|Wikimedia Commons/ Perhelion|
As University of California, Santa Barbara archaeologist Danielle Kurin's defamation suit against me enters its second year, the dispute between the parties shows no signs of abating. In April and May, we went through at least seven weeks of court-ordered mediation; the settlement talks fell through when the parties could not come to a final agreement.
During the mediation, discovery in the case (production of documents, taking of depositions, and so forth) was suspended by mutual agreement. But now, as we continue with the litigation, a number of issues have come up, which we have asked the Court to address. The judge in the case (which is in the White Plains Branch of the Southern District of New York) has assigned those disputes--some of which are extremely contentious--to U.S. Magistrate Judge Judith C. McCarthy for further proceedings. Judge McCarthy has scheduled a remote conference for July 16.
Today, my attorneys sent a letter to Judge McCarthy summarizing the disputes as we see them, and added some additional issues for her consideration. Since the letter is on the public court docket, it provides me with an opportunity to bring those following the case up to date, and also to provide some important context to the legal issues. The key issues include our request to protect anonymous commenters on this blog from Kurin's insistence that information that can be used to obtain their identities be disclosed; Kurin's failure to produce any of the communications we subpoenaed many months ago, including her communications with her ex-husband, Enmanuel Gomez (both Gomez and Kurin were found to have committed misconduct in a 2016 Title IX proceeding at UCSB); and the months-long concealment of a Letter of Censure from UCSB by both Kurin and her attorney.
In addition, we have asked Judge McCarthy to address an improper claim of attorney-client privilege put forward by Kate Clancy, a University of Illinois anthropologist who has been listed as a potential witness for Kurin (and who discussed testifying on her behalf with her legal team for several months last year.) Clancy, at the instruction of Kurin's attorneys, has withheld her communications with Kurin's legal team despite the fact that there is no attorney-client privilege between Clancy and Kurin's counsel.
Kurin's subpoena to a former student she bullied in her class at UCSB.
On New Year's Eve 2020, a process server working for Kurin served a subpoena on a witness in the case I previously called "Lara" in a blog post about her experiences with her former professor at UCSB. As I described in that report, Kurin mercilessly bullied Lara in her osteology class to the point of causing her severe psychological damage, which led to her dropping out of the university. (A second student, whom I called "Jessica" and who is also a witness in the case, described similar experiences the previous year.)
The subpoena to Lara cost her considerable pain and anguish. Nevertheless, Lara has bravely withstood the pressure from Kurin--even though Kurin has also directed targeted harassment at her in posts using a Twitter sock puppet account she has admitted was hers. (Please see Lara's June 24 comments about Kurin's attacks on her at the link just above.)
Protecting anonymous commenters on this blog.
For a number of months now, Kurin has demanded that I turn over the IP addresses of people who have commented anonymously on this blog. Kurin contends, with no evidence whatsoever, that I post anonymously on my own blog and thus I am directly responsible for statements that she considers to be defamatory. However, in sworn interrogatories (answers to questions) put to me by Kurin, I have made it clear that I have never posted anonymously on my own blog (or any other blog) and that I am fully identified in all other social media platforms I post on (Twitter, Facebook, etc.) In essence, Kurin claims that I am lying about this, and wants the IP addresses to prove it. But I believe she has another motive. I believe that Kurin knows full well that many of the anonymous comments are from archaeologists, students, and others who are familiar with her history of misconduct. I believe that Kurin seeks to intimidate and possibly retaliate against these commenters, whereas it is my job as publisher of this blog to protect them.
As the U.S. Supreme Court has upheld the right to make anonymous comments online, we are asking the Court to issue an order protecting these individuals. (Kurin is also seeking the identities of all the confidential sources for my reporting on her, which we will also strenuously oppose.)
The Letter of Censure issued against Kurin by UCSB.
