Preview
FILED: NEW YORK COUNTY CLERK 09/27/2023 05:00 PM INDEX NO. 151136/2021
NYSCEF DOC. NO. 1793 RECEIVED NYSCEF: 09/27/2023
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1 SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK - CIVIL TERM - PART 58
2 ------------------------------------------------X
SMARTMATIC USA CORP., SMARTMATIC INTERNATIONAL
3 HOLDING B.V., and SGO CORPORATION LIMITED,
4 Plaintiffs,
5 -against-
6 FOX CORPORATION, FOX NEWS NETWORK LC, LOU DOBBS,
MARIA BARTIROMO, JEANINE PIRRO, RUDOLPH GIULIANI,
7 and SIDNEY POWELL,
8 Defendants.
------------------------------------------------X
9 Index No. 151136/21 71 Thomas Street
ORAL ARGUMENT and DECISION New York, N.Y.
10 August 16, 2023
11
B E F O R E:
12
HONORABLE DAVID B. COHEN,
13 Justice
14
15 A P P E A R A N C E S:
16 BENESCH, FRIEDLANDER, COPLAN & ARONOFF LLP
Attorneys for the Plaintiffs
17 1155 Avenue of the Americas, 26th Floor
New York, N.Y. 10036
18 BY: EDWARD C. WIPPER, ESQ.
- and -
19 BENESCH, FRIEDLANDER, COPLAN & ARONOFF LLP
Attorneys for the Plaintiffs
20 71 South Wacker Drive, Suite 1600
Chicago, Illinois 60606
21 BY: LEE MUENCH, ESQ.
DAVID D. POPE, ESQ.
22 J. ERIK CONNOLLY, ESQ.
KEVIN T. CARLSON, ESQ.
23 JAMIE WARD, ESQ.
BRANDON McTIGUE, ESQ.
24
(Appearances continued on next page)
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1 (Appearances continued:)
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3
KIRKLAND & ELLIS LLP
4 Attorneys for the Fox Defendants
1301 Pennsylvania Avenue
5 N.W. Washington, D.C. 20004
BY: WINN ALLEN, ESQ.
6 DEVIN S. ANDERSON, ESQ.
LEAH HAMLIN, ESQ.
7 - and -
MINTZ & GOLD LLP
8 Attorneys for the Fox Defendants
600 Third Avenue
9 New York, N.Y. 10016
BY: STEVEN MINTZ, ESQ.
10 SCOTT A. KLEIN, ESQ.
11
12 RUSSO LAW
Attorneys for the Defendant Giuliani
13 276 Fifth Avenue, Suite 704
New York, N.Y. 10001
14 BY: ADAM KATZ, ESQ.
Of Counsel
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17
ALAN F. BOWIN, CSR, RMR, CRR
18 Official Court Reporter
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1 THE COURT: Let's go on the record.
2 At this time, the Court is calling Smartmatic
3 versus Fox Corporation, Supreme Court, New York County index
4 number 151136 of 2021.
5 Counsel, please note your appearances for the
6 record.
7 MR. WIPPER: Good morning, your Honor.
8 Edward Wipper; Benesch, Friedlander, Coplan &
9 Aronoff; 1155 Avenue of the Americas, 26th Floor, New York,
10 New York 10036, for all of the plaintiffs.
11 MR. CONNOLLY: Good morning.
12 Erik Connolly for the plaintiffs.
13 MR. MUENCH: Lee Muench for the plaintiffs.
14 MR. POPE: David Pope, P-o-p-e, for the plaintiffs.
15 MR. ALLEN: Good morning, your Honor.
16 Winn Allen, from Kirkland & Ellis, on behalf of the
17 Fox Defendants. I'm joined by Devin Anderson and Leah
18 Hamlin.
19 THE COURT: Anyone else on it; on motion sequence
20 No. 24?
21 MR. MINTZ: Steve Mintz, Mintz & Gold, on behalf of
22 the defendants.
23 MR. KLEIN: And Scott Klein, from Mintz & Gold, on
24 behalf of the Fox Defendants.
25 Good morning, Judge.
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1 THE COURT: Good morning, everyone.
2 So, at the parties' request, we're going to deal
3 with -- we have two motions on today but we're going to
4 begin by dealing with motion sequence No. 1. That's
5 plaintiffs' motion; correct? And I understand that
6 Mr. Muench is going to be arguing that motion?
7 MR. MUENCH: That's correct.
8 THE COURT: You may proceed.
9 MR. MUENCH: Thank you, your Honor.
10 This motion is the latest example of Fox making us
11 fight for discovery it has no reasonable basis to withhold.
12 In fact, it is the eleventh example, our eleventh motion to
13 compel, for Fox is playing a game of "catch me if you can,"
14 where it evades or withholds relevant evidence until the
15 Court gets involved. And it is our fourth CPLR 3104 appeal
16 pursuing relevant discovery. And what runs through all of
17 them is that in every instance, we either obtained what was
18 being withheld through the courts or Fox stipulated to the
19 relief after we incurred tremendous expense bringing a
20 motion to compel or an appeal.
21 For this motion, two critical undisputed facts --
22 THE COURT: So we're going to get to this
23 particular motion at some point.
24 MR. MUENCH: Right now.
25 THE COURT: Okay.
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1 MR. MUENCH: Thank you, your Honor.
2 For this motion, two key facts provide clarity;
3 they cut right through the fog. First, it's undisputed that
4 the evidence that we seek, contemporaneous recordings of
5 meetings, is relevant. Fox does not dispute relevance. It
6 does not dispute that recordings of meeting its custodians
7 held after the 2020 election are relevant or that its
8 custodians --
9 Yes, your Honor?
10 THE COURT: JHO Marin ruled, not in your favor,
11 that you weren't entitled to a Jackson affidavit in this
12 particular circumstance. Why don't you tell me what the
13 standard is and why you don't -- why you think that standard
14 has been met in your papers.
15 MR. MUENCH: Your Honor, the standard for issuing a
16 Jackson affidavit --
17 THE COURT: No, the standard for overturning JHO
18 Marin's determination is what I was referring to.
19 MR. MUENCH: Yes, your Honor.
20 THE COURT: It's a "clearly erroneous" standard; is
21 it not?
22 MR. MUENCH: "Contrary to law" or "clearly
23 erroneous," and in this instance, we would represent --
24 THE COURT: But discovery disputes have a
25 tremendous amount of discretion, especially in circumstances
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1 where a Jackson affidavit is requested; isn't that the case?
2 MR. MUENCH: There is always discretion in any
3 ruling, but we would refer your Honor to the cases that we
4 provide in our briefing where the court reverses or vacates
5 a ruling by a judicial hearing officer that restricts
6 discovery not in accordance with the scope of CPLR 3101,
7 which requires a complete and accurate disclosure of
8 relevant information in a party's possession, custody and
9 control.
10 And in this instance, the problem is, we have no
11 representation by Fox and we have many reasons to be
12 skeptical that Fox has actually conducted a thorough search
13 of the places that are likely to have responsive
14 information; recordings we seek.
15 And that's where Jackson comes in handy. Jackson
16 requires a party that fails to make a complete production of
17 documents that it is believed to have to provide an
18 affidavit that sets forth every location where it searched
19 and how it searched them.
