Will Brett Favre Have To Discuss His Penis Under Oath?

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Brett Favre's (alleged!) penis is back in the news and now it's because he doesn't want it shown off. We told you last week about the two former Jets masseuses who, as part of their ongoing lawsuit against Favre alleging sexual harassment and retaliation, tried to get him to admit that photographs published on this "sports gossip site" were, in fact, photos of his own personal penis.


His lawyers are fighting the demand, but will they succeed? Will Brett Favre have to discuss his penis under oath? We'll try to sort it all out for you.

What's the legal procedure for trying to make Brett Favre talk about his penis?

The plaintiffs brought up the penis photos through a Notice to Admit, which is one of the finest pieces of Gotcha Lawyering available in New York civil practice. The purpose of a Notice to Admit is to establish a set of facts that are not in dispute. It's a series of statements sent to an opposing party, which must be either admitted or denied, under oath, by the party (not his or her attorney). Any statement in the notice that Favre doesn't specifically admit or deny will be deemed to have been admitted.


So a Notice to Admit is meant to establish background information that everyone agrees on, so nobody wastes time establishing them in court. For instance, the first item in this Notice to Admit requests that Favre admit or deny that "Brett Favre ("Favre") was a member of the New York Jets Football team for the 2008-2009 NFL season." That's not an "ultimate issue" or anything that goes to "the heart of the matter."

But since any failure to respond is deemed an admission, lawyers love to load up a Notice to Admit with all sorts of material that does go to the heart of the matter, and to deliver it buried in a stack of other discovery devices in the hopes some of it goes through. Nothing to lose, everything to gain.

What are Favre's attorneys objecting to?

One thing they're arguing is that the Notice to Admit wasn't filed in agreement with the schedule of discovery. That timing argument is one they have to make, but it almost never works. If it did, it would amount to malpractice by the plaintiffs' attorneys, and courts don't want to do that unless the attorney is a major, major asshole. So forget that.


Favre's lawyers also are arguing that the Notice to Admit does seek admissions on facts that should be determined at trial (such as whether Favre sexually harassed the masseuses via text message) and is therefore improper. And they argue that the part about the penis pics is only meant to embarrass and "vex" their client, because they're penis pictures and because they were allegedly sent to Jenn Sterger, not to the plaintiffs in this particular case.

How would Favre's attorneys prevent discussion of the penis photos?

They are asking for a protective order ruling that the Notice to Admit is improper on its face, so Favre wouldn't have to admit or deny its contents. Alternatively, they would have the court strike any particular portions that it deems improper.


In the latter case, it would still be possible to ask about the penis photos in a pretrial deposition. A protective order is a fairly drastic measure, since the purpose of discovery is, you know, to discover information. So it has to be particularly embarrassing and vexatious.

What will Justice Milton A. Tingling rule?

If Tingling does anything, he will likely have plaintiffs withdraw the Notice to Admit and furnish another, less inflammatory version, providing guidelines for what will and will not be permissible in the new notice. Or he may just amend the current version under the same guidelines—"You can ask this, but you can't ask that."


Wait, wait, wait. "Tingling"?

That is, in fact, his real name. Milton A. Tingling, JSC. I appeared before him a fair amount in my time as hotshot attorney with the budget suit. He is a very nice judge and not at all one of those grumps you always see on TV. He's pretty fair and thoughtful and doesn't make snap decisions. Tingling will marinate on Favre's penis for some time. Whether or not he begins all court sessions by playing the last 25 seconds of this song is something I cannot tell you. Trade secrets.

Have you ever mistakenly called him "Judge Sensation?"

[Files motion for protective order]

If the judge removes the penis-photo part of the Notice to Admit, are there other ways we might get to hear Brett Favre talk about his penis?


