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Tuesday, April 16, 2024
The Observer

Kay vs. Irish Rover: Court grants more time for discovery, sets hearing for November

Tamara Kay, the sociology and global affairs professor suing The Irish Rover publication, and her legal team will have more time to prepare for a Nov. 29 hearing, according to a court order issued last Thursday.

After a legal skirmish over briefing deadlines, a judge granted Kay’s legal counsel and The Irish Rover more time for discovery, the formal process of exchanging information between parties, following a hearing last Wednesday.

When Kay filed complaints of defamation against The Irish Rover student newspaper in May, the Rover’s legal counsel filed a motion in July to dismiss the case under Indiana’s anti-SLAPP Law, which is designed to protect First Amendment rights.

Kay’s legal team asked for an additional 30 days, through Sept. 11, to respond to the Rover’s motion to dismiss. The Friday before that deadline, Kay’s legal counsel filed a motion to stay, or pause, briefing deadlines. The Rover’s defense objected to the motion and Wednesday’s hearing addressed the matter.

The hearing included debate over Indiana trial rules, as The Irish Rover’s attorney, James Bopp, argued that Kay should have already filed an affidavit and that the court has no discretion to grant the plaintiff additional time for discovery.

Kay filed the original civil suit in response to two articles published by the Rover in October 2022 and March 2023. The first article said Kay was offering abortion access to students and the second article quoted Kay speaking on a Notre Dame College Democrats panel. Kay claims both articles contained defamatory information.

The initial hearing regarding the motion to dismiss was originally scheduled for Sept. 27, but that hearing was then allocated to hear Kay’s motion to stay that requested more time for discovery.

During the Sept. 27 hearing, Kay’s legal counsel, Kimberly Jeselskis, argued for more time due to an illness in her family. Jeselskis was retained as Kay’s counsel on Aug. 2. Shortly thereafter, she said her mother’s cancer treatments and other casework prevented her from looking into Kay’s case.

“The first time I had a chance to sit down and start digging into this matter was the last week of August. Then there was the holiday. I had another medical appointment to attend to with my mother regarding her chemotherapy regimen,” Jeselskis said. “I can’t probe factual issues without taking depositions of the authors of the articles and at least doing some sort of limited discovery and that’s why the motion to stay was filed.”

The Rover’s legal team argued for dismissal of the case, pointing to the failure of Kay’s legal team to file for discovery when they could have. Bopp also argued that his clients are full-time students.

The court agreed that Kay and her legal counsel could have conducted discovery at any point after the motion to dismiss was filed in July. Although Kay and her legal team were mistaken that they needed a court order for discovery, the court allowed more time because of Jeselskis’ “unawareness” of the motion for summary judgment and “because she was caring for her cancer-stricken mother while managing a busy caseload,” according to the Sept. 28 order.

Judge Cristal Brisco of St. Joseph Superior Court treated the motion to stay as a motion for alteration of time because Kay’s counsel was unaware of the motion for summary judgment required by Indiana’s anti-SLAPP law and faced other personal obstacles. Brisco exercised a provision that allows the court to alter time limits for cause, according to Indiana Trial Rule 56I.

Both sides will have the opportunity to conduct discovery, including up to 15 requests for production, five interrogatories, five requests for admissions and three depositions. Kay’s legal team plans to depose and question the two authors of the two articles named in the defamation complaint. The Irish Rover plans to depose and question Tamara Kay and ask her to produce emails sent about the signs and the letter “J” on her door. Discovery must be completed by Oct. 27, according to the order.

Over the next two month, both parties will collect more evidence through discovery and file briefs to prepare for a Nov. 29 hearing on The Irish Rover’s motion to dismiss. The court will then issue a ruling by early January, within the deadlines set forth in the anti-SLAPP law. To prevent a dismissal in that hearing, Kay and her legal counsel will have to prove there is a probability they will prevail in the suit.