Re: The Sex.Com Chronicles, by Charles Carreon
Posted: Fri Jun 13, 2014 1:39 am
THE EXTRA-LEGAL PARALEGAL
I arrived with my wife and daughter in San Francisco a few days before Thanksgiving 1999. It was raining at the airport, where we parked on the roof. We wheeled their luggage into the international terminal while dodging the falling drops. In 26 years, my wife Tara and I had been separated rarely for more than a few days, and now she was leaving with my 18-year old daughter for Kathmandu, Nepal. Ana would be spending several months in a Tibetan language and Buddhist studies program. They were excited and looking forward to the adventure. I was looking forward to spending all my time on Sex.Com. Like the gravity pull of a black hole, Sex.Com had started to rip apart the stitches of my life. As Ana and Tara drifted past the event horizon, I was confident I would see them on the other side. For the moment, Dorband’s decoy depositions were the largest objects on my view screen, and I desperately needed to get my shield up.
After spending a decent interval at the airport, mourning the departure of my loved ones and having a drink, I headed into the city to meet with Gary and a guy named Mark Irvine. Gary was thrilled to have me all to himself, and he’d even hired Mark, a paralegal, to help me prepare the motion. Part tenant’s rights advocate, part pro-se litigator, Mark was tall, blonde-haired, apparently sincere, a veteran with a liberal prescription for pain killers and the noisiest laptop computer I have ever heard. Gary had used him in his unsuccessful fight to retain the Fulton Street apartment from which he had been evicted recently.
Mark introduced me to the Hastings Law School Library in downtown San Francisco. He thought it was a wonderful place, and I liked the printer setup for laptop computers. We labored there together for a couple of days cranking out the motion for protective order. Mark surfed the Internet to find out approximately how much it would cost and how many hours I would have to spend on airplanes to cover all of these depositions. The totals were impressive. My motion informed the judge that I would have to fly 222 hours, and Gary would have to spend around $17,000 on airfare. After adding in the cost of paying me at my reduced hourly rate, the total cost to Gary of defending the decoy depositions would be over $70,000.
In addition to arguing that the decoy depositions were intended to obstruct Gary’s efforts to obtain discovery against Cohen, and to waste attorney time and money, we filled the judge in on a few other details. Many foreign nations do not take kindly to the American deposition procedure. Some countries consider that people who take depositions in their country are undertaking unlawful judicial acts without authorization. (Perhaps some governments think Americans conduct depositions like the locals conduct their own “judicial investigations,” but I think this assumption is unwarranted, as there have been no Amnesty International accusations against the American civil justice system.) In any event, you can get thrown in jail for conducting a deposition in the wrong country. Since a number of these depositions were scheduled in countries with completely undemocratic legal systems, such as Moscow and Greece, I thought I’d push the “risk, danger, burden” angle for all it was worth. It was my life, after all.
We also pointed out to the judge that Cohen was obviously trying to get deposition testimony from people who would refuse to appear at trial. Even a Federal District Court subpoena has no power outside U.S. territorial limits. “Extraterritorial witnesses” cannot be compelled to appear at trial. However, their depositions can be submitted on the grounds that they are “unavailable,” i.e., outside of the jurisdictional power of the subpoena. Thus, Cohen figured he could notice the depositions, get the testimony, use it at trial, and never have to present these witnesses before a jury. If I failed to attend the depositions, they could go forward without cross-examination, and an uncross-examined deposition, admissible at trial, is a ticking bomb you have not even had the opportunity to try and disarm.
To up the risks and increase the pressure, Dorband used a tactic he was often to repeat. He insisted that I get all my motions for protective order filed by November 24, 1999, or he was going to book all of his plane reservations in anticipation of proceeding with the trip. Thus, I was under the gun to produce the motion for protective order within that time frame. Two full days were required to prepare the motion, writing, researching, adding exhibits, and finalizing all the paper. What’s ironic and painful about writing a motion for protective order is that, in order to get the protective order, you need to show it would be “burdensome and oppressive” to go forward with the discovery. Meanwhile, the whole time you are writing the motion for protective order, you are burdened and oppressed.
When the work was done, everything prepared, filed and sent off, Mark Irvine and I had sushi together. He was affable and intelligent. I thanked him several times for his hard work on the project, and anticipated that we would work together in the future. Unfortunately, a few weeks later, he and Gary had a major falling out. He ultimately sued Gary for stealing his shirt and some prescription medications. But the big claim he asserted was that Gary had induced him not to go to law school in exchange for the promise to pay for his law school education if he would work on the Sex.Com case instead. This allegation sounded so crazy and absurd that it was hard to believe when I saw it in Irvine’s complaint. In retrospect, however, anything seems possible.
After a brief effort to mediate the decaying relations between Mark and Gary, I gave up. But Gary wasn’t through with him. After defeating Mark’s lawsuit with an onslaught of legal firepower wielded by the redoubtable Steve Sherman, Gary pursued a jihad to ban Irvine from the legal system as a “vexatious litigant.” To me, this seemed like taking a cane from a blind man, since Irvine didn’t do much else but sue people. For Gary, it was like target practice for a budding Billy the Kid. He was growing up, and the world would hear about him.
