Victor Mignogna v. Funimation Productions, LLC, et al. (2019) - Vic's lawsuit against Funimation, VAs, and others, for over a million dollars.

[10SorrowfulObject]

Yes, actually it is what Lemonhead is seeking to do with Nick. He outright says it in his e-mail chain with Ty. He wants Nick's "Semi-Expert opinion on whether Vic is a public figure". That's a no no. Lemonhead cannot get a Lawyers expert testimony for free via force with a subpoena.

Well, as y'all said, "semi-expert" doesn't have a legal meaning. When he is subpoenaed as a fact witness, then he'll be required to testify to the facts he's aware of (GFM funding, interactions with Vic, etc).

Based on what they plan to depose him about, I don't think Nick would qualify as an expert witness in most jurisdictions:

Texas Rule 702
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.

Federal Rule 701, 702
Under rule 701, a lay witness may provide an opinion that is (1) rationally based on the witness’s perception; (2) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (3) not based on scientific, technical, or other specialized knowledge within the scope of rule 702.
Expert testimony, in contrast, is only permissible if a witness is “qualified as an expert by knowledge, skill, experience, training, or education” and the proffered testimony meets four requirements: (1) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (2) the testimony is based on sufficient facts or data; (3) the testimony is the product of reliable principles and methods; and (4) the expert has reliably applied the principles and methods to the facts of the case. Experts may testify “in the form of an opinion or otherwise”—it is entirely appropriate for an expert to testify generally about principles, methods, or other information and leave the ultimate inference or “opinion” to the finder of fact.

Basically, these are saying that you need specialized domain knowledge to be an expert witness. Nick's knowledge re: GFM is a fact question and that won't qualify. The closest I see this getting is if/when they ask Nick whether Vic is famous, but Nick isn't an expert in PR so I think that'd be hard for him to claim to be an expert witness about.

He would be an expert witness, not a fact witness. They want to get information from him that he obtained as part of his job, not information he just happened to witness. Don't forget that his youtube channel is part of his job, especially with how much he earns from it.



"Semi expert" is a way of saying "we want him as an expert witness without paying the associated price for it". They can't even deny he would be an expert witness, so they try to downplay it instead.

The fact that he acquired the information through his job doesn't make him an expert witness, he's still a fact witness in that scenario. Otherwise, anyone witnessing something at their workplace would become an expert witness, and that's clearly not the case.

Anti-Slap would not apply to Lemonhead seeking to subpoena Nick. He’s not suing Nick.
- he first needs permission to do discovery while Funi’s TCPA is in progress. Which he is not likely to get since the TCPA motion on the table is not his.
- He then needs to get permission to file the subpoena, for which there is already a Plaintiff’s motion to quash.
- If he somehow gets that through Nick then files his own motion to quash and forces the issue to move to Minnesota.

I think the order needs to be issued by a Minnesota court anyway, so wouldn't it start there?

- Lemonhead then gets to convince a Minn Judge why he needs Nick.

As a fact witness with personal knowledge, I think this will be pretty straightforward.

- If he ever gets to depose Nick he gets to fight every question under Minnesota’s Shield Law protecting Journalists and their sources.

I think the shield law is limited to questions about their sources. As Nick has first hand knowledge of the events in question, I don't think the shield law will protect him from testifying about the GFM and interactions he's had with Vic and Ty.

- Whatever isn’t covered under that both Nick and Ty fight as an attempt to breach attorney client privilege regarding Vic’s lawsuit budget and spending.

I don't think this is accurate, generally speaking if Ty tells Nick anything about the suit, he waives privilege about it because Nick is not Ty's client. This may not be the case if they signed a common-interest agreement but I haven't seen any sign of that yet.

Hi all,

First post here and I apologise for starting with questions but...

