Constant's pations

If it's more than 30 minutes old, it's not news. It's a blog.

Saturday, October 16, 2004

O'Reilly allegedly has interacted with another woman besides Mackris

There's been some discussion whether other women are going to testify at depositions.

"sexual harassment against Plaintiff ... and other female employees that was so offensive ...."at 26 and "and other female employees" at 28

The problem is that Mackris is not the lead plaintiff; rather these are her claims alone. How she intends to prove the conduct was offensive to others, remains to be seen.

The current claims are only Mackris'. Whether other women are making allegations against O'Reilly is irrelevant, unless Mackris and counsel agree that the litigation objectives would be served. Only the court can decide whether the complaint can be amended to pursue this broader strategy.

This case remains simply Mackris v. O'Reilly, not "masses of people making accusations" v. O'Reilly. The claims are exclusively Mackris', not a group, and there is no indication that the instant case or Mackris' claims hinge on other women corroborating Mackris' evidence or allegations.

Although mentioned in the complaint at 26, Mackris' case does not swing to the negative even if the allegations of other women were false. The issue is not the conduct of the defendant with other women; or the merits of the allegations of the other women; but whether Mackris can show there existed a definable hostile work environment. The work environment is distinguishable from the presumed tape recordings.

We have yet to understand the nature of the alleged recordings, whether they exist, or whether there are other methods of relaying the context, form, and substance of the alleged O'Reilly statements.

Counsel have carefully reviewed the evidence and have sufficient knowledge of the facts to go forward with the claims in the complaint, regardless the cooperation/non-cooperation of other alleged "victims." The allegations of other women are irrelevant in re Mackris v. O'Reilly. We leave it to other parties to pursue these claims and allegations.

Allegations of broader misconduct against specific other women have not been alleged in the Mackris complaint. Her claims are only related to a hostile work environment; she has not, as yet, taken the role as lead plaintiff. It does not appear that defendant O'Reilly has specifically commented on allegations by other women that might come forward in other complaints subsequent to Mackris.

Suppose there is alleged a broader pattern of conduct against other victims. It is not probative to discuss "other women" when Mackris' complaint does not hinge on other alleged victims' claims; her claims, allegations, and evidence stand on their own merits before counsel in re the working environment.

In other words, although others may corroborate Mackris' perceptions as reasonable that there was, in fact, a hostile work environment, these other employees need not have similar allegations of misconduct prevail for their testimony to be probative, credible, or compelling.

We know not whether there is any "other woman," or whether she would be willing to testify. Pre-litigation strategy includes sizing up the opponent, and filtering out evidence; some may be less inclined to come forward if the personal costs are perceived to be high relative to the end result. This is a decision only the hypothetical-client can make after an informed discussion with counsel.

Mackris' claim is simply to "end the alleged conduct," and impose some consequences for allegedly failing to act in a civil matter. The claim is not intended as a smear campaign--plaintiff made a good faith effort to privately discuss this issue.

It remains unclear whether other women have spoken to Mackris' counsel; plan to provide corroborating evidence-testimony; or have already provided inputs to counsel in re discovery and interrogatories. There is little from the record to suggest that a "mass group of people" are out to smear defendant-O'Reilly with a massive onslaught of accusations in additional credible-court complaints.

At this juncture, there has been no serious public discussion of a class action lawsuit. It remains to be seen whether such a move would involve multi-jurisdiction litigation. It will be up to the court to consolidate the claims of other "hypothetical victims"; or permit one plaintiff to amend the complaint to be lead plaintiff.

It remains unclear whether the current complaint could be amended to expand the claims to allege, hypothetically "a pattern of conduct against specific women" as a separate cause of action above and beyond the existing claims. Simply, we begin to get into the land of "inventing claims that are not legally recognized" as torts, but simply jargon to entertain the masses hoping to expand the pool of potential litigants.

The judicial system is designed to resolve issues, not create excuses to continue ever-expanding at infinitum the possible grievances, however trivial. Indeed, some trifles are not legal matters, but merely what one must endure as a consequence of simply living.

At this point, it does not appear this is necessary for Mackris to find additional victims; counsel clearly has sufficient evidence to bring this cause of action, regardless the status of the "unknown other women".

If this allegation is true, and there are other women who have been affected, and they are outside what counsel currently knows [which we have yet to have proven true in court], then it remains to be seen whether Mackris and counsel decide to do what Monica did in re Clinton: Have many others come forward to confirm the conduct was a pattern.

However, let us speculate that credible allegations appear that are above and beyond the instant case. Assuming counsel redirects litigation strategy, and an amended complaint is approved, it remains to be determined through discovery whether the above allegation is true; and whether individuals have or will come forward to provide additional admissible evidence to both Mackris' counsel and, eventually to O'Reilly during litigation. There can be credible allegations without willing witnesses.

At this point, we know of only one person: Mackris. Allegations of "other women" are simply allegations without substance, form, or specific identification.

Unless specific "other women" come forward with new evidence above and beyond Mackris' original complaint, or with information of probative value beyond what counsel is aware, the court may not admit this evidence for redundancy.

Should Bill take notes from Bill?

Apparently there are allegations that there's another woman out there who can conform the conduct. Reportedly, according to someone called, "Stewart," he asks us to believe:

"9) I also hear that a woman who used to work for O'Reilly has confirmed that he is a sexual harasser and that he has been talking to women at FOX like this for years. She also said other women will probably come forward to back up her charges, and she was glad someone finally came forward to stop his sex talk. She was quoted as saying he thinks he is God's gift to women and he thought he could get away with anything because he is Bill O'Reilly." Ref Sat Oct 16, 2004 8:04 am Post subject: There is no Doubt O'Reilly Talked Sexual To The Woman !

This quote is problematic. First, we have no sources; second the position is stated as a fact; and third there is no qualification with respect to accuracy.

More broadly there is doubt as O'Reilly remains innocent until proven guilty before the court-jury system. Further, because the burden of proof rests with Mackris, the hurdle remains additional discovery, interrogatories, motions, and litigation.

Although the substance of the allegation may survive summary judgment, it is premature to say, "There is no doubt..." unless we frame that as an opinion. Thus, it would be more correct to say, "In my opinion, there is no doubt..."

Examples of other sites mentioning allegations

ref. You guys are pretty good finding allegations in re Franken and Mackris.

Bill O'Reilly allegedly has a fan. Why isn't this off? Oh, that's right... the power is on. Discussed here; read hatemail from 2003.

Basis for broadened discovery

If O'Reilly does not get a court injunction against "people making allegations that there are rumors of other women," the reasonable person would be led to believe that O'Reilly's claim for defamation would not survive either:

  • A. Summary judgment; or
  • B. A counter-claim under an anti-slapp statute.

  • Without an injunction ... and no evidence of demand-letter for cease-and-desist ... or counter-claim of defamation:

  • O'Reilly isn't in the position to put these allegations to rest; yet

  • The burden of proof ultimately rests with Mackris.

    Assuming admissible evidence supporting these allegations exist, it is reasonable to assume the above allegations have some merit and could form the basis for additional discovery.

    However, we are far from that bridge. This information can only be presented through further motions to introduce this evidence.

    Yet, the attempt to introduce such evidence would have survive to motions to dismiss-exclude-suppress, and then we get into issues of what form that testimony would come: In camera, deposition, or court room. Regardless the form, O'Reilly will be given the chance through counsel to cross examine the witnesses, testimony, and evidence: Credibility, impeachment, etc.

    It is problematic at this juncture to assess the merits of this allegation.