20 And the reason that affidavit is important --
21 THE COURT: In certain circumstances --
22 MR. MUENCH: Sure.
23 THE COURT: -- certain circumstances which the
24 defendants claim are inapplicable here.
25 MR. MUENCH: And that's a great point, and I'm glad
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1 your Honor raised it, because that claim, the notion that
2 there is no evidence that there are additional meeting
3 recordings besides the one that the New York Times
4 uncovered, has unraveled through the course of this
5 briefing.
6 And there are three colossal problems with that
7 argument. The first one is Fox's credibility. Fox no
8 longer has any credibility to tell us that we should be
9 assured that there are no more meeting recordings, because
10 Fox told us that before.
11 THE COURT: So I can't accept counsel's
12 representation that no other recordings exist?
13 MR. MUENCH: I don't think counsel --
14 THE COURT: Because recordings have --
15 In order for Jackson to be implicated, the
16 information that you're seeking has to have existed at some
17 point.
18 MR. MUENCH: That's correct.
19 THE COURT: Okay.
20 MR. MUENCH: And it has existed.
21 And so --
22 THE COURT: But what evidence is there that such --
23 that such recordings actually exist?
24 MR. MUENCH: That's a great point.
25 So the credibility problem that Fox has is: Back
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1 when the New York Times story came out on March 4th, two
2 days later, we requested the recording and Fox's position at
3 that time is the same one it has today: "You don't have any
4 evidence that recordings exist." Well, we kept pushing; we
5 moved to compel twice and, lo and behold, Fox finds the
6 recording.
7 Meanwhile, additional recordings surface, not
8 through Fox but from a whistleblower named Abby Grossberg.
9 She was a senior producer at Fox and she filed a public
10 complaint in the state of Delaware alleging several claims
11 in connection with what Fox allegedly did to her when she
12 was testifying as a witness and providing documents in
13 connection with the Dominion litigation in Delaware.
14 And what Miss Grossberg alleges, before Fox settled
15 with her for $12 million about a month after she filed suit,
16 is that in March, June and in August of 2022, she gave Fox
17 her cell phones to image. She alleges that Fox imaged her
18 cell phones and that she told Fox's in-house counsel that
19 "My phones have recordings on them." And what did Fox do?
20 It didn't produce them; it didn't produce them in Delaware
21 and it didn't produce them here. And we found out about it
22 not through Fox but through the newspapers, when it became
23 public in the Delaware court in the Dominion action.
24 And we consistently are finding out what Fox
25 actually has, and not what Fox is, quote, unaware of,
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1 through the newspapers, through people who leaked the
2 recordings to the New York Times, that they took in the
3 aftermath of the 2020 election of internal meetings or
4 through people like Miss Grossberg. And she didn't have one
5 or two recordings, she had dozens of recordings. And that's
6 what she alleges in her papers. And some of those involve
7 off-air conversations.
8 For instance, in Fox's opposition papers to our
9 appeal, Fox boasts about having produced an off-air
10 conversation between Maria Bartiromo and Rudy Giuliani.
11 Well, Abby Grossberg made that recording and Fox didn't
12 produce it during the document-production period; it
13 produced it after the fact, when we called Fox out on it.
14 And an interesting point is, when we did call Fox
15 out and demand those meeting recordings, Fox's response to
16 us was an e-mail from counsel at the table (indicating)
17 where they indicated that "we took swift action to re-access
18 the image of her phone," meaning Fox had the image of her
19 phone in 2022, it had the recordings, but it didn't produce
20 them.
21 And so, that leads us to the main problems here and
22 why Jackson is appropriate. It's that in some cases --
23 right? Jackson applies in various circumstances. In cases
24 like, for instance, Henderson-Jones v. the City of New York,
25 a First Department case, the court there directed the
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1 provision of a Jackson affidavit because it was, in quotes,
2 skeptical of a, in quotes, complete production. And that's
3 the problem that we have here right now, is, we have every
4 reason to be skeptical that Fox has checked every location.
5 And the Grossberg recordings, as well as The New
6 York Times recording, show the design flaws in Fox's search.
7 There are two of them, and I can conclude at these because
8 they also run right to the relief that we request in our
9 order to show cause that's on the public docket.
10 The first design flaw is that Fox's, in quotes,
11 collection was incomplete. It didn't have Miss Grossberg's
12 recordings. Miss Grossberg's recordings were taken on her
13 cell phone. It turns out, The New York Times recording may
14 have been also taken on a cell phone. And many Fox
15 custodians used an application to record meetings.
16 In fact, what the papers confirm, and they're
17 helpful, is that Fox, one of the most powerful media
18 companies on the planet, its employees, in the normal course
19 of their duties, create a tremendous amount of media data:
20 recordings of meetings with third parties, recordings with
21 press outlets, and recordings of meetings internally.
22 Despite a so-called general policy prohibiting recordings, a
23 policy which has never been produced, not even through the
24 course of this briefing, it's undisputed that Fox custodians
25 make a lot of recordings.
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1 THE COURT: Judge Marin considered all these
2 contentions and he rejected your request for a Jackson
3 affidavit under those circumstances.
4 MR. MUENCH: Which is why we respectfully submit
5 that it was contrary to law.
6 Henderson-Jones v. the City of New York --
7 THE COURT: But it's a discretionary call by the
8 individual determining the discovery request -- overseeing
9 discovery.
10 MR. MUENCH: We would say, your Honor, that certain
11 decisions may be discretionary, but where there is relevant
12 evidence and we know that a party has not checked all of the
13 locations where it has relevant evidence, then that is
14 contrary to CPLR 3101, because it requires a complete
15 disclosure.
16 And a party cannot represent, and Fox has not
17 represented -- right? Fox informed the Court that it was
18 "prepared to draft and execute a Jackson affidavit" months
19 ago. Well, where is it? What explains the 180? If it was
20 so easy to provide then, that would cut us right through the
21 problem right now.
22 And that really is what we think is the most
23 practical next step, because we're going to be back here,
24 anyway. If we have to do a 30(b)(6), a corporate-
25 representative deposition of a Fox custodian, and ask all of
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1 the questions that are in this Jackson affidavit that was
2 purportedly in the can, well, at that point, we will be
3 right back here again seeking a more -- an actual
4 explanation of the locations that Fox checked; namely, other
5 than Miss Grossberg --
6 THE COURT: Well, if there's a custodian who says
7 that an individual made a recording and that that recording
8 would presumably be something that Fox -- is in their
9 possession, for purposes of discovery, then you would simply
10 make a post-EBT demand for that. That's what Judge Marin
11 determined.
12 MR. MUENCH: And the difficulty with that, Judge,
13 is, it, one, requires us to rely upon the witnesses and them
14 saying, "I don't" --
15 THE COURT: It's better than relying upon, "They're
16 disingenuous and therefore you shouldn't believe them";
17 isn't it?
18 MR. MUENCH: Well, that's what --
19 THE COURT: At least, you'd have sworn testimony
20 there; you'd have something to back you up.
21 MR. MUENCH: Well, we would have nothing to be able
22 to check the locations themselves, to see if Fox examined
23 those locations for data.
