from the and-reporters dept
David Boies is one of the highest profile lawyers in the country. I first became aware of him when he (as outside counsel) represented the Justice Department in the overreaching antitrust case against Microsoft in the 1990s. However, I think most people became aware of him when he represented Al Gore in Bush v. Gore. Since then, nearly every time he’s popped up in Techdirt, it’s been doing really, really sketchy things. He was the lawyer for SCO in that company’s insane “set open source on fire” lawsuit against IBM over Linux. He represented Oracle in its ridiculous lawsuit against Google over whether APIs are covered by copyright*. He represented Sony Pictures after its email was hacked and threatened lots of journalists — including us! — for publishing stories based on those leaked emails (we told him “go pound sand.”) And, honestly, until earlier this week, I thought the most egregious efforts by Boies had been his connection to Theranos, the disgraced medical devices company, where Boies wasn’t just a lawyer for the company, but on the board, and participated in terrible and far-reaching attempts to punish whistleblowers at the company.
But, it turns out that Boies’ activity in trying to stifle whistlebowers and reporters regarding Theranos and Sony Pictures were just the warm up act for a truly horrifying bit of business revealed by Ronan Farrow in the New Yorker this week. It was widely reported that Boies was a key player on Harvey Weinstein’s legal team, responding to the claims of sexual harassment and assault, but the Farrow article shows just how deep the campaign went, with Boies allegedly orchestrating an “army of spies” to try to trick Weinstein’s accusers and reporters working on the story to reveal what they knew. The whole article is incredible, but here’s just a snippet, involving one of Weinstein’s most outspoken victims, Rose McGowan:
In May, 2017, McGowan received an e-mail from a literary agency introducing her to a woman who identified herself as Diana Filip, the deputy head of sustainable and responsible investments at Reuben Capital Partners, a London-based wealth-management firm. Filip told McGowan that she was launching an initiative to combat discrimination against women in the workplace, and asked McGowan, a vocal women?s-rights advocate, to speak at a gala kickoff event later that year. Filip offered McGowan a fee of sixty thousand dollars. ?I understand that we have a lot in common,? Filip wrote to McGowan before their first meeting, in May, at the Peninsula Hotel in Beverly Hills. Filip had a U.K. cell-phone number, and she spoke with what McGowan took to be a German accent. Over the following months, the two women met at least three more times at hotel bars in Los Angeles and New York and other locations. ?I took her to the Venice boardwalk and we had ice cream while we strolled,? McGowan told me, adding that Filip was ?very kind.? The two talked at length about issues relating to women?s empowerment. Filip also repeatedly told McGowan that she wanted to make a significant investment in McGowan?s production company.
Filip was persistent. In one e-mail, she suggested meeting in Los Angeles and then, when McGowan said she would be in New York, Filip said she could meet there just as easily. She also began pressing McGowan for information. In a conversation in July, McGowan revealed to Filip that she had spoken to me as part of my reporting on Weinstein. A week later, I received an e-mail from Filip asking for a meeting and suggesting that I join her campaign to end professional discrimination against women. ?I am very impressed with your work as a male advocate for gender equality, and believe that you would make an invaluable addition to our activities,? she wrote, using her wealth-management firm?s e-mail address. Unsure of who she was, I did not respond.
Filip continued to meet with McGowan. In one meeting in September, Filip was joined by another Black Cube operative, who used the name Paul and claimed to be a colleague at Reuben Capital Partners. The goal, according to two sources with knowledge of the effort, was to pass McGowan to another operative to extract more information. On October 10th, the day The New Yorker published my story about Weinstein, Filip reached out to McGowan in an e-mail. ?Hi Love,? she wrote. ?How are you feeling? . . . Just wanted to tell you how brave I think you are.? She signed off with an ?xx.? Filip e-mailed McGowan as recently as October 23rd.
In fact, ?Diana Filip? was an alias for a former officer in the Israeli Defense Forces who originally hailed from Eastern Europe and was working for Black Cube, according to three individuals with knowledge of the situation. When I sent McGowan photos of the Black Cube agent, she recognized her instantly. ?Oh my God,? she wrote back. ?Reuben Capital. Diana Filip. No fucking way.?
