Evidence gathering in Zervos defamation case against Trump can proceed

A New York appeals court has denied a motion by President Donald Trump's attorney to stay the Summer Zervos defamatio...

Posted: May 18, 2018 3:14 AM
Updated: May 18, 2018 3:14 AM

A New York appeals court has denied a motion by President Donald Trump's attorney to stay the Summer Zervos defamation case pending appeal, meaning the gathering of evidence known as "discovery" can move forward as both parties await a ruling on the appeal.

Zervos, a former "Apprentice" contestant, filed a lawsuit against Trump in January 2017 in which she alleged that Trump defamed her in 2016 after she said he sexually assaulted her in 2007.

Trump's lawyer, Marc Kasowitz, is appealing the March 20 ruling by New York Supreme Court Justice Jennifer Schecter, who allowed the case to go forward. He wants the appellate court to revisit the matter of whether the Constitution's Supremacy Clause bars a state court from hearing an action against a sitting president -- what would be considered immunity, because it would make the President immune from suit. Schecter ruled it does not. Kasowitz also argues that Schecter erred in denying the President's motion to dismiss or delay the case on First Amendment grounds.

Kasowitz said his motion should be granted on the grounds that New York and federal law both mandate a stay pending appeal, that proceeding with the case could irreparably harm Trump, and that the temporary suspension being sought was not designed to delay the case. But the Appellate Division of the New York Supreme Court denied his motion in a one-page ruling.

"We look forward to proving Ms. Zervos's claim that defendant lied when he maliciously attacked her for reporting his sexually abusive behavior," said Zervos' attorney, Mariann Meier Wang. Kasowitz did not immediately respond to a request for comment on the ruling.

Earlier this month, Zervos' team issued subpoenas to Metro-Goldwyn-Mayer and the Beverly Hills Hotel as part of their effort to prove that Trump lied "when he falsely denigrated Ms. Zervos and denied sexually assaulting her," Wang said. She set a May 31 deadline for both companies to comply with the subpoena for the material requested.

MGM owns the archives of "The Apprentice" and Wang wants the company to hand over all documents, video or audio that feature Zervos or Trump talking about Zervos and any recording in which Trump speaks of women in a sexual or inappropriate manner. Wang also wants to depose an MGM representative to inquire about how recordings of "The Apprentice" are stored and maintained, who has access to them, and when, if ever, they were transferred or destroyed.

The subpoena asks for "(a)ll video and audio recordings that include Donald J. Trump talking or commenting on the female candidates or female potential candidates of any season of The Apprentice in any sexual or inappropriate manner, including without limitation any statements or comments by Donald J. Trump concerning any female candidate's or potential candidate's body or body parts and/or his sexual or romantic desire or intention concerning any female candidate or potential candidate."

Wang also wants records from the Beverly Hills Hotel of any stay by Trump from 2005 through 2009 and documents related to his longtime bodyguard Keith Schiller, his longtime assistant Rhona Graff or Zervos and for "(a)ll video recordings that depict the entrances, common areas, or bungalow areas of the Beverly Hills Hotel during the month of December 2007."

Kasowitz called the ruling "incorrect" in a statement obtained by CNN.

"It is also completely and unjustifiably contrary to the stays the courts uniformly granted when deciding whether a lawsuit against President Clinton could proceed in federal court," Kasowitz said. "There is no valid reason in this case -- in which plaintiff is seeking merely $3,000 in damages, and which plaintiff's counsel has repeatedly insisted was brought for political purposes -- for the Court not to grant the requested stay in order to take the time to first decide the threshold Constitutional issue that is at stake."

Zervos' complaint says she suffered at least $2,914 in financial losses and "pleads these special damages in the event that a court should determine that she is required to plead special damages as an element of her claim." However, in seeking relief from the court, Zervos is asking -- among other things - that Trump be ordered to pay compensatory damages and punitive damages in amounts to be determined at trial and that Trump retract any and all defamatory statements and/or apologize for such statements.

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