24 A party cannot silo off places where it has
25 relevant information --
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1 THE COURT: And you're planning on doing
2 depositions of a myriad number of Fox employees -- right? --
3 various custodians, various individuals at Fox; right?
4 MR. MUENCH: I'm not sure if we would --
5 THE COURT: So maybe the sooner, the better on
6 getting to those depositions and following what Judge Marin
7 said to do.
8 MR. MUENCH: Having a Jackson affidavit to go into
9 those depositions would enable us to get to the finish line
10 and actually get to the bottom --
11 (To co-counsel) That's right.
12 -- and get to the bottom of where this data is.
13 And if we have a sworn statement from Fox, the same
14 one that they've already prepared, that there's no burden
15 for them to provide, it would enable us to get -- to
16 ascertain -- the truth and accelerate the resolution of this
17 issue. Without that statement, we're months away from
18 getting the same clarity about where they looked and if they
19 actually did this robust search that they claim they have
20 done.
21 And so, that was one design flaw, was incomplete
22 locations; and the second one, your Honor --
23 THE COURT: Um-hmm.
24 MR. MUENCH: -- and I'll close out, is how Fox
25 searched; how it did its search.
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1 If a party searches for information improperly,
2 then it is designed to fail. And what Fox essentially did
3 here is, it went fishing without a hook. It was applying
4 search terms to find audio and video files. Well, there's
5 no searchable text in an audio or video file, so the only
6 way to find --
7 THE COURT: And their contention is that you're
8 here, fishing without a tackle box.
9 MR. MUENCH: Well, not to try to come up with a
10 counter-metaphor on the spot, but we're not here in a world
11 where there is no recording. We're here in a world where
12 Fox first told us that no recordings existed, then one did;
13 we're here in a world where Fox told us there were no more,
14 until there were more; and we're in a world where Fox has
15 told us that it had a Jackson affidavit ready to go and it
16 was going to give it to us --
17 THE COURT: Well, isn't -- to be fair, isn't that
18 because Judge Marin initially said that they needed a
19 Jackson affidavit, but then they came back at some later
20 point and said they did a search, found the one recording
21 that was at issue and then Judge Marin said, "I don't think
22 that -- a Jackson affidavit is no longer required" --
23 MR. MUENCH: That's right, and that actually is an
24 additional -- what we would propose -- error in Justice
25 Marin's ruling, is that it changed our request. Our request
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1 wasn't for that one recording, and so it narrowed our ask.
2 And we are the plaintiff here, with the burden of
3 proof. Fox is disputing that we have proven that it knew or
4 recklessly told falsehoods; Fox is disputing the involvement
5 of its executives; and until Fox doesn't dispute those
6 issues, we need the evidence that we have to present at
7 trial to establish Fox's actual malice by clear and
8 convincing evidence.
9 So it is not enough --
10 THE COURT: So, in conclusion ...
11 MR. MUENCH: So, in conclusion, your Honor, we
12 would respectfully submit that the most practical,
13 cost-effective resolution of this is to make Fox give us the
14 Jackson affidavit that it prepared; and from there, we will
15 be able to see which locations it avoided, whether by
16 accident, or deliberately, as Miss Grossberg alleges; and it
17 will also enable us to identify whether Fox ever corrected
18 the flaws that we identified in the search and we asked for
19 it to fix.
20 THE COURT: Thank you, counsel.
21 Mr. Allen.
22 MR. ALLEN: Thank you, your Honor.
23 Good morning.
24 First of all, I would be remiss --
25 THE COURT: Good morning.
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1 MR. ALLEN: -- if I didn't say that I disagreed
2 with how counsel started his argument and would point out
3 that Fox has had to file, itself, over a dozen motions to
4 compel before Justice Marin, many of which have been granted
5 and we still are missing many, many documents from
6 Smartmatic itself.
7 Let me move on to the motion, your Honor.
8 The JHO correctly found --
9 THE COURT: I appreciate you doing that. I'm not
10 sure how any of that, from either side, was remotely helpful
11 to this issue.
12 MR. ALLEN: Thank you, your Honor.
13 JHO Marin correctly found that there was no basis
14 for a Jackson affidavit here. Your Honor, a Jackson
15 affidavit is required when there is some evidence that a
16 document or item exists, a party cannot locate it, and the
17 search is -- seems -- insufficient by the party searching
18 for it. Here, Fox has located and produced the one
19 recording that Smartmatic seemed to focus its original
20 discovery requests on, plus many, many other recordings,
21 both video and audio, that are responsive to the discovery
22 requests in this case.
23 Fox conducted an extensive and thorough search for
24 other recordings. That search included --
25 THE COURT: Plaintiff wants me to conclude that
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1 it's awfully convenient that your search, "after we were
2 aware of an audio or video recording, found the recording
3 that we were already aware of and not much else."
4 MR. ALLEN: No, your Honor.
5 I think it's helpful for me to explain the
6 background behind that one recording, which is a recording
7 of a November 16th, 2020, meeting that happened at Fox.
8 There was a March 2023 New York Times article that
9 reported about the existence of some such -- such a
10 recording which we theretofore were not aware of.
11 Smartmatic served a discovery request, asking for it. We
12 objected because, at the time, it was outside the scope of
13 discovery; the recordings, we understood, did not mention
14 "Smartmatic" or "Dominion" or claims of election fraud. It
15 dealt with coverage of the 2020 election generally, which,
16 at that time, Justice Martin had held was outside the scope
17 of discovery. We never heard anything back after we
18 objected.
19 After the Court expanded discovery in April -- on
20 April 25th of 2023 -- by adding additional topics and
21 additional custodians, there was a custodian who was added
22 and search terms that were later added that led to the
23 discovery of that recording.
24 And, frankly, that came as a surprise to Fox,
25 because counsel for Fox in a different case had had a
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1 discussion with that individual and asked that individual
2 whether such a recording existed and that individual had
3 said it did not. So it was a surprise to us.
4 But nonetheless, after discovery was expanded in
5 April -- on April 25th -- after additional search terms were
6 agreed to in mid-May, we eventually -- we kept looking; we
7 mainly reviewed every recording we could find in our system,
8 and we eventually found it in the files of a recently added
9 custodian and we produced it to Smartmatic very quickly
10 after we found it.
11 So I don't believe that's evidence of an
12 insufficient search, your Honor. The search we did was
13 expansive. We searched the custodial files of all the
14 custodians in this case for audio and video recordings.
15 That's over 70 custodians. We didn't just run search terms.
16 We listened to the audio and video files to determine
17 whether they contained responsive information; if they did,
18 we produced them. And I believe there's been over 2500
19 audio and video files produced in this case so far.
20 We did search the shared databases and noncustodial
21 files that exist at Fox, where such recordings might be
22 housed and if we found responsive recordings, we produced
23 them. We also sent out a survey to all the custodians where
24 we specifically asked each custodian: "Do you use any
25 systems to record meetings in the course of your work? If
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1 you do, please let us know what that is and what you have."
2 And we produced any responsive recordings we discovered from
3 that. And, again, we did do a manual review of all the
4 audio and video files in our review space.
