WASHINGTON — Ed Schultz‘s lawyers royally screwed up, a D.C. District Court judge declared Friday at an “emergency” hearing made at the request of the MSNBC media personality. The judge denied a motion to seal public records they claimed were confidential. Despite publicly filing the documents, they argued they were confidential and that not filing a motion to seal them years ago was an “inadvertent” error.
Judge Beryl Howell, who was appointed by President Obama, wasn’t biting. “This horse has clearly left the barn,” she said. “It’s not a remedy that makes any sense. I can appreciate the harm that this defendant is feeling. At the same time, it is on the public docket and has been there for years.”
Howell granted the emergency hearing after three stories concerning Schultz’s present legal situation appeared in The Daily Caller. He’s being sued by Michael Queen, an NBC producer and broadcast engineer, for not giving him a piece of the financial pie for helping him land his TV show. Queen claims Schultz enlisted his assistance.
Schultz may want to go ahead and ask for sick days now. The judge set a trial date: May 11, 2015. It could last as long as six days. The plaintiff is expected to have under 10 witnesses testifying on his behalf, but he doesn’t have to be held to that number.
The TV host was not in attendance. His lawyers were. They included John Hayes and Jeffrey Landa. Queen, who mildly resembles Cato Calin with his longish dirty blonde hair, appeared in court Friday, flanked by his lawyers, Steven Teppler and Frazier Walter.
“We are pleased with the outcome, and we look forward to trial,” Teppler told The Mirror.
Hayes wasn’t so ecstatic. Asked if he was upset by the judge’s ruling, he replied, “No. I understand the judge’s ruling.” Asked how he feels about the upcoming trial, he said, “Mr. Schultz is going to prevail.”
The original suit against Schultz was filed in 2011. In 2012, Howell dismissed it, ruling in favor of Schultz. Queen appealed. In 2014, the decision was reversed and sent back to Howell’s courtroom.
Her hands were tied.
Despite displaying obvious disdain for some of the details in Queen’s case, she had to respect the appellate court’s ruling and send the case to trial.
To be sure, Howell was not full of warm fuzzies for either side. At one point she gave a tart speech to the suited male lawyers about interrupting her. “Don’t talk over me,” she snapped. She said if they kept doing it, the courtroom stenographer would not be able to pick up their words.
At one point, Hayes, Schultz’s lawyer, attempted to locate document numbers that he wanted sealed and was taking awhile. As the clock ticked, Howell looked incredibly irritated and ridiculed him out loud, suggesting that perhaps Evan Gahr, who wrote the stories on Schultz for The Daily Caller, should find them for him. Even the teenage girls — interns? — sitting in the back of the courtroom snickered at that.
What the ruling came down to in Friday’s hearing was really the stupidity of Schultz’s own attorneys. The documents they said were “confidential” were clearly public; they knew that and filed them themselves. Unfortunately, they waited three years to complain about it.
Schultz’s lawyers wanted the public documents they forgot to have legally sealed now sealed. They also wanted the plaintiff’s side “admonished” for allegedly leaking the documents to the media — in this case, Gahr. The judge did neither.
Hey, it happens. Maybe Schultz needs new lawyers?
Howell’s ruling to move ahead with the trial was foreshadowed right from the start of Friday’s hearing.
“I plan to set a schedule for future proceedings, so I hope everyone brought their calendars,” she said.
The stories published on Schultz alarmed her. “I thought it was pretty serious for information to be posted,” she said, explaining why she honored the emergency hearing request in the first place.
Each side got a chance to make their case.
Hayes: “The fact is, we assumed they complied with the confidentiality order. There is no question it’s confidential.”
The lawyer explained that his failure to file a motion to have the documents sealed was “inadvertent.”
Howell asked incredulously, “It’s been inadvertent since 2012?” She continued her rampage of ridicule, saying, “If it’s so damaging and so upsetting to Mr. Schultz I would’ve expected, ‘Could you please put this immediately under seal?’, but you didn’t direct me to do that then.”
Just to be clear, if a court document is officially put under seal, reporters will not be able to find it online.
Hayes took his verbal spanking. “The posting was inadvertent. We should have focused on it, but we didn’t,” he said.
Howell replied, “I’m not sure what difference it makes. It’s on the public docket.”
More arguments from the hearing:
Howell: “I’m trying to figure out what your argument is since it’s not as clear-cut as your [original complaint].”
Hayes: “It’s plainly confidential. It’s confidential on its face. I acknowledge we should have filed our other version under seal. No question.”
At this point, the judge posed a hypothetical, suggesting that perhaps Queen’s lawyer directed the reporter to the already public court document.
She asked the plaintiff’s lawyer, Steven Teppler, “Did you tell this reporter where to find [the documents]?”
Teppler, standing before the judge at the podium, said, “I talked to Evan Gahr. I referred him to the record, not any specific portion. He told me he had downloaded the entire record. I felt it better to say this in open court.”
The judge soon grew exasperated with Hayes. “What exactly are you asking me to do?” she asked.
Hayes said he wanted her to seal the material.
She asked, “So are you prepared to give me docket numbers?”
Hayes sifted through documents searching for an answer to her question.
During the silence, Howell grew testy. “Are you expecting the court to go through the docket?” she asked.
And then: “Maybe you should ask the reporter” — at this point she smiled — “He may have the docket numbers.”
Hayes offered the judge an excuse for why he was so unprepared. “My daughter had a baby last night at 6:30,” he said. “I was a bit distracted.”
The judge didn’t bubble over with joy. “Well, congratulations,” she deadpanned.
Lawyers for Queen, meanwhile, argued that the documents in question should not be placed under seal.
“This was never established as a confidential deposition,” said Frazier Walton, referring to Schultz’s deposition. “We never talked about making the initial deposition confidential. We don’t believe there is anything in there that’s confidential. We believe the public has a right to know.”
Walton conceded, “We both must’ve made a mistake or we wouldn’t be here today.”
Hayes argued to the judge that Gahr had communicated with Schultz’s employer, MSNBC. (Sort of a given in a reporter’s daily work.)
Come May, it isn’t clear what will happen, but it’ll sure be entertaining.
Howell criticized the plaintiff’s case, saying it lacked clarity. She mentioned details of the lawsuit that will no doubt arise at the spring trial. She mentioned Tim Russert and Schultz’s wife, Wendy Schultz, as people who could have also aided in Schultz getting his show.
“OK, this’ll be fun,” she said, with an expression that suggested quite the opposite.