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Stormy Deposition

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Posted on May 05 2018

Originally posted March 27, 2018

 

 

The sequence of litigation events matter here.

 

In other words the classic which came first, the chicken or egg?

 

Cohen/Trump Parties: 

have taken the position that the “hush agreement” is valid. Meaning the the “mandatory arbitration clause” is the prescribed remedy pursuant to the terms and conditions of the “hush agreement”. Which is absurd that Daniels was never notified by Cohen/Essential Consulting or by Donald “david Denison” Trump. And it makes the Sarah Sander’s March 7, 2018 daily press briefing & her saying:

”look the president has addressed this directly...made very well clear...ahhh, ummm..none of these alllegations are true...the president has already well won in arbitration”

 

Daniels/Clifford’s by way of Counsel:

Positions are; the hush agreement is invalid for a multitude of reasons. They are asking the Court to make a determination regarding the validity of the hush agreement.  They have also taken the position that Cohen/Trump voided the Agreement for:

 

  • lack of signatory (DD),
  • Cohen’s multiple public comments (WSJ Statement) surrounding this agreement effectively invalidate it
  • section 8.6 of the hush agreement requires ALL parties to sign said agreement.

 

Overnight Daniels/Clifford’s Attorney filed an expedited motion for discovery. Which is actually pretty smart. Why? Because based on the Federal Arbitration Act, the parties are entitled to a hearing on the “merits” but (this is important) before said hearing a party may ask for expedited discovery. Hearing was previously set for April 30, 2018.

 

Archive link to Twitter thread here

 

Meaning Daniels/Clifford’s Motion to Expedite Jury Trial and Limited Expedited Discovery, pursuit to 9 U.S.C. § 4, which reads in part:

  • “Failure to arbitrate under agreement; petition to United States court having jurisdiction for order to compel arbitration; notice and service thereof; hearing and determination“
  • “court shall proceed summarily to the trial thereof.”

Link to 9 USC §4 here 9 UPage 2, Line 12, which reads in part:

  • Plaintiff seeks an order granting her leave to conduct limited expedited discovery in connection with opposing defendant Essential Consultants, LLC’s forthcoming Petition to Compel Arbitration and to present evidence in support of her position at the aforementioned trial pursuant to 9 U.S.C. § 4.

 

Specifically, Plaintiff requests:

  • (1) a deposition of defendant Donald J. Trump of no greater than two (2) hours,
  • (2) a deposition of defendant Michael Cohen of no greater than two (2) hours, and
  • (3) no more than ten (10) targeted requests for production of documents directed to Mr. Trump and Mr. Cohen on various topics relating to the Hush Agreement.

In my opinion this is a remarkably smart move. Not to belabor the point, it does come down to process. And the Court needs to determine the validity of the “hush agreement” before sending this matter to arbitration. One major mistake I see is Cohen/Trump did not notify Daniels/Clifford’s to the February 28th “Secret Arbitration” Hearing.

I expect to see that action used in this case, because it will go straight to “intent”. Oddly I do not think Trump or Cohen thought this out when they moved the venue to Federal District Court, as many know Federal Judges are Article III Judges. Whereas if they had let Daniels/Clifford’s Case stay in California State Court.

In conclusion, this move  puts Cohen AND Trump in a box. This further highlights how once again Cohen/Trump refuse to follow the process. Judicially speaking, you can NOT skip steps, there’s this thing called “due process”.  It’s as if Daniels/Clifford’s out Trumped Trump and it’s just fantastic.

Happy HumpDay

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