'Extremely disturbed': Judge calls out MGA's lawyers for accusations against T.I.'s lawyers
Lawyers for the toymaker secured a curative instruction over questions about allegedly missing data that actually existed, but their tactics earned a harsh scolding.
As MGA Entertainment’s lawyers summarized it, the cross-examination of a doll designer about crucial digital information allegedly missing from a document was a calculated ambush.
A lawyer for hip-hop moguls T.I. and Tiny Harris not only knew his question was based on a falsehood, “it is obvious the Harris Parties were lying in wait, ready to distract the jury with an irrelevant detour and unsubstantiated (and demonstrably false) insinuations,” according to a brief filed Monday night.
The dustup resulted in Senior U.S. District Judge James V. Selna reading a curative instruction to the jury that confirmed the existence of metadata showing the digital history of a design board for one of 31 dolls at issue in the trade dress infringement and likeness misappropriation trial involving Tiny’s daughter Zonnique’s former music group, the OMG Girlz. But it also led to a seething scolding from the judge, who said the misconduct allegations were unfounded and appeared sympathetic to the complaint that an attorney accusing another attorney of “lying in wait” is unprofessional.
“I’m extremely disturbed that the first premise…always seems to be misconduct or contrived evil, etc.,” Selna told Chase Scolnick and Jennifer Keller of Keller/Anderle LLP. “I find that kind of language, when it’s not supported by the facts, simply being offensive.”
Selna also emphasized his “extreme disappointment” that the attorneys didn’t try to resolve the conflict before involving him.
That’s the same complaint voiced by T.I.’s and Tiny’s lawyer John Keville, managing partner of Sheppard, Mullin, Richter & Hampton LLP’s Houston Texas office, in his reply to the filing, which was signed by Scolnick.
“Rather than raise the issue with the OMG Girlz over a four day weekend, MGA chose to file a brief on Monday evening accusing the OMG Girlz counsel of ‘lying in wait’ and deliberately misleading the jury,” according to Keville’s reply. “These accusations are false, and beneath a member of the federal bar. The OMG Girlz counsel believed that no metadata was produced for the document in question. And in a sense he was correct—MGA produced a blank metadata load file for the document.”
Keville said MGA’s use of the phrases “bad faith” and “reckless disregard” “unfortunately continues MGA’s trend of denigrating the OMG Girlz counsel, which they had hoped would cease.” He cited in a footnote Keller accusing him of deliberating violating court rules before she realized she was mistaken and apologized.
“The OMG Girlz counsel had hoped such personal attacks would stop after this mistake, but… many more instances of such accusations have continued,”according to the footnote.
The metadata turned out to be located elsewhere in the discovery MGA lawyers produced. Keville said his team realized that after Scolnick filed his brief, but he said the situation is more nuanced than Scolnick described.
“While the OMG Girlz agree based on a review tonight that the native PDF contains metadata, the document review platform is not able to extract that metadata so it showed no associated metadata—as it was produced by MGA,” Keville wrote. “That is what counsel relied on…as the review platform is typically accurate.”
Selna’s first question to Scolnick Tuesday morning was if he’d met and conferred with Keville’s team before filing his brief. “Meet and confer” is a standard litigation process where opposing counsel discuss their issues ahead of filing briefs for the judge to consider.
Scolnick said he hadn’t, but he said he asked permission to file the brief on Thursday.
“I requested it but regrettably never got to the court giving me permission. But after we looked at the transcript and looked at the metadata, we needed to bring this to the court’s attention. It’s a very serious issue. There is a serious misrepresentation made to the jury,” Scolnick told the judge.
“Sir, that appears to be false,” Selna replied. “As I understand the facts…the document produced to the OMG Girlz did not have the metadata.”
Not so, Scolnick said: “The document was produced in its native format and the native format included the metadata.”
The judge ordered him to meet and confer with Keville right then and there.
“It would have been helpful if you had contacted Mr. Keville so that you could have this discussion in advance of today so you could each, together, go back to the actual form of the production and see what's there. It's unfortunate that that didn't happen,” Selna said.
“I agree, Your Honor. It was also unfortunate that this was raised in front of the jury to Ms. Consorti,” Scolnick said.
Selna said lawyers sometimes make mistakes in questioning, but he doesn’t start by assuming “that there is misconduct or that there is something evil there.”
The instruction Selna read to the jury specified that “counsel for the OMG Girlz represented that there was no metadata” for a design board while cross-examining Consorti, but, “after further consultation the parties agreed that the underlying document has metadata and the date of creation was Nov. 9, 2018.
