Preliminary Matters
327 linesCOURT BAILIFF: All rise. Please be seated and come to order.
THE COURT: All right. Good morning. Allright. It's my understanding that defense is resting; is that correct?
MS. BREDEHOFT: Correct, Your Honor.
THE COURT: All right. I'm not going to bring the jury out just to take them back in, 10:so after we finish our motions and they come out, T'll let you say that -- yeah, Okay.
MS. BREDEHOFT: Okay.
THE COURT: Let's just do it that way.
MS. BREDEHOFT: Thank you, Your Honor.
THE COURT: All right. So based on them resting, you have a motion?
THE COURT: And I did receive your memo ahead of time, so I have reviewed that.
MR. CHEW: Thank you. And I provided it, too, to the other side last night, so they have it as well. have it as well.
THE COURT: Okay. I have that. Okay. Yes, sir?
THE COURT: I think it's just going to be oral arguments. Yes, sir.
MR. CHEW: Good morning, Your Honor, may it please the Court, Ben Chew for plaintiff Johnny Depp. Mr. Depp hereby moves to strike defendant, Amber Heard's counterclaims because Ms. Heard has not proven by clear and convincing evidence that Mr. Waldman made the three allegedly defamatory statements with actual malice.
THE COURT: Right. But clear and convincing is not my motion to strike standard.
THE COURT: Okay. Okay. Thank you.
MR. CHEW: Moreover, Your Honor, the Court should also strike defendant's claim for immunity and attorneys' fees based on Virginia's anti-SLAPP statute, as she is not entitled to immunity under the statute. Because we know that the Court has carefully reviewed our motion papers, I will just hit some of the salient points.
THE COURT: Thank you, sir.
MR. CHEW: Thank you, Your Honor. I would mention, however, Your Honor, that because this is not included in our brief, that there is no record evidence whatsoever that Mr. Depp even saw any of the three statements that Mr. Waldman made prior to being served with the counterclaims in this ‘action, which we believe is relevant to many of the legal standards. And as Your Honor is aware, Ms. Heard had signaled for the past week that she was planning to call Mr.
MR. CHEW: Depp in her case-in-chief, and it was our anticipation that she would try to fill what we believe is a gaping hole in -- with respect to the elements of her proof. Again, there's no record evidence whatsoever that Mr. Depp ever saw any of the three statements about which Ms. Heard is purportedly suing him for a hundred million dollars. As Your Honor is aware, the elements of defamation are as follows: One, publication of: Two, an actionable statement with. Three, the requisite. intent. See Tharpe versus Saunders, 285 Va. 476 at 2013. The requisite intent for defamation against a public figure is actual malice. That is, the statement must be made with knowledge that it was false or with reckless disregard of whether it was false or not. See Sanders v. Harris, 213 Va. 369 at 372, a 1972 case.
MR. CHEW: See also Jackson v. Hartig, 274 Va. at 172019 Reckless disregard, as Your Honor is aware, is not measured by whether a reasonably prudent person would have published or would have investigated before publishing.... There must be sufficient evidence to permit the conclusion that defendant in fact entertained serious doubts as to the truth of his publication, St. Amant versus Thompson, 390 U.S. Supreme Court 727 at 731. Your Honor, the evidence shows that Ms. Heard cannot prevail on her claim because she cannot and did not establish that Mr. Waldman made the statements with actual malice. Mr. Waldman testified that he conducted extensive investigation and reasonably believed that the three statements he made were true. Ms. Heard presented nothing, nothing to contradict that undisputed fact.
MR. CHEW: Heard has no evidence of direct liability because, obviously, Your Honor, we need to talk about direct and vicarious liability, but it bears noting that she has no evidence of direct liability and cannot prove actual malice by Mr. Waldman when making the three statements at issue. It is undisputed that Mr. Depp did not make any of the three statements at issue in Ms. Heard's counterclaim. Moreover, in order for Mr. Depp to be liable for the conduct of his -- one of his attorneys, there must be some showing that he directed, participated, or otherwise authorized Mr. Waldman to make the statements at issue, There is no such evidence on the record that Mr. Depp directed or otherwise authorized Mr. Waldman to make the three allegedly defamatory statements at issue in the counterclaims. Indeed, there is no evidence of any communication or coordination between Mr. Depp and Mr. Waldman regarding the counterclaim statements or anything else.
MR. CHEW: For this reason as well, Your Honor, Ms. Heard cannot meet her burden of proving that Mr. Waldman was acting within the scope of his employment as -- or agency on behalf of Mr. Depp. Again, it bears noting that there's no evidence that Mr. Depp even saw the statements by Mr. Waldman until he was sued -- served with the counterclaims well into this case. It was more than a year after Mr. Depp filed his complaint and Ms. Heard lost a series of motions to dismiss that PLANE` May 24, 2022 she finally asserted her counterclaims, most of which have already been dismissed by opinion letter of this court. Whereas here, there is no evidence of direct liability, Ms. Heard must rely on the theory of vicarious liability to hold Mr. Depp liable for the actions -- or statements, rather, of his purported agent, Mr. Waldman. Vicarious liability is, by definition, liability for the tort of another person. So to hold Mr. Depp liable for Mr. Waldman's statements, Ms. Heard must establish that Mr. Waldman himself committed all the elements of defamation.
MR. CHEW: MR. CHEW": "I know the Court's familiar with this so I'll try to run through it quickly. See Parker versus Carilion Clinic, 296 Va. 319 at 332, a 2018 case: "Vicarious liability is liability for the tort of another person. It necessarily follows that a claimant cannot make out a case for vicarious liability against an employer without first proving that the employee committed a tort within the scope of his employment. See also Roughton Pontiac Corp. versus Alston, 236 Va. 152 at page 156. Which standard Ms. Heard has not met, and, Your Honor, we cite a string cite -- citation to cases from other jurisdictions which, obviously, are not binding on the Court but we believe are influential. We presented those to the Court for its review. It is Ms. Heard's burden to prove by clear and convincing evidence, or ultimately, to prove actual malice by Mr. Waldman, not Mr. Depp.
MR. CHEW: MR. CHEW": "And while it is well settled law in Virginia, as Her Honor has pointed out, pointed out last week, that an agent's knowledge can be imputed to a principal -- and this is the Allen Realty Corp, versus Holbert case, 227 Virginia 441 at 446. Ms. Heard's counsel cannot cite any case law stating that a principal's knowledge is imputed to an agent. In other words, Mr. Waldman must have made the statements knowing that they were false or with reckless disregard as to whether they were false. And Mr. Depp's knowledge cannot be imputed to him. There is no evidence in the record that Mr. Waldman knew the counterclaim statements were false. Indeed, Mr. Waldman did not even know Mr. Depp or Ms. Heard at the time of any of the alleged incidents at issue and, thus, had no personal knowledge of what transpired. And this is reflected in the trial transcript that Mr. Waldman met Mr. Depp first in October of 2016, long after the fact. Nor is there any evidence in the record that Mr.
MR. CHEW: "Waldman subjectively entertained any serious doubts about the falsity of the counterclaim statements. Quite the opposite, the evidence shows that it's unrebutted that Mr. Waldman had very reasonable grounds to believe, and he did believe and will to his dying day, that Ms. Heard's claim of abuse were patently false. Mr. Waldman testified at length about 29 witnesses he believed disapproved Ms. Heard's false claims of abuse. See the transcript at page 6008 to 6012, and I won't run through all of that. But his testimony, the two trained police officers, Officers Saenz and Hadden, were called to the penthouse on May 21, 2016, and saw no signs of injury on Ms. Heard's face, as well as "Ms. Heard's own witnesses who have testified in various forums at various times that there were no injuries to her face whatsoever between May 21st and May 27th, 2016, when she walked into court with her publicist, her lawyer, her former best friend who no longer speaks with her for a no-notice ex parte TRO. Some of the witnesses who Mr.