5 So we've produced to Smartmatic, your Honor, all
6 the audio and video files that we found. The search was
7 thorough and comprehensive. Again, this is a search that's
8 much more comprehensive than what Smartmatic, itself, has
9 agreed to do, as we discussed with Justice Marin last
10 Friday. And so, in effect, they're asking us to do even
11 more than they, themselves, had agreed to do. And we did
12 walk Justice Marin and Smartmatic through this process in
13 some detail in two hearings that were held before him in, I
14 believe, May and June.
15 To address the Abby Grossberg issue, your Honor,
16 here's what happened with Miss Grossberg:
17 Fox's -- individuals from Fox conducted custodial
18 interviews with Miss Grossberg in 2021 and 2022, as we do
19 with all our custodians, to assist us in our document
20 collection efforts, to make sure we're collecting relevant
21 information. During those interviews, she did not disclose
22 to Fox that she had responsive recordings from the time
23 period that's at issue in this case. In March of 2023,
24 Miss Grossberg provided Fox with an errata sheet where she
25 stated that she had recordings on a phone still in her -- on
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1 her phone, from a -- from a program called Otter. Once we
2 became aware of that, Fox reopened the image of her phone,
3 found the recordings and we produced them to Smartmatic in
4 mid-April.
5 In addition, we knew -- we knew for a while --
6 Miss Grossberg, who had separated from the company -- she
7 still had in her possession a phone and a hard drive that
8 Fox did not have. She had it in her possession; we asked
9 her to return it. She only returned it once the settlement
10 was reached with her, which I believe was sometime in
11 June -- late June -- of 2023. Once she returned that
12 additional phone to us, once she returned that hard drive to
13 us, we processed those materials; we reviewed them and we
14 produced them to Smartmatic.
15 And I should note, your Honor, that we've produced
16 to Smartmatic recordings that we got from Miss Grossberg
17 that are even recordings she, herself, didn't produce to
18 Smartmatic in response to their subpoena. So we've taken
19 efforts to make sure that we've located any recordings she
20 might have had and produced them to Smartmatic.
21 So, in this situation, your Honor, where Fox has
22 conducted a robust search for responsive recordings, where
23 many such recordings have been produced, where there's no
24 indication that a document should exist but doesn't exist,
25 we don't believe a Jackson affidavit is appropriate, your
ALAN F. BOWIN, CSR, RMR, CRR
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1 Honor. And I would say that your recollection of --
2 THE COURT: Just so I'm clear: Your contention is
3 not that recordings may have existed that no longer exist or
4 you can't locate. You're contending that there are no other
5 recordings.
6 MR. ALLEN: That's as best --
7 Through the search we've conducted, your Honor, we
8 have produced all the recordings we could find. We are not
9 aware of some recording that should have existed or there's
10 an indication that it existed at one time but we can't find
11 it.
12 THE COURT: Or that there's any evidence it
13 existed.
14 MR. ALLEN: Correct. We cannot locate that.
15 THE COURT: Anything else, counsel?
16 MR. ALLEN: No, your Honor. Thank you.
17 THE COURT: Did you want to ...
18 MR. MUENCH: I would love to.
19 THE COURT: Did you want a minute for reply?
20 MR. MUENCH: Yes, your Honor.
21 THE COURT: You have a minute.
22 MR. MUENCH: The upshot is, the statements by
23 counsel just now underscored why we need a Jackson
24 affidavit.
25 They're refuting allegations by Abby Grossberg.
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1 None of it is under oath. They have a Jackson affidavit
2 that's ready to be issued. Why can't we just see it?
3 Because a lot of the statements by counsel were really
4 generalities. And when you peel back a layer of the onion,
5 the statement that really should pop is, "It came as a
6 surprise to us."
7 THE COURT: Counsel, what recordings that you can
8 specifically point to, that you know for certain existed,
9 that now you don't have?
10 MR. MUENCH: I'll answer it a little differently,
11 your Honor: We don't know --
12 THE COURT: No, answer the question I asked you,
13 Mr. Muench.
14 MR. MUENCH: Sure.
15 What we know --
16 THE COURT: Because if you can't answer that
17 question, I don't think I can give you relief.
18 MR. MUENCH: We can only answer that the locations
19 they haven't searched, that are where custodians stored the
20 recordings.
21 So, counsel represented that they checked all
22 custodial files, but they will not represent that they
23 actu
Preview
FILED: NEW YORK COUNTY CLERK 09/27/2023 05:00 PM INDEX NO. 151136/2021 NYSCEF DOC. NO. 1793 RECEIVED NYSCEF: 09/27/2023 1 1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK - CIVIL TERM - PART 58 2 ------------------------------------------------X SMARTMATIC USA CORP., SMARTMATIC INTERNATIONAL 3 HOLDING B.V., and SGO CORPORATION LIMITED, 4 Plaintiffs, 5 -against- 6 FOX CORPORATION, FOX NEWS NETWORK LC, LOU DOBBS, MARIA BARTIROMO, JEANINE PIRRO, RUDOLPH GIULIANI, 7 and SIDNEY POWELL, 8 Defendants. ------------------------------------------------X 9 Index No. 151136/21 71 Thomas Street ORAL ARGUMENT and DECISION New York, N.Y. 10 August 16, 2023 11 B E F O R E: 12 HONORABLE DAVID B. COHEN, 13 Justice 14 15 A P P E A R A N C E S: 16 BENESCH, FRIEDLANDER, COPLAN & ARONOFF LLP Attorneys for the Plaintiffs 17 1155 Avenue of the Americas, 26th Floor New York, N.Y. 10036 18 BY: EDWARD C. WIPPER, ESQ. - and - 19 BENESCH, FRIEDLANDER, COPLAN & ARONOFF LLP Attorneys for the Plaintiffs 20 71 South Wacker Drive, Suite 1600 Chicago, Illinois 60606 21 BY: LEE MUENCH, ESQ. DAVID D. POPE, ESQ. 22 J. ERIK CONNOLLY, ESQ. KEVIN T. CARLSON, ESQ. 23 JAMIE WARD, ESQ. BRANDON McTIGUE, ESQ. 24 (Appearances continued on next page) 25 ALAN F. BOWIN, CSR, RMR, CRR FILED: NEW YORK COUNTY CLERK 09/27/2023 05:00 PM INDEX NO. 151136/2021 NYSCEF DOC. NO. 1793 RECEIVED NYSCEF: 09/27/2023 2 1 (Appearances continued:) 2 3 KIRKLAND & ELLIS LLP 4 Attorneys for the Fox Defendants 1301 Pennsylvania Avenue 5 N.W. Washington, D.C. 20004 BY: WINN ALLEN, ESQ. 6 DEVIN S. ANDERSON, ESQ. LEAH HAMLIN, ESQ. 7 - and - MINTZ & GOLD LLP 8 Attorneys for the Fox Defendants 600 Third Avenue 9 New York, N.Y. 10016 BY: STEVEN MINTZ, ESQ. 10 SCOTT A. KLEIN, ESQ. 11 12 RUSSO LAW Attorneys for the Defendant Giuliani 13 276 Fifth Avenue, Suite 704 New York, N.Y. 10001 14 BY: ADAM KATZ, ESQ. Of Counsel 15 16 17 ALAN F. BOWIN, CSR, RMR, CRR 18 Official Court Reporter 19 20 21 22 23 24 25 ALAN F. BOWIN, CSR, RMR, CRR FILED: NEW YORK COUNTY CLERK 09/27/2023 05:00 PM INDEX NO. 151136/2021 NYSCEF DOC. NO. 1793 RECEIVED NYSCEF: 09/27/2023 3 Proceedings 1 THE COURT: Let's go on the record. 