Soft porn mogul Joe Francis' disruptive antics in a deposition described by a judge as a “waste of time and money” almost resulted in plaintiffs winning a default judgment against him in a lawsuit that alleges he sexually exploited minors.

Joe Francis

After Francis was sentenced in 2007 to 35 days in jail for yelling obscenities during a mediation in an earlier case, his attorney at the time said he had “changed from someone who was disdainful of the system to someone who recognizes that he has to play by the same rules as the rest of us. He has put a lot of this foolish behavior behind him.”

Evidently not -– judging by his behavior when questioned April 22 by counsel for four plaintiffs who, in a proposed class action filed in March 2008, allege he sexually exploited them “by filming them exposing their breasts and and/or engaging in sexually explicit conduct” for videos in his popular “Girls Gone Wild” series.

According to a magistrate judge's report, Francis arrived an hour late for the deposition and, over the next four hours, repeatedly asserted his Fifth Amendment rights even though a judge had previously found he had waived them.

Another Francis tactic, U.S. Magistrate Judge Allan Kornblum noted, was “pretend[ing] not to know the meaning of common words to avoid a straight answer.” A typical exchange with plaintiffs' counsel went as follows:

Q. Have you ever been convicted of a felony?
A. I don’t understand what that means.
...
Q. You don’t understand what being a convicted felon is?
A. No. Can you explain it to me?
Q. Did you serve any time in jail?
A. What do you mean “serve”?
...
Q. Do you know what a prisoner is?
A. No.
Q. Do you know what a cellmate is in jail?
A. No.
Q. Do you know what a jail is?
A. Sort of.

Excerpts from the deposition also show Francis insulted and taunted plaintiffs' counsel. Asked about paying two teenage girls to masturbate him, he said it was “disgusting and laughable that you would be accusing a man like me of such disgusting allegations ... a man of my integrity.”

Had he ever paid girls to masturbate him, he was asked? “Do you?” he replied.

Even the efforts of his attorney, Frederick J. Bateman, to restrain him were unavailing. Bateman succeeded two previous defense lawyers, only agreeing to take the case after Francis agreed to honor “the conduct requirements, the ethics requirements and the procedural requirements for moving this matter to trial.”

After plaintiffs' counsel decided to terminate the deposition, Francis -– perhaps flashing back to his work on “Girls Gone Wild” videos -- took the camera from the court videographer and began filming one of the plaintiffs' attorneys, Rachael G. Pontikes.

Kornblum recommended June 11 that the plaintiffs' motion for a default judgment should be granted. “It is obvious from Mr. Francis’ obstructionist posture at his deposition that his third set of attorneys can not or will not get his cooperation in the prosecution of this lawsuit despite clear warning from this Court that continued past practices will result in entry of a default judgment,” he said.

Francis got a reprieve, though, as U.S. District Judge Richard Smoak deferred ruling on the magistrate's recommendation pending the taking of another deposition. "I find that the deposition taken of Defendant Francis, on April 22, 2009, was a waste of time and money and will be retaken” after the completion of his criminal trial on tax evasion charges in California, he said.

Smoak's restraint is surprising since he is the very same judge who jailed Francis for contempt and whom Francis once described as a “judge gone wild.”

A Las Vegas judge recently ordered Francis to pay a $2 million gambling debt to a casino resort, finding he improperly asserted his Fifth Amendment rights in a deposition. According to attorneys for Wynn Las Vegas, he also made "repeated attempts to disrupt the deposition with flatulence."

In the mediation that resulted in his jailing, Francis arrived four hours late, put his bare, dirty feet on the table and yelled repeatedly at plaintiffs' counsel, “Don't expect to get a fucking dime -– not one fucking dime!” The case eventually settled.

By Matthew Heller
8/20/09