Kevin Spacey Fowler v. Adam Vary
| Anthony Rapp |
| Kevin Spacey Fowler and Kevin Spacey |
| Adam Vary |
| 1:2022mc00063 |
| February 28, 2022 |
| US District Court for the Southern District of New York |
| Lewis A Kaplan |
| Other Statutory Actions |
| None |
Docket Report
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This docket was last retrieved on September 28, 2022. A more recent docket listing may be available from PACER.
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| Filing 33 SEALED DOCUMENT placed in vault. (nmo) |
| Filing 32 LETTER MOTION for Discovery Request for Clarifcation of August 9, 2022 Order addressed to Judge Lewis A. Kaplan from Jean-Paul Jassy dated August 12, 2022. Document filed by Adam Vary. (Attachments: #1 Appendix March 7, 2014 BuzzFeed article).(Jassy, Jean-Paul) |
Filing 31
MEMORANDUM OPINION. Fowler's motion to compel is GRANTED to the extent that it seeks (a) production of Vary's pre-2017 communications with Rapp, 2021 communications with Darlow Smithson Productions, and documents regarding any interactions between Vary and Fowler and (b) a supplemental deposition. Vary shall sit for a supplemental deposition not to exceed four hours and answer, to the extent consistent with this Memorandum Opinion, all questions he refused to answer at his initial deposition and all reasonable follow up questions and questions about or relating to the newly produced documents and matters disclosed therein. The documents shall be produced no later than August 15, 2022. The supplemental deposition shall take place on a date mutually acceptable to Vary and the parties, which shall be on or before September 9, 2022. It otherwise is DENIED. In addition, the order to show cause dated June 13, 2022 (0kt. 220, 20-cv- 9586) is discharged. Items 3, 4 and 5 listed in that order will be filed on the public docket on or after August 11, 2022. SO ORDERED. (Signed by Judge Lewis A. Kaplan on 8/9/22) (yv)
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| Filing 30 RESPONSE TO ORDER TO SHOW CAUSE re: #29 Order to Show Cause. Document filed by Adam Vary..(Jassy, Jean-Paul) |
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Filing 29
Discharged as per Judge's Order dated 08/09/2022, Doc. # 222 ORDER TO SHOW CAUSE: In the circumstances, Mr. Vary shall show cause, on or before June 15, 2022, why Items 3, 4 and 5 should not be filed on the public record. (Signed by Judge Lewis A. Kaplan on 6/13/2022) (rro) Modified on 8/9/2022 (yv).
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Filing 28
ORDER denying #23 Letter Motion for Discovery; denying #24 Letter Motion for Discovery. On May 19, 2022, this Court ordered that Mr. Vary submit, under seal, for in camera review various materials that he may be withholding from production in order to inform its analysis of whether he has satisfied his burden of showing that the materials, if indeed there are any, should be produced to the defendant. On June I, 2022 it granted in part Mr. Vary's request for additional time within which to comply. (The May 19 and June I orders are referred to collectively as the "Orders.") Mr. Vary now seeks a stay of the Orders insofar as they (I) require the submission for in camera review of any withheld materials that contain what he calls "confidential source information" and (2) supposedly require such submission of "post-subpoena attorney-client communications." Dkt. 23. The proposed stay, if granted, would remain in effect for "14 days after the later of the following events: (a) the Court's ruling on Mr. Fowler's motion for summary judgment; and (b) the Court's ruling on Mr. Rapp's renewed motion to remand. Dkt 159, 172, 20-cv-09586." Id. The ostensible justification for this relief is to afford Mr. Vary's counsel additional time to "consider and possibly seek appellate review of those portions of the Court's Orders, and then, if Mr. Vary does seek appellate review, stay [the Orders] until the outcome of such review." Id. Separately, Mr. Vary "seek[s] a 14-day stay of any order granting Mr. Fowler's motion to compel, in whole or in part." Id. The primary request appears to be premised in part on the possibility that ( a) a ruling favorable to Mr. Fowler on the summary judgment motion might eliminate any need for further discovery, and (b) a ruling favorable to the plaintiff on the remand motion would result in remand to the New York courts and thus possibly result in litigation of Mr. Vary's arguments in what he presumably regards as a forum more congenial to his position. The Court, however, yesterday denied both Mr. Fowler's summary judgment motion and the plaintiff's motion to remand. 