2 At this time, the Court is calling Smartmatic 3 versus Fox Corporation, Supreme Court, New York County index 4 number 151136 of 2021. 5 Counsel, please note your appearances for the 6 record. 7 MR. WIPPER: Good morning, your Honor. 8 Edward Wipper; Benesch, Friedlander, Coplan & 9 Aronoff; 1155 Avenue of the Americas, 26th Floor, New York, 10 New York 10036, for all of the plaintiffs. 11 MR. CONNOLLY: Good morning. 12 Erik Connolly for the plaintiffs. 13 MR. MUENCH: Lee Muench for the plaintiffs. 14 MR. POPE: David Pope, P-o-p-e, for the plaintiffs. 15 MR. ALLEN: Good morning, your Honor. 16 Winn Allen, from Kirkland & Ellis, on behalf of the 17 Fox Defendants. I'm joined by Devin Anderson and Leah 18 Hamlin. 19 THE COURT: Anyone else on it; on motion sequence 20 No. 24? 21 MR. MINTZ: Steve Mintz, Mintz & Gold, on behalf of 22 the defendants. 23 MR. KLEIN: And Scott Klein, from Mintz & Gold, on 24 behalf of the Fox Defendants. 25 Good morning, Judge. ALAN F. BOWIN, CSR, RMR, CRR FILED: NEW YORK COUNTY CLERK 09/27/2023 05:00 PM INDEX NO. 151136/2021 NYSCEF DOC. NO. 1793 RECEIVED NYSCEF: 09/27/2023 4 Proceedings 1 THE COURT: Good morning, everyone. 2 So, at the parties' request, we're going to deal 3 with -- we have two motions on today but we're going to 4 begin by dealing with motion sequence No. 1. That's 5 plaintiffs' motion; correct? And I understand that 6 Mr. Muench is going to be arguing that motion? 7 MR. MUENCH: That's correct. 8 THE COURT: You may proceed. 9 MR. MUENCH: Thank you, your Honor. 10 This motion is the latest example of Fox making us 11 fight for discovery it has no reasonable basis to withhold. 12 In fact, it is the eleventh example, our eleventh motion to 13 compel, for Fox is playing a game of "catch me if you can," 14 where it evades or withholds relevant evidence until the 15 Court gets involved. And it is our fourth CPLR 3104 appeal 16 pursuing relevant discovery. And what runs through all of 17 them is that in every instance, we either obtained what was 18 being withheld through the courts or Fox stipulated to the 19 relief after we incurred tremendous expense bringing a 20 motion to compel or an appeal. 21 For this motion, two critical undisputed facts -- 22 THE COURT: So we're going to get to this 23 particular motion at some point. 24 MR. MUENCH: Right now. 25 THE COURT: Okay. ALAN F. BOWIN, CSR, RMR, CRR FILED: NEW YORK COUNTY CLERK 09/27/2023 05:00 PM INDEX NO. 151136/2021 NYSCEF DOC. NO. 1793 RECEIVED NYSCEF: 09/27/2023 5 Proceedings 1 MR. MUENCH: Thank you, your Honor. 2 For this motion, two key facts provide clarity; 3 they cut right through the fog. First, it's undisputed that 4 the evidence that we seek, contemporaneous recordings of 5 meetings, is relevant. Fox does not dispute relevance. It 6 does not dispute that recordings of meeting its custodians 7 held after the 2020 election are relevant or that its 8 custodians -- 9 Yes, your Honor? 10 THE COURT: JHO Marin ruled, not in your favor, 11 that you weren't entitled to a Jackson affidavit in this 12 particular circumstance. Why don't you tell me what the 13 standard is and why you don't -- why you think that standard 14 has been met in your papers. 15 MR. MUENCH: Your Honor, the standard for issuing a 16 Jackson affidavit -- 17 THE COURT: No, the standard for overturning JHO 18 Marin's determination is what I was referring to. 19 MR. MUENCH: Yes, your Honor. 20 THE COURT: It's a "clearly erroneous" standard; is 21 it not? 22 MR. MUENCH: "Contrary to law" or "clearly 23 erroneous," and in this instance, we would represent -- 24 THE COURT: But discovery disputes have a 25 tremendous amount of discretion, especially in circumstances ALAN F. BOWIN, CSR, RMR, CRR FILED: NEW YORK COUNTY CLERK 09/27/2023 05:00 PM INDEX NO. 151136/2021 NYSCEF DOC. NO. 1793 RECEIVED NYSCEF: 09/27/2023 6 Proceedings 1 where a Jackson affidavit is requested; isn't that the case? 2 MR. MUENCH: There is always discretion in any 3 ruling, but we would refer your Honor to the cases that we 4 provide in our briefing where the court reverses or vacates 5 a ruling by a judicial hearing officer that restricts 6 discovery not in accordance with the scope of CPLR 3101, 7 which requires a complete and accurate disclosure of 8 relevant information in a party's possession, custody and 9 control. 10 And in this instance, the problem is, we have no 11 representation by Fox and we have many reasons to be 12 skeptical that Fox has actually conducted a thorough search 13 of the places that are likely to have responsive 14 information; recordings we seek. 15 And that's where Jackson comes in handy. Jackson 16 requires a party that fails to make a complete production of 17 documents that it is believed to have to provide an 18 affidavit that sets forth every location where it searched 19 and how it searched them. 20 And the reason that affidavit is important -- 21 THE COURT: In certain circumstances -- 22 MR. MUENCH: Sure. 23 THE COURT: -- certain circumstances which the 24 defendants claim are inapplicable here. 25 MR. MUENCH: And that's a great point, and I'm glad ALAN F. BOWIN, CSR, RMR, CRR FILED: NEW YORK COUNTY CLERK 09/27/2023 05:00 PM INDEX NO. 151136/2021 NYSCEF DOC. NO. 1793 RECEIVED NYSCEF: 09/27/2023 7 Proceedings 1 your Honor raised it, because that claim, the notion that 2 there is no evidence that there are additional meeting 3 recordings besides the one that the New York Times 4 uncovered, has unraveled through the course of this 5 briefing. 6 And there are three colossal problems with that 7 argument. The first one is Fox's credibility. Fox no 8 longer has any credibility to tell us that we should be 9 assured that there are no more meeting recordings, because 10 Fox told us that before. 11 THE COURT: So I can't accept counsel's 12 representation that no other recordings exist? 13 MR. MUENCH: I don't think counsel -- 14 THE COURT: Because recordings have -- 15 In order for Jackson to be implicated, the 16 information that you're seeking has to have existed at some 17 point. 18 MR. MUENCH: That's correct. 19 THE COURT: Okay. 20 MR. MUENCH: And it has existed. 21 And so -- 22 THE COURT: But what evidence is there that such -- 23 that such recordings actually exist? 24 MR. MUENCH: That's a great point. 25 So the credibility problem that Fox has is: Back ALAN F. BOWIN, CSR, RMR, CRR FILED: NEW YORK COUNTY CLERK 09/27/2023 05:00 PM INDEX NO. 151136/2021 NYSCEF DOC. NO. 1793 RECEIVED NYSCEF: 09/27/2023 8 Proceedings 1 when the New York Times story came out on March 4th, two 2 days later, we requested the recording and Fox's position at 3 that time is the same one it has today: "You don't have any 4 evidence that recordings exist." Well, we kept pushing; we 5 moved to compel twice and, lo and behold, Fox finds the 6 recording. 7 Meanwhile, additional recordings surface, not 8 through Fox but from a whistleblower named Abby Grossberg. 