While I can see where KV are going with trying to have Vic declared a public figure I can't see how it would work.
For having an online presence surely you could highlight any number of "influencers" and ethots who have huge numbers of followers, likes etc and would be completely unknown to any normie. As for Vic I had never heard of him before this and even now if I saw him in the street I would have to check how awful his trousers were to be sure it was him.

What it boils down to is what you or I would consider a public figure, and what the courts consider a public figure aren't the same thing. You don't need to be universally known (like Tom Cruise) to be considered a public figure. It's not really clear what the rule is nowadays, but the LawTwitter consensus is that he's at least a limited public figure because people come to cons to see him, cons pay him for the same reason, and so on.

It's also worth noting that Judge Chupp already thinks he's a public figure. That's not an official ruling on the topic, but it gives you an idea of where the court's thinking is.

 

[Bravefart]

Thanks for clearing that up for me.

I was going to watch Nick's stream from last night to find out more about the depositions but it's too early to start drinking and there's no way I could get through hours of him hurling abuse at idiots without some booze in me.

 

[LuNaS]

Hi all,

First post here and I apologise for starting with questions but...

While I can see where KV are going with trying to have Vic declared a public figure I can't see how it would work.
For having an online presence surely you could highlight any number of "influencers" and ethots who have huge numbers of followers, likes etc and would be completely unknown to any normie. As for Vic I had never heard of him before this and even now if I saw him in the street I would have to check how awful his trousers were to be sure it was him.

And as for their going after Nick and the GFM, apart from their hatred and jealousy why are they doing all of this? What are they hoping to get out of it?
Lemonjuice- Mr. Mignogna, that evil blackface fake lawyer on youtube hurt Ron's feelings so bad he wouldn't come out of his cage and lick up the santorum left after Monica's tuesday afternoon bull was done with her. Monica, Monica's tuesday afternoon bull or Monica's tuesday evening bull could have slipped and broken their necks. They could have died! How can you support and approve of this dangerous racist hater of women and cucks?
Vic- Mr Rekieta is not my lawyer and nothing he does has anything to do with me.

I suppose what I'm asking is what are they trying to get Vic to say, or get Nick to say, and why that would convince GFM to cancel?

Or is it really just about adding up hours from a spiteful client?

Thanks.

To elaborate, if you are a public figure there is a need of actual malice a law term that means knowing your statements are false or having the reasonable suspicion they are false and then transmitting the statements anyway regardless of how damaging they are.

I would make a case for some of the statements to be with actual malice, particularly the ones referring to crimes. But proving that can be difficult, and that is why the Lolyers refer to Vic being a public figure as they would to a holy Cross.

 

[Kosher Salt]

In announcing the lawsuit, Vic claimed it was the "last option" to get back his reputation and career, but other than the TDMA letters and the tweet denying the worst claims on January 20th, what did he do?

He had made that "apology" tweet, in which he basically just said that he denied any wrongdoing but he was sorry if anyone felt uncomfortable as a result of anything he did. The scum who were bent on attacking him just took it as an admission of guilt, even though it wasn't any such thing. Since that PR statement didn't work, suing was the last option.

There are a lot of blank pages. I wonder if it is MoRon or the judge who removed them.

I am wrong to assume that, if it was the judge, text will be hidden under a black box like in public documents ?

They were redacted by MoRon. As for the style of redaction, it's just that - a matter of style. Black is typical, but white looks better when there are large portions omitted.

Note that to properly redact a document, any text (or image) covered by the redaction must actually be obliterated; simply drawing a shape that covers it is not sufficient.

He should have answered that last question with “Every single president of the United States that has campaigned, ever”

Every single president was also a public figure, though. That probably wouldn't be a very good way for Vic to answer.

Yeah, I was a bit surprised by that as well. I know attorneys have a lot of latitude in their questioning during depositions, but some of those things were just beyond the pale.

Now you know why some Texas depositions have resulted in literal fistfights.

