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Birkhead and Stern Reunite -- In Lawsuit

1/22/2009 4:54 PM PST BY TMZ STAFF

Larry Birkhead & Howard K SternHoward K. Stern and Larry Birkhead have just filed sworn declarations, expressing outrage at various accusations, including suggestions that Stern drugged Anna Nicole Smith.

Stern has sued Mark Speer, a former associate of Birkhead's former lawyer, Debra Opri. Stern claims Speer was funneling false info to Rita Cosby in her so-called tell-all book.

In Stern's declaration, he says Speer told a pack of lies.

- Item: Stern says he was not criminally involved in Daniel Smith's death.
- Item: Stern says he never drugged Anna Nicole
- Item: He says he never told Birkhead, "I will give you your baby, if you leave me as executor of Anna's estate."

Birkhead also filed a declaration in support of Stern, also taking issue with what Speer allegedly told Cosby.

- Item: Birkhead says he never told Bahamian cops Stern stole millions of bucks from Anna Nicole.
- Item: Birkhead denies he was on a "mission" to get Stern investigated for the death of Daniel.
- Item: Birkhead denies he and Stern horse-traded Dannielynn in return for Howard becoming executor.

BTW, in case you're wondering, the fight over J. Howard Marshall and who gets his money is still locked up in the courts, with no end in sight.
Click to view!

3661 COMMENTS

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16.

Only swim in the Ocean    

1732. Regarding the case against Art Harris and RT.....Is this evidence of the "death by a thousand cuts", or "the scorched earth" practice that is often mentioned in reference to those lawyers? Sounds like both to me. Truly disgusting IMO.My wish is that reputable attornies everywhere would speak out to stop this travesty, and perhaps bring some closure to this.

Posted at 9:05PM on Mar 6th 2009 by clarification needed
*****
It sure is. Every nit-picking, drama-inducing piece of fluff you could imagine turned into Motions after Motions after Motions. It's the same as the O'Q/VA bloggers' directives: Heavy mouth-breathing about drama, drama, drama as their leader loses, loses, loses his cases.

McCabe/VA lawsuits are baseless. Always have been. Still are.

McCabe is facing tough CBS Lawyers now who are alleging fraud and collusion. McCabe files a Response to CBS's Motion in Houston's Federal Court and blabs on about drama while never addressing the fraud/collusion allegations. McCabe files Contempt charges against AH and has the chutzpah to suggest AH is the one lying to the State Court. O'Q did the same thing when HKS sued him. 3 Motions to Dismiss before he ever deigned to Answer (25 days late at that) the complaint itself; all paperwork with no substance.

McCabe is at least proving to be a star protégé for O'Q; shovel it, shovel it deep, shovel it into a big heap... and keep digging.

1974 days ago
17.

Pacer    



McCabe is facing tough CBS Lawyers now who are alleging fraud and collusion. McCabe files a Response to CBS's Motion in Houston's Federal Court and blabs on about drama while never addressing the fraud/collusion allegations. McCabe files Contempt charges against AH and has the chutzpah to suggest AH is the one lying to the State Court. O'Q did the same thing when HKS sued him. 3 Motions to Dismiss before he ever deigned to Answer (25 days late at that) the complaint itself; all paperwork with no substance.

McCabe is at least proving to be a star protégé for O'Q; shovel it, shovel it deep, shovel it into a big heap... and keep digging.


Posted at 10:40PM on Mar 6th 2009 by Only swim in the Ocean

___________________________

The same tough attorney's that filed a motion and didn't cite any statues, no rule of procedure or evidence, and no ethics provisions allegedly violated by plaintiffs plan to get Turner to designate CBS as a responsible third party in the State Court Suit under Texas Civil Practice & Remedy Code section 33.004?

Or the tough attorney's that violated rule 7.1.B by not conferring with respondent?

On a side note if CBS would have researched Texas Rules of Civil Procedure, rule 194.2 (i), CBS would be entitled to the depositions in question as witness statements, if CBS is added as a party to the State suit. The tough attorney's didn't even need to file this motion.

1974 days ago
18.

Pacer    

The Federal Judge will also listen to what McCabe has done since they
withdrew the case with CBS and AH.
Don't you rember CBS's partial filing of the R.T. deposition?
NO, it is NOT a done deal. There will be many questions of McCabe.

