By: Kathryn Barber
Reality television fans who question whether the drama they see on the screen is actually real or not can now be assured that The Real Housewives of Beverly Hills franchise has at least some truth behind it. The show stars several rich and glamorous “housewives” who engage in trivial drama such as who threw the most lavish party of the season or who wore last season’s Louis Vuitton shoes. However, the drama this season centered around the embezzlement scandal between cast member Erika Jayne and her estranged husband Tom Girardi, who is a former attorney. While Girardi is facing civil and criminal charges, Jayne alone has already been named in a half-dozen civil lawsuits. While aired footage of Jayne this season has already been used in the suits filed against her, Attorney Jay Edelson recently issued a subpoena to Bravo network, asking it to hand over unaired footage of Jayne claiming it relates to the suits filed against her. However, Jayne’s lawyer, Evan Borges, says he has not seen the subpoena yet and has characterized the move as a “fishing expedition.” Borges claims there is nothing to this footage that will help the plaintiffs’ case against Jayne.
One month before Girardi was first accused of embezzling $2 million from plane crash victims, Jayne filed for divorce after twenty years of marriage, which she told her fellow castmates was “a long time coming.” However, there are accusations that Girardi and Jayne divorced in order to protect their money and assets. After the first claim against Girardi arose, others soon followed. Many include claims that Girardi has never turned over settlement money to his clients with one client still waiting on $11 million. The bankruptcy trustee has now reported that at least $24 million for clients may have misappropriated. Now that the suit is ongoing, it has also been revealed that Girardi’s firm may have paid up to $25 million to Jayne’s entertainment company, EJ Global, LLC. Jayne’s lawyers are claiming that she had no knowledge of Girardi’s wrongdoings nor did she know how he handled his law firm’s finances and she is therefore not liable for any of those transactions.
However, Edelson still filed a motion in the bankruptcy proceeding to go after Jayne for any “traceable assets that were embezzled by Tom and potentially given to Erika.” Edelson then submitted the subpoena to Bravo network in order to obtain the unaired footage of Jayne during the season. It seems that Borges will want to contest the subpoena as he stated that he has provided all relevant bank account and financial information in Jayne’s possession. Borges also stated that there is only a small amount of additional information he needs to provide to the trustee which will show that Jayne’s divorce filing was for legitimate purposes.
Under the Federal Rules of Civil Procedure, Rule 45 allows parties to request subpoenas on persons. These subpoenas can command each person to produce electronically stored information. Bravo thus has a limited amount of time to comply with the subpoena or they can object to the command before the specified reply time or within fourteen days after the subpoena is served. Edelson believes that Bravo is protecting Jayne by not airing certain footage and also criticizes the television network for using the embezzlement scandal to increase its ratings and make money for the network.
Bravo’s next steps are either to comply with the subpoena, object to the subpoena under Rule 45(d)(2)(B), or attempt to quash or modify the subpoena under Rule 45(d)(3). However, it will be difficult for the television network to make either of these arguments and it will most likely have to hand over the footage. But this also calls into question whether other cast members of The Real Housewives of Beverly Hills will be impacted by the release of unaired footage. For example, castmate Lisa Rinna has come forward to say that Jayne got involved in a “screaming fight” with producers over footage already. The footage in question was of Jayne having a private conversation that was picked up by production on the mics, but was cut from the aired footage. In footage that made the air, another cast member brought up this private conversation. The unaired footage that Edelson is seeking could very well implicate castmates as witnesses. Some castmates even revealed that production talked to the housewives about the possibility of being implicated when the news first broke of Girardi and Jayne, although production said they would not stop filming.
Edelson asking for unaired footage may confuse viewers as there is already aired footage of Jayne being used in court. Well, Edelson may understand that aired footage of reality television is so highly edited and fabricated that it can be deceiving and actually be untruthful at the end of the day. There have been instances where judges have dismissed evidence of reality television in court having found the evidence to be unreliable. This is probably a big reason as to why Edelson wants to obtain unaired footage. This footage would be unedited and would show what really is going on behind the scenes. Using reality television in court is a gamble, and Edelson is making the right decision to go after unaired and unedited footage to make his case.
Courts continue to struggle to determine how “real” reality television actually is and how impactful and reliable the footage is in court. The complicated relationship between courts and evidence including reality television will continue to be explored as reality television continues to maintain its popularity over scripted shows. The legal system needs to create rules and regulations on how to treat reality television as evidence. Courts have already set the precedent that social media needs to be “authenticated” before a judge may consider the post to be admissible. Although some states differ on how to authenticate a social media post, it usually requires a lawyer to show that the alleged wrongdoer owns the account and wrote the post, and that the version the court is seeing accurately reflects what appeared on the social media site.
If reality television is to be used in court, it needs to be treated similarly to social media to ensure what the court is seeing is accurate. Until courts determine how to authenticate reality television, lawyers like Edelson will continue the practice of asking for unedited footage to ensure the evidence being presented is reliable and truthful.
Student Bio: Kathryn Barber is a second-year law student at Suffolk University Law School. She is a staffer on the Journal of High Technology Law. Kathryn received a Bachelor of Arts Degree in Political Science from Clark University.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