MR. CHEW: Waldman has cited, they include Laura Divenere; Melanie Inglessis, who as Your Honor recalls is -- was Ms. Heard's makeup artist who decided to end any professional or personal association with Ms. Heard; Samantha McMillen; Hilda Vargas; Isaac Baruch; Trinity Esparza; Cornelius Harrell; Alejandro Romero; and Brandon Patterson, just to name a few. No reasonable jury could find that Mr. Waldman acted in malice in making the allegedly defamatory statements. He was not present for the alleged incidents; he has no personal knowledge of any of the alleged incidents. What Mr. Waldman knows is a product of the legal work he did -- the sleuthing he did on behalf of Mr. Depp. Ms. Heard cannot possibly show that Mr. Waldman acted with actual malice, and her defamation claim must fail. Two, Mr. Waldman is an independent contractor, not an employee. It is.
MR. CHEW: Axiomatic, Your Honor, that a person who hires an independent contractor is not liable for the independent contractor's actions. See Sanchez versus Medicorp Health System, 270 Va. 299 at 344: "An independent contractor is a person who is engaged to produce a specific result but who is not subject to the control of the employer principal as to the way to bring about that result." See Atkinson versus Sachno, 261 Va. 378 [sic] at 284; that's a 2001 case. "An outside lawyer retained by a client in connection with litigation is an independent contractor." See King versus Dalton, 895 F. Supp. 831, Eastern District of Virginia, 1995, where Judge Ellis, a legendary jurist known by all Virginia practitioners, held that "a law firm attorney working with a client is nonetheless. an independent contractor and is not an employee of the client corporation." In that case the employee was a corporation, but the same logic applies when it's an individual like Mr. Depp. That was Mr. Waldman's role.
MR. CHEW: Indeed, clients hire lawyers to obtain specific results or to try to obtain specific results. But they do not control the means by which the results are accomplished. Lawyers, as Your Honor has reminded us, are subject to professional obligations to exercise independent professional judgment. We are not at the whim of our clients, as much as we want to serve them. See Virginia State Bar Professional Guidelines, Rule 1:2 and 2.1, And just to quote 2.1, "In representing a client, a lawyer shall exercise independent professional judgment." Mr. Waldman is, as a matter of law, an independent contractor, and Mr. Depp cannot be held responsible for any alleged tort by his attorney, particularly for statements about which he was unaware until he was sued for them. Mr. Waldman testified, and it's unrebutted, that he has an -- he has his own law firm, he's not an employee of Mr. Depp, Mr. Depp and/or none of his loan-out companies have issued him a W-2, and Mr. Waldman provides legal services to clients other than and in addition to Mr.
MR. CHEW: Depp, and that's found at the transcript page 6020 415. through -21. All of that is unrebutted by Ms. Heard. Mr. Waldman's statements, the third reason for which we respectfully submit the counterclaim should be stricken, is that Mr. Waldman's statements were protected opinion. And I won't run through all of that, but very briefly, taken in their proper context, the counterclaim statements are nonactionable expressions of opinion entitled to protection under the First Amendment. See Gertz versus Robert Welch, Inc., 418 U.S. 323 at 339. That's a § 1974 case from the United States Supreme Court. See also Schaecher v. Bouffault, a Virginia Supreme Court case found at 290 Va.
MR. CHEW: 83, a 2015 case, noting that where "all sides of the issue as well as the rationale for the speaker's view were exposed, the exertion of deceit reasonably could be understood only as the speaker's personal conclusion," and finding in an accusation of deceit to be opinion. In context, Your Honor, any reporter or any reasonable reader would understand and expect a lawyer associated with Mr. Depp, as Mr. Waldman was, to challenge Ms. Heard's version of the inherently controversial events of the parties' marriage, just as Ms. Heard's lawyers were quoted challenging Mr. Depp.
MR. CHEW: And Your Honor will — remember the context of these quotes that were in a British tabloid where Mr. Waldman's statements May 24, 2022 were buried well into article in which both points of view were clearly expressed, and Mr. Waldman was clearly identified not as an independent expert on the U.S. Constitution, but is one of Mr. Depp's attorneys. See Chaves, 230 Va. 112 at page 119: "The most unsophisticated recipient of such a claim," i.e., any reader of the British tabloid, "made by a competitor against another could only regard it as a relative statement of opinion grounded upon the speaker's obvious bias." Mr. Waldman has never done -- never did anything to hide his support of and belief in Mr. Depp.
MR. CHEW: Finally, Your Honor, and for the rest -- ultimately, Mr. Waldman's statements reflect the existence of two competing narratives and are merely his subjective view about events that he never claims to have witnessed, and there was no doubt about that. Turning to the second part of the argument, which will be more abridged, Ms. Heard is not entitled to anti-SLAPP immunity. As a threshold matter, Virginia Code Section 8.01-223.2, which is, as Your Honor well knows as the Virginia anti-SLAPP statute amended most recently in 2019, provides in relevant part, "The immunity provided by the section shall not apply to any statements made with actual or constructive knowledge that they are false or with reckless disregard for whether they are false." Here, in addition to Mr. Depp's testimony, several witnesses have testified that, A, they never witnessed Mr. Depp abuse Ms.
MR. CHEW: Heard, and, B, that they observed Ms. Heard without any injuries, marks, bruising, swelling, et cetera, during periods when Ms. Heard claimed to have injuries, marks, bruises, et cetera. Such witnesses include but are not limited to Isaac Baruch, Kate James, Dr. David Kipper, Nurse Debbie Lloyd, Officers Saenz and Hadden, Officer William Gatlin, and former U.S. Marine Starling Jenkins. Ms. Heard's request for anti-SLAPP immunity should be stricken, and even if there were disputing -- even if there were disputed facts as to that, the anti-SLAPP immunity does not apply because the defamatory implication of Ms. Heard's statements are not solely relating to a matter of public concern, as is required under the statute. As has become quite clear, Your Honor, Mr. Depp is not suing about any of the public policy commentary made by the ACLU when it drafted the op-ed and Ms. Heard put her name to it. What he is suing about here are the three statements that were directed at him.
MR. CHEW: He has no issue with women's rights. He supports women's rights. In fact, he was the one, Your Honor, as Your Honor knows, who made that first hundred thousand-dollar contribution to the ACLU, and he made it also to the CHLA.
MR. ROTTENBORN: Your Honor, at this point I'm going to object. Mr. Chew has largely just read his brief and confined his arguments to those directed in the motion, but like we saw with the last motion to strike, he's now directing his arguments to something other than what's at issue here. And I would object because I think making an argument not to you but to the cameras, it threatens -- it's disrespectful to the Court and everyone's time, and it also threatens to undermine the integrity of this process and risks the jury being influenced by outside factors.
THE COURT: It's his argument. I'll allow him to do it. Thank you.
MR. ROTTENBORN: Thank you.
