Plaintiff rests and motions
248 linesTHE COURT: All right. Plaintiff rests. All right.
THE COURT: Ladies and gentlemen, we're going to go ahead and take our morning recess. It may be a little longer because I have a few issues to take up with the attorneys, but then we'll proceed after that, okay? So please do not talk about the case, and do not do any outside research, okay?
THE COURT: All right. Why don't we go ahead and take our recess until 11 :45, and then I'll come back and entertain the motions at that time.
THE COURT: Okay.
COURT BAILIFF: All rise.
COURT BAILIFF: An rise. Please be seated and come to order.
THE COURT: An right. Are we having any motions?
MR. ROTTENBORN: Yes, Your Honor.
THE COURT: Okay. An right. I was just waiting. Thank you, sir.
MR. ROTTENBORN: Your Honor, we have prepared something in writing as well, if I may approach.
THE COURT: Okay. Sure. I assume you already have a copy of that, Mr. Chew.
MR. ROTTENBORN: No. We just prepared this one.
THE COURT: An right. Thank you.
MR. ROTTENBORN: I have more.
MR. ROTTENBORN: Thank you, Your Honor.
MR. ROTTENBORN: As required for summary judgment at the end of a plaintiff's case, defendant and counterclaim plaintiff Amber Heard hereby moves, pursuant to Virginia code 8.01282 and Rule 111 of
MR. ROTTENBORN: The rules of the Supreme Court of Virginia, to strike plaintiff John C. Depp's evidence. This written submission contains a shell of some of the reasons that we believe that the Court should strike the evidence at this point and grant summary judgment in whole or in part on behalf of Ms. Heard.
MR. ROTTENBORN: And so we're just focusing on the discrete issues that we believe entitle us to summary judgment at this point. Now, obviously the Court is well familiar with the legal standard here, and we acknowledge that the court is required to accept as true the evidence favorable to Mr. Depp as well as any reasonable inference that a jury might draw from that evidence. But at the same time, granting a motion to strike is appropriate when the plaintiff, as is the case here, has failed to present evidence sufficient to create an issue of fact on his claims. And in addition, the court may not draw inferences from the evidence that defy logic and common sense. That's the Austin v. Shoney's case, 254 Va. 134.
MR. ROTTENBORN: So the issue here, Your Honor, is a couplefold, and I'll take the statements, well, Is two of them in one category and one of them in the other category. But I think we're all clear that the sole issue here is whether Amber Heard can be held liable to Mr. Depp for defamation arising from the 2018 op-ed and 2018 op-ed alone. And to establish that, Mr. Depp has to prove the following elements: He has to prove that the -- the publication of the op-ed and that it was written by Ms. Heard.
MR. ROTTENBORN: He has to prove that the statements in the op-ed were both false and defamatory. So falsity and that they contained a sufficient defamatory sting and he has to show that the statements were made with the requisite intent, in this case, actual malice on the part of Amber Heard. I'll save that argument until the end, Your Honor, and I'll focus on the first two at this point.
MR. ROTTENBORN: And because it seems like Plaintiff is proceeding under a theory of defamation by implication, under the Pendleton case, 290 Va. 162, Plaintiff bears the burden of proving the statements at issue were designed and intended by Ms. Heard to imply a defamatory meaning. Designed and intended to imply a defamatory meaning.
MR. ROTTENBORN: So and to satisfy those first two elements, publication and falsity and defamation, or defamatory nature of the statements, Mr. Depp bears the burden of proving that by preponderance of the evidence, and to satisfy the requisite intent and show that Ms. Heard acted with actual malice, he has a heightened standard of proof that he must prove by clear and convincing evidence that Ms. Heard acted with that malice.
MR. ROTTENBORN: So just want to talk about the two -- the two statements on domestic abuse in the op-ed. And Your Honor's well aware of the ample Virginia case law talking about how you have to view the op-ed as a whole, you have to view words in context. So these are the statements that read, "Then two years ago, I became a public figure representing domestic abuse," and the then other statement that says, "I have the rare vantage point of seeing in real time how institutions protect men accused of abuse.
MR. ROTTENBORN: Now, those statements are entirely opinion except for, according to Mr. Depp, the discussion of domestic abuse. So the statement "I became a public figure representing domestic abuse," and the statement in the second sentence that Mr. Depp was a man accused of abuse.
MR. ROTTENBORN: The rest of those are inactionable opinion statements.
MR. ROTTENBORN: Now, the evidence adduced thus far, Your Honor, shows that Mr. Depp can't sustain a claim on these for two reasons. First of all, the statements are true on their face. It'd been the subject of some testimony in this case. Two years before she wrote the op-ed, Ms. Heard did, in fact, become a public figure representing domestic abuse when she obtained a domestic violence restraining order against Mr. Depp, and Mr. Depp was indeed accused of abuse. Those are facts that are true. Now, to the extent that Mr. Depp will argue that he's proceeding on a defamation by implication claim, again, the Court should grant the motion to strike because the undisputed evidence is that he did, in fact, abuse Amber.
MR. ROTTENBORN: Now, there is -- there's a dispute in this case, there's ample evidence that he physically abused Amber, but we acknowledge that there's a dispute in this case on that. But what there isn't in dispute in this case is nonphysical abuse. Both Mr. Depp and his expert, Shannon Curry, have testified that abuse may come in many forms. It may be physically, certainly, but it may also be verbal, may be emotional, may be psychological. You'll recall Mr. Depp even kind of setting the baseline for what abuse was when he talked about the nonphysical abuse that he allegedly suffered at the hands of his mother. He said it was worse than the beatings, and the example he gave was that his mom used to call him "One Eye," as an example because he had a lazy eye, I guess, as a child. That was something that Mr. Depp himself said was abuse, his mom calling him "One Eye." So setting aside the evidence of physical abuse in this case, which is already overwhelming, Mr. Depp's claims relating to these two statements should be stricken because of the ample and undisputed evidence in the record of nonphysical abuse by Mr. Depp toward Ms. Heard.
