By Gordon Berger

When we last reported on Roger Clemens’ defamation suit against Brian McNamee, the case was newly filed.  Since that first report, a lot has transpired in the case.

McNamee’s attorneys filed a motion to disqualify Rusty Hardin from serving as Clemens’ counsel in the case.  The parties argued the motion before Judge Ellison, the presiding judge, on April 6, 2008.  The judge took the arguments under advisement and chose to render a written opinion instead of ruling from the bench.

On May 6, 2008, Judge Ellison ruled that Hardin may remain on as Clemens’ counsel.  Richard Emery, McNamee’s lead counsel, had argued that since Hardin also represents Andy Pettitte, he had a conflict of interest and therefore had to withdraw as Clemens’ counsel.  Emery’s argument was that Emery would have to impeach Pettitte and his credibility on cross-examination, so he would have a conflict of interest because Hardin could use information he obtained under the attorney/client privilege. 

Hardin retorted that he had not been formally retained by Pettitte and that he did not possess client secrets from Pettitte; he claimed that the only information that he has received about Pettitte with regard to his HGH usage or any conversations with Clemens came through the public domain.

An attorney/client privilege bars an attorney from disclosing secrets and confidences acquired from a client.  However, it is a client’s privilege to waive.  So, if Pettitte was a client of Hardin’s, it would have been Pettitte’s decision as to whether to waive the privilege.  In fact, Judge Ellison held that the real conflict would have arisen if Hardin represented McNamee and Pettitte at the same time.

Next, on March 4, 2008, McNamee’s lawyers filed a motion to dismiss Clemens’ lawsuit on the basis that McNamee’s statements about Clemens’s alleged use of performance-enhancing drugs were privileged because they were made as part of a federal investigation. If statements are privileged they cannot be used as a basis for a defamation action; therefore, Clemens’ suit would be subject to dismissal because he would not be able to use the statements in the case. 

Further, McNamee’s motion makes a number of procedural arguments based on improper jurisdiction and venue in Texas.  McNamee has argued that Clemens alleged that he made statements while in New York; therefore, Texas does not have enough of a nexus to hold jurisdiction of the matter. Additionally, he argues that “McNamee is from New York and does not have sufficient contacts with Texas to provide [the] Court with jurisdiction over his person.” As far as venue, McNamee’s motion claims that “Defendant does not reside in Texas, the events giving rise to the claim did not occur here, and the action would be proper in a New York federal court.”

Clemens’ attorneys filed a response to the motion to dismiss, arguing that McNamee had defamed Clemens because he falsely told Pettitte that Clemens had used performance-enhancing drugs. This allegation was not raised in Clemens’ complaint, which was filed in January, because it first came to light in Pettitte’s statement before the House Committee on Oversight and Government Reform.

Further, Clemens’ attorneys argued that McNamee repeated the statements to a reporter from SI.com, who published the statements on the Internet.  In order to establish defamation, the statements that are alleged to be defamatory must be communicated (or published) to a third party.

The summary of Clemens’ argument from the filed brief is as follows: “First, the Due Process Clause permits this Court to exercise specific personal jurisdiction over McNamee because he intentionally defamed and inflicted emotional distress on Clemens in Texas by: falsely telling Andy Pettitte in Texas that Clemens had used steroids and human growth hormone (“HGH”); and repeating those false accusations to the Mitchell Commission and SI.com, knowing that they would republish and widely circulate them in Texas where Clemens lives, worked, and has significant business interests.

Second, venue is proper in the Southern District of Texas because McNamee’s removal of this lawsuit from Harris County district court to the Southern District of Texas automatically fixed proper venue in this Court.

Third, Clemens’s Amended Complaint states claims upon which relief can be granted—defamation and intentional infliction of emotional distress—because Clemens has sufficiently pleaded specific facts to support every element of those claims.
Moreover, McNamee’s false accusations to the Mitchell Commission are not absolutely privileged because the Mitchell investigation was a private investigation by a private law firm for a private client and was independent of the federal investigation.”

Now it’s up to the judge to rule on the motion to dismiss.  It would seem likely that regardless of how the judge rules, the non-prevailing party will file an appeal.  And the saga will continue.