BEATRICE — Charles W. Herbster’s legal team continued to resist a requested deposition Tuesday in the first court hearing of a dueling legal battle between Herbster and State Sen. Julie Slama.
The hearing, held at the Gage County courthouse in Beatrice, saw Johnson County District Judge Rick Schreiner consider five motions in the case. Schreiner made decisions on two motions, while three are still up in the air. Slama was present at the hearing, while Herbster did not attend.
Herbster filed a defamation lawsuit against the Dunbar senator in April after the Nebraska Examiner reported allegations from eight women who said Herbster — a Republican mega-donor and then-candidate for governor — had groped them in recent years. Slama was the only named accuser at the time.
Slama, a Republican state lawmaker, confirmed the account detailed in the April 14 Examiner story, which reported that Herbster reached up Slama’s dress without her consent and touched her inappropriately at the Douglas County Republican Party’s 2019 Elephant Remembers dinner.
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Slama answered Herbster’s lawsuit quickly and filed a counterclaim alleging sexual battery. Slama had given notice to depose Herbster on May 6, but Herbster opted not to attend.
His legal team filed a motion to quash the deposition notice and seek a protective order that would limit his deposition to “scheduling at a mutually convenient time.” It alleged the other side was playing politics by scheduling the deposition just ahead of the May 10 primary, which Herbster subsequently lost to Jim Pillen.
At the hearing, Schreiner asked Herbster’s attorney Theodore Boecker if Herbster would be able to attend a deposition now that the primary is over. Boecker did not answer the question directly, and instead criticized Slama’s legal team’s estimate that a deposition would take two days.
Though Herbster’s team denied that the alleged groping incident even occurred, Boecker pointed out that if it did, the incident would have only lasted seconds, which he argued was not worthy of a two-day deposition.
Marnie Jensen, one of Slama’s attorneys, argued that the motion to quash the deposition was moot because Herbster didn’t attend. Jensen encouraged Schreiner to either deny the motion or set it aside.
Schreiner overruled the motion from Herbster’s legal team, but a new deposition was not scheduled at the hearing.
Jensen said Slama’s team may seek sanctions against Herbster because of his absence at the May 6 deposition.
Schreiner heard arguments but ultimately held off on a decision regarding a separate motion seeking a protective order against Slama and her legal team for, in the words of Herbster’s attorneys, attempting to try the case in the press.
Boecker said Herbster’s legal team does not make statements to the press. He said involving the press in legal cases can be problematic, because it puts lawyers in the position of witnesses.
Jensen, however, argued that people on both sides of the case, including Herbster and Slama, have made public statements about the case. She said Slama is a public figure as a Nebraska lawmaker, which makes working with the press a necessity.
The hearing also addressed new evidence Herbster’s team submitted, which Schreiner is still considering. The evidence included copies of online documents, including a Tweet from Slama that showed the dress she wore when she was allegedly groped by Herbster, and emails and press releases from Dave Lopez, another one of Slama’s lawyers, about the incident.
Boecker said the evidence shows Slama and Lopez describing the incident as a sexual assault, which he claimed is defamatory language that is more extreme than the groping allegations.
“It’s gone beyond groping,” Boecker said.
Lopez argued that they have no way to authenticate the accuracy of the documents, and alleged some of them were altered. He said the new evidence is a “grossly inappropriate” effort by Herbster to get in the way of Slama’s choice of legal counsel.
Boecker responded by saying Lopez could have avoided having his words submitted as evidence by not issuing press releases.
The two legal teams also discussed multiple subpoena requests made by both sides during a private meeting supervised by Schreiner. Both sides have also issued objections to the other’s subpoenas. Though Lopez said “substantial progress” was made in this meeting, the issue has not been resolved. Lopez said both legal teams will continue to discuss possible subpoenas over the next few days.
Slama’s team has moved to subpoena documents from several people affiliated with Herbster: Kellyanne Conway, Corey Lewandowski, David Bossie, Emily Novotny, Ellen Keast and Michelle Keithley. Herbster’s lawyers filed documents in May showing their intent to subpoena a long list of documents and communications.
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