MR. CHEW: Thank you, Your Honor. As I was trying to say, what Mr. Depp is suing about are the three statements, and it's very clear, despite the pious opening statement that -- about 16,the First Amendment, that with the testimony of Terence Dougherty and the emails that were admitted as exhibits, that the ACLU and Ms. Heard 19-were conspiring to make it very. clear that those three statements were related to Mr. Depp because, otherwise, nobody had any interest in the article. And it's crystal clear from that. They May 24, 2022 wanted to time this thing with the release of Aquaman, which was her first film of any significance in terms of popularity, and -- to do * that. That's very clear. So the charade that this had something to do with public policy is risible, and that is not why the anti-SLAPP protections were enacted. They were enacted to protect the rest of the article, not what Mr. Depp is suing about.
MR. CHEW: As generally analyzed by the courts, a matter of public concern is one which relates to "a matter of political, social, or other concern' to the community," as opposed to a matter of only "personal interest." That's Connick versus Myers, 461 U.S. 138 at page 146. 'Instead, the defamatory implication at issue in each of the three states -- statements at bar relate to the personal grievances between Mr. Depp and Ms. Heard, which does not rise to the level of a matter of public' concern with broader implications for society beyond the two litigants' in this action any more than Mr.
MR. CHEW: Waldman's in this action any more than Mr. Waldman's statements. I mean, adding the gloss of public policy might immunize the statements that relate to public policy, but those are not at issue here. Mr. Depp agrees with those statements. We're talking about the three statements that they very intentionally and very cleverly put in to make it clear the implication that it was about Mr. Depp. They had lawyers from the ACLU working around the clock with Eric George to make -- to be as clever about this as possible. And Your Honor remembers the testimony of Mr.
MR. CHEW: Dougherty about the consternation at the ACLU when they realized that USA Today and everybody else who read the article knew darn well that this was about Mr. Depp. This cannot be protected by the anti-SLAPP statute. It is a cynical runaround, and I think now that we have the undisputed evidence from the ACLU in the form of the testimony of Terence Dougherty, who is not only their corporate representative; he was their general counsel. He is a brainiac lawyer. They knew exactly what they were doing, Your Honor, and one of the -- he referred to a testimony of a woman at the ACLU who said she had nightmares about Ms. Heard, and he expressed no concern about that. Now that was either because they knew about -- that was either a reference to this game they were playing with the op-ed or the conspiracy they had to cover up her failure to make the donations. The donations became pledges, but now -- but we have evidence that she refused to sign the pledge card. So she's caught either way. Simply stated, Your Honor, Mr. Depp is not suing Ms.
MR. CHEW: Heard for making statements about society in general. I think that's very clear from the record evidence. Mr. Depp is suing her for publicly naming him as an abuser by implication and forever tarnishing his good name, an act that, coming from an ex-spouse, is fundamentally personal in nature. For that reason as well, Your Honor, Virginia's anti-SLAPP statute is not applicable, and based on the foregoing, Your Honor, Mr. Depp respectfully submits that the Court should grant plaintiff's motion to strike the counterclaims and also strike her claim that she is immune under the anti-SLAPP statute. Thank you very much.
THE COURT: Thank you. Thank you, sir. Yes, sir.
MR. ROTTENBORN: Thank you, Your Honor. As Your Honor knows, the trial court is required to accept as true all the evidence favorable to Amber at this point, as well as any reasonable inference the jury might draw therefrom which would sustain a counterclaim. That's the correct standard here. I'll address the actual malice argument first, the agency argument. Your Honor, there's plenty of evidence in the record from which the jury could determine that Mr. Waldman was Mr. Depp's agent. He made those statements, the statements referred to him as Mr. Depp's attorney.
MR. ROTTENBORN: As Your Honor ruled on Friday with respect to the jury instruction conference, an attorney is an agent of his client. Mr. Waldman testified that he's been Mr. Depp's attorney since 2016. He PLANE' May 24, 2022 freely admitted speaking to the press on Mr. Depp's behalf, and he refused to answer question after question about that agency, so he can't use that as a sword now. Mr. Chew puts a lot of emphasis on the fact that Mr. Depp allegedly didn't see the comments that were made that are the subject of the counterclaim. But as Your Honor well knows, whether he saw them or not is not the standard for agency. 1] There's also evidence that Mr. Depp met with the Daily Mail with Mr. Waldman prior to the defamatory statements being made and released.
MR. ROTTENBORN: I believe that was in February of 2020, just two months prior. Mr. Waldman also concocted a story that Amber was being investigated for perjury by filing a perjury complaint against her with the LAPD. He disregarded any evidence that he didn't believe would fit in his narrative, that would fit in the story that he was speaking about on behalf of Mr. Depp. And after Mr. Depp lost the U.K. proceeding, after Mr. Depp was ruled to be a wife beater by the court, in the United -- the U.K. proceeding, the court there found him to be a wife beater, Mr. Waldman then got an overseas tabloid to run a story claiming that Amber was being investigated for perjury, which simply wasn't true. He walked into the LAPD, filed a complaint for perjury against Ms. Heard, found a media outlet that doesn't follow the two-source rule, and then he had -- led the world to believe that LAPD was investigating Ms. Heard for perjury.
MR. ROTTENBORN: That's a shameful and a sickening example, Your Honor, of the lengths that Mr. Depp, through his agent, Mr. Waldman, would go to smear and to defame Amber Heard, and that continued in the three statements in the counterclaim. Your Honor has heard evidence. I won't go through all the evidence, but Your Honor has heard evidence from Ron Schnell, who's traced the negative hashtags toward Amber Heard online associated with those defamatory statements and notably -- noted the staggeringly high number of them that were associated with Mr. Waldman. Under the principals of the agent/principal relationship in Virginia, Your Honor, when Mr. Waldman made those statements, he was standing in the shoes of Mr. Depp. They are one and the same for the purposes of those statements, as Your Honor discussed at length on Friday. Mr. Waldman made these statements with actual malice. There's plenty of evidence from which the jury could infer that in his own -- both from the actual malice from Mr. Depp and Mr. Waldman's own reckless disregard of facts that didn't support Mr.
MR. ROTTENBORN: Depp and his attempts to manufacture false evidence that did. As Your Honor found in the hearing -- I believe it was on March 24th after Your Honor denied Mr. Depp's motion for summary judgment -- Your Honor said, "As to malice, a fact finder could reasonably conclude that Mr. Waldman made the statements with malice because Mr. Waldman has no personal knowledge of the parties' marriage and still made the statements at issue. Nothing in this case has changed that. If anything, the evidence has only made it more clear that that is an inference that the jury can-and we believe will find. So, Your Honor, there's no basis to grant a motion to strike on this agency argument. On the actual malice argument, the evidence shows that not only was Mr. Waldman Mr. Depp's agent, but that the two of them conspired to falsely accuse Amber of creating a hoax and falsify evidence that they believed supported their theory and what they wanted to achieve.
MR. ROTTENBORN: As Your Honor well knows too, I won't go through all the law, but both agency and malice can be inferred through circumstantial evidence. There's plenty of evidence in the record from which the jury could infer those. Moving on, Your Honor, to the independent contractor -- the Court's already rejected this argument, ruled that an attorney-client have a principal/agent relationship, and as Your Honor said on Friday, there's no evidence in this case of anything otherwise. As to the argument that the counterclaim statements are statements of opinion, the Court has already found twice that they are not statements of opinion, both on January 4th, 2021, in its opinion letter denying Mr. Depp's demurrer as to the counterclaim statements, and at the motion for summary judgment hearing in March of this year. As to the anti-SLAPP argument, the Court, again, has already moved that the March 24th, 2021 opinion that the statements are, as a matter of law, regarding matters of public opinion.
