With trial only weeks away in a lawsuit accusing "Girls Gone Wild" mogul Joe Francis of sexually exploiting minors, the plaintiff with perhaps the strongest claim has admitted she appeared in two pornographic films despite her previous denials.

Joe Francis

What impact the admission of the plaintiff known only as “Plaintiff B” will have on the trial is as yet unclear. She apparently appeared in the films after employees of Francis videotaped her engaging in sexually explicit conduct with another minor female in March 2002.

But in a motion filed Jan. 11, Francis called the new evidence “damaging” and said the plaintiff's failure to disclose it earlier is part of “a disturbing pattern among the Plaintiffs and one that this court should not tolerate particularly since Defense counsel specifically requested such information over eight months ago in properly served discovery.”

Francis's lawyers questioned Plaintiff B at a deposition Jan. 20 but she apparently provided few details about the films. “[I]t appears ... that Defendants are seeking additional avenues to obtain the information Plaintiff B was unable to recall at her deposition,” U.S. Magistrate Judge Allan Kornblum noted in a Feb. 1 order.

Francis hasn't exactly been a model of discovery compliance himself. Earlier this month, U.S. District Judge Richard Smoak ordered him to pay $58,614 in plaintiffs' attorney fees and expenses for discovery violations.

Plaintiff B, now 25, is one of four minors who sued Francis in March 2008 for sexual abuse and exploitation. She performed for the popular “Girls Gone Wild” video series in a Panama City, Fla., hotel room during a spring break vacation, alleging in the complaint that she was coerced into mutual masturbation and sexual contact with a female friend.

While the video footage of the other plaintiffs shows them briefly exposing their breasts, the footage of Plaintiff B is more explicit and, according to the trial judge, “extremely lengthy,” making her claim for damages potentially the most expensive for Francis. He has previously pleaded guilty to criminal charges relating to her case.

According to a court document, Plaintiff B initially told the defense in May 2009 that she had only appeared in the mainstream films “Starsky and Hutch” and “Spider-Man 2” as an extra. But on Jan. 6 –- two days before the close of discovery –- plaintiffs' counsel advised the defense that

Plaintiffs’ counsel had just learned that one of the Plaintiffs has appeared in two pornographic films despite having denied this in depositions and responses to interrogatories.

Plaintiff B provided only this written response to the defense's request for additional information about the films:

PB believes she was videotaped on one or two separate occasions subsequent to the incident alleged by her in the Amended Complaint. She believes this included sexually explicit conduct. She does not know where the taping took place or who created the video. She does not have a copy of any such video and does not know who does have a copy.

In another brief, Francis said that response was insufficient, asking, “Did she get paid for these videos? By whom? Was she paid by check? Who signed the checks? Did she deposit them? Were others filmed with her. There must be something more she can tell us about these videotapes.”

Judge Smoak has scheduled a closed hearing later this week on a defense motion to admit evidence under a federal rule that allows evidence of a plaintiff's “past sexual behavior or alleged sexual predisposition” to be presented to a jury if its probative value outweighs any prejudice to the plaintiff. Trial in the case is set for Feb. 22.

Plaintiff B's lawyers could certainly argue that the films are not admissible because they were made after her “Girls Gone Wild” appearance.

On Feb. 5, a Los Angeles judge dismissed Francis's countersuit for defamation against a woman who has accused him of assaulting her during an altercation at a nightclub. He has settled other suits filed by “Girls Gone Wild” performers.

By Matthew Heller
2/10/10