Conway-Russell v. O’Keefe: How it Got Here, and What’s Next

So, Hannah Giles and James O’Keefe have been dragged into court.  Again.  This time, it wasn’t by ACORN itself but rather the office director who was featured so prominently in Giles and O’Keefe’s Philadelphia installment of their series of undercover videos used to demonstrate the internal corruption and illegality within an organization which has received praise and hundreds of thousands of dollars in cash from the president of the United States, and billions more from American taxpayers.

For me, it’s now a question of why.  If I were ACORN and those who support both what ACORN supposedly does and what it actually does, after all, I’d want that organization as far away from the headlines as possible.  Especially as America–this new, outspoken America which has so loudly announced itself in New Jersey, Virginia and just this week in Massachusetts–draws closer and closer to the mid-term elections in November and as focus shifts to the presidential election in 2012.

To understand exactly why this action was commenced and what could be made of the whole thing in the end, it’s important to know how it got to this particular point, and what could possibly happen in the near future. Though I may be a law student anxiously awaiting graduation in May (and a job in Charleston, SC should anybody be looking for a 31-year-old new associate), I am far from a legal expert.  Nevertheless,  I wanted to break down a few of the basics in order to answer some of the questions which have come across my inbox about what has already happened and what is likely to happen next. Nothing spectacular — just enough to get folks on the same page. Of course, I might be right and I might be wrong, but in this economy, my first post-law school job could very well involve memorizing and reciting daily fish specials, so I’ve got nothing to lose.

How Did We Get Here?

If Katherine Conway-Russell is claiming that O’Keefe and Giles are in violation of state law, Jeff, then why was this case filed in federal court?

That’s the question I’ve been receiving over and over again since the story of this lawsuit was first broken at America’s Right yesterday afternoon and, thankfully, the answer is quite simple.  Federal district courts are courts of limited jurisdiction, meaning that only certain types of cases can be heard at that level.

The one which seemed to be the source of so much confusion is federal question jurisdiction, which means that the case in question arises under the Constitution, laws or treaties of the United States.  This includes bankruptcy cases, copyright infringement cases, antitrust suits and more, as well as causes which arise under statutory provisions such as the Securities Act, the Civil Rights Act, or the Federal Employer’s Liability Act.  Applicable here is diversity jurisdiction, which for the purposes of this discussion means that the parties to the case in question are citizens of different states, and that the amount in controversy is in excess of $75,000.

The action filed by ACORN employee Katherine Conway-Russell falls under the latter.  Conway-Russell is a resident of Pennsylvania, O’Keefe is noted as being a citizen of New Jersey, Giles hails from sunny Florida, and according to the complaint Conway-Russell must be seeking more than $75,000 in punitive damages.  As for the matter of state law in federal court, if a plaintiff brings a claim under the federal court’s diversity jurisdiction and that claim is based upon state law which, if applied in the federal court, would substantially affect the outcome of the case, then that state law is considered substantive and must be applied.

That’s why it was filed in federal court. Whether or not the folks representing Giles and O’Keefe want to challenge that is up to them.  I wouldn’t, and my reasoning follows.

What Can Possibly Happen Next?

Yesterday, Conway-Russell filed a complaint and, according to the docket report, summons were issued to both Giles and O’Keefe.  Once service has properly been made, our two brave filmmakers have two general courses of action — first, they can file and serve an answer, something that needs to be done within 20 days of service (but with waiver of service can be delayed for another 40 days after that), or they can claim and attack certain defects in Conway-Russell’s original complaint.

Such an “attack” can be done through three types of pleadings, but the one which in my opinion would be most applicable here–if any “attack” is to be used at all–is a motion to dismiss for failure to state a claim upon which relief can be granted.  For those keeping score at home, that falls under Rule 12(b)(6) of the Federal Rules of Civil Procedure.  This would ordinarily need to be filed within 20 days of completed service, but while it could be successful, I’m not so certain that it would be the right course of action.

While this action was filed by an employee of ACORN and not ACORN itself, Katherine Conway-Russell has provided us with a unique opportunity here.  John Henry Wigmore, who literally wrote the book on the law of evidence, once wrote that “[c]ross-examination is the greatest engine for ascertaining truth,” and while we’re nowhere near trial at this point and in all likelihood could very well never reach that point, the underlying sentiment is the same — why move to dismiss this case when we could use it to learn so much more than we already know?