And, yes, apparently it was Boies who signed the contract that made all this possible:
Boies personally signed the contract directing Black Cube to attempt to uncover information that would stop the publication of a Times story about Weinstein?s abuses….
Oh, and the latter part of that sentence is fairly stunning as well:
… while his firm was also representing the Times, including in a libel case.
That seems like a pretty massive conflict of interest, which Boies denied:
Boies confirmed that his firm contracted with and paid two of the agencies and that investigators from one of them sent him reports, which were then passed on to Weinstein. He said that he did not select the firms or direct the investigators? work. He also denied that the work regarding the Times story represented a conflict of interest.
You know who did think it was a pretty bad conflict of interest? The NY Times. Boy, was the NY Times pissed off:
We learned today that the law firm of Boies Schiller and Flexner secretly worked to stop our reporting on Harvey Weinstein at the same time as the firm’s lawyers were representing us in other matters. We consider this intolerable conduct, a grave betrayal of trust, and a breach of the basic professional standards that all lawyers are required to observe. It is inexcusable and we will be pursuing appropriate remedies.
And, by Tuesday night the Times had fired Boies:
Like other large firms, the Boies firm asked us to waive certain conflicts in advance. We understood that to mean that it could openly bring actions that may be adverse to our interests and we would be free to terminate our relationship with the firm if we felt the new representation posed a serious conflict. We never contemplated that the law firm would contract with an intelligence firm to conduct a secret spying operation aimed at our reporting and our reporters. Such an operation is reprehensible, and the Boies firm must have known that its existence would have been material in our decision whether to continue using the firm. Whatever legalistic arguments and justifications can be made, we should have been treated better by a firm that we trusted.
Boies is now trying to salvage his reputation by apologizing:
?I regret having done this. It was a mistake to contract with, and pay on behalf of a client, investigators who we did not select and did not control. I would never knowingly participate in an effort to intimidate or silence women or anyone else, including the conduct described in the New Yorker article. That is not who I am.?
Let’s be clear though: this is absolute bullshit by David Boies. It is who he is. Again, he’s threatened plenty of media properties in the past — including us — with bogus threats attempting to stifle a free press and to intimidate reporters into not covering his big name clients. He did it with Theranos. He did it with Sony Pictures. And it certainly appears that he did much more than that for Harvey Weinstein under significantly more shocking circumstances.
So isn’t it about time that people took Boies down off the pedestal he’s been on for many years? He may be famous, but he’s been doing horrible things for the rich and powerful, often attacking and threatening a free press for years. Hiring spies for Harvey Weinstein is just the latest — and perhaps most horrific — example.
* Boies “representation” of Oracle in that case resulted in what remains a truly classic benchslap from Judge William Alsup for Boies making downright silly claims about programming.
JUDGE ALSUP: All right. I have — I was not good — I couldn’t have told you the first thing about Java before this trial. But, I have done and still do a lot of programming myself in other languages. I have written blocks of code like rangeCheck a hundred times or more. I could do it. You could do it. It is so simple. The idea that somebody copied that in order to get to market faster, when it would be just as fast to write it out, it was an accident that that thing got in there. There was no way that you could say that that was speeding them along to the marketplace. That is not a good argument.
MR. BOIES: Your Honor —
JUDGE ALSUP: You’re one of the best lawyers in America. How can you even make that argument? You know, maybe the answer is because you are so good it sounds legit. But it is not legit. That is not a good argument.
MR. BOIES: Your Honor, let me approach it this way, first, okay. I want to come back to rangeCheck. All right.
JUDGE ALSUP: RangeCheck. All it does is it makes sure that the numbers you’re inputting are within a range. And if they’re not, they give it some kind of exceptional treatment. It is so — that witness, when he said a high school student would do this, is absolutely right.
MR. BOIES: He didn’t say a high school student would do it in an hour, all right.
JUDGE ALSUP: Less than — in five minutes, Mr. Boies.
MR. BOIES: Well, Your Honor —
JUDGE ALSUP: If you know the language. Once you know the language, it is a five-minute proposition.
And, on an additional note, if you haven’t yet, you should read Sarah Jeong’s absolutely delightful profile of Judge Alsup and his coding hobby.
Filed Under: david boies, free press, harvey weinstein, intimidating the press, reporters, spying, squelching stories
Companies: black cube, ny times