“The discrepancy occurred because MGA produced a blank file for the metadata when producing the document leaving the OMG Girlz to mistakenly believe there was no associated metadata,” the judge told the jury.
From MGA’s brief:
From the OMG Girlz’s reply:
Keville brought up the metadata last week during his questioning of Blanche Consorti, MGA’s former creative director who designed many of the 31 dolls. He said an image of a doll design board presented to jurors during Consorti’s direct-exam lacked the data — implying the image was created solely for the case — but Selna cut off the questioning because it lacked foundation.
Scolnick tried to question Consorti about the issue during re-direct on Tuesday, asking, “Are you aware that the Harrises are now apparently contending that your mood boards have been tampered with?”
“I was not aware,” Consorti answered.
Scolnick cited Keville’s questions about metadata, but Keville objected, citing the earlier jury instruction, and Scolnick rephrased.
“Did you destroy or tamper with any mood boards?” Scolnick asked.
“No,” Consorti answered.
“Is there a conspiracy at MGA to back date or modify all the mood boards for these dolls to somehow remove images of the OMG Girlz?” Scolnick asked.
“No,” Consorti answered.
“Is it your understanding that any of your designers were secretly inspired by the OMG Girlz and swapped out their images on mood boards?” Scolnick asked
“No,” Consorti answered.
Consorti’s lengthy testimony detailed the design and inspiration for her dolls, and she repeatedly denied even knowing who the OMG Girlz were, let alone using them as inspiration for her dolls.
Jurors heard later from Lora Stephens, another doll designer for MGA who previously worked at rival Mattel. She denied taking any inspiration from the Harris family or the OMG Girlz, and her testimony introduced a topic that MGA’s lawyers wanted to be able to bring up with other witnesses: Information about controversies surrounding the Harrises.
This is the retrial following a mistrial in January over mistakenly admitted deposition testimony, and Judge Selna didn’t allow the questions about profane rap lyrics that sparked controversy over racism and the n-word last time.
MGA lawyers were barred from questioning T.I. about his criminal convictions, but Selna allowed questions to Stephens about T.I.’s background after she submitted a declaration saying she wouldn’t design dolls on the OMG Girlz because of their association with T.I. and Tiny.
Selna limited the questioning to 15 minutes, but it ended up lasting only about four minutes. Stephens first mentioned “the gynecology incident,” referring to a controversy on the family’s former reality show T.I. & Tiny: Friends & Family Hustle about T.I. insisting on accompanying his daughter Deyjah to her gynecology appointments to ensure she’s a virgin
Stephens said she felt it was “sexually abusive to actually exploit it that way, about what is going on with her lady parts.”
“It was disturbing to me,” Stephens said. “I just felt it was the opposite of empowering young women.”
“Did you want your dolls, at least the finished product, to send a positive message?” Scolnick asked.
“Yes,” Stephens answered.
Stephens also mentioned sexual assault allegations against T.I. and Tiny that were investigated by the Los Angeles County District Attorney’s Office but never charged.
Stephens’ testimony gave Scolnick a chance to highlight a big problem in the testimony of one of the consumers who testified to mistakenly associating the dolls with the OMG Girlz: Two said they bought the Runway Diva doll in 2021, but the doll wasn’t actually released until 2022.
“Wow, that’s impossible. She wasn’t even in plastic and manufactured yet,” she said.
“So it’s your understanding the Runway Diva doll was not available in 2021?” Scolnick asked.
“That’s correct,” Stephens answered.
The trial is finally almost over. That’s good, because the jury is absolutely done with the two-week federal trial about dolls, and it’s the Friday before Memorial Day weekend. As Selna said on Thursday, “I think collectively the parties are beginning to test the patience of this jury.”
The jury is due at 9:30 a.m. today for instruction and closing argument. I will have more coverage of testimony in my next article, including from MGA CEO Isaac Larian. Larian answered questions in cross-examination about the Barbie v. Bratz epic as Keville worked to show the jury that Larian is criticizing T.I. and Tiny for litigation tactics he himself has taken.
Thank you for supporting my independent legal affairs journalism. Your paid subscriptions enable me to go in-depth and unfiltered on major issues. If you’re not already a paid subscriber, please consider purchasing a subscription for yourself or a gift subscription for someone else. Your support is absolutely essential to my work and will help build www.legalaffairsandtrials.com into a hub for quality journalism about our judiciary.