Rule 26(a) of the Federal Rules of Civil Procedure, for example, is all about initial disclosures.  As applied to this particular case, it would require that Katherine Conway-Russell provide to Hannah Giles and James O’Keefe–without waiting for a discovery request–the following materials, among others:

  • Names, addresses and telephone numbers “of each individual likely to have discoverable information” which Conway-Russell may use to support her claims or defenses, as well as identification of the information
  • Copies of or descriptions by category and location of “all documents, data compilations, and tangible things in the possession, custody, or control” of Conway-Russell and that she may use to support her claims or defenses
  • A “computation of any category of damages claimed” by Conway-Russell, including any documents or evidence not otherwise protected from disclosure which may be used to compute those damages.

I’m obviously not a lawyer, but if I were involved in this particular case I’d be in no hurry to force Conway-Russell into picking up her ball and going home.  Years ago, when my wife worked nights at the hospital before our daughter was born before I had law school studies and a Web site to occupy my time, I used to play a lot of Texas Hold’em — and if I were playing with a group of folks and dealt three aces on the flop, I likely would refrain from tossing all my chips in the middle of the table and forcing the other guys to fold when I could otherwise most likely get my hands on quite a bit of their stash by dragging things out a bit.

This matter may never reach the discovery phase–the very prospect of which must have O’Keefe, Giles and Andrew Breitbart practically foaming at the mouth–but there’s no reason I can see to end this thing prematurely.  Sure, the temptation to file motions to dismiss under Rule 12(b) must be strong, but resisting those temptations brings the possibilities of depositions, interrogatories, requests for admissions and any number of measures which could be employed in a capacity under which we all could learn more about the innerworkings of ACORN through the litigious person of Katherine Conway-Russell. Not to mention the mountains of knowledge which could be gleaned from discovery, or even the possibility of making Conway-Russell wish she never filed the complaint in the first place by means of counterclaims for wrongful use of civil process or frivolous harassment calculated to inflict emotional distress.

Hannah Giles and James O’Keefe have indeed been dragged into court.  Considering the Pennsylvania statutes in question as well as the statutory exceptions to the prohibition of interception of oral communications, they might be able to argue a good faith belief that they were not in violation of the law.  Regardless, however, when it comes down to the details which will be necessary to proceed, the party most in the hot seat here might not be a party at all — ACORN.  And as this reawakened America draws nearer to election day in November, more details into this particular cog in the wheel of corruption currently rolling through Washington will certainly be welcome.



  1. Linda McNeely says:

    Jeff: What’s you opinion on Bernanke’s confirmation today? Should we be opposing it, as the headlines say the vote will be close? To me, he’s a creep and a cheat. Can you give us something to go on today? Thanks!

  2. Mike says:

    “This matter may never reach the discovery phase–the very prospect of which must have O’Keefe, Giles and Andrew Breitbart practically foaming at the mouth–but there’s no reason I can see to end this thing prematurely.”

    I am not sure what you mean by this. Would O’Keefe, Giles want discovery or not? I did not believe any action would be taken by ACORN or their operatives due to the fear of discovery. What would the opportunity to do in-depth discovery of ACORN records be like? It seems they would want to avoid that – and keep their operatives from doing something like this that may open up that path.

  3. Gail B. says:

    I believe that information required through discovery must be provided under oath. The hyphenated-named woman obviously lied in the video you posted yesterday. This is a shot in the dark, I think, to scare the two reporters; and I believe Ms. Hyphenated eventually will wish she had never started her lawsuit. If not, I believe that ACORN will wish she hadn’t. There is the possibility that the video will be thrown out, not admissible as evidence; but then, the video is the basis of her lawsuit.

    Jeff, as knowledgeable as you are and as well as you have done your homework, I’m sitting here wondering if I have just broadcast what a blooming idiot I am!

    Please keep an eye on this case for us–it’s right there in your back yard.

  4. Gail B. says:

    (Please say I’m not an idiot!)

  5. Boston Blackie says:

    Gail, Repeat after me – YOU ARE NOT AN IDIOT.
    Ms Hyphenated-Name on the other hand…..

  6. Anonymous says:

    And it came to pass in the Age of Insanity that the people of the land
    called America , having lost their morals, their initiative, and their
    will to defend their liberties, chose as their Supreme Leader that
    person known as ‘The One.’