MR. ROTTENBORN: There's evidence in the record of recordings; messages, including messages written in blood, with his finger, blood and paint; vile names, shouting; menaces and threatening statements; there's the video, the kitchen video in Sweetzer; there's the audio of him calling Ms. Heard, like I say, numerous vile names; there's the audio of him asking to -- her to cut him and whether she wanted to be cut.
MR. ROTTENBORN: So there's plenty of evidence out of the words -- or out of the mouth of the plaintiff in this case that constitutes nonphysical abuse of Ms. Heard, again, under the standards set forth by his expert and the plaintiff himself. Those are far worse than his mother calling him "One Eye" when he was a child.
MR. ROTTENBORN: In addition to that, Your Honor, there's Travis McGivern's testimony from yesterday in which he testified that at a minimum, on the night of March 23rd, 2015, both parties were being verbally abusive to each other. Mr. McGivern also testified about Mr. Depp "rearranging her closet, throwing racks of clothing down onto the floor, and throwing at least one rack down the stairs." Now, in California, property damage alone can be a basis for getting a temporary restraining order under California law, so further evidence of nonphysical abuse or nonphysical toward Ms. Heard.
MR. ROTTENBORN: You saw the cupboards in the Sweetzer kitchen video. And then Dr. Laurel Anderson, Your Honor, testified that she believed the parties engaged in mutual abuse at that, at least some of the time, that that was initiated by Mr. Depp. This is all evidence. We haven't gotten to put in our case yet, and to the extent this case proceeds and that will start now, but this is all evidence that has come in while plaintiff controls the playing field of what evidence has come in, and he O can't overcome that.
MR. ROTTENBORN: In this case, Your Honor, if Mr. Depp abused Ms. Heard, physically, verbally, emotionally, or psychologically even one time, then she wins on those claims. Then she wins. It's that simple. And the evidence is overwhelming and undisputed in the ways that I've just described that he did.
MR. ROTTENBORN: So for that reason, Your Honor, those claims should be stricken. And I'll just cite the Union of Needletrades v. Jones case, this is 268 Va. 512, that states, "If the plaintiff does not establish the falsity of the statement by a preponderance of the evidence in his case-in-chief, he has not met his threshold burden and the trial Court should strike the evidence and grant summary judgment to the defendant." That's exactly what should happen here.
MR. ROTTENBORN: Now, moving on to the second issue, which is the headline containing the phrase "sexual violence." That should be stricken for a couple reasons. First, Your Honor, the evidence has established that Ms. Heard didn't write the headline. Mr. Dougherty from the ACLU, that's the only evidence that's come in in this case thus far, and plaintiff's controlled the evidence.
THE COURT: Well, I understand, but there's also a stipulation that Ms. Heard would not be called in the plaintiff's case because they would then use her testimony for part of their case in your case, right?
MR. ROTTENBORN: Yeah, agreed. And that goes to a different issue that I'm not arguing. I'm not arguing that the Court should strike because they haven't put Ms. Heard on to testify about the headline.
THE COURT: Well, I assume part of that ,4 would be that they would -- I hope -- I guess they intend to get from Ms. Heard is that she either wrote it or republished it.
MR. CHEW: Yeah. What happened the next day is Ms. Heard posted it on her Instagram account and said, "Look what I published yesterday in The Washington Post," so she adopted the title, and her name was on the article which contained the title.
THE COURT: And, Mr. Rottenborn, the only reason -- I'm sorry to interrupt you.
MR. ROTTENBORN: No, that's fine.
THE COURT: Because I know that was a stipulation. So it's hard for me to say that that's all the evidence for motion to strike if there's a stipulation that they're still going to get more evidence in on that particular issue.
MR. ROTTENBORN: I think -- and I'm happy to hand the Court the transcript of the April 8th hearing -- because one of the things we're not arguing today is that because they haven't put in evidence of the, I think it was a tweet, but Mr. Chew said it was Instagram I don't know, whatever it was, that because their --
THE COURT: Okay.
MR. ROTTENBORN: All right. So what I'm not arguing today is that because they haven't gotten the tweet into evidence or had Ms. Heard say she tweeted that that we're entitled to summary judgment at this point. I'm not arguing that, but that's all that we discuss on April 8th, and I'm happy to hand the transcript up, Your Honor. And we actually never -- it wasn't a stipulation. It was simply an agreement that they didn't need to call her in their case-in-chief --
THE COURT: Right.
MR. ROTTENBORN: To make that point. And then Ms. Bredehoft said, "We'd have to agree I on the language of any stipulation." They haven't proposed anything to us and haven't gotten back to us.
MR. ROTTENBORN: So I think that that's only relevant -- we're not basing our request for motion to strike here on Ms. Heard not having testified to sending that tweet.
THE COURT: But you're saying for the motion to strike, the only evidence before the O Court is that The Washington Post wrote that title?
MR. ROTTENBORN: Correct. And that's very different from what happened the next day. There's -- the stipulation didn't go towards who wrote the title. That was never part of anything. And it's undisputed, and Ms. Heard will testify that she didn't write the title.
THE COURT: Well, I understand that, but I think the --
THE COURT: Y issue is whether it was republication.
MR. ROTTENBORN: So I'll get to that 1! next.
THE COURT: I know, but see, the problem is how do I do a motion to strike when that evidence isn't before me yet?