MR. ROTTENBORN: The Court has already ruled that; therefore, the only remaining issue for anti-SLAPP is whether the intent element of immunity is met. As we discussed on Friday, the intent element of immunity is substantially the same as the actual malice standard, which the evidence in this case easily allows the jury to find in favor of 22.Ms. Heard on that. 22.Ms. Heard on that. 6683 - I won't go through the litany of evidence that supports that Mr. Depp is an abuser here, but I'll touch on a few things that relate to Mr. Chew's argument. One, Mr. Chew was totally misrepresenting Mr. Dougherty's testimony. There's not a single piece of evidence, Your Honor, in this case suggesting that Ms. Heard and the ACLU were somehow conspiring to achieve a defamatory implication to Mr. Depp. That's simply 1] not what Mr. Dougherty said. Mr. Chew is free to argue that to the jury, but that's not what his testimony reflects.
MR. ROTTENBORN: Your Honor, there's also plenty of evidence that's been adduced, both in Mr. Depp's claim and in Ms. Heard's counterclaim, that show that absolutely there was -- that the counterclaim statements are 100 percent false. There was no hoax perpetrated. Mr. Depp is an abuser who abused Ms. Heard. She did not conspire with her friends to create a hoax. She did not create a hoax herself. And just very briefly, some of the evidence that's come up with since the last motion to strike, Your Honor, that Mr. Chew will conveniently disregard in his brief are the testimony of Rocky Pennington, testimony of Josh Drew, testimony of Elizabeth Marz, all of whom completely corroborate Ms. Heard's account of the events of May 21st, 2016. The testimony of Melanie Inglessis, who testified that she covered Ms. Heard's bruises with makeup on -- right after the December 15th incident, that provided ample testimony to support that Ms.
MR. ROTTENBORN: Heard often would cover her bruises that were caused by the plaintiff in this case, by Mr. Depp, with makeup. He ignores the evidence of Kristy Sexton. He ignores the evidence of iO Tillett Wright. He ignores the evidence of Whitney Henriquez. All of these witnesses and others have testified extensively about Mr. Depp's abusive behavior toward Ms. Heard, physical abuse, emotional abuse, psychological abuse, verbal abuse, emotional abuse, psychological abuse, verbal abuse, Your Honor. Mr. Depp's own writings, recordings, pictures, and videos confirm that. The list goes on. There's abundant evidence in the record, Your Honor, from which the jury could, and, again, we believe will find, that Ms. Heard is not liable for defamation to Mr. Depp, and therefore, by definition, she is -- she has not acted with actual malice. And based on the Court's rulings on March 21st -- 24th, 2021, she would be entitled to anti-SLAPP immunity which would permit her to ask the Court to award attorneys' fees against Mr. Depp.
MR. ROTTENBORN: So with that, Your Honor, I'm happy to ]5 answer any questions the Court has, but --
THE COURT: That's fine. Thank you, sir. All right.
MR. ROTTENBORN: That covered it. Thank you.
THE COURT: Yes, sir?
MR. CHEW: Your Honor, I will be brief in deference to the Court's time and the jury's PLANE to May 24, 2022 time. What Mr. Rottenborn said about Mr. Waldman's allegedly going to the LAPD about perjury is a complete non sequitur. If they thought that that were somehow improper conduct, they could have included it in their counterclaims. They included everything else but the kitchen sink, and most of it was thrown out. There was nothing in there about Mr. Waldman going to the LAPD, so that is a very clear non sequitur, red herring, distraction.
MR. CHEW: Number two, when Your Honor ruled on summary judgment on the issue of the counterclaims, Your Honor was dealing with a different standard and a different evidentiary record. At that time, Mr. Waldman had not testified, which is material. Mr. Waldman has now testified for purposes of trial. We have his trial testimony. It's very clear that he did not act with actual malice. They didn't even argue that. So that's pretty clear. And, again, this is consistent, the third point is that it's all about games. They didn't sue Mr. Waldman on the three statements. They didn't try to fill the hole. They've been telling us for a week that they're going to call Mr. Depp to try to fill the hole in their counterclaims. They didn't do that. And it's very consistent with the game-playing. "Let's go into court after the police have found no problem and after witness after witness, who had no relationship with each other, said there are no visible marks. Let's not give Mr. Depp's lawyer the required 24-hour notice before the TRO.
MR. CHEW: Let's march into court with our publicist, with our lawyer, with our best friend, who no longer talks to her. Let's get a TRO. And when the #MeToo folks say, "Why are you taking $7 million from an abuser?' they say, 'I didn't take money from the abuser; I gave it all to charity." Well, they didn't. I don't think anybody should feel bad about them stiffing the ACLU given what the ACLU did in this case, which is a monstrosity, but she did stiff the sick and dying children. It is gamesmanship, and that's what she's doing here today. But the law is the law, and they have not fulfilled their burden with respect to the counterclaims. There is virtually no nexus between Mr. Depp and Mr. Waldman as to these statements at issue except for the fact that he is an attorney, and that is not sufficient in a case where they have not even established that Mr. Depp was aware of these statements, and they knew that they couldn't do it and they didn't even try.
MR. CHEW: And it's more of the gamesmanship when Ms. Heard plays word games with Mr. Depp about, "Oh, I didn't punch you, Johnny; I just hit you." Imagine if the shoe were on the other foot and Mr. Depp, a man, was saying to a woman, "Oh, woman, I only hit you; I didn't punch you." And when she -- it was chilling when she warned him on the tape, "You go tell a judge, you go tell a jury that you, a man, were abused. See if they're going to believe that." It is an abuse of the system, and she's done it throughout. Finally, Your Honor, Mr. Rottenborn makes an excellent point with which I agree, which was that with respect to each of the three statements, Mr. Waldman was clearly identified, even by the tabloid that printed these, well within articles that had both sides represented, that he was Mr. Waldman's [sic] attorney. Even the reader of a tabloid understand that when you're getting statements from attorneys, it's going to be forwarding their client's point of view. Mr.
MR. CHEW: Waldman is not the only attorney who has spoken out. Robbie Kaplan, who was Ms. Heard's second attorney -- so Ms. Heard started out with Eric George; he made comments to the press.
MR. ROTTENBORN: Objection, Your Honor. Again, this is so much further beyond what Your Honor is addressing. on NM WYN
THE COURT: Okay.
MR. CHEW: I'm finishing up. My point, Your Honor, and it's on point, is that Mr. George made statements supporting Ms. Heard's position. Ms. Kaplan made very clear statements supporting her client's position on the merits, and so did Mr. Waldman, but everybody knows in reading those that those are statements by a partisan. So for the reasons that we've stated and reasons set forth in the brief, we respectfully submit that the Court should grant the motion to strike.
MR. CHEW: Or in light of the fact that Mr: Depp may reappear, at the very least, take these motions under advisement until the close of all evidence. Thank you, Your Honor.
THE COURT: Allright. Thank you, sir. Allright. In this matter I've reviewed all the defendant's evidence as to her counterclaim, and I've considered the arguments of her counsel and plaintiff's counsel. First, to address a few issues that I believe are outside the motion to strike, and that's as to the SLAPP the motion to strike, and that's as to the SLAPP defense, the SLAAP defense is just that; it's a defense, so it's really not considered in'a motion to strike. Having said that, we went down that legal road on Friday as far as the SLAPP defense goes.as far as jury instructions in this particular case. If the plaintiff prevails, it must.be with actual malice; therefore, if it's with actual malice, immunity does not apply under that statute, so we will deal with that with jury instructions, and we have.
