Fresh off her humanitarian mission to save what remains of Law Twitter, Alina Habba has fired up the creative writing machine.
No, not to brief the issue of whether a victim of defamation has the duty to mitigate damages as Judge Lewis Kaplan ordered the parties in the second E. Jean Carroll defamation case to do by today. Donald Trump’s lawyer will get to that when she gets to it. Right now she’s moving for a mistrial on the theory that Carroll spoliated evidence by deleting death threats against her.
This isn’t the first time Habba tried this. After Carroll admitted to deleting death threats from her email and DMs, Habba moved for a mistrial. Judge Kaplan instructed the jury to disregard the request, and Habba moved on to more pressing matters, like whether Carrol has a gun permit.
But no one has ever accused Habba of having good judgment. So today she’s renewing the motion:
This is a procedural irregularity that is not only appropriate for the Court to grant a mistrial, but it is essential under the circumstances. Plaintiff’s failure to preserve this purported evidence—in contravention of the Federal Rules of Civil Procedure—severely prejudices the President Trump’s defense since he has been deprived of critical information relating to critical evidence which Plaintiff has described to the jury.
And if she can’t get the case dismissed, she’d like an adverse jury instruction and/or preclusion of damages for death threats.
Habba relies on Fed. R. Civ. P. 37(e), which does indeed provide for discovery sanctions that include an adverse jury instruction and dismissal, but “only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation.” There’s been no such finding here — Carroll testified that she deleted the messages in terror at finding herself alone in her house with people sending emails threatening to kill her.
There’s also the minor matter that Rule 37 is a discovery rule, and discovery is now closed. That’s why it doesn’t refer to a mistrial.
Presumably the court will deem the issue waived, since the defendant appears to have deliberately sat on it for over a year and then attempted to GOTCHA the plaintiff with it on the witness stand.
But other than that … you’re doing great, Alina!