The Madness of Joe Francis: "I thought we were all just having fun. I was wrong." (22 page)

All she would say was she “believes she was videotaped on two separate occasions at two studios in Los Angeles, California, sometime in 2003. She believes this included sexually explicit conduct. She does not know the name or location of the studios or who created the videos. She does not have a copy of any such video and does not know who does have a copy.”

Bateman asked Judge Allan Kornblum to order the plaintiffs to reveal these pornographic films, or give them more details.

Kornblum denied Bateman’s motion on January 19, 2010, the day before the girl was to be deposed again.

“At this late date,” Kornblum wrote in his order, “even were the court to grant defendant’s motion, insufficient time remains for the films to be obtained and reviewed prior to the deposition tomorrow. However, Plaintiff B and her attorneys should be prepared to be questioned exhaustively about the circumstances surrounding the making of these films, much like Defendant Francis was grilled about the financial information he claimed to know little about. The court cannot strong-arm a witness into providing information they adamantly claim they do not have, but the party seeking the information is entitled to ask as much as they can to aid them in obtaining the information by other means, or to build a record to show the jury that they tried.”

Around the same time, Judge Smoak was reviewing the Girls Gone Wild footage of the four girls in order to resolve a motion from Bateman to dismiss the case. Bateman argued that at least one count of all four girls’ claims should be dismissed because there was no sexual conduct in the footage.

“The entire video footage of Plaintiffs J and S lasts a mere twenty-one seconds, and the actual exposure of their breasts lasts only seconds for each girl,” Smoak wrote in his order. “Throughout the footage the Plaintiffs are seated in a vehicle driving past the camera. With them in the car are two other females, including the older sister of one of the Plaintiffs. Plaintiffs J and S and one of the other females in the vehicle quickly lift up their bathing suit tops once each for mere seconds.”

Smoak then wrote the most interesting line of any order in the Girls Gone Wild case: “There is no sign of coercion and everyone is all smiles in the footage.”

This was the same judge who told Francis, “Doesn’t take a real brave man to go out and corner some young female who has had four or five beers in the middle of Spring Break and convince them to do something dumb.”

Smoak dismissed the counts plaintiffs J and S brought, saying there was no sexual content. He also dismissed this count when it came to plaintiff V, the girl Joe had paid to masturbate him. She’s flashed for the camera in a parking lot.

“Although she exposes her breasts several times in the footage, each time it is only seconds. This is in stark contrast to the extremely lengthy video footage of Plaintiff B.”

Smoak allowed the lawsuit to stand on a number of other counts, including the unfilmed interaction, the masturbation, between Joe and plaintiff V.

Joe, however, took this as a major victory. He called me from a commercial flight out of Las Vegas, which was on the tarmac preparing to take off. He said he expected the rest of the lawsuit to fall like dominoes after this ruling.

That didn’t come true. Bateman asked the judge a week later if he could file another motion to dismiss, but the judge denied that. Smoak said the deadline for those motions had passed. They were on track for trial.

“How’s the book coming?” Joe asked at the end of the telephone conversation.

“Real good. It’s moving right along,” I lied.

Joe started to say something, then stopped. He clearly wasn’t expecting the book to be moving right along. He started to say something else, but stopped again.

Finally, he got out what he wanted to say, “You better make me look good, you bastard.”

.

Chapter 21

Beginning of the end.

R
ick Bateman flopped into his seat with the same frustration and indignation that propelled him out of the cushioned chair to begin with. He sighed, groaned, buried his face in his hands, rubbed his palms roughly across his face, sat forward, launched backward, stood again, held out his arms, pushed his glasses to his forehead, dropped them back again onto the bridge of his nose and then sat back down as if some unseen hand had forced him.

“I apologize for my twitching,” Bateman told Federal Judge Richard Smoak. “It’s a bad habit I have and it’s not professional. But when I hear some of the things that are given to this court as a foundation, as a factual basis for you to make your ruling, and they’re wrong, just completely wrong, it bothers me.”

