As neo-Nazi Chris Cantwell tries to avoid a deposition, counsel for plaintiffs in an ongoing Unite the Right rally lawsuit are requesting thousands of dollars in compensation from negligent defendants.
Cantwell is one of nearly two dozen defendants in the Sines v. Kessler lawsuit. Filed on behalf of a swath of Charlottesville-area residents, the suit targets key organizers and participants of the deadly Aug. 12, 2017, rally.
In a handwritten motion filed earlier this month, Cantwell argued that being deposed would be an undue burden on him due to the long length of the case, which will have been ongoing for four years by the time it goes to trial in the fall.
“If plaintiffs cannot prove their case after 3.5 years, they will never be able to prove it,” Cantwell wrote. “They never intended to prove it and have used these myriad excuses for delay as a means by which to extend their abuse of power.”
Cantwell, dubbed the “Crying Nazi” after his tearful appearance in the media following the rally, is currently serving a nearly three-and-a-half year sentence in federal prison for threatening to rape the wife of a man who was part of a separate racist group.
In a response to Cantwell’s motion, counsel for the plaintiffs argued that their notice of deposition was proper and was previously granted by the court. Depositions began last summer but Cantwell’s was further delayed due to his criminal charges and COVID-19 restrictions, the response reads.
Following his sentencing in February, a notice of deposition was sent to Cantwell and the federal prison he’s being held at made arrangements for him to be deposed.
Per the response, the timing of Cantwell’s deposition is allowed by the amended scheduling order and is a direct result of his arrest and prosecution. When plaintiffs asked the court to amend the scheduling order, they made sure to ask that they be permitted to depose incarcerated witnesses and parties after the close of fact discovery, the plaintiffs’ counsel argues.
“As the court noted in granting plaintiffs’ motion for leave to depose Cantwell, plaintiffs still have not had the opportunity to depose Cantwell, one of the most important defendants to the conspiracy alleged in this case, and they are entitled to do so,” the response reads. “There is simply no basis upon which plaintiffs should be deprived of critical evidence from a key defendant, particularly where the court has expressly granted leave for this deposition to go forward.”
In a separate omnibus motion, counsel for the plaintiffs requested more than $53,000 in compensatory attorney fees from several defendants for whom they’ve had to file multiple motions to compel discovery.
Discovery issues have long plagued the case, as various defendants have refused to turn over phones, email addresses, web credentials and more, drawing out the already lengthy case.
The latest motion seeks compensation from four defendants: Robert “Azzmador” Ray, the National Socialist Movement, Jeff Schoep and Elliott Kline.
About $22,000 of the requested fines are directed at the National Socialist Movement, which the plaintiffs’ counsel argues is warranted due to the complicated factual circumstances. The complications were further compounded by “excuse after excuse proffered by NSM, Burt Colucci, and NSM’s counsel, including that Mr. ReBrook’s only ‘human client’ was Jeff Schoep and that NSM as incorporated by Colucci in Florida was a different organization than the NSM entity incorporated by Schoep in Michigan.”
“Against this complicated and changing backdrop and NSM’s numerous unjustified excuses, the number of hours expended in order to develop factual and legal responses and compile dozens of supporting exhibits, in both unsealed and sealed form, was reasonable,” the motion reads.
Ray, from whom the plaintiffs’ counsel are requesting approximately $15,000, has been wholly absent from the case for years. In September, he was found to be in contempt of court and a warrant was issued for his arrest. He has not yet been located but is also subject to a criminal warrant in Albemarle County.
To calculate the rates of compensation, counsel for the plaintiffs requested that local market rates be used, which are “substantially lower than both the prevailing market rates for New York City and Washington D.C. normally received by plaintiffs’ counsel and the actual rates they charge for this case.”
Those rates include $450 an hour for a partner, $275 an hour for two senior associates and $100 an hour for two paralegals. The rates are in accordance with those for partners and senior associates that courts in this circuit have deemed appropriate in recent cases, the motion reads.
None of the defendants named in the motion has responded and the court has yet to rule on the motion. The multi-week trial is currently set to begin in October.
However, thanks to a Thursday ruling, a jury will be instructed that they can make adverse inferences from Ray’s failure to participate.
U.S. Magistrate Judge Joel C. Hoppe granted plaintiffs’ earlier request for a permissive adverse inference instruction against Ray, writing that “plaintiffs produced clear and convincing evidence that Ray intentionally withheld requested discovery knowing that it was relevant to an issue in the case.”
Plaintiffs will now submit their proposed language to the District Judge to inform jury instructions, according to a news release. Ray is now the second defendant to receive this type of sanction, following an earlier ruling against Kline.
“The defendants have tried every trick in the book to avoid accountability for the racist violence they brought to Charlottesville, but we are committed to ensuring they face justice,” said Integrity First for America Executive Director Amy Spitalnick. “Our plaintiffs have now won adverse inferences against two defendants – which will have enormous impacts at trial this fall, and serves as a testament to how egregiously the defendants have flouted court orders.”