9 She was a senior producer at Fox and she filed a public 10 complaint in the state of Delaware alleging several claims 11 in connection with what Fox allegedly did to her when she 12 was testifying as a witness and providing documents in 13 connection with the Dominion litigation in Delaware. 14 And what Miss Grossberg alleges, before Fox settled 15 with her for $12 million about a month after she filed suit, 16 is that in March, June and in August of 2022, she gave Fox 17 her cell phones to image. She alleges that Fox imaged her 18 cell phones and that she told Fox's in-house counsel that 19 "My phones have recordings on them." And what did Fox do? 20 It didn't produce them; it didn't produce them in Delaware 21 and it didn't produce them here. And we found out about it 22 not through Fox but through the newspapers, when it became 23 public in the Delaware court in the Dominion action. 24 And we consistently are finding out what Fox 25 actually has, and not what Fox is, quote, unaware of, ALAN F. BOWIN, CSR, RMR, CRR FILED: NEW YORK COUNTY CLERK 09/27/2023 05:00 PM INDEX NO. 151136/2021 NYSCEF DOC. NO. 1793 RECEIVED NYSCEF: 09/27/2023 9 Proceedings 1 through the newspapers, through people who leaked the 2 recordings to the New York Times, that they took in the 3 aftermath of the 2020 election of internal meetings or 4 through people like Miss Grossberg. And she didn't have one 5 or two recordings, she had dozens of recordings. And that's 6 what she alleges in her papers. And some of those involve 7 off-air conversations. 8 For instance, in Fox's opposition papers to our 9 appeal, Fox boasts about having produced an off-air 10 conversation between Maria Bartiromo and Rudy Giuliani. 11 Well, Abby Grossberg made that recording and Fox didn't 12 produce it during the document-production period; it 13 produced it after the fact, when we called Fox out on it. 14 And an interesting point is, when we did call Fox 15 out and demand those meeting recordings, Fox's response to 16 us was an e-mail from counsel at the table (indicating) 17 where they indicated that "we took swift action to re-access 18 the image of her phone," meaning Fox had the image of her 19 phone in 2022, it had the recordings, but it didn't produce 20 them. 21 And so, that leads us to the main problems here and 22 why Jackson is appropriate. It's that in some cases -- 23 right? Jackson applies in various circumstances. In cases 24 like, for instance, Henderson-Jones v. the City of New York, 25 a First Department case, the court there directed the ALAN F. BOWIN, CSR, RMR, CRR FILED: NEW YORK COUNTY CLERK 09/27/2023 05:00 PM INDEX NO. 151136/2021 NYSCEF DOC. NO. 1793 RECEIVED NYSCEF: 09/27/2023 10 Proceedings 1 provision of a Jackson affidavit because it was, in quotes, 2 skeptical of a, in quotes, complete production. And that's 3 the problem that we have here right now, is, we have every 4 reason to be skeptical that Fox has checked every location. 5 And the Grossberg recordings, as well as The New 6 York Times recording, show the design flaws in Fox's search. 7 There are two of them, and I can conclude at these because 8 they also run right to the relief that we request in our 9 order to show cause that's on the public docket. 10 The first design flaw is that Fox's, in quotes, 11 collection was incomplete. It didn't have Miss Grossberg's 12 recordings. Miss Grossberg's recordings were taken on her 13 cell phone. It turns out, The New York Times recording may 14 have been also taken on a cell phone. And many Fox 15 custodians used an application to record meetings. 16 In fact, what the papers confirm, and they're 17 helpful, is that Fox, one of the most powerful media 18 companies on the planet, its employees, in the normal course 19 of their duties, create a tremendous amount of media data: 20 recordings of meetings with third parties, recordings with 21 press outlets, and recordings of meetings internally. 22 Despite a so-called general policy prohibiting recordings, a 23 policy which has never been produced, not even through the 24 course of this briefing, it's undisputed that Fox custodians 25 make a lot of recordings. ALAN F. BOWIN, CSR, RMR, CRR FILED: NEW YORK COUNTY CLERK 09/27/2023 05:00 PM INDEX NO. 151136/2021 NYSCEF DOC. NO. 1793 RECEIVED NYSCEF: 09/27/2023 11 Proceedings 1 THE COURT: Judge Marin considered all these 2 contentions and he rejected your request for a Jackson 3 affidavit under those circumstances. 4 MR. MUENCH: Which is why we respectfully submit 5 that it was contrary to law. 6 Henderson-Jones v. the City of New York -- 7 THE COURT: But it's a discretionary call by the 8 individual determining the discovery request -- overseeing 9 discovery. 10 MR. MUENCH: We would say, your Honor, that certain 11 decisions may be discretionary, but where there is relevant 12 evidence and we know that a party has not checked all of the 13 locations where it has relevant evidence, then that is 14 contrary to CPLR 3101, because it requires a complete 15 disclosure. 16 And a party cannot represent, and Fox has not 17 represented -- right? Fox informed the Court that it was 18 "prepared to draft and execute a Jackson affidavit" months 19 ago. Well, where is it? What explains the 180? If it was 20 so easy to provide then, that would cut us right through the 21 problem right now. 22 And that really is what we think is the most 23 practical next step, because we're going to be back here, 24 anyway. If we have to do a 30(b)(6), a corporate- 25 representative deposition of a Fox custodian, and ask all of ALAN F. BOWIN, CSR, RMR, CRR FILED: NEW YORK COUNTY CLERK 09/27/2023 05:00 PM INDEX NO. 151136/2021 NYSCEF DOC. NO. 1793 RECEIVED NYSCEF: 09/27/2023 12 Proceedings 1 the questions that are in this Jackson affidavit that was 2 purportedly in the can, well, at that point, we will be 3 right back here again seeking a more -- an actual 4 explanation of the locations that Fox checked; namely, other 5 than Miss Grossberg -- 6 THE COURT: Well, if there's a custodian who says 7 that an individual made a recording and that that recording 8 would presumably be something that Fox -- is in their 9 possession, for purposes of discovery, then you would simply 10 make a post-EBT demand for that. That's what Judge Marin 11 determined. 12 MR. MUENCH: And the difficulty with that, Judge, 13 is, it, one, requires us to rely upon the witnesses and them 14 saying, "I don't" -- 15 THE COURT: It's better than relying upon, "They're 16 disingenuous and therefore you shouldn't believe them"; 17 isn't it? 18 MR. MUENCH: Well, that's what -- 19 THE COURT: At least, you'd have sworn testimony 20 there; you'd have something to back you up. 21 MR. MUENCH: Well, we would have nothing to be able 22 to check the locations themselves, to see if Fox examined 23 those locations for data. 24 A party cannot silo off places where it has 25 relevant information -- ALAN F. BOWIN, CSR, RMR, CRR FILED: NEW YORK COUNTY CLERK 09/27/2023 05:00 PM INDEX NO. 151136/2021 NYSCEF DOC. NO. 1793 RECEIVED NYSCEF: 09/27/2023 13 Proceedings 1 THE COURT: And you're planning on doing 2 depositions of a myriad number of Fox employees -- right? -- 3 various custodians, various individuals at Fox; right? 