Smoak had called this hearing to address a motion for default judgment filed by the plaintiffs in a lawsuit claiming that Girls Gone Wild had filmed three underage girls in sex scenes, or at least flashing, and then included them in videos that were sold worldwide. Another girl was on the lawsuit, although she’d never been filmed, because Joe Francis had paid her $50 to masturbate him in a Panama City Beach motel room. According to her complaint, Joe did most of the work.

Attorneys Ross McCloy, Rachael Pontikes and Tom Dent had every reason to expect a favorable outcome to their motion for default judgment against Joe Francis. He hadn’t been the most cooperative witness during his deposition, and that behavior had worked in their favor in the past. McCloy, Pontikes and Dent had scored a multi-million dollar settlement in 2007 when Smoak had ordered Francis to jail for bad behavior during mediation.

After a mostly worthless deposition in April, Smoak had ordered Francis to give a second deposition to McCloy and Pontikes, this time to be held with a magistrate in the room to keep Francis in line. Smoak commented on Joe’s evasiveness.

“He seemed to claim a total ignorance about the business of which he’s the sole owner,” Smoak told the lawyers before Francis’ second deposition. “If he pulls that stunt again, we’ll decide, but it’s not going to work to his advantage. I mean, that was an exercise, I think I can only characterize it, is silliness.

“But he needs to be very clear that there is not to be any evasion or parsing. And I suggest that he show up this time prepared to talk about his business activity, of which he’s the sole owner and in total control, as if he was meeting with his most important investment broker.”

What Dent, McCloy and Pontikes were complaining about, and what they felt like they should be paid for was “gamesmanship” on Joe Francis’ part. Dent claimed Francis had frustrated the process of discovery to the point of making a mockery of the court.

It was theater and both Dent and Bateman were playing their roles with flair. It’s unlikely that Joe would have enjoyed the show, but he wasn’t there. He was sick in a Mexican hospital with an ear infection that was preventing him from flying.

“When I talked to him,” Bateman told Smoak, “he was delirious. I’m not trying to be funny.”

Bateman produced a letter from a doctor.

“Mr. Francis was not, in any way, trying to avoid this hearing,” Bateman said. He assured the court that Francis’ ailment, “is not anything scandalous.”

The issue to be resolved in this hearing was not a simple one: whether Francis should be stripped of his defenses because he’d been intentionally frustrating the plaintiffs’ efforts to prepare for trial. If Smoak ruled in their favor, a trial would only be necessary to determine how much the girls should be paid for their suffering. Joe would be unable to say that he didn’t damage them, that he wasn’t guilty.

This was the fifth time that Dent, McCloy and Pontikes had moved for default judgment in this case. It was sound strategy, based on history.

Judge Smoak started, as he often had in 2009 by cutting out the chaff the lawyers were expected to present and telling them what he wanted to focus on. Numerous times in his court, witnesses would be left sitting in the audience for hours, called by a lawyer to testify, only to find out the judge wasn’t interested in what they had to say.

Smoak wanted this hearing to focus solely on the discovery issues and the first thing he wanted to know was why, if they were having problems with Francis, the lawyers hadn’t brought it up with the magistrate at the time of the deposition. That had been one of Bateman’s arguments in his reply brief and his head rose and fell in exaggerated nods as the judge made that announcement.

Pontikes said even though Magistrate Allan Kornblum was supposed to be overseeing the deposition he was rarely in the room. A law clerk, she said, was there in Kornblum’s place and, a few times, they did call the magistrate in to settle some issue.

“Did you all at any point during these days stop the deposition, ask to talk to Judge Kornblum and ask, ‘Judge we’re having this problem, would you please rule so we can continue?’” Smoak asked Pontikes.

“Well, a lot of the objectionable material…”

“Did you all ever do that?”

“Well, your honor, we didn’t because a lot of the objectionable material came at the end of the deposition.”

“I didn’t order Francis to come from California just to get a pep talk. I mean, it was (in Gainesville) so that if there was misbehavior you all could seek the intervention of the magistrate judge. You all understood that didn’t you?”

“Yes we did, your honor, that process was not effective for Mr. Francis. We are here before you again, your honor, because Judge Kornblum couldn’t resolve this situation.”

“Did you all ever say, ‘Judge Kornblum we are getting unresponsive answers from Francis. Would you please rule and direct him to respond?’”