Quick (possibly dumbass) question for all the folks who are familiar with depositions. I noticed throughout this transcript, there are objections noted here and there by various lawyers, but things carry on regardless of them. Are these objections simply examined later by the judge to see if they hold up and affect whether the statements can be used? Even Vic seemed thrown when Ty objected but he was still expected to continue answering, so it made me extra curious about how this works.

Yes... as I understand it, in Texas depositions, any objections during the deposition have to be examined later by the judge; things carry on regardless. Most objections can't even be raised until after the fact, because they don't affect the deposition and the judge can address them later. A few objections, like "objection to form" (I suspect "objection, answer is nonresponsive" is another) are raised immediately; they address issues that can be corrected immediately by restating the question or answer... those must be raised immediately or the objection is waived. Still, the objection is simply stated for the record and then the deposition proceeds. The judge will decide them later, if needs be. The deponent is required to answer each question unless they can't because of privilege (in which case, their counsel can instruct them not to).

I'm a little fuzzy on that. Does Anti-SLAPP only apply if he's actually getting sued, or can he file anti-SLAPP (or something equivalent) in response to a subpoena?

Anti-Slap would not apply to Lemonhead seeking to subpoena Nick. He’s not suing Nick.

The TCPA allows a party to bring a motion to dismiss any "legal action" related to speech, and that section of the code defines "legal action" as, "a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any other judicial pleading or filing that requests legal or equitable relief."

Nick actually mentioned in last night's stream that he'd be more than happy to "slap the shit out of them with an anti-SLAPP motion" if they file anything to try to stifle his free speech and demand legal or equitable relief. Which reminds me, MoRon just filed a Motion for Leave to Conduct Discovery, in which they target Nick Rekieta because of his speech, and they ask the court for "such other and further relief to which they may be justly entitled"... hmm...

 

[RodgerDodger]

Well, as y'all said, "semi-expert" doesn't have a legal meaning. When he is subpoenaed as a fact witness, then he'll be required to testify to the facts he's aware of (GFM funding, interactions with Vic, etc).

Based on what they plan to depose him about, I don't think Nick would qualify as an expert witness in most jurisdictions:


Basically, these are saying that you need specialized domain knowledge to be an expert witness. Nick's knowledge re: GFM is a fact question and that won't qualify. The closest I see this getting is if/when they ask Nick whether Vic is famous, but Nick isn't an expert in PR so I think that'd be hard for him to claim to be an expert witness about.

The fact that he acquired the information through his job doesn't make him an expert witness, he's still a fact witness in that scenario. Otherwise, anyone witnessing something at their workplace would become an expert witness, and that's clearly not the case.

I think the order needs to be issued by a Minnesota court anyway, so wouldn't it start there?

As a fact witness with personal knowledge, I think this will be pretty straightforward.

I think the shield law is limited to questions about their sources. As Nick has first hand knowledge of the events in question, I don't think the shield law will protect him from testifying about the GFM and interactions he's had with Vic and Ty.

I don't think this is accurate, generally speaking if Ty tells Nick anything about the suit, he waives privilege about it because Nick is not Ty's client. This may not be the case if they signed a common-interest agreement but I haven't seen any sign of that yet.

Lemonhead, in his e-mails to Ty specifically said he wants to put Nick under oath and get his Expert Opinion on whether Vic is a Public Figure. Nick is a Lawyer. That is a domain of his expertise. That statement in his communications with Ty should quash his attempts to subpoena Nick. Lemonhead is seeking to leverage Nick’s expertise as a lawyer to prove his case. Without engaging the services of Nick as a lawyer.

The Shield Law protects Nick’s network of informants, such as Funi insiders and nasty nasty turncoat VA’s who won’t bend their knee to Rial and Marchi. Lemonhead made clear he wants that in his document preservation demand. It’s all an incredibly blatant fishing expedition.

