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What's Everyone Hiding in the Dershowitz Case?

Vivia Chen

April 15, 2016

Animal-chicken-Article-201604131408I feel like a carrier pigeon in a game of chicken. Sorry for those fowl metaphors, but that's how it is.

Last time I reported on the Alan Dershowitz's legal morass, the hot issue was what was hiding in the confidentiality agreement in his settlement with lawyers Bradley Edwards and Paul Cassell. Dershowitz wouldn't say, but Edwards and Cassell added a twist: They'll waive confidentiality. In response, Dershowitz said he'd waive it too, provided that (1) Edwards, Cassell and Boies Schiller & Flexner agree "to unseal Virgina Giuffre's deposition;" and (2) Boies Schiller release Dershowitz's affidavit regarding David Boies.

I conveyed Dershowitz's offer to Edwards and Cassell. And their lawyer Jack Scarola emailed me this:

There is no need to negotiate anything with Bradley Edwards and Professor Paul Cassell. They unconditionally accept Alan Dershowitz's offer and are willing to agree to a mutual waiver of the confidentiality of all defamation claim-related filings and settlement documents. The agreement would become effective immediately upon receipt of an email response from Alan Dershowitz which need say nothing more than "I agree."

Easy, breezy, right? Ha. The stickler is that what Dershowitz wants released is Giuffre's desposition and his affidavit regarding Boies. To those conditions, Scarola's response is, hey, that's not in our control:

The deposition and affidavit referenced by Mr. Dershowitz were sealed by court order based upon a request made by the Boies Schiller law firm to protect their client.  Those rights are not negotiable.  What’s more, those rights have nothing to do with the amount of money involved in the settlement of the defamation lawsuit.  Any matters relating to David Boies and the Motion for Contempt pending against Mr. Dershowitz for his violation of that court order are matters for the Boies Schiller firm and the Court to sort out.

Scarola is correct that the settlement was between his clients and Dershowitz. Why, then, is Dershowitz dragging Boies into this? The professor tells me: "Boies demanded that the Roberts depo[sition] and my affidavit be sealed. He and Scarola have a joint defense agreement and are playing team tag. Any negotiation must involve them all."

True, Boies was in the loop for a while. According to Boies and Dershowitz, Boies acted as a go-between between the Harvard law professor and Edwards and Cassell in settlement talks last year. Boies, however, was not involved in the final settlement. (Since last year, Boies Schiller has been representing Giuffre in her defamation suit against heiress Ghislaine Maxwell, who allegedly recruited her to serve as a sex slave for billionaire Jeffrey Epstein, a former friend and former client of Dershowitz.)

Is there a chance that Boies will release the documents that are the conditions of Dershowitz's waiver? Hell, no. Boies' spokesperson would barely dignify my query with a direct response: "David Boies is going to take Mr. Dershowitz at his word that he wants to avoid further debate, and he will not respond further unless Mr. Dershowitz makes additional assertions to which he has to respond."

Indeed, it would be shocking if Boies Schiller agreed to release those documents. In December, the firm sought an emergency order to seal Dershowitz's affidavit, which the court granted. In January, the firm also sought sanctions against Dershowitz for violating the terms of the order. (The sanction hearing, according to the firm, is scheduled for May.) Boies claims in the sanction motion that Dershowitz repeatedly tried to put false information from the confidential settlement discussions into the record.

Both sides seem to have something they don't want out of the bag. For Dershowitz, it's the terms of the settlement. Assuming he coughed up big bucks to get the settlement, as Boies had suggested to me, some people might jump to the conclusion that the sexual allegations against Dershowitz might not be totally baseless. But there might be other reasons that have nothing to do with the sexual allegations, such as Dershowitz's concern that Edwards and Cassell might win their defamation suit against him. Who really knows?

And what's in the Giuffre deposition and Dershowitz affidavit that Boies doesn't want out? Could it be that Giuffre's deposition contains information about her alleged relations with Dershowitz that might show inconsistencies? As for the content of Dershowitz's affidavit, we can make a good guess: A New York Times article in December reports that Dershowitz said in the deposition that Boies told him that he didn't believe his client Giuffre and thought the professor to be innocent. (In Boies Schiller's motion for sanction, the firm accused Dershowitz of violating the court order by leaking his affidavit to the Times.) In any case, I assume it's prudent litigation strategy to keep out information that might put your client in a less than sympathetic light.

It's all a game. The way I see it, everyone involved has a reason to keep something under wraps. Despite all the posturing by Cassell and Edwards and Dershowitz that they're ready to let the truth out if only the other side would consent, they know—and we know—that it ain't gonna happen.

Related posts: Careerist's Previous Post on Alan Dershowitz.

vchen@alm.com

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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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