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Klayman v. Judicial Watch, Inc.

United States District Court, District of Columbia

May 18, 2018

LARRY KLAYMAN, Plaintiff,
v.
JUDICIAL WATCH, INC., Defendant.

          MEMORANDUM OPINION AND ORDER

          TIMOTHY J. KELLY UNITED STATES DISTRICT JUDGE.

         This Opinion concerns the latest in a long line of disputes between Plaintiff Larry Klayman and Defendant Judicial Watch, Inc. Klayman accuses Judicial Watch's President, Thomas Fitton, of having perjured himself in a declaration submitted to the Court. Based on this purported misconduct, Klayman has moved for entry of judgment in his favor. ECF No. 29 (“Mot.”). As explained below, Klayman's motion will be denied.

         I. Background

         This Opinion assumes familiarity with Klayman's allegations as summarized in a prior opinion by Judge Kollar-Kotelly, to whom this case was previously assigned. Klayman v. Judicial Watch, Inc., 267 F.Supp.3d 81 (D.D.C. 2017). In a nutshell, this case concerns the legal representation of Jose Basulto in his attempt to enforce a judgment against the Cuban government. See Id. at 83. For a brief time, Klayman allegedly represented Basulto in that matter. Id. Klayman alleges that, on or about November 30, 2016, Judicial Watch told Basulto that Klayman lacked the resources to carry out the representation, inducing Basulto to drop Klayman as his attorney and hire Judicial Watch. Id. This, Klayman claims, constituted a breach of his severance agreement with Judicial Watch, defamation, and tortious interference with prospective economic advantage. Id. at 85-86.

         The parties' current dispute arose from a discovery motion that Klayman filed on January 9, 2018. ECF No. 26. The motion sought to compel the depositions of several Judicial Watch officers, including Fitton. Id. Judicial Watch cross-moved for a protective order seeking, among other things, to quash Fitton's deposition. ECF No. 27. It argued that Fitton did not have any relevant information about this case, and expressed concern, in light of the years-long history of contentious litigation between the two parties, that Klayman would misuse the deposition as an opportunity to harass Fitton. ECF No. 27-1 at 4-6. In support of its cross-motion, Judicial Watch submitted a declaration by Fitton. ECF No. 27-2 Ex. B (“Fitton Decl.”). In his declaration, Fitton stated:

5. I have had no communication (written, oral or otherwise) with Basulto in several years, except that Judicial Watch did send him a Christmas card each year that I signed. I have no knowledge regarding Klayman's alleged representation of Basulto nor was I ever aware, prior to the lawsuit, that Klayman alleged he represented Basulto regarding the Cuba Judgment. At no time did I direct or authorize anyone to communicate with Basulto regarding Klayman's alleged representation of Basulto, nor am I aware of any such communications. In summary, I do not possess any knowledge or information relevant to this dispute.
6. If compelled to appear at a deposition, I will not be able to answer any questions regarding this lawsuit as I do not have any information.

Fitton Decl. ¶¶ 5-6.

         In order to resolve the parties' discovery dispute, the Court held a telephone conference on the record on January 16, 2018. As a result of the conference, the Court authorized Klayman to depose Fitton for one hour. See Minute Order of January 16, 2018.

         On March 1, 2018, Klayman filed the instant motion seeking entry of judgment in his favor. Mot. Klayman claims that Fitton perjured himself in his declaration and that entry of judgment is an appropriate sanction. Id. at 1-2. The factual basis for this claim is the deposition testimony of another Judicial Watch officer, Paul Orfanedes, who testified that, in December 2016, Fitton signed a representation agreement between Judicial Watch and Basulto. Id. at 4-5 (citing Orfanedes deposition transcript). Klayman argues that Fitton therefore lied, because the representation agreement constituted a “communication” with Basulto, and because it demonstrated that Fitton must have had relevant information about the litigation. Id. at 5. This conduct, Klayman claims, amounted to a fraud on the court and perjury, suborned by Judicial Watch and its counsel. Id. at 5-7.

         Klayman raised these perjury allegations during Fitton's deposition. See, e.g., ECF No. 31 Ex. A (“Fitton Dep.”) at 33:6-15. Fitton testified that, at the time he signed the declaration, he no longer recalled the 2016 representation agreement. Id. at 19:22-20:5, 21:9-12. Indeed, while not disputing that he had signed the agreement, Fitton testified at his deposition that he had no personal recollection of having signed it, even after Klayman had attempted to refresh Fitton's recollection as to the existence of the agreement. Id. at 21:19-22, 22:9-18. Fitton further testified that the declaration was accurate because (1) the representation agreement was not a “communication” between himself and Basulto, (2) he had not himself sent the agreement to Basulto, and (3) he had no knowledge of Judicial Watch's communications with Basulto that allegedly induced Basulto to fire Klayman. Id. at 26:15-19, 30:15-18.

         Based in large part on Fitton's testimony, Judicial Watch argues that Klayman's claims of perjury are groundless. In Judicial Watch's view, Fitton's declaration is true-or at the very least, true to the best of Fitton's knowledge at the time he signed it. ECF No. 31 at 3. Moreover, even if the declaration contained misstatements, Judicial Watch argues, they would not have been material. Id. at 5-6.

         On April 2, 2018, Klayman filed a “Supplement” to his motion. ECF No. 38 (“Pl.'s Supp.”).[1] In the supplement, Klayman argues that Judicial Watch has improperly invoked the attorney-client privilege and work-product doctrine during the course of discovery, and that this purported discovery abuse further warrants entry of judgment in his favor. Id. He rests this argument upon Judicial Watch's invocation of privilege during the January 2018 depositions of Fitton, Orfanedes, and another Judicial Watch employee. See ECF No. 38-1 (exhibits to supplement).

         II. ...


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