MR. ROTTENBORN: Well, the republication isn't -- so the evidence that's before you is that The Washington Post wrote the headline or that Ms. Heard didn't. And that's the only evidence.
THE COURT: Right.
MR. ROTTENBORN: And that's not going to change. The repub -- the tweet, which is the only subject of the discussion of the pretrial conference where -- there was no stipulation. It was just an agreement that we're not going to base a motion to strike on them not introducing evidence of the tweet. That's what it was. I'm happy to hand the transcript up if Your Honor would like to see that. But that isn't actionable because under the Lokhova v. Halper case, 995 F.3d p 134, retweeting a link doesn't constitute republication. Now, that case --
THE COURT: It does if you add something to it, but I just don't know the evidence yet.
MR. CHEW: Your Honor, very quickly, it's a judicial admission. They admitted -- in Ms. Heard's answer, she admitted to the tweet. So that establishes that she adopted the op-ed in its entirety, and it was discussed. We talked about judicial admissions. One was the op-ed itself.
MR. ROTTENBORN: Your Honor, if I could finish my argument. I mean --
THE COURT: I understand.
MR. ROTTENBORN: I'd appreciate it.
THE COURT: Go ahead.
MR. ROTTENBORN: And again, we can look at the transcript.
THE COURT: You do understand my "concern though?
MR. ROTTENBORN: I do understand your concern, and I guess what I'm saying is that there's two levels. One is there's no dispute, and there's not going to be a dispute, that she did not write the headline.
THE COURT: So then you look at is the tweet actionable? And the argument here is that as a matter of law, retweeting something isn't actionable.
THE COURT: Okay.
THE COURT: And under the Lokhova case, 995 F.3d 134, in that case, it was hyperlinks and how those aren't actionable. But to be very clear, nothing that was discussed on April 8th, nothing that was discussed at that pretrial conference, was in any way relating to any stipulation about who wrote the headline. It was simply that they need not call Ms. Heard in their case-in-chief to get her to say that she sent a certain tweet. And that tweet's not in evidence yet, but I assume that they'll try to put it in evidence at some point. But the tweet doesn't need to be in evidence for you to strike this claim on that basis.
THE COURT: So even assuming, even assuming that the headline implied certain conduct by Mr. Depp, again, Mr. Depp can'.t meet his burden of proof on this.
MR. ROTTENBORN: Third, Your Honor, he can't prove that Ms. Heard acted with actual malice. Mr. Depp hasn't introduced evidence sufficient to permit him to meet this. Now, again, this is a heightened burden of proof. He has to show actual malice by clear and convincing evidence, and as in the Bose Corporation case from the U.S. Supreme Court, it talks about the role of judges as gatekeepers of the Constitution, of the First Amendment, and the role of barring entry of a judgment that's not supported by clear and convincing proof.
THE COURT: Now, that case was about appellate review of First Amendment issues. But the same hold true for Your Honor here. Here, he hasn't a introduced, Mr. Depp hasn't introduced, any evidence, and there can't be a reasonable inference drawn that would permit a jury to find that he has proven by clear and convincing evidence that Ms. Heard wrote the words with actual malice.
MR. ROTTENBORN: And again, we go back to the testimony of Mr. Dougherty, which is their witness. They put him in. And Mr. Dougherty, the only evidence relating to intent or anything relating to this op-ed, which was, again, maybe Mr. Chew will try to say that we stipulated to Ms. Heard's intent on April 8th, which of course we didn't. But the only evidence that has been presented in this case, Your Honor, by Mr. Dougherty was that the op-ed wasn't Ms. Heard's idea, that the ACLU asked her to write the op-ed, and indeed that they even wrote the first draft, and then that Ms.
MR. ROTTENBORN: Heard vetted the finished article with her lawyers and with lawyers in ACLU to make sure that it wasn't problematic. That is the only evidence in the record. And on that evidence, there cannot be a
THE COURT: Conclusion that Ms. Heard acted with the actual malice that's necessary, particularly when you ,l,4 consider the heightened burden of proof.
MR. ROTTENBORN: So reviewing the op-ed as a whole with the Court acting in its appropriate function as a gatekeeper of the First Amendment, we ask that the Court strike plaintiff's evidence and award summary judgment to Ms. Heard either in whole or in part, thank you.
THE COURT: All right. Thank you. Yes, sir.
MR. CHEW: Good morning, Your Honor. May it please the Court, Ben Chew for Plaintiff I Johnny Depp. It's just still morning. Your Honor, if I my approach.
THE COURT: All right.
THE COURT: Thank you.
MR. CHEW: Thank you, Your Honor. I've just handed to Mr. Rottenborn and Your Honor an opposition that we prepared before we had the benefit of seeing Ms. Heard's affirmative motion to strike, but I think we've anticipated the arguments made, such as they are.
MR. CHEW: The Court should deny Defendant Amber Heard's motion to strike because Mr. Depp has come forward in his case-in-chief with multiple credible witnesses, documents, and authentic tape recordings of Ms. Heard herself, not only satisfying all of the requisite elements of his claim for defamation, including actual malice, but also going the extra mile of showing that Ms. Heard physically abused him. She's the abuser in this courtroom.
MR. CHEW: Your Honor, going back to the standard, as Your Honor is well aware, "In considering a motion to strike, the trial Court must view the evidence and all reasonable inferences drawn from the evidence in light of the most -- in the light most favorable to the plaintiff. Any reasonable doubt as to whether the plaintiff has produced sufficient evidence of the wrong alleged must be resolved in the plaintiffs favor and the motion to strike denied." And that's the Boeing case I believe Mr. Rottenborn referred to, 243 Va. 81, at 81, 1992. "The weight and credibility of the testimony of witnesses are solely matters for the jury. The jury may accept that part of the testimony it believes and reject that which it does not. It is also within the exclusive province of the jury to draw any reasonable inferences from the evidence before it," citing Wright v. Minnicks, 275 Va. 579, at 585.