THE COURT: As to independent contractor, again, I think it's outside the motion to strike; however, Mr. Waldman was plaintiff's attorney since 2016, before the initiation of litigation. There was evidence that Mr. Waldman had a certain role during the prior divorce proceedings and the U.K. case. Additionally, there was evidence that shows his legal representation was broader than just a limited litigation, as outlined in all the cases presenting an attorney as an independent contractor. So the only evidence in this case to this point is that Mr. Waldman was an agent to Mr. Depp, and that is the basis to weigh the motion to strike. As far as the opinions argument, again, I think that is outside the motion to strike. The opinions argument, the Court has already ruled on this matter. As to the three statements that are at issue in the counterclaim, ruled that they were not opinion at the demurrer and at summary judgment, so that argument will not be part of the motion to strike.
THE COURT: So when assessing a motion to strike, the Court accepts the favorable evidence adduced as true towards the nonmoving party. The Court cannot reject any inference from the evidence favorable to the nonmoving party unless it would defy logic and common sense. When there is doubt in question, the Court should overrule a motion to strike. Agency may be inferred from the conduct of the parties and from surrounding facts and circumstances. When there's no direct evidence, circumstances may and usually are relied upon to determine whether an agency relationship exists.
THE COURT: Principal is liable for tortious acts of his agent if the agent was performing his principal's business and acting within the scope of agency. If an agent's tortious act arises from their agency relationship as enacted in part to serve as the principal, the principal can be held liable for the tort. Here, the alleged tort is defamation. Besides demonstrating the agency relationship, the defendant must prove Mr. Waldman published an actionable statement, meaning a statement that is both false and defamatory, with the requisite intent. As to agency, Mr.
THE COURT: Waldman was plaintiff's attorney at the time that the alleged defamatory statements were made. Mr. Waldman does not deny this, and neither does the plaintiff; moreover, Mr. Waldman made the allegedly defamatory statements about the defendant during the proceedings of this action and interacted with the defendant once the statements were made while still representing the plaintiff. Taking the surrounding circumstances as a whole, an agency relationship can be inferred, and thus a scintilla of evidence regarding agency must be turned over to the jury. In addition, the jury may infer that Mr. Waldman made these specific statements to a third party to serve as plaintiff by portraying defendant as an opposing litigant in a negative light. It is not disputed that Mr.
THE COURT: Waldman published statements and that there is a question as to whether the statements are false, and both parties disagree and have presented conflicting evidence as such. As to actual malice, Mr. Waldman made the counterclaim statements after he met with his client. In addition, there's evidence the plaintiff was with Mr. Waldman at a meeting in February 2020 with the Daily Mail online. Further, the defendant claimed that she met with Mr. Waldman where he threw the paper containing the counterclaim statements within them. Consequently, there is more than a scintilla of evidence that a reasonable juror may infer Mr. Waldman made the counterclaim statements while realizing they were false or with a reckless disregard for their truth. It is not my role to measure the veracity or weight of the evidence. The force record in the Virginia Supreme Court have made it crystal clear that actual malice is a question for the fact-finder; so therefore, the plaintiff's motion to strike is denied. Okay?
MR. ROTTENBORN: Thank you, Your Honor.
THE COURT: Thank you. Is there any other preliminary matter before the jury?
MS. BREDEHOFT: Yes, Your Honor. May we approach?
THE COURT: Okay.
THE COURT: All right.
MS. BREDEHOFT: Your Honor, two days ago, on Sunday, May 22nd, more than two months after the close of discovery and four days after trial, plaintiff supplemented their witness interrogatory that had asked for the identity of anyone who had knowledge of any of the claims or defenses in this case, among other topics. And there was a court order that was entered on August 10th, 2020, ordering them to provide those. Plaintiff included the following people for the first time: Morgan Night, Jenna Price, Lydia Fuller, Miroslava Chavez, Kate Moss, David Kulber, and Morgan Tremaine.
MS. BREDEHOFT: Plaintiff then added several of these individuals to their list of people they are calling today and tomorrow, specifically David Kulber, Morgan Night, Kate Moss, Morgan Night, and Lydia Fuller. Defendant is severely prejudiced by these last-minute additions, many of whom we have no idea who they are, our client doesn't know who they are, many of them. We have no opportunity to conduct any discovery, no opportunity to conduct any depositions, and Your Honor may recall that we 92? moved to compel on our other witness interrogatory won NMA WN -moved to compel on our other witness interrogatory that says, "Please state what their knowledge is, identify the knowledge." The plaintiff objected to it on the basis of "Why bother? We're at the end of discovery," and Your Honor then denied it. Well, if they had to, at the least a minimum, respond to that, then even on Sunday, they would have to tell us what those people's knowledge is, but we're way too late. Your Honor has not even allowed us to have pictures in that were produced after March 1, and now they have all these other people.
MS. BREDEHOFT: Now, with respect to David Kulber as well, he was Mr. Depp's apparently treating physician in LA, in Los Angeles, for his finger, and we had a specific interrogatory, Your Honor --
THE COURT: Uh-huh.
MS. BREDEHOFT: -- you have all the interrogatories, a set of it. So we have compiled all of their interrogatory responses for the supplemental, but if Your Honor would go to the fourth tab, to the second page, and this was responded to by plaintiff in January of 2022. And it says, "Identify each mental health or physical health care provider that you saw or consultant who examined you or provided treatment or services to you from January 1, 2010 to the present. State the reason and duration." And as you'll note, and this is their response, Dr. Kulber is not identified. In addition to this, Your Honor, one of the people-
MR. ROTTENBORN: Nor did they ever produce medical records.
MS. BREDEHOFT: Right, right.
MR. ROTTENBORN: Nor did they ever produce medical records for Dr. Kulber in response to at least four document requests that we could cite for Your Honor.
MS. BREDEHOFT: Thank you, yes. And I do have those requests. First request, No. 43, "All documents pertaining to the three surgeries to reconstruct a finger," and the second request, No. 6, "All medical records from physical and mental health providers." Number 7, "All correspondence or records received or sent from health care providers," and Number 9, "All documents, communications concerning the alleged injury to your finger." Then on top of that, Your Honor, we found on social media last night -- we didn't even know who this person was, Morgan Night--
THE COURT: Are we still talking about Dr. Kulber?
MS. BREDEHOFT: No. This one's another one of the ones that --
MR. ROTTENBORN: Moved on.
THE COURT: Haven't ruled on that one yet, but okay.
MS. BREDEHOFT: Actually I'm hoping you will rule‘on all of these, Your Honor, because none of them were identified.
THE COURT: Well, you agree rebuttal witnesses can come in that haven't been identified?
MS. BREDEHOFT: Your Honor, only, only if there's a reason or not having identified them -- Conducted or in response to interrogatory.
THE COURT: Right. If something came up in trial.
MS. BREDEHOFT: But we had a clear interrogatory that said any defenses or claim --
THE COURT: For Dr. Kulber?
MS. BREDEHOFT: Well, all of them
THE COURT: Well, you don't know what's 9. going to come up in the trial testimony, so rebuttals, you can't
MS. BREDEHOFT: Your Honor --
THE COURT: It's the same -- I think you gave it to me.
MS. BREDEHOFT: Sorry. I gave it to you. So the significance of this one, Your Honor, is this is a tweet by Morgan Night, one of the people they've identified to testify, and it's clear that he's been watching the trial. He has a picture of Johnny Depp testifying, then he says in his tweet that --
MR. ROTTENBORN: That Umbrella Guy.