4 MR. MUENCH: I'm not sure if we would -- 5 THE COURT: So maybe the sooner, the better on 6 getting to those depositions and following what Judge Marin 7 said to do. 8 MR. MUENCH: Having a Jackson affidavit to go into 9 those depositions would enable us to get to the finish line 10 and actually get to the bottom -- 11 (To co-counsel) That's right. 12 -- and get to the bottom of where this data is. 13 And if we have a sworn statement from Fox, the same 14 one that they've already prepared, that there's no burden 15 for them to provide, it would enable us to get -- to 16 ascertain -- the truth and accelerate the resolution of this 17 issue. Without that statement, we're months away from 18 getting the same clarity about where they looked and if they 19 actually did this robust search that they claim they have 20 done. 21 And so, that was one design flaw, was incomplete 22 locations; and the second one, your Honor -- 23 THE COURT: Um-hmm. 24 MR. MUENCH: -- and I'll close out, is how Fox 25 searched; how it did its search. ALAN F. BOWIN, CSR, RMR, CRR FILED: NEW YORK COUNTY CLERK 09/27/2023 05:00 PM INDEX NO. 151136/2021 NYSCEF DOC. NO. 1793 RECEIVED NYSCEF: 09/27/2023 14 Proceedings 1 If a party searches for information improperly, 2 then it is designed to fail. And what Fox essentially did 3 here is, it went fishing without a hook. It was applying 4 search terms to find audio and video files. Well, there's 5 no searchable text in an audio or video file, so the only 6 way to find -- 7 THE COURT: And their contention is that you're 8 here, fishing without a tackle box. 9 MR. MUENCH: Well, not to try to come up with a 10 counter-metaphor on the spot, but we're not here in a world 11 where there is no recording. We're here in a world where 12 Fox first told us that no recordings existed, then one did; 13 we're here in a world where Fox told us there were no more, 14 until there were more; and we're in a world where Fox has 15 told us that it had a Jackson affidavit ready to go and it 16 was going to give it to us -- 17 THE COURT: Well, isn't -- to be fair, isn't that 18 because Judge Marin initially said that they needed a 19 Jackson affidavit, but then they came back at some later 20 point and said they did a search, found the one recording 21 that was at issue and then Judge Marin said, "I don't think 22 that -- a Jackson affidavit is no longer required" -- 23 MR. MUENCH: That's right, and that actually is an 24 additional -- what we would propose -- error in Justice 25 Marin's ruling, is that it changed our request. Our request ALAN F. BOWIN, CSR, RMR, CRR FILED: NEW YORK COUNTY CLERK 09/27/2023 05:00 PM INDEX NO. 151136/2021 NYSCEF DOC. NO. 1793 RECEIVED NYSCEF: 09/27/2023 15 Proceedings 1 wasn't for that one recording, and so it narrowed our ask. 2 And we are the plaintiff here, with the burden of 3 proof. Fox is disputing that we have proven that it knew or 4 recklessly told falsehoods; Fox is disputing the involvement 5 of its executives; and until Fox doesn't dispute those 6 issues, we need the evidence that we have to present at 7 trial to establish Fox's actual malice by clear and 8 convincing evidence. 9 So it is not enough -- 10 THE COURT: So, in conclusion ... 11 MR. MUENCH: So, in conclusion, your Honor, we 12 would respectfully submit that the most practical, 13 cost-effective resolution of this is to make Fox give us the 14 Jackson affidavit that it prepared; and from there, we will 15 be able to see which locations it avoided, whether by 16 accident, or deliberately, as Miss Grossberg alleges; and it 17 will also enable us to identify whether Fox ever corrected 18 the flaws that we identified in the search and we asked for 19 it to fix. 20 THE COURT: Thank you, counsel. 21 Mr. Allen. 22 MR. ALLEN: Thank you, your Honor. 23 Good morning. 24 First of all, I would be remiss -- 25 THE COURT: Good morning. ALAN F. BOWIN, CSR, RMR, CRR FILED: NEW YORK COUNTY CLERK 09/27/2023 05:00 PM INDEX NO. 151136/2021 NYSCEF DOC. NO. 1793 RECEIVED NYSCEF: 09/27/2023 16 Proceedings 1 MR. ALLEN: -- if I didn't say that I disagreed 2 with how counsel started his argument and would point out 3 that Fox has had to file, itself, over a dozen motions to 4 compel before Justice Marin, many of which have been granted 5 and we still are missing many, many documents from 6 Smartmatic itself. 7 Let me move on to the motion, your Honor. 8 The JHO correctly found -- 9 THE COURT: I appreciate you doing that. I'm not 10 sure how any of that, from either side, was remotely helpful 11 to this issue. 12 MR. ALLEN: Thank you, your Honor. 13 JHO Marin correctly found that there was no basis 14 for a Jackson affidavit here. Your Honor, a Jackson 15 affidavit is required when there is some evidence that a 16 document or item exists, a party cannot locate it, and the 17 search is -- seems -- insufficient by the party searching 18 for it. Here, Fox has located and produced the one 19 recording that Smartmatic seemed to focus its original 20 discovery requests on, plus many, many other recordings, 21 both video and audio, that are responsive to the discovery 22 requests in this case. 23 Fox conducted an extensive and thorough search for 24 other recordings. That search included -- 25 THE COURT: Plaintiff wants me to conclude that ALAN F. BOWIN, CSR, RMR, CRR FILED: NEW YORK COUNTY CLERK 09/27/2023 05:00 PM INDEX NO. 151136/2021 NYSCEF DOC. NO. 1793 RECEIVED NYSCEF: 09/27/2023 17 Proceedings 1 it's awfully convenient that your search, "after we were 2 aware of an audio or video recording, found the recording 3 that we were already aware of and not much else." 4 MR. ALLEN: No, your Honor. 5 I think it's helpful for me to explain the 6 background behind that one recording, which is a recording 7 of a November 16th, 2020, meeting that happened at Fox. 8 There was a March 2023 New York Times article that 9 reported about the existence of some such -- such a 10 recording which we theretofore were not aware of. 11 Smartmatic served a discovery request, asking for it. We 12 objected because, at the time, it was outside the scope of 13 discovery; the recordings, we understood, did not mention 14 "Smartmatic" or "Dominion" or claims of election fraud. It 15 dealt with coverage of the 2020 election generally, which, 16 at that time, Justice Martin had held was outside the scope 17 of discovery. We never heard anything back after we 18 objected. 19 After the Court expanded discovery in April -- on 20 April 25th of 2023 -- by adding additional topics and 21 additional custodians, there was a custodian who was added 22 and search terms that were later added that led to the 23 discovery of that recording. 