United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
TIMOTHY J. KELLY UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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.
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.
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.
April 2, 2018, Klayman filed a “Supplement” to
his motion. ECF No. 38 (“Pl.'s
Supp.”). 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).