MS. BREDEHOFT: Yeah. it's Yeah, it's NO That Umbrella Guy, and then Morgan Night is commenting from That Umbrella Guy, "That never happened. I was with them all night. Amber was the one acting all jealous and crazy." So he's responded to this tweet that has what Mr. Depp is testifying to in this trial, so he's clearly violated the witness rule in any event. So in response to Your Honor, we would be severely prejudiced by these individuals. Kate Moss was somebody that Mr. Depp dated.
MS. BREDEHOFT: Oh, I'm sorry.
THE COURT: Kate Moss, though, that's a rebuttal. I know Ms. Heard said something about Kate Moss.
MS. BREDEHOFT: What Ms. Heard said was she thought about Kate Moss when she saw that Mr. Depp --
THE COURT: Right.
MS. BREDEHOFT: Was about to push�� May 24, 2022 Whitney down --
THE COURT: I know. We can't do these all in one time, at one point.
THE COURT: That's a rebuttal evidence.
THE COURT: It would be rebuttal evidence. -
MS. BREDEHOFT: What would be the rebuttal?
MR. CHEW: The rebuttal would be that Johnny didn't push her down the steps, that was the clear inference. She was trying -- because no other woman has ever accused Johnny --
THE COURT: So Kate Moss is a different issue.
MS. BREDEHOFT: But Ms. Heard didn't testify that he did. She just said, "That's what came to my mind."
THE COURT: Excuse me?
THE COURT: Okay. I wrote it down Okay. I wrote it down because I didn't know what was going on because She said she was on the stairs, and she says, "all of a sudden, I heard Kate -- I thought of Kate Moss on the stairs." That gave a negative connotation, and even to me, I'm like, Oh, does that mean that something happened with Kate Moss on the stairs? And I have no idea. So I thought that, the jury might have thought that; they're entitled to that rebuttal. So next person.
MS. BREDEHOFT: Well, just if I may, Your Honor, just to make my record, they would have known that knowledge before.
THE COURT: She didn't know Ms. Heard was going to testify to it, did she?
MS. BREDEHOFT: She testified to that in the U.K., Your Honor.
MR. ROTTENBORN: I think to the extent that the prior discovery requests said "all people with knowledge," they've been on notice since the U.K. about them.
THE COURT: Rebuttal witnesses, I'm going to allow rebuttal witness if there's a nexus to it, but as far as -- that's why they need to be separate. Dr. Kulber, if you have an issue where they didn't provide him as in discovery as a medical person --
MS. BREDEHOFT: Right. Let's take the first thing.
THE COURT: Can you respond to that com NUM WN Pe ‘Oo one?
MS. VASQUEZ: May I address Dr. Kulber?
THE COURT: Yes. Okay.
MS. MEYERS: Your Honor, first of all, Dr. Kulber, so we identified documents in response to this interrogatory. Dr. Kulber's name and contact information is reflected in those --
MS. VASQUEZ: And medical records.
MS. MEYERS: Dr. Kipper and Mr. Depp's nurse, Debbie Lloyd. And the only -- we are bringing Dr. Kulber for a very limited rebuttal purpose.
THE COURT: What's the rebuttal purpose?
MS. MEYERS: So both Ms. Heard and Whitney testified that Mr. Depp, on the stairs incident, was wearing a hard cast and was able to hit them. Dr, Kulber's just going to testify that his hand was in a soft cast and he had a pin in it. He's just going to testify to the state of his hand on that specific -- at that specific time period.
THE COURT: Okay. And you're saying these Bates numbers -- because I can't tell -- correspond to his medical records?
MS. MEYERS: I believe they are, Your Honor. I cannot -- I can't say for certain, but I know that there are documents that we would have identified in response to this that do reflect PLANE' May 24, 2022 Dr. Kulber being Mr. Depp's hand surgeon in LA --
THE COURT: Do you have that --
MS. MEYERS: After the Australia incident.
THE COURT: All right. Do you have that anywhere in here as far as identifying Dr. Kulber?
MS. MEYERS: I believe our supplemental responses identified the documents themselves, but we can confirm what that -- he is reflected in those.
MS. BREDEHOFT: Still wouldn't have identified --
MR. ROTTENBORN: Your Honor, if I may, I don't believe his name is in any interrogatory response, and also under 8.01-399, to the extent -- they didn't produce medical records that we've seen. There's a few emails back and forth with Dr. Kipper, but to the extent that they want to have him testify as to treatment or diagnosis, they have to produce -- here's a copy for you all -- they have to produce -- those things have all -- they have to produce -- those things have to be contemporaneously documented under Virginia law, or else he can't testify to those things. We've never gotten -- other than a handful of emails, I don't believe we've gotten any medical records, so if he's going to testify it was a soft cast or whatever, that --
THE COURT: You would have to have had that as medical records. Well, they're saying these Bates stamps are those medical records, but 101 don't know. If they are those medical records, then I think he could testify --
MR. ROTTENBORN: If they want to represent to the Court, then --
MS. MEYERS: I know that there are communications between Dr. Kipper. I cannot represent that they --
THE COURT: If there are no medical records, he can't testify.
MS. VASQUEZ: We need to check.
MS. MEYERS: We need to check.
THE COURT: Okay. Agreed?
THE COURT: I'm assuming he's not your first witness, so he only testifies if you have turned over those medical records -- not emails, but medical records -- to the defense.
MR. ROTTENBORN: And even if they have, also he's not identified in interrogatory, so -- that we've seen. So if they --
THE COURT: Right. He's identified in medical records.
MR. ROTTENBORN: Yeah, but they say -- if you say "Identify all your treatment providers," and they say -- they don't put any names and they just list a Bates range, I don't think that's identifying him specifically.
THE COURT: Did you identify him as a treatment provider? Well, you can look at that too.
MR. ROTTENBORN: So those were in two designations.
MS. BREDEHOFT: No. And Your Honor has the -
THE COURT: Okay. Well, if he’s been Okay. Well, if he's been FO identified as a treatment provider and the medical records were turned over, he can testify. If he hasn't, then he can't testify. Leave it at that.
MS. BREDEHOFT: Thank you, Your Honor.
THE COURT: All right. Now, let's go on to Morgan somebody, I assume --
MS. BREDEHOFT: Night. Morgan Night is the next one.
THE COURT: Morgan Night,
MS. BREDEHOFT: Now, this person apparently, based on the tweet, was somebody who either owns or is a manager at Hicksville. Well, Hicksville has been in this case all along. We've always argued that he trashed the trailer.
THE COURT: Right.
MS. BREDEHOFT: And then on top of it, we have this.
THE COURT: You're going to give it to me a third time. That's okay. So Mr. Wyatt is a rebuttal witness for
MS. VASQUEZ: He will testify that the PLANE:671) to May 24, 2022 trailer was not damaged to the degree that was -
THE COURT: That the trailer was not?
MS. VASQUEZ: Yes. In response to both Ms. Henriquez, Whitney Henriquez, and Ms. Heard that both claimed the trailer was trashed, he will testify that that's incorrect. He will also testify that -- I mean, I understand we have to make a proffer, but this seems --
THE COURT: No, that's fine.
MS. VASQUEZ: Now, the date, Your Honor, first of all, I don't even know if this is Mr. Night's tweet -- Twitter account.
MS. BREDEHOFT: It's the Umbrella Guy's Twitter account, and he's saying this. And then Morgan Higby Night is responding to him right down there.
MS. VASQUEZ: That's April 21st, Your Honor.
MS. BREDEHOFT: Right. Which is in the middle of trial.
MS. VASQUEZ: Okay. He's a rebuttal witness, meaning he stepped forward after this time, he stepped forward in May, Your Honor.