MR. CHEW: In deference and respect to the Court's time, Mr. Depp incorporates by reference the legal analysis set forth in the Court's opinion letter dated March 27th, 2020, overruling Ms. Heard's demurrer to the three defamatory statements at issue, and that letter of opinion is attached as Exhibit 1 to Mr. Depp's opposition. That's where the court fulfilled its proper gatekeeping role that Mr. Rottenborn referred to.
MR. CHEW: As a threshold matter, the elements of a defamation claim are the following: Publication of an actionable statement with the requisite intent, citing the Schaecher v. Bouffault case, 290 Virginia 81 [sic], at 91. As to damages, they are presumed here because Ms. Heard's false allegations of domestic abuse, sexual assault, and rape constitute defamation per se, citing the Tronfeld case, 272 Virginia 709, 713, a 2006 case.
MR. CHEW: As the Court noted at page 3 of its opinion letter, typically an editorial or op-ed column is ordinarily not actionable because it appears in a place devoted to or in a manner usually thought of as representing personal viewpoints. However, Virginia recognizes that "a defamatory charge may be made by interference, implication, or insinuation," citing the Carwile case, and "a statement expressing a defamatory meaning may not be apparent on its face," citing Pendleton with which the Court is quite familiar, 290 Va. at 172.
MR. CHEW: Accordingly, in order to render words defamatory and actionable, it is not necessary that the defamatory charge be in direct terms, but may be made indirectly, and it matters not how artful or disguised the modes in which the meaning is concealed if it is in fact defamatory. Carwile, 196 Virginia at 7.
MR. CHEW: And based on the authority and reasoning set forth in pages 4 through 8 of the opinion letter, the three statement at issue are actionable under a theory of defamation by implication.
MR. CHEW: Mr. Depp established in his case-in-chief that Ms. Heard, in fact, made all three of the defamatory statements at issue, as the Court admitted into evidence as Plaintiff's Exhibit 1 the op-ed Ms. Heard published in her own name in The Washington Post on December 18th, 2018. And let's take the three statements and the proof that has been adduced. Statement Number 1, Amber Heard, "I spoke up against sexual violence and faced our culture's wrath.
MR. CHEW: That has to change. Per page 6 of the opinion letter, the first statement could reasonably convey the alleged defamatory meaning, i.e. that Mr. Depp abused Ms. Heard, to its readers without extending the words beyond their ordinary and common acceptation, see Pendleton 290 Va. at 172, also citing the Carwile case.
MR. CHEW: Resolving every fair inference in Mr. Depp's favor, this statement could reasonably imply that the sexual violence Ms. Heard spoke up against was, in fact, perpetrated by Mr. Depp. Mr. Depp produced several credible witnesses and documents proving that Ms. Heard was implying that he committed sexual violence against her. Mr. Depp himself testified to that, as did his sister Christi Dembrowski. Mr. Depp's former agent, Christian Carino, testified to that, as did his current agent, Jack Whigham But perhaps most convincing of all, and most disgusting of all, was the testimony of the ACLUs Terence Dougherty, a lawyer nonetheless. Mr. Dougherty testified, among other things, that when the op-ed -- when they were pitching the op-ed to The Washington Post, they stated, "Hey, Michael, wondering if we might interest you in a piece by Amber Heard, who as you may recall was beaten up during her brief marriage to Johnny Depp on what the incoming Congress can do to help protect women in similar situations.
MR. CHEW: Mr. Dougherty also testified that everybody understood, as Ms. Heard and the ACLU clearly intended, that these -- this statement and the other two statements referred directly to
MR. CHEW: "This is an article that was in USA Today and specifically ties Amber's statement in her op-ed piece to Johnny Depp."
MR. CHEW: And when Jessica Weiss, who actually wrote the op-ed that Ms. Heard later adopted, she says, quote, to Mr. Dougherty, "So much for not mentioning JD," when the USA Today made clear that they, like everybody else who read the op-ed, understood that, as Ms. Heard clearly intended, it referred to Mr. Depp, which makes her Instagram post two days before the trial began, that she didn't mention Mr. Depp, all the more outrageous.
MR. CHEW: Your Honor, there is -- Ms. Shuhnan, also of the ACLU, acknowledged that Ms. Heard's op-ed referred to Mr. Depp.
MR. CHEW: So, it's very clear that the ACLU and I Ms. Heard intended, that was the whole purpose of this, so that they could get interest in this and it would coincide with the premiere of Aquaman.
MR. CHEW: Because otherwise no one would have been interested in anything written by Ms. Heard. Mr. Dougherty also testified that Ms. Heard only paid 1.3 -- actually she didn't even pay all that -- out of the $3.5 million that she had pledged to the ACLU. And then they helped her lie about it. And it's one thing, Your Honor, for her to stiff the ACLU, which frankly played a reprehensible role in this case. It's quite another for her to fail to honor her obligation to the Children's Hospital of Los Angeles with sick and dying children, and that, she failed to do as well.
MR. CHEW: And as Your Honor has mentioned, the fact that she put her name on that article means that she is responsible for all of those statements, which she specifically adopted later.
THE COURT: Well, can we stay on this one more one moment though?
THE COURT: Do you agree the only evidence before that we've heard in this trial as far as title of the op-ed is that -- even s Mr. Dougherty, I believe, testified to it -- that it was something that Washington Post wrote?
THE COURT: For the one online.
