Plaintiffs Want 2020 Election Robocall Defendants to Say if They Plan to Testify at Trial

The plaintiffs in the case against Jacob Wohl and Jack Burkman for their roles in the robocall campaign to suppress Black citizens' mail-in votes in the 2020 election want U.S. District Judge Victor Marrero for Southern New York in Manhattan to order the two defendants to disclose by Nov. 4 whether they intend to testify at trial, the plaintiffs’ counsel, Amy Walsh of Orrick Herrington, wrote the judge in a letter Wednesday (docket 1:20-cv-08668).

Marrero previously granted summary judgment against Wohl and Burkman on the robocall allegations (see 2303090003). The five-day jury trial that opens Jan. 29 will decide on the scope of relief sought, including damages, attorneys’ fees and costs.

The plaintiffs were unable to obtain testimony from Wohl and Burkman during their depositions because they invoked their Fifth Amendment rights “in response to nearly every question,” Walsh told the judge. But since that time, Wohl and Burkman “have suggested that they might testify at trial," she said.

To prevent an “unfair surprise at trial,” Marrero should set the Nov. 4 deadline for Wohl and Burkman to either withdraw their Fifth Amendment assertions, “or else be barred from testifying,” said Walsh. If they choose to withdraw their Fifth Amendment assertions, the plaintiffs should have the opportunity to redepose them before trial on the issue of damages to obtain the discovery to which the plaintiffs “otherwise would have been entitled in preparation for trial,” she said.

The plaintiffs’ counsel twice asked the defendants’ counsel, on Aug. 8 and Oct. 3, to confirm whether Wohl and Burkman intended to withdraw their assertions of their Fifth Amendment privilege but got no response, Walsh told the judge. The plaintiffs “need to prepare for trial with the full view of the prospective evidence that the discovery rules allow,” she said.

If the two don’t disclose by Nov. 4 whether they intend to withdraw their Fifth Amendment assertions, Marrero should “bar them from testifying,” Walsh told the judge. Without adequate time to prepare, their testimony would cause the plaintiffs “substantial prejudice” and give Wohl and Burkman “an unfair advantage,” she said.

By contrast, if Wohl and Burkman do intend to withdraw their Fifth Amendment assertions and testify “substantively” at trial, then the plaintiffs ask the court to reopen discovery for the “limited purpose” of redeposing them on the issue of damages, plus “any necessary follow-up from those depositions,” Walsh told the judge. The Fifth Amendment can’t be used “as both a shield and a sword,” she said. The federal rules’ “liberal discovery regime” would be frustrated if parties “could strategically invoke constitutional privileges to deprive opponents of information, and then turn around and testify on the same subjects at a civil trial,” she said.

Even when the 2nd Circuit Court of Appeals has ruled that parties should have been allowed to testify, “its reasoning rested largely on the adequate notice the adverse party had to depose the witnesses who had previously invoked their Fifth Amendment rights,” Walsh told Marrero. “At bottom,” that’s what the plaintiffs “seek here,” she said.

Wohl and Burkman “have a right to the protections” of the Fifth Amendment, and they have a right to testify at trial, Walsh told the judge. But what they may not do is engage in a manipulative, cat-and-mouse approach to the litigation that would give them “an unfair strategic advantage” over the plaintiffs, she said.