number of partners have said that Boies had little involvement in the case, beyond lending his name to the draft complaint, and that Edward Normand is the real partner in charge. (Boies' name was not on the filed complaint.) Gravante says: "Boies had nothing to do with the draft or filed complaint, but he did participate in one settlement discussion."

Is it credible that Boies had nothing to do with the draft complaint and its sordid details? Yes, because it's hard to imagine that he would personally get into the weeds representing some little-known writer in an infringement matter where the odds of success are far from certain.

But putting Boies' name on draft complaints and trotting him out as a showstopper at settlements seem to be part of the firm's practice. It might work to impress or intimidate rivals some of the time, but in this matter, Boies name is backfiring. 

Boies and his firm are taking a hit—deservedly so, I'm afraid. You'd think the firm would be more careful of the way it uses its most precious commodity.

 vchen@alm.com

 

Comments

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This was close to what, in Florida at least, is extortion or blackmail.

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The Careerist takes an inside look at how lawyers shape their careers and manage their lives. The blog aims to dissect developments in the profession, provide useful information and advice, and give lawyers a platform to voice their views. The goal is to provide a fresh, provocative take on the state of lawyering.

About Vivia Chen

Vivia Chen

Vivia Chen, The Careerist's chief blogger, has been covering the business and culture of law firms for a decade. A former corporate lawyer, Chen is fascinated by those who thrive (as well as those who don't) in the legal profession. Her take: Success in the law (and life) doesn't always travel a linear path. If you have topics you'd like to discuss or information to share, contact her: VChen@alm.com

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