Posted at 8:13PM on Mar 6th 2009 by There Will be More on the 9th of March

__________________________

I'm sorry you don't understand the docket. Do you have a link where the Federal Judge ordered a hearing? My pacer account just shows the 9th being the date to reply to the motion filed.

1974 days ago
19.

THANK YOU    

I'm sorry you don't understand the docket. Do you have a link where the Federal Judge ordered a hearing? My pacer account just shows the 9th being the date to reply to the motion filed.

Posted at 11:32PM on Mar 6th 2009 by Pacer
****************************************************************
OsitO, You stated this.
"McCabe shows the Federal Court in detail the planning and back and forth with RT that occurred. He does not however explain the obvious, in your face, question of the quid pro quo. McCabe's 'brilliant plan' involved paying off a defendant (by dropping her as a defendant) in order to provide McCabe with deeper pockets from which to pursue a judgement. That's all the Court will be interested in, not the 'conversion' or drama of a blogger.

Posted at 2:16PM on Mar 6th 2009 by Only swim in the Ocean"
-----------------------------------------------------------------------------------------------------------------
I stated this.
"1742. The Federal Judge will also listen to what McCabe has done since they
withdrew the case with CBS and AH.
Don't you rember CBS's partial filing of the R.T. deposition?
NO, it is NOT a done deal. There will be many questions of McCabe.

Posted at 8:13PM on Mar 6th 2009 by There Will be More on the 9th of March"
--------------------------------------------------------
QUESTION to OsintO,
Do you know when the Federal Judge in Texas will be looking into CBS's assertions?
I did think that it was on the 9th of March, even though it was not listed as a "hearing".
Would appreciate your thoughts on it. Thanks.

1974 days ago
20.

Only swim in the Ocean    

McCabe is at least proving to be a star protégé for O'Q; shovel it, shovel it deep, shovel it into a big heap... and keep digging.

Posted at 10:40PM on Mar 6th 2009 by Only swim in the Ocean
___________________________

The same tough attorney's that filed a motion and didn't cite any statues, no rule of procedure or evidence, and no ethics provisions allegedly violated by plaintiffs plan to get Turner to designate CBS as a responsible third party in the State Court Suit under Texas Civil Practice & Remedy Code section 33.004?

Or the tough attorney's that violated rule 7.1.B by not conferring with respondent?

On a side note if CBS would have researched Texas Rules of Civil Procedure, rule 194.2 (i), CBS would be entitled to the depositions in question as witness statements, if CBS is added as a party to the State suit. The tough attorney's didn't even need to file this motion.

Posted at 11:31PM on Mar 6th 2009 by Pacer
*****
Sounds like a red herring to me.

CBS is asking the Federal Court to Enforce and Modify the Protective Order in such a way as to give CBS the depositions it might need in the future if McCabe tries to screw with it in any manner, similar or different, to Third-Party-Gate. CBS is not asking the Federal Judge to find McCabe guilty of any ethics violations or criminal statutes or even to launch an investigation. All CBS has done is provide a great deal of food for thought on those matters; its proposed order contains no sanctions of any type for McCabe.

Furthermore, CBS has no intention of allowing itself to be named a defendant or a responsible third-party at any time by any one without a fight. CBS is working an offense against any such occurrences. The next time McCabe files anything that even sniffs of CBS, CBS intends to unload on him with the hard won truth they dragged out of VA and others during the time of McCabe's loser Federal lawsuit.

Even if Judge R. simply signs CBS's proposed Order and calls it a day, the Motion will still serve as part of a paper trail for future actions.

1974 days ago
21.

Only swim in the Ocean    

...
QUESTION to OsintO,
Do you know when the Federal Judge in Texas will be looking into CBS's assertions?
I did think that it was on the 9th of March, even though it was not listed as a "hearing".
Would appreciate your thoughts on it. Thanks.