THE COURT: I understand. But that's the only evidence I have.
THE COURT: All right.
MR. CHEW: The only real evidence Your Honor has is Plaintiffs Exhibit 1, which is Amber Heard putting her name on the entire article, including the title. That is the only evidence before you. The ACLU was a coconspirator with Ms. Heard, and whether they say, "Oh, maybe The Washington Post wrote it," that's not the end of the story. All she has done is create an issue of fact as to whether she wrote the title or not.
THE COURT: So you're saying just having that exhibit in evidence is enough?
THE COURT: Okay.
MR. CHEW: What does an average reader expect? So that alone is sufficient to be a motion to strike. If they want to come back later and say, "Gee, she didn't write the title," as if that were a defense, I hope they make that argument to the jury because it's about as credible as her argument that "Oh, I wasn't referring to Johnny Depp." She didn't have to. And the testimony of Terence Dougherty was very clear that when they took out the references to Johnny Depp, no one was interested in this article anymore. So she said, "Put it back in. Put it back in. Make it more spicy, so people would read. Otherwise she couldn't get it in the Washington Post. It would be back in Teenage Vogue, which is the other publication that was considering publishing it, because no one was interested in what she had to say unless she was defaming Mr. Depp.
MR. CHEW: But if I could go to the second statement, and I'll try to be quick, Your Honor, O "Two years ago, I became a public figure representing domestic abuse, and I felt the full force of our culture's wrath for women who speak out."
MR. CHEW: As for the second statement, defendant called herself a "public figure representing domestic abuse," which can be read to imply that she became a representative of domestic abuse because she was abused by Mr. Depp, not because -- not just because she spoke out against alleged abuse. This inference can be drawn without extending the language beyond its ordinary common acceptation, citing Carwile, 196 Va., at 8.
MR. CHEW: Your Honor, "To constitute a publication, it is not necessary that the contents of the writing should be made known to the public generally. It is enough, it is said, if they are made known to a single person," citing Snyder v. Fatherly, 158 Va. 355, at 350.
MR. CHEW: Everybody and his grandmother testified that Ms. Heard was referring to her bogus ex parte TRO that she obtained on May 27, 2016. And it was interesting that Mr. Depp's own lawyer said that she wasn't even provided notice. So Ms. Heard made very sure that Mr. Depp wouldn't have notice of the ex parte TRO, and Ms. Heard herself, the evidence shows, knew that Mr. Depp, having just suffered the loss of his mother, was already on the other side of the country, was already in New York at the time of this TRO, and was heading to Europe for several weeks.
MR. CHEW: So she knew she didn't need any protection from him This was just a scam for her to get the $7 million in the divorce settlement that she said she gave to the ACLU, she swore she gave to the ACLU and the Children's Hospital of Los Angeles, and she pocketed instead. Mr. Depp, Ms. Dembrowski, Mr. Carino, Mr. Whigham, and the inimitable Mr. Dougherty of the ACLU which lent its once-respected name to Ms. Heard's defamation, so while Ms. Heard may have avoided any direct mention of Mr. Depp's name, there's extensive testimony and evidence in the record showing that the implication of her op-ed could not be more clear, i.e., that Mr. Depp abused Ms. Heard during the course of their marriage.
MR. CHEW: Under Virginia law, "It is not necessarily that the defamatory charge be in direct terms, but it may be made indirectly. And it matters not how artful or disguised the modes in which the meaning is concealed if it is, in fact, defamatory," citing Carwile. We can argue as to how artful it was, but the implication was very clear, as the Court has previously ruled -- or not laud the case, but as the Court has persuasively written in its opinion letter. Let's move to the falsity of Ms. Heard's ever-evolving and ever-escalating change of IPV and sexual assault. Mr. Depp's sworn denial is all he needs to survive a motion to strike. But there's a lot more than that, Your Honor, and I'll try to be brief Three police officers, actually four, but the three who've testified already, Officers Saenz, Hadden, and Gatlin, testified unequivocally that Ms. Heard did not have a mark on her on the evening of May 21, 2016. And I IO could go through -- I'll just go through very quickly. Officer Hadden -- strike that. Officer Melissa Saenz, on jury trial day IO: "QUESTION: Did you provide a copy of this pamphlet to Amber Heard.
MR. CHEW: The next day, Officer Melissa Saenz, "Okay. At this time, did you notice any injuries on Ms. Heard?
MR. CHEW: QUESTION: Okay. Were you looking to see if she had any injuries on her at the time? see if she had any injuries on her at the time? I OFFICER SAENZ: Yes, I was.
MR. CHEW: "QUESTION: And so you were looking to see if Ms. Heard had any injuries, and you determined that she did not; is that accurate?
MR. CHEW: "QUESTION: Okay. And was the lighting good enough in the hallway for you to make that determination?
MR. CHEW: The testimony of nurses Debbie Lloyd and Erin Boerurn, who didn't -- who, like the police officers, did not work for Mr. Depp, in fact, they work for Dr. Kipper, also belie Ms. Heard's false allegations of abuse. Isaac Baruch and Alejandro Romero both testified that they saw Ms. Heard repeatedly, and in the clear light, between May 21, 2021, which was the last time Mr. Depp saw her before leaving on the Hollywood Vampires tour, the next time he was to see her was when Ms. Heard begged him to come see her in San Francisco, which is hardly the act of a domestic abuse victim. So we have Isaac Baruch and Mr. Romero saying that they saw Ms. Heard repeatedly in the interval of time between May 21 and May 27, when she obtained the farce ex parte TRO, and they saw no marks on her face and no swelling. Our two witnesses, Mr. Baruch and Brandon Patterson, saw the video of Ms.
