Emails shed new light on A.G. Swallow's relationship with indicted businessman Johnson
By law, the defense may depose, or cross-examine witnesses in civil litigation prior to trial. In criminal cases, however, defendants are entitled only to statements or interview transcripts provided by the government prior to a witness taking the stand.
Seeking a deposition
Thursday’s filing sets the stage for a Monday hearing in the Nevada Civil Court before Judge Miranda Du, who will hear arguments based on an emergency motion to stop discovery filed by the government April 15th. The government motion asks the court to halt depositions, except as it relates to ongoing seizure of defendants’ assets, until after the criminal proceedings in Utah have played out.
If Du decides to rule during the hearing and grant the government’s motion to stay discovery, Swallow, and all other witnesses Johnson and his co-defendants hope to depose, will be off limits and the civil case will effectively be indefinitely halted.
In the April 15th emergency motion, the government argues that allowing depositions to go forward “ would wreak havoc with the government’s criminal case. ... The public interest in protecting sensitive information gathered during the ongoing criminal investigation and prosecution outweighs any prejudice that a stay of discovery might impose on the civil parties.”
Utah attorney Karra Porter disagrees.
“It’s hard to shock a lawyer but this comes really close,” she says.
Porter has taken on the iWorks defense in the civil case. Her firm Christensen & Jensen, PC has defended several high-profile cases and is representing iWorks and its related entities on a partial contingency basis, as the company’s assets are frozen.
She does not represent Johnson individually, but her firm filed a separate response to the government’s motion on behalf of iWorks.
“How does merely questioning a witness with lawyers present and a court accessible by telephone interfere with anything?” Porter asks in a May 2nd filing.
From her Salt Lake office, she declined to discuss the criminal case but said halting the civil proceedings now would put her clients at a significant disadvantage. The government has already done the bulk of their discovery, she maintains, while the defendants were just getting started.
“There was apparently no concern when it was the FTC taking depositions it’s only when we start taking depositions, ‘Oh, now there’s a problem, now we need to shut it down’,” she said.
"Due process means a fair and timely day in court. ... We're anxious to show our guys are not bad guys. A lot of what people are hearing just isn't true," she said.
Neither the FTC nor the U.S. Attorney’s office of Nevada would comment on the specific case.
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