And if you look carefully Nick has not been told, nor revealed anything privileged. He does not know, nor does he have input into Vic’s legal strategies. Ty has leaked certain approved non privileged information to the public in support of his secondary task of healing and making Vic’s reputation whole and countering the ongoing defamation. The closest thing Nick has gotten to privileged info is the Kamehacon texts. Which were in the hands of both parties. Had not been obtained via subpoena deposition or similar, and had seemingly been fully distributed to Shane. No protections existed there. And once again Nick falls under Journalist shield laws Ty is a source. Minnesota’s are quite robust. In fact youmake a major false assumption about them. You think they only shield the sources identity and personal info. Nope! They also shield any unpublished information the journalist has received.

What it boils down to is what you or I would consider a public figure, and what the courts consider a public figure aren't the same thing. You don't need to be universally known (like Tom Cruise) to be considered a public figure. It's not really clear what the rule is nowadays, but the LawTwitter consensus is that he's at least a limited public figure because people come to cons to see him, cons pay him for the same reason, and so on.

It's also worth noting that Judge Chupp already thinks he's a public figure. That's not an official ruling on the topic, but it gives you an idea of where the court's thinking is.

Dear Gods! Where do you get this shit? At heart the courts definition of a “Public Figure” is that Public Figure must be able to exert public influence such as via public policy or media. The baseline for this status is Political Leadership and National Media Influencers. They must be able to exert influence on the public at large, either nationally or in a more local respect such as local politicians who would be limited purpose public figures.

Does Vic have any ability to influence public matters? Not really. And in fact one of Monica’s tweets reflecting on how powerless she is as a VA that nobody listens to rather nicely counters ay claims of Public Figure status. Public Figure does not equal celebrity.

 

[talk talk talk]

I don't know about Texas weirdness here, but no experts have been identified, so there are no "experts" to depose. Further, even if Nick qualifies as an "expert" under the Rules, he seems likely to be a non-testifying expert or consultant at best. Generally (at least in civilized jurisdictions), they cannot be deposed.

So at this point Nick is a plain ol' fact witness. BUT! Minnesota has a strong version of Rule 45 for subpoenas (and recall that an subpoena that has power over Nick has to be issued by Minnesota). The Minnesota version of Rule 45 requires that the if a person is to testify regarding their profession, business, or trade, they have to be paid reasonable compensation for the time spent preparing and testifying.

 

[Jub-Jub]

It's also worth noting that Judge Chupp already thinks he's a public figure. That's not an official ruling on the topic, but it gives you an idea of where the court's thinking is.

Chupp took an argument at face value so he didn't have to listen to shitty logic when it was neither the time or place.

 

[RodgerDodger]

The TCPA allows a party to bring a motion to dismiss any "legal action" related to speech, and that section of the code defines "legal action" as, "a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any other judicial pleading or filing that requests legal or equitable relief."

Nick actually mentioned in last night's stream that he'd be more than happy to "slap the shit out of them with an anti-SLAPP motion" if they file anything to try to stifle his free speech and demand legal or equitable relief. Which reminds me, MoRon just filed a Motion for Leave to Conduct Discovery, in which they target Nick Rekieta because of his speech, and they ask the court for "such other and further relief to which they may be justly entitled"... hmm...

I still think attempting to fight a subpoena using TCPA is more than a stretch. Being called to testify is not really somebody seeking relief from you. If you could use Anti-SLAPP like that the system would quickly implode. Besides subpoena’ing testimony is not seeking to prevent your public participation or stifle your speech. It’s rather the opposite.

 

[Slimy Time]

Okey just got up to date, wow... I mean I can see why Ty was giddy after Vic's Deposition. Not only it paints Vic in a great light, former teacher, policeman, actor who then choose to pursue a career in something that seems much less glamorous, voice acting, who is incredibly modest, was essentially forced into legal action by the actions of several big production companies and a collusion of voice actors that he considered his friends.

Was lambasted by third rate news sites and after all that his fans without any direction from him gave over 200,000 because they felt he was suffering unjustly and wanted to help him.

Put this in front of a Jury and they will eat it up like candy. And this is the deposition with the opposite council, after they unilaterally cut up portions of it...