MS. BREDEHOFT: That doesn't make any difference. They still have the witness.
MR. ROTTENBORN: But the rationale for witnesses or potential witnesses not watching the trial doesn't change if someone is a rebuttal witness or not, and we would ask --
MS. VASQUEZ: They weren't identified.
MR. ROTTENBORN: That any witnesses that Your Honor allows to testify to be voir dired before they testify.
THE COURT: Well, here's the issue with this one because it's televised: I mean, there's an issue; if you don't even know you're a witness, yet, how can you be...
MR. ROTTENBORN: I understand that, but it's still manifestly unfair. The same rationale for prejudice applies whether someone is a rebuttal witness or known, and it's particularly someone like these people on an issue that's been 21-- Hicksville has been at issue since the first day of this lawsuit. So to the extent that they . DEPOS on Ara WN thought they -- and they've known about the allegations of the trailer being trashed since day one of this lawsuit. So to the extent --
MS. BREDEHOFT: Kristy Sexton testified too, and she was deposed two years ago.
MR. ROTTENBORN: If they thought, We might need to call Morgan Night to testify to this, they should. -- they've known this; this isn't something that came up anew.
THE COURT: You just said that-he came forward in May.
MS. VASQUEZ: He came forward in May, and since then, I have asked him to please --
MR. ROTTENBORN: Your Honor --
MS. VASQUEZ: Not be --
MR. ROTTENBORN: -- the fact that the trial is televised shouldn't create prejudice to our side, Your Honor. I mean, the fact that the trial is televised shouldn't create prejudice to this side just because the witness has watched --
THE COURT: No. I understand that. But the judge weighs on the rule of witness and on how it has affected the witnesses. If you have a rebuttal witness who didn't know they were a witness, I can't bind them to the rule on witnesses at the beginning of the trial if they don't know. I would have to bind the whole world. So I understand he came forward in May. If you want to voir dire him outside the presence of the jury on that issue of how much he's seen and how much his prejudice is for the rule of witnesses is discretionary, and I can do that.
THE COURT: ROTTENBORN: Well, and I would ask that they not speak to him before he gets on the stand. on NA RWDY — Well, she told him-since 15.May --
MS. VASQUEZ: I don't remember the exact date. It's very -- recent, Your Honor.
THE COURT: Not to watch the trial.
MS. VASQUEZ: Yes, I did. As soon as we identified him as a potential witness, I did instruct him, per Your Honor's ruling, to please do not watch any of the trial, do not watch any of . 6712 to May 24, 2022 the testimony. He was contacted by somebody else that worked at --
THE COURT: Okay. This was April 21st. Like I said, I have to weigh it.
MR. ROTTENBORN: Hicksville has already come into the trial by April 21st. So he has the benefit -- unlike any other witness, he has the benefit of knowing what the testimony is on Hicksville.
MR. ROTTENBORN: And --
THE COURT: This says, "Johnny Depp . will be accused." He would've had to have --
THE COURT: He said --
MS. BREDEHOFT: If I may, Your Honor, Kristy Sexton was deposed two years ago, and she testified to the trailer park. We also got a court order with Judge --
THE COURT: I'm still talking about Mr. Night.
MS. BREDEHOFT: Right.
THE COURT: We can just do this one-at
MS. BREDEHOFT: Right. No, no. And she testified to the trailer being trashed. This was, -- they would have had knowledge, and we had a court order that ordered them to produce any documents relating to the damage to the trailer. ‘)11 So that -- they should have and would have reached out to him at that time.
THE COURT: He came forward on his own, so I'm going to -- again, I'm just going to weigh that, okay? We're going to see what happens with, you know, that. I can't bind him to the rule on _ witnesses if he wasn't a witness at the time. I can voir dire him outside the presence of the jury and see what he has seen of the trial, and I can weigh it from there.
MS. BREDEHOFT: And, Your Honor, also since this was on April 21, over a month ago, and we just got him identified two days ago, I would want Your Honor to voir dire when he first came forward, when he first communicated --
THE COURT: Both of you can ask questions. That's fine.
MS. BREDEHOFT: Right. But if they waited until two days before, you know, they're putting on their rebuttal witnesses and they knew for a month, then I think that's manifestly unfair. They have a duty to timely supplement 1] their witness interrogatory, and if they became aware of them, they needed to timely supplement. We're severely prejudiced by this. We have no opportunity to examine him, to take a deposition --
MR. ROTTENBORN: We can't talk --
THE COURT: These are rebuttal witnesses, then you wouldn't have any opportunity to examine them. That's what rebuttal witnesses are.
MR. ROTTENBORN: But if they were on notice that he may be a rebuttal witness a month ago and sandbagged us in supplementing their discovery responses, we could have sought a deposition of him. We could have asked the Court --
THE COURT: You know how trials go. I know you didn't have --
MR. ROTTENBORN: But Hicksville's been at issue more than two days, Your Honor, and --
MS. BREDEHOFT: It's two years.
MS. VASQUEZ: Your Honor, I spoke to him for the first time yesterday. Last night after court was the first time I spoke to him.
THE COURT: Rebuttal is a different beast, and I know you know that, Mr. Rottenborn.
MR. ROTTENBORN: I understand that, but Ms. Vasquez just said she was -- I thought you said you instructed him a month ago and stepped forward.
MS. VASQUEZ: I have not had an opportunity to speak with him.
THE COURT: He came forward in May.
MR. ROTTENBORN: I understand, but she PLANE' (6716 to May 24, 2022 just told the Court that he was instructed not to watch the trial a month ago and that's --
THE COURT: I've made my ruling. He's going to be able to testify. If I find that -- he's a rebuttal witness, and we'll talk to them about the rule of witnesses and see where we're at, I don't now. Okay?
THE COURT: All right. Next one.
MS. BREDEHOFT: The next one's Jenna Price. We have no idea who this person is.
MS. VASQUEZ: She's not testifying, Your Honor.
THE COURT: She's not testifying. Next one.
MS. BREDEHOFT: Okay. Lydia Phillip.
MS. VASQUEZ: She's not testifying.
THE COURT: These are my favorite ones.
MS. BREDEHOFT: All right. We've talked about Kate Moss. We've talked about David Kulber. Morgan Tremaine,
MS. VASQUEZ: He's testifying.
MS. VASQUEZ: He's testifying.
MS. BREDEHOFT: I have no idea who that is.
MS. VASQUEZ: He worked for TMZ, and he will testify that TMZ did receive the video from Ms. Heard, also was directed to be there on May 27th, 2016, to take certain pictures of her face, where she would be. I mean --
THE COURT: This is rebuttal evidence?
MS. VASQUEZ: That's rebuttal.
THE COURT: Okay. Next.
MS. BREDEHOFT: Again, Your Honor, they still would have known that information and should have identified it in an interrogatory response.
THE COURT: During trial things happen. 15. Those are rebuttal witnesses. Next one. The objection's overruled.
MS. BREDEHOFT: That's the last one, Your Honor, but I would --
THE COURT: Okay. I got a big one about --
MS. VASQUEZ: Dr. David Kulber, Your Honor --
THE COURT: “What about this new Neumeister witness?
MS. VASQUEZ: I confirmed the X-rays are --
THE COURT: I've got this three times in my folder. MALE SPEAKER: What is this?
MS. BREDEHOFT: Oh, oh. He's going to argue that the fourth --
MS. VASQUEZ: We're not ready to argue that.
MS. BREDEHOFT: Okay.
THE COURT: We'll do that tomorrow.