MR. CHEW: Heard and her sister, Whitney, pantomiming the fake punch after this alleged incident of abuse.
MR. CHEW: Ms. Heard's former personal assistant, Kate James, and several other witnesses, including Dr. David Kipper, saw no violence by Mr. Depp and no injuries to Ms. Heard. Indeed, witness after witness has come forward to testify that Ms. Heard, far from being a "domestic figure representing domestic violence," unquote, is in fact a recidivist perpetrator of domestic violence on Mr. Depp and others. We have the testimony of -- the harrowing testimony of Mr. Depp himself who described several witnesses, one, Your Honor will recall, when he was hiding in the bathroom after escaping one of her attacks and she claims to have hurt her foot kicking the door, Mr. Depp opens the door to see if she's hurt, and then she kicks the door in on him and punches him We have the incident of December 15, 2015, when Ms. Heard threw punches at him widely at the back and side of his head. Mr. Depp testified that he ducked and covered to protect his face. Eventually he turned around to grab her and stop her arms from flailing. December 15 in the Bahamas, during an argument, Ms. Heard grabbed a can of mineral spirits and threw it at Mr. Depp's face, striking him in the forehead, bridge, and nose area, and the jury saw the photograph of the bridge on the bruise of his nose. We have testimony from -- and, by the way, Tara Roberts, who is the manager of the island, confirmed that the incident with mineral spirits. You have Mr. Depp's testimony of what happened on April 22nd, 2016, and we've heard testimony today from Erin Boerum Falati that Mr. Depp was very responsive, was very sociable, had not -- was not in any way inebriated that day when Ms. Heard says he was, and she attacked him that -- she attacked him that night as well.
MR. CHEW: We have -- we have Ms. Heard's own admissions. We have her admitting to hitting Mr. Depp, and her only contention was that she wasn't punching him; she was just hitting him We have testimony from Travis McGivern that on February 23rd, 2015, Ms. Heard threw and hit Mr. Depp with a can of Red Bull and then sucker-punched him with a closed fist.
MR. CHEW: Finally, Your Honor, statement Number 3, "I have the rare vantage point of seeing in real time how institutions protect men accused of abuse." Again, quoting very briefly from page 7 of the Court's opinion letter, "Drawing every fair inference in plaintiffs favor, the Court can fairly include -- conclude that defendant's statement that she saw how institutions protect men accused of abuse could reasonably convey to its recipients that she saw how Mr. Depp was protected by institutions, that he abused her, and O spoke up against it.
MR. CHEW: Your Honor, again, we have multiple testimony from multiple people, including Jack Whigham and all the others mentioned, that this was a reference to that.
MR. CHEW: Your Honor, again, the lies that have already been exposed that Ms. Heard has told about the charitable contributions, the incidents in this case, and again, I'll just cite a couple more, the testimony of Isaac Baruch. When Mr. Baruch saw Ms. Heard on June 3 after she'd gone through with the sham ex parte TRO and Mr. Baruch was asked, "Did she say anything in response?
MR. CHEW: She even lied about the final insult left on the marital bed after her 30th birthday party. And it was quite telling that she admitted to Starling Jenkins, a former United States Marine, that this was a terrible prank gone awry. Well, she lied about that, too. In fact, she said that Mr. Depp was crazy to even allege that she could have done such a thing. Well, she admitted it to Mr. Jenkins.
MR. CHEW: Per Toddfield, Mr. Depp does not have to prove damages because this is defamation per se. In fact, these involve some of the most heinous crimes any man or woman can be accused of; however, he has done so. Jack Whigham testified yesterday that the impact of the op-ed was catastrophic on Mr. Depp's personal and professional life, that it was a $22.5 million loss on Pirates 6 and another 20 million on 120 others. We've had the -- we've had the testimony -- so we had Mr. Whigham testifying as to the 22 and a half lost on Pirates 6 and another lost on the other films, the other studio films, the indie films, and the other ways Mr. Depp would have made income. We have Richard Marks's testimony, Douglas Bania's testimony, and the testimony of Michael Spindler just this morning. Finally, Your Honor, none of Ms. Heard's affirmative defenses, which would include, you know, her trying to create an issue of fact on the title, can support a motion to strike as to which she bears the burden of proof of her affirmative defenses. Whether the defendants have met their burden cannot be resolved when considering a motion to strike." See 243 Va., at 83.
MR. CHEW: And just to respond to Mr. Rottenborn's citation to the Lokhova case, which we hadn't seen until he mentioned it today, I would only note, Your Honor, that defendant admits that she tweeted a link to the online version of the op-ed at paragraph 97 of her answer, though, again, the admission of Exhibit 1 is more than enough to survive the motion to strike, and the Lokhova case at 995 F.3d 134, holds that republishing a hyperlink doesn't necessarily start the statute of limitations, not that a hyperlink cannot be defamatory.
MR. CHEW: So with that, Your Honor, we respectfully request that the Court deny the motion to strike in full, and let's hear from Ms. Heard. Thank you, Your Honor.
THE COURT: Yes, sir. Thank you. Your motion.
MR. ROTTENBORN: Thank you, Your Honor. I can only assume that Mr. Chew wrote that speech for an audience outside the court because it didn't really address my arguments. I'm going to focus on what our specific arguments are for the motion to strike, Your Honor.
MR. ROTTENBORN: Mr. Chew spent almost 30 minutes of the court's time talking about the disputed evidence of physical abuse in this case, which Ms. Heard hasn't even put on her case, and I can tell you why she's not the abuser and if the case moves forward, she and her witnesses will put on even more evidence of the physical abuse she suffered at the hands of Mr. Depp. But that's not the basis for our motion right now, Your Honor.
