Reality matters in Weinstein hearing
As Marie Henein put it, “What Disney is seeking to do is have this all dealt with in secret. We’re in a courtroom, where reality actually matters. We’re not in Disney.”
Thus did the formidable lawyer, usually seen in Canadian criminal courts but Monday on the civil side, describe the efforts of The Walt Disney Company to seal documents in a lawsuit launched by her client, an actress and model.
The $14-million lawsuit alleges that the woman, who can be identified only as Jane Doe, was twice sexually assaulted by film mogul Harvey Weinstein 18 years ago.
Then in her early 20s, Doe was working on her first movie, being filmed in and around Toronto. The suit alleges the assaults were “facilitated” by the wilful blindness of Disney and Miramax Film Corporation and by a woman, Barbara Schneeweiss, who was then a Miramax vice-president and who allegedly identified herself to Doe as Weinstein’s assistant.
None of the allegations has been proven in court, and in fact, lawyers for Weinstein, Miramax and Schneeweiss strongly deny them all in what are called statements of defence, while Disney wants to be removed entirely from the action as a defendant.
Lawyers for Disney say that Weinstein had “virtual autonomy” and that Disney was unaware of any complaints against him, lawsuits or settlements, least of all his alleged predatory conduct.
Until its motion to be removed from the record is heard in May, Disney wants documents that detail its employment relationship with Weinstein sealed.
The movie in which Doe had a small part was produced by Miramax, then a wholly owned subsidiary of Disney. Weinstein was cochairman of Miramax. Disney bought Miramax in 1993 for $60 million, selling it 17 years later for $663 million.
The companies haven’t just changed hands, but also names.
When it was owned by Disney Enterprises Inc., Miramax was known as Miramax Film Corp. Now the former is The Walt Disney Company, the latter is Miramax LLC.
As Disney’s lawyer, Tim Lowman, told Ontario Superior Court Master Priti Sugunasiri (a master is a judicial officer with the authority to hear civil court matters, including motions), Disney was not Weinstein’s employer, Miramax had “operating autonomy” and Disney is thus not liable.
Lowman said if Disney is forced to divulge the details of those old contracts, which date from 1993 to 1999, it would be breaching its own duties of confidentiality and potentially would open itself up to myriad claims alleging breach of contract.
To this, Henein snorted that Disney is seeking to protect “the interests of a company that no longer exists and stopped doing business many, many years ago … Walt Disney company could sue Walt Disney company and he’s (Lowman) worried about it?”
The leading Supreme Court of Canada case in this area dates from 2002 and is called Sierra Club v Canada.
It revolved around some documents that Atomic Energy of Canada Ltd., a Crown corporation, wanted to protect with a confidentiality order.
Indeed, the order was granted, but only over some highly technical documents.
As Henein said, “Mr. Weinstein and a nuclear facility have nothing in common other than their incendiary nature. Nothing warrants protection here.”
As matters stand now, it’s not just the public who can’t see the contracts, but also the other lawyers, like Henein, involved in the case. They have been provided only heavily redacted copies of the contracts.
And by providing those, Henein said, Disney has shown “it’s prepared to breach the confidentiality provisions as long as the breach helps them …. It’s not nuclear secrets they (Disney) wants to protect, it’s the true nature of how their relationship with Mr. Weinstein operated.”
Lawyers for Disney originally wanted even the discussion of the sealing order to be held in-camera Monday, and indeed, the lawyers did disappear into the master’s chambers for a short time.
But when they emerged, Sugunasiri told the court that “our process is open to the public” and that people would be able to sit and hear the arguments, and that the temporary sealing order on the documents issued last month by Ontario Superior Court Judge Todd Archibald would stand “until I make my ruling in May.”
Doe alleges that after the filming ended, Schneeweiss invited her to a breakfast meeting the next day at the old Sutton Place Hotel. Virtually as soon as it began, Doe says, Schneeweiss was dismissed and Weinstein overpowered her, pushed her onto the bed, took out his penis and, gesturing at it, said, “the best thing you could do for your career …”
After she fled, Doe alleges she saw Schneeweiss in the lobby, and, visibly distraught, made eye contact with her.
Schneeweiss adamantly denies that, saying she had never made eye contact with a visibly distraught woman “because there was never a time, while Schneeweiss was Weinstein’s executive assistant, that she ever regretted or felt ashamed” of having brought anyone to meet him.
Only last fall, when news media reported multiple allegations against Weinstein, did she learn of his allegedly predatory behaviour, she said.