MS. BREDEHOFT: So next one is Jennifer Howell, Your Honor. Jennifer Howell is by deposition designation, and, Your Honor, I have the pages that we're actually showing. None of these are on legitimate rebuttal testimony, and Your Honor may recall excluding our Bercovici because he wasn't on rebuttal, so let me just go through these. So first of all, the testimony of Amber does not rebut or contradict Amber's testimony or anything in this case. They designated Howell 231:3 through 20 in which Ms. Howell testifies that she met Amber Heard at the Pineapple Express premiere in 2008. Neither Amber nor Whitney were asked when Amber met Jennifer Howell It's not a legitimate rebuttal. The next one
THE COURT: I'm sure it's just not meeting Jennifer Howell that's the rebuttal. What's the -- I mean, I don't know.
MS. BREDEHOFT: It's not a rebuttal when she met Amber Howell -- Amber Heard because Amber Heard never testified whether she met Ms. Howell or not. She was never even asked about Ms. Howell. Their next one is they designated 255:2 through 9. Ms. Howell states that she never showed -- that Amber never showed her photographs or told her that Depp was abusive to her. Amber never testified that she confided in Ms. Howell, showed Ms. Howell photographs, or told her that Depp was abusive to her. So it's not rebuttal. The third one, plaintiff designated Howell 299:3 through 11, in which Ms. Howell testified that she received an anonymous donation of 250,000, and she believed the anonymous donor was Elon Musk. Defendant was designated at 345:12 through 22 in which Ms. Howell testifies she received a check from Fidelity Charitable with a note saying it was in honor of Amber Heard. This is consistent with Amber's testimony that she donated $250,000 with him, but it was not going to count to any overall pledge.
MS. BREDEHOFT: This donation is unrelated and outside the 6.8 million, and it's not rebuttal testimony. The next one, Your Honor, please bear with me. They have testimony -- they've designated testimony regarding Whitney that doesn't rebut as well. The first of those is 12:5 through 14, and the other one that's virtually the same is 229:1 through 4.-- 14, which states that Jennifer Howell is the CEO of the Art of Elysium. Whitney testified trial day 19, transcript 247:21 to 248:1. "She's the founder of the Art of Elysium" to 248:1, "She's the founder of the Art of Elysium nonprofit, right? "She is." So that doesn't rebut. Then they designated Howell at 29:6 through 30:13 which states that Whitney lived with Ms. Howell from May 2014 -- -15 to April 2016. Whitney testified -- and this is, again, day 19 transcript 248, 5 through 9 -- and these are all questions they asked in cross-examination:
MS. VASQUEZ: She is a rebuttal witness to both Whitney and Ms. Heard as to the stairs incident and her -- Ms. Henriquez's, what we will call perjurious testimony, that Ms. Heard was actually abusive towards Mr. Depp. That Ms. Heard was abusive towards Mr. Depp.
MS. BREDEHOFT: There's no testimony ‘that's designated that.comes in on that. There's nothing. There's nothing in the designation.
MS. VASQUEZ: There is an email that Your Honor sustained the objection. And - Ms. Howell testifies as to why she sent the email to Ms. Henriquez, and.she explains that -- and Your Honor did allow that testimony -- so but we believe that that is -
MS. BREDEHOFT: It has no context. It says she sent an email.
THE COURT: I'm going to allow this.
MS. VASQUEZ: Thank you, Your Honor.
THE COURT: Next one.
MS. VASQUEZ: Dr. Kulber's X-rays that were just shown-to the hand surgeon, Dr. Moore, yesterday came from Dr. Kulber. Those were medical records, Those were the X-rays from Dr. Kulber.
MR. ROTTENBORN: Okay. A couple of points, Your Honor. Those were attached to the Australia medical records. Number 2 -- so. Dr. Kulber's in LA. Number 2, there's nothing. They still didn't identify him in the interrogatory responses.
THE COURT: Did you identify him?
MS. VASQUEZ: I need to confirm that, Your Honor, but --
MR. ROTTENBORN: They didn't. I mean, ” you can do it --
MS. BREDEHOFT: And I have --
THE COURT: They're going to confirm.
MR. ROTTENBORN: All right: Okay. And then the other thing that I would say is even if the X-rays are attached -- even if like, let's say those did come --
THE COURT: So they didn't identify it in the designations. —
MS. BREDEHOFT: They have not, Your Honor.
MR. ROTTENBORN: Right. But one more point. If you look at the statute, even if the X-rays relayed were Dr. Kulber's medical records, PLANE' May 24, 2022 if those are the only records he produced, if what they're going to do is get him to get up there and say it-was a hard cast, the X-rays don't show that.
MR. ROTTENBORN: And if you see the first sentence of subsection B, "If the physical condition of the patient is.at issue in a civil action, the ‘diagnoses, signs and symptoms, observations, evaluation, histories, or team plan the’ practitioner obtained or formulated as contemporaneously documented," so the medical record -- whatever they're going to have him testify about has to be in medical records that were produced. So if it's just X-rays, that's not related to -- CoN NN BW Ne
THE COURT: We'll see when they come out.
MS. VASQUEZ: And, Your Honor, I have to be fair, I have to read it, but I would submit that he's actually a fact witness. and not testifying as a medical expert. He --
THE COURT: You still have to produce medical records. I would have to agree with that argument. Okay.
MR. ROTTENBORN: This is fact witness.
THE COURT: Any other ones?
MR. ROTTENBORN: Could we just get -- it would be helpful if they could confirm that by, like, the morning break or something. Because otherwise, we have to prepare that.
THE COURT: We'll see.
MR. ROTTENBORN: Okay.
THE COURT: I'l let-them --
MR. ROTTENBORN: All right. Thank you.
MS. BREDEHOFT: So for the two that - they are going to -- that Your Honor's allowing Win--
THE COURT: Three, actually.
MS. BREDEHOFT: -- they do get to --
THE COURT: There's the video deposition of Ms. Moss, and Mr. Night we're going to have to talk about. [ DEPOS,
MS. BREDEHOFT: And we'll get to voir dire on all three of those when they --
THE COURT: No, not all three, Mr. Night. The others are done. MALE SPEAKER: That's good. FEMALE SPEAKER: We'll get all of them?
THE COURT: One's a deposition.
MS. BREDEHOFT: Oh, oh, not Howell. I wasn't talking about Howell. I was talking about --
THE COURT: No. We're not voir diring her. The only one that will be voir dired is Mr. Night.
MS. BREDEHOFT: Not Morgan Tremaine, since they didn't identify him till Sunday and Ms. Heard testified -- 1 NA MN
THE COURT: No. The only one voir diring is Mr. Night, to see where we are, okay?
MS. VASQUEZ: Thank you, Your Honor.
MR. ROTTENBORN: Thank you, Your Honor.
THE COURT: Okay.
THE COURT: Okay.
THE COURT: All right. Are we ready for the jury, then?
MS. BREDEHOFT: Yes, Your Honor.
THE COURT: Okay.
THE COURT: All right. Good morning, ladies and gentlemen. I apologize. We had a few housekeeping matters to take care of, but thank you. You can have your seat. All right. Your next witness.
MS. BREDEHOFT: Your Honor, on behalf of defendant and counterclaimant, Amber Heard, we rest.
THE COURT: All right. Thank you, All right. Rebuttal evidence?
THE COURT: All right. Mr. Hamada.
MR. CHEW: Your Honor, just to clarify, PLANE'(S728 to May 24, 2022 this is by deposition, so we may need the --
THE COURT: Oh, okay.
THE COURT: That's all right.
THE COURT: If we could get the video.