20-cv-9586, Dkts 217,218. Hence, the action is going forward in this Court and Mr. Vary's apparent hopes will not be realized. Nor is there any need for him to have a stay for a further two weeks while he considers further whether he wishes to attempt to appeal from the Orders. He has been actively litigating the requirement for in camera inspection for 17 days already. He does not need any more time to think about whether he wishes to attempt to appeal from the Orders. And he will be at liberty to seek a stay pending appeal from this Court in the event that he does so. This Court is not in the business of giving advisory opinions concerning whether it would grant a stay pending an appeal if a litigant decides to file one. The second request is made as "a cautionary measure" against the possibility that this Court, if it orders disclosure of any "confidential source information" and "post-subpoena attorney-client communications" following in camera review, would require disclosure without Mr. Vary having an opportunity to seek review. The request is denied on the ground that the possibility to which Mr. Vary alludes is at best speculative. That of course is not to say that the Court necessarily would afford Mr. Vary a leisurely opportunity to seek a stay, should he seek to pursue such an option. The Clerk shall terminate Dkts 23 and 24 in 22-mc-0063 (LAK). SO ORDERED. (Signed by Judge Lewis A. Kaplan on 6/7/2022) (jca)
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| Filing 27 DECLARATION of Adam Vary in Opposition re: #1 Complaint - Miscellaneous,,,,. Document filed by Adam Vary..(Jassy, Jean-Paul) |
| Filing 26 NOTICE OF APPEARANCE by Matthew Aaron Leish on behalf of Adam Vary..(Leish, Matthew) |
| Filing 25 NOTICE OF APPEARANCE by David S. Korzenik on behalf of Adam Vary..(Korzenik, David) |
| Filing 24 AMENDED LETTER MOTION for Discovery re Request for Stay addressed to Judge Lewis A. Kaplan from Jean-Paul Jassy dated June 4, 2022. Document filed by Adam Vary..(Jassy, Jean-Paul) |
| Filing 23 LETTER MOTION for Discovery Request for Stay addressed to Judge Lewis A. Kaplan from Jean-Paul Jassy dated June 3, 2022. Document filed by Adam Vary..(Jassy, Jean-Paul) |
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Filing 22
ORDER granting #20 Letter Motion for Discovery. This Court's May 19, 2022 order [Dkt 17], as modified by its May 25, 2022 order [Dkt 19], is entirely clear: "Mr. Vary, on or before June 7, 2022, shall submit for in camera inspection, under seal, all documents responsive to Request Nos. 1 through 6, 9, 11 through 21, and 26 through 29 of Mr. Fowler's December 29, 2021 subpoena." There is no ambiguity. And Mr. Vary' s counsel ought to bear in mind that an order of the Court is not to be treated as the commencement of a dialogue with counsel. Mr. Vary shall comply with the modified May 19, 2022 order on or before June 7, 2022. SO ORDERED. (Signed by Judge Lewis A. Kaplan on 6/1/22) (yv)
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| Filing 21 LETTER addressed to Judge Lewis A. Kaplan from Chase A. Scolnick dated May 31, 2022 re: Response to Mr. Jassy's May 27, 2022 Letter. Document filed by Kevin Spacey Fowler..(Scolnick, Chase) |
| Filing 20 LETTER MOTION for Discovery Request for clarification of May 19 and 25, 2022 Orders [Dkt 17, 19] addressed to Judge Lewis A. Kaplan from Jean-Paul Jassy dated May 27, 2022. Document filed by Adam Vary..(Jassy, Jean-Paul) |