Posted at 12:22AM on Mar 7th 2009 by Not sure now
*****
The Federal Court set a Motion Docket Date of 03/09/2009, which I read as the date to appear to argue the Motion, not just respond to it. From PACER:

"Filed: 02/17/2009
Entered: 02/17/2009
Entered By: Amanda L Bush,
Event Name(s): Motion to Modify
Full Docket Text for Doc ument 113:
MOTION to Modify Agreed Protective Order by CBS Studios Inc., filed. Motion Docket Date 3/9/2009. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Proposed Order)(Bush, Amanda)"

And just as a follow up to my last post about precisely what CBS is asking of the Federal Court, the last paragraph of its Motion:

"WHEREFORE, PREMISES CONSIDERED, Defendant CBS Studios, Inc. requests that
the Court grant Defendant’s Motion to Enforce and Modify the Agreed Protective Order, enforce
the Agreed Protective Order to require Arthur to return CBS’s confidential doc uments, modify
the Agreed Protective Order so that the depositions of Virgie Arthur, David Leigh, and Stephen
Tunstall as well as the doc uments produced by Leigh may be used and referred to in the State
Court Suit, order that said depositions shall be designated as “confidential” under the State Court
Suit’s Agreed Protective Order, and for any further relief in law or in equity to which it is justly
entitled."

All the authority necessary for CBS to cite is the Protective Order's language itself; nothing else.

Now, pro-HKS bloggers are expecting that Judge R. may wish to pursue the allegations of a fraud on her Court, even though CBS is not specifically asking her to do this.

1974 days ago
22.

Only swim in the Ocean    

...
On a side note if CBS would have researched Texas Rules of Civil Procedure, rule 194.2 (i), CBS would be entitled to the depositions in question as witness statements, if CBS is added as a party to the State suit. The tough attorney's didn't even need to file this motion.

Posted at 11:31PM on Mar 6th 2009 by Pacer
*****
Missed this. CBS would only be entitled to the depositions in State Court if they were not subject to a protective order, which they are.

CBS would be able to use them in State Court if they 'possessed' them, which is what CBS is asking the Federal Court to do; allow CBS 'possession' of its depositions and docs from the Federal case. Being under a current Protective Order makes them 'undiscoverable' in any other Court proceeding.

1974 days ago
23.

Pacer    

CBS is asking the Federal Court to Enforce and Modify the Protective Order in such a way as to give CBS the depositions it might need in the future if McCabe tries to screw with it in any manner, similar or different, to Third-Party-Gate. CBS is not asking the Federal Judge to find McCabe guilty of any ethics violations or criminal statutes or even to launch an investigation. All CBS has done is provide a great deal of food for thought on those matters; its proposed order contains no sanctions of any type for McCabe.

Furthermore, CBS has no intention of allowing itself to be named a defendant or a responsible third-party at any time by any one without a fight. CBS is working an offense against any such occurrences. The next time McCabe files anything that even sniffs of CBS, CBS intends to unload on him with the hard won truth they dragged out of VA and others during the time of McCabe's loser Federal lawsuit.

Even if Judge R. simply signs CBS's proposed Order and calls it a day, the Motion will still serve as part of a paper trail for future actions.



Posted at 12:48AM on Mar 7th 2009 by Only swim in the Ocean

___________

You're incorrect. CBS want's the depositions to present to the State court, Their intent is to purport the plaintiff as a limited public figure. It's the same reason the depositions were taken in the Federal suit. The tone of the motion is accusatory, however, CBS cites no statues, no rules of procedures or evidence, and no ethics provisions violated.

If a defendant decides to present a motion to add CBS as a third party it is ruled on the merits. See Texas Civil Practice & Remedy Code section 33.004 for the standard. CBS is not a party to this suit and can not respond until they are added. See 33.004 (g)(1).

CBS's motion will be denied because the civil rules of procedure were not followed. Court's rule by law not spin.


1974 days ago
24.

Pacer    

Motion Docket Date of 03/09/2009
Posted at 1:21AM on Mar 7th 2009 by Only swim in the Ocean
_________

((((Motion Docket)))) What don't you understand?

1974 days ago
25.

Pacer    

Missed this. CBS would only be entitled to the depositions in State Court if they were not subject to a protective order, which they are.

CBS would be able to use them in State Court if they 'possessed' them, which is what CBS is asking the Federal Court to do; allow CBS 'possession' of its depositions and docs from the Federal case. Being under a current Protective Order makes them 'undiscoverable' in any other Court proceeding.


Posted at 1:42AM on Mar 7th 2009 by Only swim in the Ocean

Again, Read the civil rules of procedure. If you need a link let me know. :)

1974 days ago
26.

Only swim in the Ocean    

1747. CBS is asking the Federal Court to Enforce and Modify the Protective Order in such a way as to give CBS the depositions it might need in the future if McCabe tries to screw with it in any manner, similar or different, to Third-Party-Gate. CBS is not asking the Federal Judge to find McCabe guilty of any ethics violations or criminal statutes or even to launch an investigation. All CBS has done is provide a great deal of food for thought on those matters; its proposed order contains no sanctions of any type for McCabe.

