With 12 days to go and the motion for Reconsideration still pending, I will try to analyse the motion and break it down to determine whether it will be enough to reverse Judge Nelson ruling. Quoting from Judge Nelson order denying the deposition:
the party seeking to take the deposition [must show] that (1) no other means exist to obtain the information than to depose the opposing counsel; (2) the information sought is relevant and non-privileged; and (3) the information is critical to the preparation of the case
Let’s break down each element, to see if the new motion meets the burden of prove to reverse her ruling,
- No other means exist to obtain to the information than to depose opposing counsel
- To prove this MOM has is attacking the “cloak of secrecy” surrounding the first recording of witness 8.
- He provides copies of e-mails dating back to August of last year of his persistent request on this matter.
- He notes that the information about witness 8 non-visit to the hospital was just revealed 11 days before, even though they had tried to obtain the information before.
- MOM notes that because of the new recording the information in Crump’s Affidavit is provably incomplete and inaccurate, casting doubts about his interactions with the witness.
Mom points out that deposing witness 8 does not of itself provide ” another means” of obtaining information as Witness 8 was not likely to know how the interview or the circumstances behind it, were arranged by Mr. Crump.
2. The information sought is relevant and non-privileged
- This issue had been raised but left unaddressed during the first hearing. MOM points out that he was not representing Witness 8 so no attorney-client privilege was attached, this is something Mr.Crump makes clear in his Affidavit.
- Since no Attorney-Client privilege was attached, then it would fall under Attorney work privilege, which MOM contends can be waived
- MOM contends that the work privilege was waived voluntarily by Mr. Crumb by having the presence of other people, ABC news and then discussing the interview nationally.
- MOM points out that Mr. Crumb himself waived that privilege consciously and purposely in his Affidavit, making him a de facto witness.
In part II, we will discuss the relevancy of Mr. Crump’s testimony, whether it is essential to the case and will try to determine how Judge Nelson will rule.