As I stated above, we have asked the Court to sanction Kurin and her attorney for misconduct in the case, up to and including dismissal of the lawsuit. That request stems from the actions taken by Kurin and her legal team to withhold a document that we characterize as "Key Evidence" in the lawsuit. Although I am familiar with the contents of this document, it is under a court protective order and I cannot reveal its contents at this time. I can, however, quote from our letter to the magistrate:
"...the Letter of Censure that was issued against Dr. Kurin by UCSB in February 2018, a document squarely responsive to a lawfully issued subpoena to UCSB." Withholding the letter, we told Judge McCarthy, was a "direct affirmative act by a party to conceal the truth--conduct that Defendant [that's me] believes warrants the ultimate sanction of dismissal of this lawsuit."
We are also asking the Court to remove the protective order from this and all other UCSB documents that were given to us. As we explained:
"By filing this lawsuit challenging Mr. Balter's reporting of her misconduct, Dr. Kurin opened the door to scrutiny of that misconduct, including evidence showing the disciplinary actions taken by her own university."
Kurin's communications with her ex-husband, Enmanuel Gomez Choque.
As I mentioned above, in 2016 both Kurin and her then husband were found by a UCSB Title IX investigation to have committed misconduct (sexual harassment by Gomez, retaliation against students by Kurin.) In October 2020, we requested Kurin to produce communications relevant to the case, "including her communications with Gomez regarding their misconduct..." (Italics in the original of our letter to the magistrate.) To date, Kurin has not produced any communications with anyone at all. We have asked the Court to order her to do so no later than July 21.
Kurin's communications with Gomez are highly relevant to the lawsuit because she has repeatedly, and falsely, accused me of misrepresenting her relationship with Gomez, the Peruvian archaeologist to whom she was married under U.S. law for more than three years. This is one of the most contentious issues in the lawsuit--in my opinion, because in her efforts to get tenure at UCSB (still pending), she wanted to convince the university and her colleagues in the UCSB anthropology department that she had broken all ties with him. My own reporting indicated that this is not true, despite the U.S. divorce; and more recent reporting has revealed that Kurin appears to still be married to Gomez in the eyes of the Peruvian Catholic Church. As of this writing, Kurin is threatening to file yet another defamation lawsuit against me if I do not retract this reporting; please see the link for an update and the response from Kurin on this matter.
The role of anthropologist Kate Clancy in the lawsuit.
I have written previously and at length about the role played by Kate Clancy, a well known #MeToo advocate and professor at the University of Illinois, Urbana-Champaign, to try to block my reporting on sexual misconduct in academia. This led to the filing of an ethics complaint against me with the National Association of Science Writers (NASW), an organization to which I had belonged for 35 years. I have produced evidence suggesting that Clancy instigated this complaint in collaboration with another NASW member, and I have made my belief clear that the NASW leadership handled it badly and unfairly, leading to my resignation from the organization.
I had begun a detailed series of blog posts about these events, including those linked to above, but paused them while the mediation was going on; I plan to resume this history soon. But for the purposes of the issues we now have before the Court, Clancy's own admission in a sworn declaration that she was talking with Kurin's legal team for several months about testifying in the case--combined with Kurin's repeated use of the bogus NASW complaint to try to smear me--make her communications with Kurin's attorneys relevant. As we told Judge McCarthy, "given the documented attempts by Dr. Kurin to conceal damaging evidence against her, we request an order requiring Dr. Clancy to produce all relevant communications, including her communications with Dr. Kurin's counsel."
As the case continues, and while we await the resolution of these disputes, a lot more will be happening, including the taking of depositions of witnesses for both sides. As I have stated many times, this is not just some kind of personal dispute between me and Danielle Kurin, but a fight over freedom of the press and the rights of survivors of abuse to tell their stories without fear of intimidation of the kind that Kurin has visited upon so many students over the years. If you agree with those principles, I hope you will help out by contributing to the legal defense fund. Thank you.
Update July 1, 2021:
For those who might be new to following this litigation, the first Answer that I filed with the court responds in detail to each and every allegation in Kurin's Complaint. I hope readers will find it useful as a guide to what this lawsuit is all about.
“dismissal with prejudice”!!!
Will be looking forward to your reporting on these proceedings, but, regardless of the settlement’s terms, I guess congratulations are in order.