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Utah judge slows PAC push to depose Evan McMullin in defamation suit

The judge called Club for Growth Action's rush to depose the U.S. Senate candidate premature since some of the defendants haven't even replied to McMullin's lawsuit.

(CN) — A Utah judge on Thursday shot down conservative political action committee Club for Growth Action’s bid to sever TV stations from a defamation lawsuit by Evan McMullin, who is running for a U.S. Senate seat in Utah.

Club for Growth filed its Rule 20 motion to sever on Oct. 4, three days after McMullin and his campaign, McMullin for Utah, sued the PAC and Scripps Media on defamation claims. McMullin accuses the defendants of running a political ad that distorts old audio and videos of McMullin to make it appear as though he accused all Republicans of being “racists” and “bigots.”

Defendants Fox 13, ABC 4 and KUTV 2 ran the ad as McMullin — running as an independent — hit the final stretch in his race against incumbent Republican Senator Mike Lee. The PAC's motion sought to sever Scripps’ news stations from the lawsuit to accelerate proceedings and push McMullin to sit for a deposition before the election.

“Because McMullin’s claims concerning CFGA involve important issues connected with the Nov. 8, 2022, election, the court should accelerate a resolution of the CFGA claims by immediately ordering a scheduling conference to bring the case to a rapid conclusion," the PAC said in the motion.

Club for Growth also argued the claims against Scripps raise various First Amendment and free press issues not presented by the initial complaint.

“It is clear the television stations will move to dismiss the complaint against them and will almost certainly succeed,” the PAC said in the motion. “But plaintiff McMullin does not appear to intend to move the case against the stations to a rapid conclusion, as he has not sought expedited treatment of his claims.”

As noted during Thursday's pretrial conference, Club for Growth filed its motion before McMullin could serve the complaint. Club for Growth also served its initial disclosures and notice of deposition of McMullin on Oct. 17, the date of his KSL-TV debate against Lee. Since the complaint, KSL opted to drop the ad.

McMullin's attorney Ryan Bell told Third Judicial District Court Judge Randall Skanchy the delay in serving the complaint was due to Club for Growth’s location in Washington, where they could only contact the company through its registered agent. Other defendants haven't had time to file replies to the complaint, so Bell said McMullin shouldn't be deposed.

“The intention appears to be that they simply want to rush this deposition to get more political wins, to score more political points after having cut a distorted and defamatory ad,” Bell said, accusing Club for Growth of trying to “flood the zone” to embarrass McMullin. Bell said that was evident given the PAC's lack of litigation-based rationale within its objection to statement of discovery issues and its motion to sever.

In the weeks leading up to the hearing, Club for Growth also ridiculed McMullin through various press releases for refusing to provide a deposition on demand. “No-show McMullin campaign still silent on deposition scheduling,” read one press release, while another announced additional advertisements highlighting McMullin’s past criticisms of the Republican party.

Bell also later addressed Club for Growth’s claims for the First Amendment protecting the news stations' broadcasts. “Everyone is protected under Article One of Utah's Constitution saying that everyone has the right of free expression and opinion, being responsible for abuse of that right," Bell said. "If the media defendants are held to have abused that right, they will also be liable, just as Club for Growth will be.”

Club for Growth’s attorney Brent Hatch accused McMullan and his lawyers of trying to reap political rewards of filing the lawsuit before the election without the “litigation consequences.”

“The very first thing they did wasn't to send this thing out to be served,” Hatch said. “It was for Mr. McMullen to tweet, apparently within minutes of filing, 'We just filed a lawsuit against Club for Growth’ and then he starts going after my client.”

The elephant in the room that Bell doesn’t address, Hatch said, is that McMullin’s team is using litigation as a “sword and shield.”

“A sword so they can go out and they can cut up their opponents with the imprimatur of the court, then a shield that we don't really have to answer for it in any reasonable time,” Hatch said, adding that if McMullin sued because the advertisement hurts his campaign, he ought to try to resolve the case before Election Day.

“If he doesn't want to go forward, then the court should invite him to dismiss his complaint and we'll all get on with our lives,” Hatch later said.

Judge Skanchy, appointed by then-Governor Michael O. Leavitt, ruled from the bench, stating the lawyers can talk about politics while he decides on how to follow rules of civil procedure.

“Based on argument in court, the court grants the motion for statement of discovery issues delaying the deposition of plaintiff McMullin,” Judge Skanchy wrote in his order. "The court denies the Rule 20 motion to server as it is premature at this time subject to all parties of record have been served and wish to respond. The motion may be renewed at a later date."

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