In its $2 billion defamation suit against San Diego-based One America News, Smartmatic alleges OAN told dozens of lies about the election company being owned by vote-rigging Venezuelan communists.
“Smartmatic is not a Venezuelan company and was not founded and funded by corrupt dictators from socialist and communist countries,” said the federal suit filed in November 2021.
Smartmatic USA Corp., based in Florida, is a wholly owned subsidiary of a Dutch-based company — itself a unit of a UK-based parent, the company said, adding: “The Netherlands is not a socialist or communist country. The United Kingdom is not a socialist or communist country.”
But in a June 5 court filing, OAN-owner Herring Networks says a District of Columbia judge handling discovery issues should recuse herself for her prior role in a Venezuelan case.
The 680-word OAN letter suggested “possible recusal before you are required to make any rulings in this case.”
Babcock says Upadhyaya, while in private practice at Venable LLP, worked on behalf of the South American nation in a case known as Rusoro Mining Limited v. Bolivarian Republic of Venezuela.
“As lead counsel from Venable,” Babcock wrote the judge, “you filed a ‘Response To The Motion To Stay,’ writing that ‘President [Nicola] Maduro vigorously disputes that Mr. [Juan] Guaidó is the President of the Republic, and asserts that he remains the rightful leader of the Republic.’”
Without saying whether she’d step aside, Judge Upadhyaya on June 23 ordered a hearing on the recusal matter for July 18.
On Friday, Smartmatic filed its response — urging the judge not to bow out.
“Your 2018 representation of Venezuela was in no way connected to any fact or legal issues involved with Smartmatic’s defamation claims against OANN,” wrote J. Erik Connolly, a Chicago-based lawyer for Smartmatic.
“None of OANN’s defamatory statements regarding Smartmatic’s alleged connections to Venezuela implicate the issues that were present in Rusoro.”
In fact, Smartmatic quit doing business in Venezuela after the 2017 National Constituent Assembly election, he added.
In its original suit, Smartmatic said it ceased providing election technology and software in Venezuela after the government announced total vote counts that differed from the actual vote count.
“Smartmatic’s participation in election projects in Venezuela was publicly and widely known,” the company says. “Smartmatic did elections there from 2004 to 2017 but stopped its work there after blowing the whistle on false results reported by the government for the 2017 election. Indeed, its technology helped prove the government was reporting false turnout numbers.”
In its letter to Upadhyaya, Smartmatic’s legal team says OAN has “no basis on which to question your impartiality in this litigation.”
“Second, your prior representation could not conceivably have led you to gain any ‘personal
knowledge’ regarding any ‘disputed evidentiary facts’ concerning Smartmatic’s claims against OANN. To start, the main issue in Smartmatic’s claim against OANN is OANN’s publication and republication of the false accusation that Smartmatic rigged the 2020 U.S. election and that its technology was used to switch votes during the 2020 U.S. election. That is the thrust of OANN’s defamatory conduct.”
The Rusoro matter, Smartmatic said, “had nothing to do with the 2020 U.S. election.”
Judge Upadhyaya — born in Gujarat, India, and raised near Kansas City, Missouri — isn’t the main judge in the defamation case.
The overall case remains before U.S. District Judge Carl J. Nichols, who a year ago denied OAN’s motion to throw out the case. No trial date has been set, but last October Nichols said he intended to discuss potential trial dates at a status conference May 15, 2024.
- Read: April 28, 2023, letter from Herring Networks to Smartmatic (PDF)
- Read: May 26, 2023, letter from Smartmatic to Herring Networks (PDF)
- Read: June 6, 2023, letter to D.C. federal court judges from Smartmatic (PDF)
Upadhyaya’s role for now is sorting through discovery disputes — what information each side should provide the other.
In letters sent since April, both sides snipe at each other.
Said Herring: “One point we will make is that Plaintiffs are sandbagging Herring while Plaintiffs cry wolf.”
Said Smartmatic: “OANN omits from the opposition that the way it ‘satisfied’ the May 31 deadline was through abusive (and potentially sanctionable) discovery conduct.”
Meanwhile, OAN has seen a major turnover in its legal team.
On May 30, Blaine C. Kimrey wrote Smartmatic attorneys: “Jackson Walker is taking over as lead counsel for Herring Networks Inc. in this case.”
According to court records, Kimrey was “terminated” as a Herring attorney on June 12, along with fellow Vedder Price lawyers Bryan Clark, Brian Ledebuhr, Brian Keith McCalmon, Jeanah Park and Julia Koechley — mostly the following day.