Yes! There are several other discovery devices available to litigants, the most important being the deposition—which is called an examination before trial (EBT) in New York, for some annoying reason. Plaintiff's lawyers will most definitely try to ask about the penis pics again during the EBT, if this case gets that far. EBT's are like regular trial testimony in that you can't lead your own witness, there are exhibits entered and marked, and the deponent is under oath. It is unlike trial testimony in that almost anything goes, and any question asked must be answered.

That's a pretty stark rule. Are there any exceptions?

Yes, there are exceptions. There are always exceptions. There are three, here. A question can go unanswered if answering it would violate a privilege, if such a line of questioning had been banned by prior court order, or if such a question is "plainly improper" and answering it would cause significant prejudice. Team Favre is looking like they will argue "plainly improper."


So, how will this work?

Plaintiffs' lawyers will absolutely show up to Brett Favre's EBT with the pictures of Brett Favre's alleged penis as shown on Deadspin and try to make it part of the record—"Have you ever seen this before?" "Do you know what this is a picture of?" "Do you know the website depicted?" "Do you know the story it is connected to?" "Do you, or did you at any point in time, own a pair of orange Crocs?"—so they can ask Brett Favre if the picture from Deadspin on the story about Brett Favre allegedly sending pictures of his penis to Jenn Sterger actually is a photograph of his penis.


Now, there is no way Brett Favre does not know that the pictures were on Deadspin in a story about Brett Favre sending penis pics to Jenn Sterger. He was investigated by the NFL and is being sued, in large part, because of the existence of that Deadspin story. So he cannot credibly deny knowing these things exist.

What would this look like if you were sitting in on the EBT?

It would be spectacular. Brett Favre's lawyers will immediately object to the pictures being introduced and instruct their client not to answer. Plaintiffs' lawyers will then say something to the effect of, "Are you instructing your client not to answer my question?" Defendant's lawyers: "It's plainly improper and would cause my client significant prejudice." Plaintiffs': "Are you instructing him not to answer? OK, mark it for a ruling and we'll ask the judge."


Tingling will be called, and he will be pissed about it. This would be an incredible case to be some meaningless co-defendant on, just taking notes at the deposition with no real responsibility, billing for your time spent there as you listen to an artful discussion on speakerphone between a handful of attorneys and a learned judge over the merits of a question about a picture of a penis being held by a guy wearing nothing but a digital watch and some sandals.

Favre's lawyers will make the same argument they did with regard to the Notice to Admit, but this time there's even less of a chance that Tingling rules in their favor. Almost anything goes in an EBT. Even if the objecting party's objection is totally valid, the question must still be answered. There could be any number of reasons that these plaintiffs are inquiring about these alleged pictures.


Like what?

Brett Favre's character, for instance. "What kind of person, ladies and gentlemen of the jury, sends an unwanted picture of his penis to a woman? A trustworthy person? A good person? A person deserving of a benefit of the doubt?" You get the idea. It could also establish a pattern of behavior. A pattern of behavior that goes to the very heart of this specific case. Of course, whether or not that actual penis is actually Brett Favre's obviously does not prove that Brett Favre sexually harassed these two masseuses.


So then they are just trying to embarrass and vex the Ol' Gunslinger?

Nope. Well, yeah, they are doing that, too, but they also have a legitimate use for the penis pics. The pictures are being used here because the question of whether or not Brett Favre tried to woo another woman affiliated with the New York Jets by sending her an unrequested photo of his penis has bearing on the plaintiffs' assertion that Brett Favre is the kind of guy who makes unwanted advances on women (affiliated with the Jets or otherwise). It's like a car accident: "Oh, you were in how many accidents before this one? Sixteen, you say? Hmm. Not a very good driver, huh?"


At the very least, in a classic case of he-said-she-said it could be offered to show that Brett Favre once did this disgusting thing, and jurors should give more weight to what the shes are saying.

Whatever the reason, it is a virtual lock that as the case unfolds, Brett Favre's defenses will be stripped away till he's standing there exposed, revealing the legally binding answer to the question, "Is that your penis?" At last, America, our day of cockening is nigh.