Tuesday, September 29, 2009

How To Bury Acorn

At long last, it has become public knowledge that Association of Community Organizations for Reform Now (“ACORN”) is liberal-protected, taxpayer-money grubbing, insidiously destructive of democracy, and a tool of the worst political elements in America--and has friends in very high places.

The chutzpa shown by this corrupt tax-exempt organization almost defies comprehension, including most recently its “how can this have happened?” reaction to the fearless “pimp/prostitute” undercover reporting by James E. O’Keefe, III and Hannah Giles.

A further measure of how out of touch with reality ACORN is, and apparently its advisors as well, is the ill-conceived, indeed potentially suicidal, lawsuit commenced last week by the organization in a Maryland court against O’Keefe and Giles (and Andrew Breitbart).

If the defendants play their cards right, they can not only successfully defend the case, but in the process dig deep into ACORN’s bowels and expose not only the corruption that’s long been there but also all those who have aided and abetted it.

The defendants must do two things, but not do two others.

First, within their legal defense structure they must set up a “discovery team” whose sole task will be to obtain as much open-source factual data about ACORN and on the basis of that information employ the three “discovery” tools provided by Maryland law: (1) notices/subpoena’s to produce documents and other materials, (2) depositions, and (3) requests for admissions. That team should consist of lawyers not responsible for other aspects of the case.

Obtainable by (1) is virtually everything in ACORN’s possession or under its control. All the defendants have to do is ask for it, and then the burden shifts to ACORN to convince a judge to issue a “protective” order as to some of what has been sought. This is not easy.

As to (2), depositions can be taken of not just the plaintiffs (ACORN, the organization, and the two employees who were filmed), but of anyone else, and need not be limited to obtaining actual evidence. Depositions may be sought in aid of obtaining information which, in turn, might lead to actual evidence.

Upon receipt of requests for admissions, the plaintiffs can (a) admit, (b) deny, or (c) claim they lack sufficient information to do either. No matter what they do, the result is to further lock in facts.

Second, the defendants must counterclaim—not simply defend. They must make the litigation a two-way street, rather than leave it as a one-way street. If they do the latter, ACORN cannot lose—all they can do is not win, which is not the same thing as losing (spending money on losing is not losing; ACORN has plenty of money). In other words, the defendants through a counterclaim must give ACORN something to lose beyond the disclosures the former can obtain if they simply defend. Such counterclaims are available, though I will not mention them here.

As important as these two tactics are, equally important are the two things the defendants should not do.

First, even though the Maryland statutes under which ACORN has sued are not applicable to what O’Keefe and Giles did, the defendants should not move to dismiss the case either for failure to state a claim or, too soon, because they are entitled to summary judgment—even though prevailing on either motion would end the case in the defendants' favor. The object should be to keep ACORN in court as long as possible, and to obtain as much discovery as the law allows.

Second, for the same reason, the defendants should not invoke the Maryland “SLAPP” statute (for an explanation, Google "Maryland" and "SLAPP"). Also, that statute is largely untested and lacks clarity as written.

ACORN has handed not just the three defendants, but the entire American public, a golden opportunity to pull back the curtain which until now has hidden that organization’s malevolent plot to usurp taxpayer money, move forward the leftwing agenda, and in the process undermine our democracy.

That gift should not be squandered by cold feet or a mishandled defense.