    He emerged from the vapors with a message that had no meaning; but He
    hypnotized the people telling them, “I am sent to save you. My lack
    of experience, my questionable ethics, my monstrous ego, and my
    association with evil doers are of no consequence. I shall save you
    with hope and Change. Go, therefore, and proclaim throughout the
    land that he who proceeded me is evil, that he has defiled the nation,
    and that all he has built must be destroyed.” And the people rejoiced,
    for even though they knew not what ‘The One’ would do, he had promised
    that it was good; and they believed. And ‘The One’ said, ” We live in
    the greatest country in the world. Help me change everything about it!”
    And the people said, “Hallelujah! Change is good!”

    Then He said, “We are going to tax the rich fat-cats.” And the
    people said “Sock it to them!” “And redistribute their wealth.” And
    the people said, “Show us the money!” And then he said,
    “redistribution of wealth is good for everybody.”

    And Joe the plumber asked, “Are you kidding me? You’re going to
    steal my money and give it to the deadbeats??” And ‘The One’
    ridiculed and taunted him, and Joe’s personal records were hacked and publicized. One lone reporter asked, “Isn’t that Marxist policy?” And she was
    banished from the kingdom!

    Then a citizen asked, “With no foreign relations experience and
    having zero military experience or knowledge, how will he deal with
    radical terrorists?” And ‘The One’ said, “Simple. I shall sit with
    them and talk with them and show them how nice we really are; and they
    will forget that they ever wanted to kill us all!” And the people
    said, “Hallelujah!! We are safe at last, and we can beat our weapons
    into free cars for the people!”

    Then ‘The One’ said, “I shall give 95% of you lower taxes.” And one,
    lone voice said, “But 40% of us don’t pay ANY taxes. So ‘The One’
    said, “Then I shall give you some of the taxes the fat-cats pay!”
    And the people said, “Hallelujah! Show us the money!”
    Then ‘The One’ said, “I shall tax your Capital Gains when you sell
    your homes!” And the people yawned and the slumping housing market
    collapsed. And He said, “I shall mandate employer-funded health care
    for every worker and raise the minimum wage. And I shall give every
    person unlimited healthcare and medicine and transportation to the
    clinics.” And the people said, “Give me some of that!”
    Then he said, “I shall penalize employers who ship jobs overseas.”
    And the people said, “Where’s my rebate check?”

    Then ‘The One’ said, “I shall bankrupt the coal industry and
    electricity rates will skyrocket!” And the people said, “Coal is
    dirty, coal is evil, no more coal! But we don’t care for that part
    about higher electric rates.” So ‘The One’ said, “Not to worry. If
    your rebate isn’t enough to cover your expenses, we shall bail you out
    Just sign up with the ACORN and your troubles are over!”

    Then He said, “Illegal immigrants feel scorned and slighted. Let’s
    grant them amnesty, Social Security, free education, free lunches,
    free medical care, bi-lingual signs and guaranteed housing…” And
    the people said, “Hallelujah!” and they made him king!

    And so it came to pass that employers, facing spiraling costs and
    ever-higher taxes, raised their prices and laid off workers. Others
    simply gave up and went out of business and the economy sank like unto
    a rock dropped from a cliff.
    The banking industry was destroyed. Manufacturing slowed to a
    crawl. And more of the people were without a means of support.

    Then ‘The One’ said, “I am ‘the One’- The Messiah – and I’m here
    to save you! We shall just print more money so everyone will have
    enough!” But our foreign trading partners said unto Him. “Wait a
    minute. Your dollar is not worth a pile of camel dung! You will have
    to pay more…” And ‘The One’ said, “Wait a minute. That isn’t
    fair!!” And the world said, “Neither are these other idiotic
    programs you have embraced. Lo, you have become a Socialist state and
    a second-rate power. Now you shall play by our rules!”

    And the people cried out, “Alas, alas!! What have we done?” But yea
    verily, it was too late. The people set upon ‘The One’ and spat upon
    him and stoned him, and his name was dung. And the once mighty nation
    was no more; and the once proud people were without sustenance or
    shelter or hope. And the Change ‘The One’ had given them was as like
    unto a poison that had destroyed them and like a whirlwind that
    consumed all that they had built.

    And the people beat their chests in despair and cried out in anguish,
    “give us back our nation and our pride and our hope!!” But it was too
    late, and their homeland was no more.

    You may think this a fairy tale, but it’s not.
    It’s happening RIGHT NOW

  7. JUST SAYIN..... says:

    “I think myself that we have more machinery of government than is necessary, too many parasites living on the labor of the industrious.”
    -Thomas Jefferson

  8. elspeth says:

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