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Filing 19
ORDER granting #18 Letter Motion for Discovery. This letter motion for reconsideration and, on reconsideration, vacatur of the order dated May 19, 2022 (22-mc-0063 Dkt 17) (the "May 19 Order") or, alternatively, relief from the scope and timing of that order is GRANTED to the extent that the Court has reconsidered the May 19 Order. On reconsideration, it MODIFIES THE MAY 19 ORDER to provide that Mr. Vary, on or before June 7, 2022, shall submit for in camera inspection, under seal, all documents responsive to Request Nos. I through 6, 9, 11 through 21, and 26 through 29 of Mr. Fowler's December 29, 2021 subpoena. In all other respects the Court adheres to its original decision. n view of the letter from Mr. Vary's counsel, a number of other points are pertinent. I. The letter begins by presupposing that California law governs and that Mr. Vary's claimed protection therefore is absolute, thus obviating the need for in camera inspection. Even putting aside choice of law questions, however, he appears to be mistaken. California state law provides an absolute immunity from contempt, though not other sanctions, and not a privilege against disclosure. New York Times Co. v. Superior Court, 51 Cal.3d 453, 461-64 (1990) (clarifying that "the [California] shield law by its own tem1s" is "not a privilege"). 1 Disobedience of a federal court order, however, can constitute civil contempt under federal law and, in some circumstances, a federal crime. See, e.g., 18 U.S.C. 401(3). Other sanctions short of contempt may be available to federal courts under the Rules of Civil Procedure and the Rules Enabling Act. California's shield law affords no immunity from any. See U.S. CONST., Art. VI. Accordingly, it cannot obviate the need for in camera inspection. 2. In the same paragraph, Mr. Vary shifts from California law to claiming that in camera review would violate his claimed First Amendment rights as a journalist. But any First Amendment protection is qualified, and the burden of establishing its existence is on Mr. Vary. Moreover, the existence or level of First Amendment protection depends upon whether Mr. Vary was acting as an independent journalist as opposed to someone writing an article to achieve some purpose of another person, in this case perhaps Mr. Rapp. See Chevron Corp. v. Berlinger, 629 F.3d 297, 307-08 (2d Cir. 2011 ). Here, evidence already of record discloses that Messrs. Rapp and Vary were friends of more than 20 years standing when Rapp approached Vary with his claim concerning Mr. Fowler. Moreover, it indicates that Mr. Vary did not report certain detail imparted to him by Rapp because that detail could not be verified. Accordingly, while the Court has reached no conclusion, there perhaps is some basis for inferring that Mr. Vary acted to achieve a purpose of Mr. Rapp and that his reporting was influenced by their friendship. Many of the disputed requests go to these issues and thus are relevant to the existence or level of any First Amendment protection. 3. Mr. Vary suggests also that he should not be compelled to produce attorney-client communications for in camera review. To be sure, his response to the document request included the statement "Vary objects to this Request to the extent that it calls for material protected from disclosure by the attorney-client privilege, the attorney work product doctrine, and any other applicable privilege or doctrine." 22-mc-0063 Dkt 1-1. But that was not a sufficient assertion of attorney-client privilege. It did not in fact say that any allegedly privileged document that was responsive to the request actually existed, let alone its nature, subject matter, date, and so on. He has not produced a privilege log. And the burden is entirely on him to show that there in fact are responsive privileged documents and that the several essential elements of attorney-client privilege in fact are satisfied. He has not met that burden. So Ordered. (Signed by Judge Lewis A. Kaplan on 5/25/22) (yv) Modified on 6/3/2022 (yv).