MR. ROTTENBORN: He talks about how Mr. Depp had a sworn denial and that that should count. We read his testimony. He claims he didn't strike her. But, again, that's not the basis for our motion. The O basis for our motion is the clear and undisputed evidence of nonphysical abuse. By his definitions, by his standards, by the standards of his expert, there is no dispute that Mr.
MR. ROTTENBORN: MR. ROTTENBORN": "Depp abused Amber; and therefore, if he did it even one time, there's no dispute that even under their theory of the case, the implication that they want the jury to draw from the article, which, again, I'm not arguing for the purposes of today, because under the legal standard, I'm not going to argue that. I'm not going to waste the Court's time with that. But even under their standard, the undisputed evidence is that Mr. Depp did commit abuse against Ms. Heard and, therefore, that those first two statements were false. That's our argument on that.
MR. ROTTENBORN: As to the headline, it's funny, Mr. Chew, we've played, you know, two or three hours of an ACLU deposition. Now he says, "Well, that wasn't our witness." It was his witness, Your Honor. He just spent ten minutes talking about what Mr. Dougherty said. And Mr. Dougherty testified that The Washington Post wrote the headline. That is the only evidence, Your Honor.
MR. ROTTENBORN: I understand he says, "Well, Exhibit 1 has her name on it." Exhibit has her name on it, but the only evidence in this case, about who wrote that headline, is Mr. Dougherty's testimony. It is undisputed. They could have put anyone else on. They could have called Ms. Heard for that because that was not part of the stipulation at the pretrial conference. It was only the tweet that we talked about, Your Honor, and they chose not to do that. Now, Ms. Heard will testify she didn't write that headline, so it wouldn't have helped them, but they've had three weeks to put on their case, Your Honor. They've controlled the playing field of evidence.
MR. ROTTENBORN: There is no dispute that Ms. Heard did not write that headline, no dispute. Simply saying, "Well, her name is attached to it," that can't overcome the testimony of the ACLU. They call it the McCocan (phonetic) sphere. Of course, Mr. Depp chose not to sue them But the testimony of Terence Dougherty that she didn't write that headline, that takes care of the sexual violence headline, Your Honor. I'm not going to take up any more of the Court's time addressing portions of Mr.
MR. ROTTENBORN: Chew's argument that don't go to our motion unless Your Honor has any specific questions, but I want to be respectful.
THE COURT: Thank you. All right. Thank you. All right. For this motion, I've taken the arguments of counsel, and last night, I reviewed all of the evidence that has been submitted in this matter. So as to the second and third alleged defamatory statements, at the motion to strike, at this juncture, I view the evidence in a light most favorable to the plaintiff and reasonable inferences from the evidence to the plaintiff. And if there is a scintilla of evidence that a reasonable juror could weigh, then the matter survives a motion to strike.
THE COURT: In this matter, there is evidence in the case that a jury could weigh that the statements were made by the defendant, that the statements were about the plaintiff, that the statement was published, that the statement is false, and the defendant made the statement knowing it to be false or the defendant made it so recklessly as to amount to willful disregard for the truth. The weight of that evidence is up to the fact-finders, so the motion to strike is denied as to statement 2 and 3.
THE COURT: The motion to strike as to statement 1, I'm going to take under advisement because if it's not a stipulation, I'm not sure what it is, but , there seems to be an agreement that the tweet of Ms. Heard is part of the plaintiffs evidence which is not in evidence at this point, so I can't rule on that statement whether or not it is just a tweet or if it's some sort of republication or something, I don't know because I haven't seen it yet. So as to the motion to strike on statement 1, I'm going to take under advisement because ruling right now, it would be premature because I just don't have that evidence in the case, okay?
THE COURT: All right. Since it's 12:30, you want to just take lunch, go ahead and let the jurors go to lunch and come back at 1:30? Does that sound okay?
MS. BREDEHOFT: Yes, Your Honor. I have one thing I would like to address, it's another motion, before we take a lunch break.
THE COURT: Okay. Do you want to do it now?
MS. BREDEHOFT: Yes, if I could.
THE COURT: Okay. Sure. All right.
MS. BREDEHOFT: So, Your Honor, one of the motions in limine in this case that the plaintiffs moved for was we could not say "erectile dysfunction." This expert, Dawn Hughes, is the expert we're going to have. She's an expert in intimate partner violence. She is going to testify that there were a number of occasions in which Mr. Depp, because he was unable to perform, became angry.
THE COURT: Could you say it again? I'm sorry.
MS. BREDEHOFT: Mr. Depp, during these acts of violence when he was unable to perform, would become angrier at Ms. Heard, would blame her, and that resulted in escalated violence. I've told her she can't use the words "erectile dysfunction," but I recognize that we have an issue here. I mean, she's going to testify to that. Amber's going to testify to that. There
THE COURT: Okay.
MS. BREDEHOFT: And some of the times, he would sexually assault her in a different manner because of it.
MS. VASQUEZ: Your Honor, this was already decided by you in a motion in limine. This is going backwards. You were clear that they are not to introduce any evidence about erectile dysfunction, how that made him more prone to use different objects or to be more --
MS. BREDEHOFT: I don't think all of that was argued in it, Your Honor.
MS. VASQUEZ: It was.
THE COURT: I will look back at the ! 1 s motion in limine, but I can look back. And then we can do that over lunch and look at that. Is that okay?
MS. BREDEHOFT: Yeah. No. Then I'll just tell her when Your Honor rules. I mean, because we've still got some way to segue. I mean, if they can't say it, they still have to get past that to what happened next.
THE COURT: Okay.