This was the worst possible version of the deposition for Vic... That is just beautiful, rolling in the floor laughing stupid for the defendants, but also beautiful.

Remember, this is the redacted depo that Lemon is using in support of this application. Those questions also come off as really, really fucking slimey, at least imo.

 

[Kosher Salt]

I still think attempting to fight a subpoena using TCPA is more than a stretch. Being called to testify is not really somebody seeking relief from you. If you could use Anti-SLAPP like that the system would quickly implode. Besides subpoena’ing testimony is not seeking to prevent your public participation or stifle your speech. It’s rather the opposite.

True... but generally, subpoena'ing testimony is not just a thinly veiled pretense for doxing someone out of spite and trying to use the legal system to harass them because they said some mean things about you on YouTube.

 

[General Relativity QM]

Isn't the argument that, "As a member of the press, if I am compelled to reveal my sources through depositions, I will in fact be stifled in my speech, not least, because other sources will be less likely to reveal information to me," not a reasonable Anti-SLAPP justification? It is still a speech and first amendment issue.

EDIT for Clarification: I assume in the context where someone being deposed must answer questions despite objections. So, I could get the sources of an article if I can just get journalist X to testify. I can't use the source in court if the objections are sustained, but I can use the information in other ways.

 

[Soviras]

Anti-Slap would not apply to Lemonhead seeking to subpoena Nick. He’s not suing Nick.

The TCPA can apply to anything seeking "relief, legal or equitable", so even a subpoena directed at a third party witness can apply. It would be stupid to create a situation where that's the case though, so in most cases that's correct. But with the amount of stupid seen so far... I'm not willing to make the bet that they won't make it apply to their subpoena, somehow.

The fact that he acquired the information through his job doesn't make him an expert witness, he's still a fact witness in that scenario. Otherwise, anyone witnessing something at their workplace would become an expert witness, and that's clearly not the case.

The Minnesota rules, which would apply to Nick, say that it would make him an expert witness in that case. The subpoena he receives in the end would be under Minnesota rules. (See Minnesota Rules of civil procedure 45.03(d) below). And witnessing something during work or finding out something as a result of activities that are part of your job are different things. Nick learned about pretty much everything related to the case because of his job as a journalist and his job as a lawyer. He didn't just happen to see something happen; he found out about it as part of what he does as his job. Even in Texas, he could argue that he is an expert by knowledge or experience (though it's more of a stretch than under Minnesota rules).

Imagine a different scenario. A journalist is looking into a story about Person A's restaurant visits and interviewed various people. The journalist finds out information in the course of his job that is relevant to a lawsuit between person A and a restaurant that claimed he trashed their place and other places dozens of times. This would be expert testimony, because the knowledge was obtained as a result of activities that were part of the journalists job. If the journalist had instead seen Person A shoot Person B while heading to an interview with Person A, then the journalist would be a normal witness because it was knowledge that was obtained while the journalist happened to be working (the journalist didn't go there to get the scoop on that, but rather to hold an unrelated interview). It's a small difference, but it does matter.

(d)Compensation of Certain Non-Party Witnesses.
Subject to the provisions of Rules 26.02 and 26.03, a witness who is not a party to the action or an employee of a party [except a person appointed pursuant to Rule 30.02(f)] and who is required to give testimony or produce documents relating to a profession, business, or trade, or relating to knowledge, information, or facts obtained as a result of activities in such profession, business, or trade, is entitled to reasonable compensation for the time and expense involved in preparing for and giving such testimony or producing such documents.

 

[Kosher Salt]

Isn't the argument that, "As a member of the press, if I am compelled to reveal my sources through depositions, I will in fact be stifled in my speech, not least, because other sources will be less likely to reveal information to me," not a reasonable Anti-SLAPP justification? It is still a speech and first amendment issue.

I'd argue that it also infringes on his right of association. The TCPA covers the rights of speech, petition, and association.

