In anticipation of the a scheduling conference tomorrow in the E. Jean Carroll suits against Donald Trump, the parties submitted a proposed discovery plan last night. The plaintiff would like to schedule this trial for April, while the defendant would like to calendar it for never.
This is an unsurprising position from Trump, who spent years trying to avoid this lawsuit by evading process, claiming presidential immunity from civil suits, removing to federal court, and even substituting the government as defendant on the theory that defaming a woman as too ugly to rape was part of his job as president. Thanks to the Second Circuit, the issue of whether Trump was acting within the scope of his official duties is now in the hands of the DC Court of Appeals. But in the meantime, Carroll filed a second complaint, adding a claim for battery under the recently passed Adult Survivors Act, as well as another defamation count, since Trump repeated the allegedly defamatory allegations in October.
Carroll hopes to consolidate the two actions and takes the position that this should not delay the trial because the underlying facts are the same. Trump says he’ll have to take extensive new discovery because the dispute now includes damages from the original alleged assault, not just the defamation. But he’s not in any hurry to begin that discovery, because he’d like to dismiss those new charges altogether.
As his attorney Alina Habba wrote in the discovery memo:
Defendant intends to raise numerous defenses to Plaintiff’s complaint, with each providing a substantial basis for dismissal, including, but not limited to: (1) the Adult Survivors Act is an improper ‘claim revival’ statute which violates the United States Constitution and/or the New York State Constitution; (2) Plaintiff has failed to plead a cognizable defamation claim since the October 12, 2022 statement does not qualify as defamation per se and Plaintiff has failed to allege special damages; (3) Plaintiff elicited the alleged defamatory statement through the publication of her book, the filing of Carroll I, the announcement of the anticipated filing of Carrol Case, and/or her frequent and ongoing public commentary on the foregoing and the alleged incident. Courts have routinely found that good cause exists to stay discovery throughout the pendency of a motion to dismiss involving these type of threshold issues.
Let’s take a wildass guess that Judge Kaplan, who already characterized Trump’s efforts to postpone discovery as having “a dilatory effect and, indeed, strongly suggest that he is acting out of a strong desire to delay any opportunity Plaintiff may have to present her case against him,” will not be terrifically receptive to the move to extend discovery while Trump tries to convince “his” Supreme Court Justices to strike down the Adult Survivors Act. Also, adding that Carroll was asking to be defamed because she talked about her case is a nice touch.
In the meantime, Carroll’s lawyers at Kaplan Hecker & Fink are giving Trump and his legal team a preview of what’s to come if they actually let this thing go to trial. Yesterday they placed an excerpt of Carroll’s testimony describing the alleged assault on the public docket. It’s graphic and uncomfortable, with Carroll slammed up against the wall of the dressing room by a man much more powerful than she was, both physically and financially. Almost every woman reading it will identify with the split second where Carroll realizes that a funny interaction has turned suddenly dangerous and she’s going to have to figure out how to escape.
In contrast, the excerpt of Trump’s testimony is entirely redacted. But they didn’t black out the portion of the deposition where Habba asked Carroll if her inability to date after the alleged assault is because she’s actually a lesbian.
This is going to be so ugly it makes the Depp-Heard trial look like a Disney movie. But for today, we’ll just worry about the discovery order. One disaster at a time!
Liz Dye lives in Baltimore where she writes about law and politics.