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| Filing 18 LETTER MOTION for Discovery re May 19, 2022 Order [Dkt 17, 22-mc-0063] addressed to Judge Lewis A. Kaplan from Jean-Paul Jassy dated May 23, 2022. Document filed by Adam Vary..(Jassy, Jean-Paul) |
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Filing 17
ORDER. On or before May 31, 2022, Mr. Vary shall submit for in camera inspection, under seal, all documents responsive to Mr. Fowler's December 29, 2021 subpoena [Dkt 1-6, 22-mc-0063]. SO ORDERED. (Signed by Judge Lewis A. Kaplan on 5/19/22) (yv)
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| Filing 16 LETTER addressed to Judge Lewis A. Kaplan from Chase A. Scolnick dated 3/1/2022 re: As Your Honor is aware, my office represents Defendant Kevin Spacey Fowler. I write to respond to the February 28th letter from Jean-Paul Jassy, counsel for non-party Adam Vary. See ECF No. 154. Document filed by Kevin Spacey Fowler. (mml) |
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Filing 15
ORDER: Mr. Fowler's motion is fully briefed. To whatever extent Mr. Vary asserted his untimeliness argument in opposition to that motion, this Court will consider the argument in deciding the motion. There is no reason to approach the motion piecemeal, and I decline to do so. Nor will I send this case back to California. The decision to transfer the motion to this Court now is the law of the case. I see no reason to revisit it. And were I to do so, I would uphold the decision to transfer on the merits. Mr. Fowler's motion has a direct bearing on the Rapp Case. As the magistrate judge in Los Angeles recognized, the "extraordinary circumstances" provision of Fed. R. Civ. P. 45 may be satisfied in circumstances like these to avoid disrupting the management of the underlying litigation by the presiding judge. That is exactly what happened here. Mr. Vary's application to deny Mr. Fowler's motion "outright" is denied without prejudice to any timeliness motion he may have made in his papers in opposition to that motion. His request that I transfer the matter back to California is denied. (Dkt 14) The Clerk shall amend the caption of 22-mc-0063 to conform to that above and take such steps as may be necessary to ensure that counsel for Mr. Rapp in 20-cv-9586 receives all notices of electronic filing issued in this case. SO ORDERED. (Signed by Judge Lewis A. Kaplan on 3/2/2022) (mml)
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| CASE ACCEPTED AS RELATED. Create association to 1:20-cv-09586-LAK. (vba) |
| Filing 14 LETTER addressed to Judge Lewis A. Kaplan from Jean-Paul Jassy dated 2/28/2022 re: requests court to rule Mr. Fowler's motion as untimely. Document filed by Adam Vary. (ate) |
| Filing 13 MISCELLANEOUS CASE TRANSFERRED IN from the United States District Court - District of California Central; Case Number: 2:22-mc-00030. Original file certified copy of transfer order and docket entries received. (sjo) |
| Case Designated ECF. (sjo) |
| Filing 12 TEXT ONLY ENTRY by Magistrate Judge Alexander F. MacKinnon re EX PARTE APPLICATION #10 of Non-Party Journalist Adam Vary to Stay transfer of case pending Disposition of Motion to Review Order Transferring Case #9 and AMENDMENT to the Ex Parte Application filed by Respondent Adam Vary #10 : Any opposition to the Ex Parte Application to Stay shall be filed by 6:00pm on February 24, 2022. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (ib) TEXT ONLY ENTRY [Transferred from California Central on 2/28/2022.] |
| Filing 11 Amendment to EX PARTE APPLICATION to Stay pending Disposition of Motion to Review Order Transferring Case,, #9 Memorandum; Declaration of Jean-Paul Jassy #10 filed by Respondent Adam Vary. (Attachments: #1 Proposed Order)(Jassy, Jean-Paul) [Transferred from California Central on 2/28/2022.] |
| Filing 10 EX PARTE APPLICATION to Stay pending Disposition of Motion to Review Order Transferring Case,, #9 Memorandum; Declaration of Jean-Paul Jassy filed by Non-Party Journalist Adam Vary. (Jassy, Jean-Paul) [Transferred from California Central on 2/28/2022.] |
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Filing 9
MINUTES (In Chambers): Order Transferring Action to the Southern District of New York by Magistrate Judge Alexander F. MacKinnon: This miscellaneous case relates to a Motion to Compel and for Contempt Re Adam Vary's Deposition and Response to Subpoena Seeking Production of Documents ("Motion"). (ECF No. #1 .) The Motion arises from a Rule 45 subpoena in a case pending in the United States District Court for the Southern District of New York. The Court has reviewed the Motion and associated papers and finds that exceptional circumstances exist to transfer the case to the Southern District of New York. [See document for further details.] (MD JS-6. Case Terminated.) (es) [Transferred from California Central on 2/28/2022.]