I arrived with my wife and daughter in San Francisco a few days before Thanksgiving 1999. It was raining at the airport, where we parked on the roof. We wheeled their luggage into the international terminal while dodging the falling drops. In 26 years, my wife Tara and I had been separated rarely for more than a few days, and now she was leaving with my 18-year old daughter for Kathmandu, Nepal. Ana would be spending several months in a Tibetan language and Buddhist studies program. They were excited and looking forward to the adventure. I was looking forward to spending all my time on Sex.Com. Like the gravity pull of a black hole, Sex.Com had started to rip apart the stitches of my life. As Ana and Tara drifted past the event horizon, I was confident I would see them on the other side. For the moment, Dorband’s decoy depositions were the largest objects on my view screen, and I desperately needed to get my shield up.
After spending a decent interval at the airport, mourning the departure of my loved ones and having a drink, I headed into the city to meet with Gary and a guy named Mark Irvine. Gary was thrilled to have me all to himself, and he’d even hired Mark, a paralegal, to help me prepare the motion. Part tenant’s rights advocate, part pro-se litigator, Mark was tall, blonde-haired, apparently sincere, a veteran with a liberal prescription for pain killers and the noisiest laptop computer I have ever heard. Gary had used him in his unsuccessful fight to retain the Fulton Street apartment from which he had been evicted recently.
Mark introduced me to the Hastings Law School Library in downtown San Francisco. He thought it was a wonderful place, and I liked the printer setup for laptop computers. We labored there together for a couple of days cranking out the motion for protective order. Mark surfed the Internet to find out approximately how much it would cost and how many hours I would have to spend on airplanes to cover all of these depositions. The totals were impressive. My motion informed the judge that I would have to fly 222 hours, and Gary would have to spend around $17,000 on airfare. After adding in the cost of paying me at my reduced hourly rate, the total cost to Gary of defending the decoy depositions would be over $70,000.
In addition to arguing that the decoy depositions were intended to obstruct Gary’s efforts to obtain discovery against Cohen, and to waste attorney time and money, we filled the judge in on a few other details. Many foreign nations do not take kindly to the American deposition procedure. Some countries consider that people who take depositions in their country are undertaking unlawful judicial acts without authorization. (Perhaps some governments think Americans conduct depositions like the locals conduct their own “judicial investigations,” but I think this assumption is unwarranted, as there have been no Amnesty International accusations against the American civil justice system.) In any event, you can get thrown in jail for conducting a deposition in the wrong country. Since a number of these depositions were scheduled in countries with completely undemocratic legal systems, such as Moscow and Greece, I thought I’d push the “risk, danger, burden” angle for all it was worth. It was my life, after all.
We also pointed out to the judge that Cohen was obviously trying to get deposition testimony from people who would refuse to appear at trial. Even a Federal District Court subpoena has no power outside U.S. territorial limits. “Extraterritorial witnesses” cannot be compelled to appear at trial. However, their depositions can be submitted on the grounds that they are “unavailable,” i.e., outside of the jurisdictional power of the subpoena. Thus, Cohen figured he could notice the depositions, get the testimony, use it at trial, and never have to present these witnesses before a jury. If I failed to attend the depositions, they could go forward without cross-examination, and an uncross-examined deposition, admissible at trial, is a ticking bomb you have not even had the opportunity to try and disarm.
To up the risks and increase the pressure, Dorband used a tactic he was often to repeat. He insisted that I get all my motions for protective order filed by November 24, 1999, or he was going to book all of his plane reservations in anticipation of proceeding with the trip. Thus, I was under the gun to produce the motion for protective order within that time frame. Two full days were required to prepare the motion, writing, researching, adding exhibits, and finalizing all the paper. What’s ironic and painful about writing a motion for protective order is that, in order to get the protective order, you need to show it would be “burdensome and oppressive” to go forward with the discovery. Meanwhile, the whole time you are writing the motion for protective order, you are burdened and oppressed.
When the work was done, everything prepared, filed and sent off, Mark Irvine and I had sushi together. He was affable and intelligent. I thanked him several times for his hard work on the project, and anticipated that we would work together in the future. Unfortunately, a few weeks later, he and Gary had a major falling out. He ultimately sued Gary for stealing his shirt and some prescription medications. But the big claim he asserted was that Gary had induced him not to go to law school in exchange for the promise to pay for his law school education if he would work on the Sex.Com case instead. This allegation sounded so crazy and absurd that it was hard to believe when I saw it in Irvine’s complaint. In retrospect, however, anything seems possible.
After a brief effort to mediate the decaying relations between Mark and Gary, I gave up. But Gary wasn’t through with him. After defeating Mark’s lawsuit with an onslaught of legal firepower wielded by the redoubtable Steve Sherman, Gary pursued a jihad to ban Irvine from the legal system as a “vexatious litigant.” To me, this seemed like taking a cane from a blind man, since Irvine didn’t do much else but sue people. For Gary, it was like target practice for a budding Billy the Kid. He was growing up, and the world would hear about him.