“During the middle of the first day, we called in Judge Kornblum and that’s when he gave the speech that defendants have excerpted into the second part of the motion.”

“The question was, did you specifically ask him to intervene and order that there be responsive answers?”

“We did not ask him to order anything, your honor. We did ask for assistance and the assistance we got was the law clerk coming in.”

Bateman, however, noted numerous comments from Kornblum that showed he thought Francis was cooperating with the attorneys and it was McCloy who was asking bad questions and not getting to the heart of the matter. Reading the deposition from that perspective, it looked as if McCloy was simply asking the questions he knew would anger Joe, make him lash out.

“I’m going to direct most of my remarks to Mr. McCloy,” Kornblum had said during the deposition. “You’ve got Mr. Francis here and I’m pleased to say that Mr. Francis is not being evasive; he’s not playing Mortimus Snerd. He’s paying attention, he’s into it and he’s answering questions. But I think you’re missing the opportunity to get to the heart of the case.”

Kornblum told McCoy that he was wasting time asking Francis about things that were already on record, like whether he was a convicted felon. And Francis was avoiding those questions. He kept insisting that he didn’t know what it meant to be a convicted felon and he didn’t think of himself as a felon.

“Mr. McCloy, it’s not my job to prevent lawyers from wasting their clients’ money and you can ask any questions you want,” Kornblum said. “What I am suggesting is you defer and get to Panama City and get that on the record while Mr. Francis is here; and then, if you wish to go back and spend the time and money to ask about the plea agreements, you’re perfectly free to do so. You’re free to do whatever you wish. I am not here to micromanage. But as an objective observer, and that’s what I am here; I really am the neutral, detached magistrate. And from an objective observer, my point is, I think at this point in time, you’re on the wrong track.”

Kornblum noted that Francis, who started his deposition in his normal combative mode, was far more cooperative as the two-day questioning continued. What Ponitkes cited in her motion were his answers from the first morning session. And, that morning, Joe left little doubt about his dislike of the lawyers questioning him.

“Do you make money with these videos?” McCloy asked Francis during the October 6, 2009 deposition.

“Do I make money selling DVDs and videos? Yes.”

“And you make a lot of money with it, don’t you? Do you make millions of dollars selling these DVDs?”

“Other than some you stole from me, I’m going to come back for.”

“Do you make millions of dollars off the sale …”

“Coming, coming.”

“Answer the question, Joe, please,” Bateman said.

“Do you make millions of dollars off the sale …”

“Coming.”

Dent complained to Smoak in the hearing that Joe wouldn’t even tell them how much money the DVDs had made for his company. He wouldn’t even say how much he was charging for the DVDs.

Smoak smiled as Bateman launched himself out of his seat and hovered in a crouch between sitting and standing. He teetered for a minute, wanting to say something, then sat back down.

“Don’t you know from late-night TV,” Smoak said, “that (the DVDs) are 19.95?”

Bateman nodded in such an exaggerated way he looked like he would hit his head off the table.

“They’re $19.95,” he said.

Dent said not all tapes are sold at the same price and it should be a matter of finding the right business record to say how many of the tapes were sold at what amount.

The point of questioning Francis, McCloy and Dent explained, was to ascertain his involvement in what they believed to be a conspiracy, a company policy, to record underage girls for inclusion in Girls Gone Wild videos. That involvement, and the conspiracy, were spelled out in court documents that Francis had signed.

“Mr. Francis and these companies knowingly and consistently, as a business practice, violate federal law for profit in producing pornography, including child pornography,” Dent told Smoak. “We need to show that. This wasn’t inadvertence. This was the business plan and we’re entitled to talk to Mr. Francis. He ran this company. He owns it. He founded it. He developed it. He’s the CEO and we’re entitled to truthful answers from him regarding that company’s operation.

“I think it is very relevant, the operation of the company, whether the girls were included inadvertently or whether this was part of the business plan. All of those things are relevant to the jury’s consideration, both in terms of actual liability, but also in terms of punitive damages. So, it is the details of the process, the details of Mantra’s operation and Joe Francis’ involvement in that operation that go to the very core of the evidence for us.”