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Text messages, as most everyone knows, are subject to ediscovery, and pretty much everyone these days texts, including Hollywood mega stars. One Hollywood celeb, though, is probably wishing that he spent more of his cell phone time talking rather than texting, as his cell phone’s voluminous library of past text messages has become key evidence in two civil suits he’s engaged with. 

How “voluminous” and why “key evidence?”

And, wait a minute, which Hollywood mega star and what civil litigation?

Let’s start with Depp v. News Group Newspapers Ltd. & Anor (No. QB-2018-0062 in Royal Courts of Justice, London). Yes, Disney’s Caribbean pirate rogue Jack Sparrow—that Depp. And last week a U.K. judge let his libel suit against the publishers of tabloid newspaper The Sun proceed despite earlier finding that Johnny had breached a disclosure order to turn over text messages that had been subject to ediscovery in his other lawsuit, Depp v Heard (No. 2019-02911 in the Circuit Court of Fairfax County, Va.). Heard, as in actress Amber Heard, with whom he endured a tumultuous marriage and divorce worthy of nonstop tabloid coverage. And whom he is also suing for libel.

The libel claims allege that The Sun ruined the actor’s reputation by falsely reporting that he had committed multiple acts of unprovoked physical violence against his then wife, with a similar defamation claim in the U.S. against Heard for publishing similar allegations in a Washington Post opinion piece. So much for the couple’s divorce settlement statement declaring mutual love and respect.     

Disclosure Breach a “Mis-judgement”

Anyhow, the Sun’s lawyers believed the breach was worthy of sanction and dismissal of the case, but the judge determined that while Johnny obviously failed to comply with disclosure, the breach was not so much deliberate as it was a “mis-judgement.” Besides, the judge intimated in denying the defense motion for dismissal, the trial is about to proceed and the defense now has access to the text messages at issue. 

In fact, the judge seemed to make a point of disclosing many of the most interesting text messages in his earlier finding that Johnny had breached the disclosure. In particular, the judge referenced over a dozen of more than 100 text messages between Johnny and his “assistant,” during the week-or-so-period that the alleged assaults at the heart of the libel cases are said to have occurred. The assistant’s only job, it appears, was to procure illegal recreational stimulants and psychedelics for the actor. And this, the judge determined, is relevant to the defendant’s defense.

A Bit of Accidental Discovery to Bolster the Defense

If the actor is so concerned about his reputation, the 100 or so text messages between him and his assistant suggest that his texting proclivity may serve to self-besmirch it as much as allegations of domestic assault. It is unclear how many other text messages included in the Virginia case ediscovery were turned over to the Sun’s defense team, but it was already in possession of 70,000 of the actor’s text messages. You see, Johnny’s former legal team had accidently transmitted the archive to the defense earlier in the discovery proceedings. And some of those text messages definitely serve as a further slight to the actor’s reputation and likely bolster the defense. Consider that one text graphically describes different ways to kill Amber Heard, with a grand finale of necrophilia to “make sure she’s dead.”      

From what I can tell, Amber’s legal team has not sought cross-border ediscovery of those 70,000 text messages, but perhaps they don’t have to, as the most relevant appear to already be part of the public record.  

About the Author:

M.J. Moye

M.J. Moye

M.J. Moye is a demographics researcher and freelance writer. His interest in law was spurred by covering two Supreme Court cases and other legal issues during his stint as a Washington, DC journalist. In addition to Now Discovery, he currently provides on-call writing services to several lawyers. When not counting people or writing, he spends his time sailing the beautiful waters of Nova Scotia.

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