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| Filing 8 SUPPLEMENT to MISC - Motion Related to Subpoena from Another District,,,, #1 filed by Defendant Kevin Spacey Fowler. (Scolnick, Chase) [Transferred from California Central on 2/28/2022.] |
| Filing 7 SUPPLEMENT to MISC - Motion Related to Subpoena from Another District,,,, #1 filed by Respondent Adam Vary. (Jassy, Jean-Paul) [Transferred from California Central on 2/28/2022.] |
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Filing 6
MINUTES (In Chambers): Order Vacating March 15, 2022 Hearing on Movant's Motion to Compel and for Contempt Re Adam Vary's Deposition and Response to Subpoena Seeking Production of Documents (Filed February 9, 2022; ECF No. #1 ) by Magistrate Judge Alexander F. MacKinnon. The hearing on Movant's Motion noticed for March 15, 2022, at 10:00 a.m., is TAKEN OFF CALENDAR. No appearance is necessary. Local Rule 7-15. The parties shall file their Supplemental Memorandum of Law no later than February 18, 2022. The motion shall stand submitted on the basis of the papers timely filed. The Court will determine if a hearing is necessary after review of the briefing. (et) [Transferred from California Central on 2/28/2022.]
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| Filing 5 NOTICE of Appearance filed by attorney Meghan Elyse Fenzel on behalf of Respondent Adam Vary (Attorney Meghan Elyse Fenzel added to party Adam Vary(pty:res))(Fenzel, Meghan) [Transferred from California Central on 2/28/2022.] |
| Filing 4 NOTICE of Appearance filed by attorney Jean-Paul Jassy on behalf of Respondent Adam Vary (Attorney Jean-Paul Jassy added to party Adam Vary(pty:res))(Jassy, Jean-Paul) [Transferred from California Central on 2/28/2022.] |
| Filing 3 NOTICE OF HEARING on Motion to Compel and for contempt Re Adam Vary's Deposition and Response to Subpoena Seeking Production of Documents by Clerk of Court. Counsel is hereby notified that the MISC - Motion Related to Subpoena from Another District, #1 is set for hearing. Motion set for hearing on 3/15/2022 at 10:00 AM before Magistrate Judge Alexander F. MacKinnon. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (lh) TEXT ONLY ENTRY [Transferred from California Central on 2/28/2022.] |
| Filing 2 NOTICE OF ASSIGNMENT to District Judge Michael W. Fitzgerald and Magistrate Judge Alexander F. MacKinnon. (lh) [Transferred from California Central on 2/28/2022.] |
| Filing 1 MOTION RELATED TO A SUBPOENA FROM ANOTHER DISTRICT with filing fee previously paid ($49.00 paid on 02/09/2022, receipt number ACACDC-32762693), filed by Moving Party Kevin Spacey Fowler. (Attachments: #1 Memorandum Joint Stipulation Regarding Moving Party's Motion to Compel and for Contempt Re Adam Vary's Deposition and Subpoena for Production of Documents, #2 Declaration of Chase A. Scolnick in Support of Moving Party's Portion of the Joint Stipulation Regarding Dispute Over Deposition of Adam Vary and Subpoena for Production of Documents, #3 Exhibit 1, #4 Exhibit 2, #5 Exhibit 3, #6 Exhibit 4, #7 Exhibit 5, #8 Exhibit 6, #9 Exhibit 7, #10 Exhibit 8, #11 Exhibit 9, #12 Declaration of Jean-Paul Jassy in Support of Non-Party Journalist Adam Vary's Opposition to Kevin Spacey Fowler's Motion to Compel; with Exhibits 10 and 11, #13 Exhibit 10, #14 Exhibit 11) (Attorney Chase Scolnick added to party Kevin Spacey Fowler(pty:mov))(Scolnick, Chase) [Transferred from California Central on 2/28/2022.] |
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