Furthermore, CBS has no intention of allowing itself to be named a defendant or a responsible third-party at any time by any one without a fight. CBS is working an offense against any such occurrences. The next time McCabe files anything that even sniffs of CBS, CBS intends to unload on him with the hard won truth they dragged out of VA and others during the time of McCabe's loser Federal lawsuit.

Even if Judge R. simply signs CBS's proposed Order and calls it a day, the Motion will still serve as part of a paper trail for future actions.

Posted at 12:48AM on Mar 7th 2009 by Only swim in the Ocean

___________

You're incorrect. CBS want's the depositions to present to the State court, Their intent is to purport the plaintiff as a limited public figure. It's the same reason the depositions were taken in the Federal suit. The tone of the motion is accusatory, however, CBS cites no statues, no rules of procedures or evidence, and no ethics provisions violated.

If a defendant decides to present a motion to add CBS as a third party it is ruled on the merits. See Texas Civil Practice & Remedy Code section 33.004 for the standard. CBS is not a party to this suit and can not respond until they are added. See 33.004 (g)(1).

CBS's motion will be denied because the civil rules of procedure were not followed. Court's rule by law not spin.

Posted at 2:49AM on Mar 7th 2009 by Pacer
*****
How could I be incorrect. You just restated the same thing I said.

1974 days ago
27.

Only swim in the Ocean    

1749. Missed this. CBS would only be entitled to the depositions in State Court if they were not subject to a protective order, which they are.

CBS would be able to use them in State Court if they 'possessed' them, which is what CBS is asking the Federal Court to do; allow CBS 'possession' of its depositions and docs from the Federal case. Being under a current Protective Order makes them 'undiscoverable' in any other Court proceeding.

Posted at 1:42AM on Mar 7th 2009 by Only swim in the Ocean

Again, Read the civil rules of procedure. If you need a link let me know. :)

Posted at 2:55AM on Mar 7th 2009 by Pacer
*****
Before you quote 194.2 (i), you need to go back up and read:

"192.3 Scope of Discovery.
(a) Generally. In general, a party may obtain discovery regarding any matter that is not
privileged and is relevant to the subject matter of the pending action, whether it relates to the
claim or defense of the party seeking discovery or the claim or defense of any other party. It
is not a ground for objection that the information sought will be inadmissible at trial if the
information sought appears reasonably calculated to lead to the discovery of admissible evidence."

"...any matter that is not priviledged..."

Thanks for the offer of a link, though. ☺

1974 days ago
28.

Only swim in the Ocean    

"Court's rule by law not spin."

Well, no one following the activities in the State lawsuit would agree with that statement.

1974 days ago
29.

Pacer    

How could I be incorrect. You just restated the same thing I said.

Posted at 2:58AM on Mar 7th 2009 by Only swim in the Ocean
_____

"if McCabe tries to screw with it in any manner"

1974 days ago
30.

Pacer    

Before you quote 194.2 (i), you need to go back up and read:

"192.3 Scope of Discovery.
(a) Generally. In general, a party may obtain discovery regarding any matter that is not
privileged and is relevant to the subject matter of the pending action, whether it relates to the
claim or defense of the party seeking discovery or the claim or defense of any other party. It
is not a ground for objection that the information sought will be inadmissible at trial if the
information sought appears reasonably calculated to lead to the discovery of admissible evidence."

"...any matter that is not priviledged..."

Thanks for the offer of a link, though. ☺

Posted at 3:06AM on Mar 7th 2009 by Only swim in the Ocean

_______________

Actually you need to read 192.3(h).

Statements of persons with knowledge of relevant facts. A party may obtain discovery
of the statement of any person with knowledge of relevant facts--a "witness statement"--
regardless of when the statement was made. A witness statement is (1) a written statement
signed or otherwise adopted or approved in writing by the person making it, or (2) a
stenographic, mechanical, electrical, or other type of recording of a witness's oral statement,
or any substantially verbatim transcription of such a recording. Notes taken during a
conversation or interview with a witness are not a witness statement. Any person may obtain,
upon written request, his or her own statement concerning the lawsuit, which is in the
possession, custody or control of any party.

1974 days ago
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