24 And, frankly, that came as a surprise to Fox, 25 because counsel for Fox in a different case had had a ALAN F. BOWIN, CSR, RMR, CRR FILED: NEW YORK COUNTY CLERK 09/27/2023 05:00 PM INDEX NO. 151136/2021 NYSCEF DOC. NO. 1793 RECEIVED NYSCEF: 09/27/2023 18 Proceedings 1 discussion with that individual and asked that individual 2 whether such a recording existed and that individual had 3 said it did not. So it was a surprise to us. 4 But nonetheless, after discovery was expanded in 5 April -- on April 25th -- after additional search terms were 6 agreed to in mid-May, we eventually -- we kept looking; we 7 mainly reviewed every recording we could find in our system, 8 and we eventually found it in the files of a recently added 9 custodian and we produced it to Smartmatic very quickly 10 after we found it. 11 So I don't believe that's evidence of an 12 insufficient search, your Honor. The search we did was 13 expansive. We searched the custodial files of all the 14 custodians in this case for audio and video recordings. 15 That's over 70 custodians. We didn't just run search terms. 16 We listened to the audio and video files to determine 17 whether they contained responsive information; if they did, 18 we produced them. And I believe there's been over 2500 19 audio and video files produced in this case so far. 20 We did search the shared databases and noncustodial 21 files that exist at Fox, where such recordings might be 22 housed and if we found responsive recordings, we produced 23 them. We also sent out a survey to all the custodians where 24 we specifically asked each custodian: "Do you use any 25 systems to record meetings in the course of your work? If ALAN F. BOWIN, CSR, RMR, CRR FILED: NEW YORK COUNTY CLERK 09/27/2023 05:00 PM INDEX NO. 151136/2021 NYSCEF DOC. NO. 1793 RECEIVED NYSCEF: 09/27/2023 19 Proceedings 1 you do, please let us know what that is and what you have." 2 And we produced any responsive recordings we discovered from 3 that. And, again, we did do a manual review of all the 4 audio and video files in our review space. 5 So we've produced to Smartmatic, your Honor, all 6 the audio and video files that we found. The search was 7 thorough and comprehensive. Again, this is a search that's 8 much more comprehensive than what Smartmatic, itself, has 9 agreed to do, as we discussed with Justice Marin last 10 Friday. And so, in effect, they're asking us to do even 11 more than they, themselves, had agreed to do. And we did 12 walk Justice Marin and Smartmatic through this process in 13 some detail in two hearings that were held before him in, I 14 believe, May and June. 15 To address the Abby Grossberg issue, your Honor, 16 here's what happened with Miss Grossberg: 17 Fox's -- individuals from Fox conducted custodial 18 interviews with Miss Grossberg in 2021 and 2022, as we do 19 with all our custodians, to assist us in our document 20 collection efforts, to make sure we're collecting relevant 21 information. During those interviews, she did not disclose 22 to Fox that she had responsive recordings from the time 23 period that's at issue in this case. In March of 2023, 24 Miss Grossberg provided Fox with an errata sheet where she 25 stated that she had recordings on a phone still in her -- on ALAN F. BOWIN, CSR, RMR, CRR FILED: NEW YORK COUNTY CLERK 09/27/2023 05:00 PM INDEX NO. 151136/2021 NYSCEF DOC. NO. 1793 RECEIVED NYSCEF: 09/27/2023 20 Proceedings 1 her phone, from a -- from a program called Otter. Once we 2 became aware of that, Fox reopened the image of her phone, 3 found the recordings and we produced them to Smartmatic in 4 mid-April. 5 In addition, we knew -- we knew for a while -- 6 Miss Grossberg, who had separated from the company -- she 7 still had in her possession a phone and a hard drive that 8 Fox did not have. She had it in her possession; we asked 9 her to return it. She only returned it once the settlement 10 was reached with her, which I believe was sometime in 11 June -- late June -- of 2023. Once she returned that 12 additional phone to us, once she returned that hard drive to 13 us, we processed those materials; we reviewed them and we 14 produced them to Smartmatic. 15 And I should note, your Honor, that we've produced 16 to Smartmatic recordings that we got from Miss Grossberg 17 that are even recordings she, herself, didn't produce to 18 Smartmatic in response to their subpoena. So we've taken 19 efforts to make sure that we've located any recordings she 20 might have had and produced them to Smartmatic. 21 So, in this situation, your Honor, where Fox has 22 conducted a robust search for responsive recordings, where 23 many such recordings have been produced, where there's no 24 indication that a document should exist but doesn't exist, 25 we don't believe a Jackson affidavit is appropriate, your ALAN F. BOWIN, CSR, RMR, CRR FILED: NEW YORK COUNTY CLERK 09/27/2023 05:00 PM INDEX NO. 151136/2021 NYSCEF DOC. NO. 1793 RECEIVED NYSCEF: 09/27/2023 21 Proceedings 1 Honor. And I would say that your recollection of -- 2 THE COURT: Just so I'm clear: Your contention is 3 not that recordings may have existed that no longer exist or 4 you can't locate. You're contending that there are no other 5 recordings. 6 MR. ALLEN: That's as best -- 7 Through the search we've conducted, your Honor, we 8 have produced all the recordings we could find. We are not 9 aware of some recording that should have existed or there's 10 an indication that it existed at one time but we can't find 11 it. 12 THE COURT: Or that there's any evidence it 13 existed. 14 MR. ALLEN: Correct. We cannot locate that. 15 THE COURT: Anything else, counsel? 16 MR. ALLEN: No, your Honor. Thank you. 17 THE COURT: Did you want to ... 18 MR. MUENCH: I would love to. 19 THE COURT: Did you want a minute for reply? 20 MR. MUENCH: Yes, your Honor. 21 THE COURT: You have a minute. 22 MR. MUENCH: The upshot is, the statements by 23 counsel just now underscored why we need a Jackson 24 affidavit. 25 They're refuting allegations by Abby Grossberg. ALAN F. BOWIN, CSR, RMR, CRR FILED: NEW YORK COUNTY CLERK 09/27/2023 05:00 PM INDEX NO. 151136/2021 NYSCEF DOC. NO. 1793 RECEIVED NYSCEF: 09/27/2023 22 Proceedings 1 None of it is under oath. They have a Jackson affidavit 2 that's ready to be issued. Why can't we just see it? 3 Because a lot of the statements by counsel were really 4 generalities. And when you peel back a layer of the onion, 5 the statement that really should pop is, "It came as a 6 surprise to us." 7 THE COURT: Counsel, what recordings that you can 8 specifically point to, that you know for certain existed, 9 that now you don't have? 10 MR. MUENCH: I'll answer it a little differently, 11 your Honor: We don't know -- 12 THE COURT: No, answer the question I asked you, 13 Mr. Muench. 14 MR. MUENCH: Sure. 15 What we know -- 16 THE COURT: Because if you can't answer that 17 question, I don't think I can give you relief. 18 MR. MUENCH: We can only answer that the locations 19 they haven't searched, that are where custodians stored the 20 recordings. 21 So, counsel represented that they checked all 22 custodial files, but they will not represent that they 23 actu