Owners of San Diego-based One America News, fighting two major defamation suits, are asking a federal judge to help it seek evidence in at least six other countries.
In a motion filed Wednesday, Herring Networks Inc. asks U.S. District Judge Carl J. Nichols in D.C. to issue “letters of request” as part of discovery in the Smartmatic case. (Dominion Voting is the other case.)
“OAN seeks letters directed to the central authorities of Venezuela and Brazil for evidence that is directly relevant to this matter,” wrote John K. Edwards, a Herring attorney. “OAN also asks the Court to issue letters of requests to the judicial authorities of certain other countries that are not parties to the Hague Evidence Convention, including the Philippines, Belgium, Oman and Kenya.”
Voting-tech company Smartmatic sued OAN in November 2021 for libel and slander, alleging valuation losses exceeding $2 billion.
Smartmatic’s complaint against right-wing OAN slams the network’s claims of election fraud, saying: “The first time it happened could be a mistake. The second, third, fourth and fiftieth times it happened were intentional choices. … It could have reported the truth. Instead, OANN chose to do the wrong thing every time. It reported a lie.”
OAN and Smartmatic legal teams didn’t respond to Times of San Diego questions, including whether the latest motion is an effort to delay the civil case.
Among the falsehoods alleged by Smartmatic: OAN accused Smartmatic of “having connections to corrupt dictators, of having previously rigged an election in Venezuela, and of being widely used in the 2020 U.S. election,” said the suit.
“OANN had seen no evidence to support these claims because they are all factually inaccurate,” Smartmatic said.
In November 2020, factcheck.org noted that Los Angeles was the company’s only client in the United States, “so it’s unlikely that Smartmatic could have orchestrated a nationwide vote switching scheme.”
But in its 13-page motion, OAN says Smartmatic is alleging global “reputational harm.”
“Smartmatic’s conduct abroad — and its negative impact on Smartmatic’s reputation prior to any broadcast by OAN — is directly relevant to this suit,” OAN said. “The same is true of investigations conducted in other countries of Smartmatic’s conduct.”
Herring lawyers also allege that the public record is “rife with references to investigations of, and scandals involving, Smartmatic, including in the Philippines, Kenya and Venezuela as well as major problems involving Smartmatic in Oman and Brazil, as confirmed in Smartmatic’s own documents.”
The conservative network says the discovery sought in Venezuela is relevant to the claim that OAN disparaged Smartmatic through purported statements that “the company reportedly meddled with a 2004 Venezuela election to secure a win for the [Hugo] Chávez regime an [had] connections to corrupt dictators.”
The discovery sought in the Philippines, Belgium and Kenya relates to “Smartmatic’s provision of election-related services in the years leading up to and extending beyond the 2020 U.S. presidential election, and issues, problems, and/or investigations related to Smartmatic in those jurisdictions.”
And OAN wants information about the 2016 Oman Municipal Election “and errors … relating to the voting system software and equipment, including documents and communications on, before or after election day regarding any issues with Smartmatic’s voting technology, Smartmatic removing any equipment or personnel from the country, any investigation or review of the results of the 2016 election, or other voting machine problems relating to the 2016 Oman elections.”
Getting such information won’t be easy.
Besides requiring sign-off by Judge Nichols — which Smartmatic opposes — several hurdles need to be cleared.
The American Bar Association says the preferred method of seeking discovery from foreign jurisdictions is the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, also called the Hague Convention.
“This multilateral treaty establishes methods of cooperation whereby judicial authorities in one signatory country may obtain evidence in another signatory country,” the group says,
“However, a party should keep in mind that the Hague Convention process is often lengthy, and some parties may find themselves unable to obtain complete discovery because many countries that are signatories to the convention have issued limiting declarations and reservations that restrict discovery.”
Venezuela and Brazil are part of the Hague Convention. But the other four nations are not.
That means OAN would have to send so-called “letters rogatory” through the U.S. State Department to foreign authorities via diplomatic channels.
But as Reuters explained a year ago: “Good cause for denying the [discovery] request may exist where the disruption to international comity outweighs the value of the requested information in furthering justice.”
OAN, in its motion, addresses the comity issue.
“While compliance with the request will not undermine important interests of the states where the information is located (Venezuela and Brazil), noncompliance will undermine the U.S.’s interests in distributing equal justice and due process in this matter,” OAN says.
Meanwhile, OAN lawyers await a decision on whether another judge in the Smartmatic case — Moxila Upadhyaya — should recuse herself for once representing Venezuela in a case involving its 2018 presidential vote.
Upadhyaya held a hearing on the recusal effort July 18, and oral arguments were taken under advisement — not decided immediately. It’s unclear when that ruling will come.