 

[Cakeisjustok]

Isn't the argument that, "As a member of the press, if I am compelled to reveal my sources through depositions, I will in fact be stifled in my speech, not least, because other sources will be less likely to reveal information to me," not a reasonable Anti-SLAPP justification? It is still a speech and first amendment issue.

EDIT for Clarification: I assume in the context where someone being deposed must answer questions despite objections. So, I could get the sources of an article if I can just get journalist X to testify. I can't use the source in court if the objections are sustained, but I can use the information in other ways.

I think this falls under the shield laws more so then anti slap, unless they are seeking sanctions from Nick I believe. It's the telling him to shut up or pay up that would shift it closer to the anti slap area. Regardless it is an uphill battle for them to depose Nick.

 

[teriyakiburns]

Isn't the argument that, "As a member of the press, if I am compelled to reveal my sources through depositions, I will in fact be stifled in my speech, not least, because other sources will be less likely to reveal information to me," not a reasonable Anti-SLAPP justification? It is still a speech and first amendment issue.

EDIT for Clarification: I assume in the context where someone being deposed must answer questions despite objections. So, I could get the sources of an article if I can just get journalist X to testify. I can't use the source in court if the objections are sustained, but I can use the information in other ways.

The argument is that MoRon's motion appears to be seeking injunctive relief against rackets that would require he stop exercising his first amendment rights in relation to Vic and the case. Nick is not a defendant, nor is he a plaintiff, or otherwise party to the case. A moving party in the case has no right to seek relief against him. It would become SLAPP by definition, by being a strategic motion to prevent his participation in public discourse. The fact that it is the defendants making the motion is irrelevant, really, because the motion would be naturalised to Minnesota, and thus become a de novo action against nick.

 

[General Relativity QM]

*snip

That's a good point.

 

[Loose Handle]

Anti-Slap would not apply to Lemonhead seeking to subpoena Nick. He’s not suing Nick.

According to Nick's last stream, anti-SLAPP does apply if the subpoena is intended to intimidate, which there are strong indications of.

Direct mini-rant at 1:58:31 (assuming my attempt to time link failed)

 

[TJBirish]

It’s embedded in Lemonhead’s motion filing from yesterday.

Please. It is now "Lemonfuhrer" in honor of our dear leader.

 

[repentance]

What it boils down to is what you or I would consider a public figure, and what the courts consider a public figure aren't the same thing. You don't need to be universally known (like Tom Cruise) to be considered a public figure. It's not really clear what the rule is nowadays, but the LawTwitter consensus is that he's at least a limited public figure because people come to cons to see him, cons pay him for the same reason, and so on.

It's also worth noting that Judge Chupp already thinks he's a public figure. That's not an official ruling on the topic, but it gives you an idea of where the court's thinking is.

Monica and Ron have asked for a jury trial. I'm not seeing how the issue of whether or not Vic is a public figure gets to be decided by anyone other than that future jury. The judge is not the fact finder in this action.

fwiw, Nick has said on multiple occasions that at most Vic could be considered a limited public figure, but Nick's opinion is no more authoritative than the opinion of anyone on law Twitter.

That they want Ty to stipulate that Vic is a public figure is a good indication that they're not sure they can convince a jury that's the case.

 

[TheClappening]

As for Vic I had never heard of him before this and even now if I saw him in the street I would have to check how awful his trousers were to be sure it was him.

Maybe the plan is to have Vic's pants be declared public figures

but the LawTwitter consensus is that he's at least a limited public figure because people come to cons to see him, cons pay him for the same reason, and so on.

But LawTwitter are idiots.

But in any case, if I remember, the doctrine for a limited public figure is someone who thrusts themselves into some public matter in an attempt to influence it. Nick, in the context of Weeb Wars, could qualify as a limited public figure. but not Vic. Vic has thrust himself into plenty of things, but not this controversy. The defendants brought it to his doorstep and he's barely made a peep about it.