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David Boies Under Fire For 'Slut-Shaming'

Did Boies cross a line with his litigation tactics?

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David Boies

Lawyers enjoy having a variety of tools at their disposal when pursuing their client’s legal interests — no matter what surprises opposing counsel may have, they want to have the perfect response, just raring to go. But what happens when a prominent lawyer takes the well-worn concept of a “zealous” defense too far and takes actions that, while not illegal, are a bit… unsavory?

Sheelah Kolhatkar of The New Yorker takes an in-depth look at the concept of runaway representation in the litigation strategy deployed by David Boies and Boies Schiller and Flexner in a case about literary plagiarism. It began when novelist Emma Cline released her first book, “The Girls.” Shortly after publication, Cline and her publisher, Random House, received a letter from BSF lawyers, including Boies himself, alleging Cline stole parts of The Girls from an ex-boyfriend.

BSF represents Chaz Reetz-Laiolo, who is Cline’s ex, and two former female friends. And in the initial letter to Cline, BSF alleges Cline had spyware installed on her own computer but their clients used Cline’s computer which improperly gave her access to her then-boyfriend’s and friends’ email and personal information.

In their response, Cline’s attorneys indicated Reetz-Laiolo, who is 13 years older, was emotionally and physically abusive and the spyware was installed to see if he was cheating on her. From there, the discussion continued, and at one point in the process BSF sent Cline and her attorneys a draft complaint, should the negotiations breakdown. According to Kolhatkar, it is the contents of that draft complaint that are problematic:

Reading through the allegations, Cline was stunned to find a section titled “Cline’s History of Manipulating Older Men,” which purported to illustrate how Boies Schiller would easily discredit her arguments about her former boyfriend’s treatment of her before a jury. “[E]vidence shows that Cline was not the innocent and inexperienced naïf she portrayed herself to be, and had instead for many years maintained numerous ‘relations’ with older men and others, from whom she extracted gifts and money,” the section began. What followed were thirteen pages containing screenshots of explicit chat conversations with lovers, including one in which Cline had sent a naked photo of herself (the photo was blacked out in the letter) to a boyfriend, explicit banter with people she’d met online, and snippets of her most intimate diary entries. All of this material had been recorded by the spyware and remained on Cline’s old laptop, which Reetz-Laiolo now had in his possession.

Remember the root of the legal conflict is a claim of plagiarism, with the nature of the relationship between Cline and Reetz-Laiolo playing a role. But whether Cline had “engaged in random sexual encounters with strangers she met on Craigslist” or “frequently participated in sexual chat groups in which she, inter alia, posted pornographic ‘selfies’” or “authored pornographic ‘stories,’” is pretty much irrelevant to the instant case.

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Zealous representation to one side, Cline’s attorneys see an ulterior motive in including such scandalous revelations in a draft complaint:

“I’m not going to speculate about their motives, but it was content that was completely inappropriate and ludicrous, just based on how sexually graphic it was, to put in a complaint,” Carrie Goldberg, who specializes in representing victims of revenge porn and other forms of harassment, and is one of several attorneys representing Cline in the case, told me. “Legal complaints are public record, and, basically, they’re saying, ‘Hey, if you don’t give us what our client wants, we’re going to put this very personal information out into the open, and the whole world is going to know the inner workings of your sex life and your sexual history and every proclivity that you have.’ ”

BSF partner Ted Normand responds that including the risqué material was a necessary part of their defense after Cline’s legal team raised questions of Reetz-Liaolo’s character:

“[H]er lawyer tried to excuse the inexcusable by raising aspects of the parties’ sexual history,” Edward Normand, the lead lawyer on Reetz-Liaolo’s team, said in a statement. “Only then did we respond, as lawyers must, describing why her claimed defense was inconsistent with the relevant facts.”

But Cline’s attorney, Carrie Goldberg, still saw something more insidious in the inclusions of such salacious material in the draft complaint. She even called out David Boies himself on the issue, who was personally involved in the case:

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During the sole in-person negotiation discussion between Cline’s attorneys and Boies Schiller, Goldberg explained the concept of “slut-shaming” to David Boies, who, according to Goldberg, claimed to be unfamiliar with it.

Cline herself spoke to The New Yorker about the violation she felt after such personal details were mined for strategic advantage in litigation:

“I never, in any scenario, could have imagined publishing a novel would have resulted in a bunch of lawyers combing through records of my porn habits, or choosing which naked photo of me to include in a legal document. Whatever independence I gained, as a writer and as a person, felt meaningless in the face of this kind of onslaught.”

As one might imagine, with such raised stakes on both sides, a compromise was impossible to reach, and last week both sides filed a complaint against the other party alleging wrongdoing. But since that inflammatory draft complaint was sent, a few things have changed.

Multiple allegations of sexual harassment and assault against Hollywood mogul — and former BSF client — Harvey Weinstein have been made. What’s followed can only be described as an onslaught of allegations against powerful men who have used their positions and money to prey on women, and a corresponding plea to believe the women who make these accusations. What has also come to light is David Boies’s role in perpetuating the cone of silence around Weinstein. On behalf of Weinstein, he hired a private investigation firm that dug into the private lives of women who might speak out against the producer and worked to kill any media reports about the sexual assault allegations. He has been — rightly — criticized for these actions and issued a mea culpa that included this statement: “I would never knowingly participate in an effort to intimidate or silence women or anyone else…. That is not who I am.”

When BSF filed their complaint against Cline last week, David Boies was no longer listed as an attorney for Reetz-Liaolo. And, notably, the section of the complaint about Cline’s sexual history was no longer there. BSF says it was removed as a “gesture of good faith,” but I suppose it was no longer strictly necessary for the “zealous” defense of their client’s interests.

headshotKathryn Rubino is an editor at Above the Law. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

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