MS. BREDEHOFT: So I don't know how to do that. And I guess --
THE COURT: All right. Let me review my order, and then I can let you know right after we get back at 1 :30. Is that okay?
MS. BREDEHOFT: Yes, yes.
THE COURT: Okay. And, also, Mr. Rottenborn used -- on that last witness, Mr. Dennison used part of his graph with the bars. I'm just going to give that a number, okay? I was just going to give it 1804 because that's your next number, and if I could get a copy of it, just -- it's not going to the jury, but it's just for the record, okay?
MS. BREDEHOFT: Perfect.
THE COURT: All right. Thank you.
THE COURT: Okay. Anything further?
MR. DENNISON: No. 1 :30?
THE COURT: Court's in recess, 1 :30.
COURT BAILIFF: All rise.
COURT BAILIFF: All rise. O Please be seated and come to order.
THE COURT: All right. Thank you. Yes, oh, you have another exhibit? Perfect. Thank you. All right. That's 1804. All right. Thank you. Demonstrative.
THE COURT: And do you want to approach on the other issue?
THE COURT: Okay. So I looked at my Motion in Limine and what it says, it says granted as to any evidence of erectile dysfunction is not relevant and highly prejudicial. And that was when you were saying that you -- I had to go back. I and listen to -- you were saying that your expert was going to testify that erectile condition -- erectile dysfunction condition was more -- I'm sorry. Expert was saying it would make it more probable that Mr. Depp would be angrier, agitated in encounters with Amber Heard. So I granted that. But now, you're saying something different.
MS. BREDEHOFT: Yeah, this is when she will be testifying that when he would -- when they were intimate, in the act of -- that he would try 'I to and he would be unable to perform and that would -- he would get angry with her for that and blame her, and then the violence would escalate. And on occasion, it would cause him to engage in hypersexual assault, and Amber will testify to that as well.
THE COURT: So you're saying specific acts, not that it was -- !i 9
MS. BREDEHOFT: Right. Right.
THE COURT: In her expert opinion, that's more probable, or anything like that, that's not what she's testifying to?
MS. BREDEHOFT: Right.
THE COURT: That's what the Motion in Limine was about.
MS. BREDEHOFT: We can do that. She I 5 can say he was incontinent.
THE COURT: I don't know. I mean, are I you saying that --
MS. BREDEHOFT: She's going to be recounting some of the examples of--
THE COURT: That Amber Heard told her?
MS. BREDEHOFT: Right.
THE COURT: So Amber Heard told her that one time --
MS. BREDEHOFT: A few times.
THE COURT: A few times.
MS. BREDEHOFT: He would be unable to perform, he would get angrier at her --
THE COURT: But no erectile dysfunction, the words are not going to be used, nothing about the medication, that I think was the main part of this Motion in Limine.
MS. BREDEHOFT: Right. In fact, Your Honor, we caught yesterday that they didn't take out Cialis, and we took it out. We're trying to be very good about this.
THE COURT: Okay. Yes, ma'am, Ms. Vasquez.
MS. VASQUEZ: I'm just unclear what you mean by he would get angrier.
MS. BREDEHOFT: Right. Because he couldn't perform --
MS. VASQUEZ: That's erectile dysfunction, Your Honor.
THE COURT: But this one, the Motion in Limine that I granted was one where the expert was going to testify that such a condition agitates or -- encounters with Amber Heard. This is just not the medical erectile dysfunction, just saying at times he couldn't perform at that specific time --
MS. BREDEHOFT: Specific time.
THE COURT: Would make him angry.
MS. BREDEHOFT: Angry and it would escalate the violence that would lead to different types of--
MS. VASQUEZ: The Motion in Limine (indiscernible) was to prevent any erectile dysfunction -- any mention of medical records relating to Mr. Depp taking Cialis.
THE COURT: Right, exactly. And that's not going to happen. She's just talking about, now, specific instances that Ms. Heard claims that they were going to -- having sex, he couldn't O perform, and he got angry and hit her, or I don't know, something.
MS. BREDEHOFT: Angry and the violence escalated.
MR. DENNISON: And the expert made no disclosure about erectile dysfunction.
THE COURT: No, they're not going to say anything. And they're not going to give any opinion about it. They're not going to do anything. It's just the specific acts that will relate to it, but you're not going to follow up with any questions about erectile dysfunction or anything about that, correct?
MS. BREDEHOFT: Correct.
MS. VASQUEZ: I think it's still a workaround, you know, erectile dysfunction without using the words, and I think your point of Motion in Limine was to prevent that, Your Honor.
THE COURT: Right.
MS. VASQUEZ: It an attempt to embarrass -- as we argued in our Motion in Limine, this is just to harass and embarrass Mr. Depp. O It's also a new disclosure by Ms. Heard.
MS. BREDEHOFT: It is not. She was deposed for eight hours and she --
THE COURT: I don't know about that. I just know that Motion in Limine was granted because it was not relevant in talking about or opining about erectile dysfunction or talking about it in the relativity of medicine, and that's not going to happen. But there are specific acts where you're not mentioning erectile dysfunction, just part of the act was --
MS. BREDEHOFT: Unable to.
THE COURT: According to her.
THE COURT: According to her.
MS. BREDEHOFT: Right. I'll tell her just leave it to couldn't perform
THE COURT: Yeah, exactly. Okay? All right.
MS. BREDEHOFT: Thank you, Your Honor.
THE COURT: Thank you.
MR. DENNISON: Thank you, Your Honor.
THE COURT: All right. Are we ready I for the jury?
MS. BREDEHOFT: Yes.
THE COURT: Okay.
THE COURT: All right. Thank you, ladies and gentlemen. You may be seated. All right. The plaintiff has rested, and it's defense case. Your witness.