The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A New York judge yesterday denied a request by Peter Nygard’s attorneys that they not release 31 ‘whistleblower’ video files to his principal enemy, some of which allegedly show “financial donations to Bahamian politicians”.

Judge Denise Cote, sitting in the southern New York district court, denied the request by the Canadian fashion mogul’s attorneys that they not supply his Lyford Cay neighbour, Louis Bacon, and the Save the Bays coalition with the video files.

“They shall presumably review and produce it,” Judge Cote said in relation to Mr Nygard and his legal team.

The Canadian multi-millionaire’s attorneys had asked the southern New York court for an order that these videos be exempt from the process requiring their handover to Mr Bacon and Save the Bays, on the grounds they were part of “a massive volume” of files handed over to them just two days before the court-imposed deadline for the process to be completed.

“Considering the volume of data involved, it will take several weeks for the Nygard parties to review all of the files on the... Drive,” Aaron Marks, Mr Nygard’s US attorney, told Judge Cote in a December 11 letter.

“The Nygard parties suspect that the true reason for this three Terabyte post-deadline data dump - the full volume and non-responsive nature of which was never disclosed during numerous meet-and-confers - is to further delay the Judicial Review actions in the Bahamas which, if not completed by December 19, will require additional court dates.

“This is particularly troubling considering that the Drive could have been produced in September.”

The ‘Judicial Review’ reference concerns the two separate actions launched by the Save the Bays/Coalition to Protect Clifton environmental activist group, which are challenging the Government’s alleged actions - or inaction - with respect to permits and approvals related to construction/development work at Nygard Cay.

As previously revealed by Tribune Business, the court-ordered process requires Mr Nygard and his attorneys to review thousands of video files possessed by a former Nygard International employee turned ‘whistleblower’, Stephen Feralio.

If any of these files fall within the boundaries set by a court-ordered subpoena, they have to be passed on to Mr Bacon and Save the Bays, and their legal team.

Mr Feralio possesses more than 1,000 hours of Nygard-related video footage that the Canadian’s ‘arch rival’, hedge fund magnate Mr Bacon, and the Save the Bays/Coalition to Protect Clifton environmental activist group, want to obtain access to via the subpoenas they previously obtained from Judge Cote.

They believe it could provide evidence for seven cases currently before the Supreme Court, including five defamation actions by Mr Bacon, plus the two Judicial Review proceedings launched by Save the Bays/the Coalition.

Rejecting the arguments by Mr Nygard’s attorneys, Stephen Feldman, Feralio’s US counsel, told Judge Cote in a December 12 letter that the 31 video files were covered by the subpoenas’ terms.

“We produced 31 responsive project files,” Mr Feldman told the judge. “Eight projects directly concern defamatory videos of Louis Bacon made at Peter Nygard’s direction as part of the smear campaign [against Bacon].

“Others specifically memorialise Peter Nygard’s meetings and interactions with Bahamian officials regarding construction at Nygard Cay, and Mr Nygard’s donation of money to Bahamian politicians.

“Still others involve Mr Nygard’s efforts to construct stem cell facilities in the Bahamas. Importantly, the Nygard parties do not dispute that each of the 31 project files is responsive to the amended subpoena.”

The letter from Mr Feldman mentions no names in relation to the “donations to Bahamian politicians”, and does not specify what these alleged ‘donations’ relate to.

There is no suggestion that Mr Nygard has done anything wrong, as the letter could be referring to donations for political election campaigns. It is also well-known that all political parties reach out to wealthy individuals for such donations.

However, Mr Feldman’s letter is unlikely to further unnerve some in the Bahamian political hierarchy, who are already probably worried about what these videos may contain.

Mr Feldman, though, denied that Feralio had delayed producing the 31 video files to give Mr Bacon and Save the Bays an advantage in relation to the Judicial Review actions.

He was supported in this assertion by their own US attorney, Orin Snyder, who claimed that the 31 disputed video files “provide the connective tissue” linking Mr Nygard to the campaign against Mr Bacon.

“There is no substitute for the quality of this evidence,” said Mr Snyder, who dismissed the suggestion by Mr Nygard’s attorneys that the files were released late to delay the Judicial Review proceedings.

Describing this claim as “entirely unsupported and without merit”, he responded: “Petitioners have never sought to delay adjudication of the Judicial Review proceedings as a result of this Section 1782 action.

“We have consulted with Bahamian counsel, and can represent to the court that there is no December 19 deadline, and the trial has not even been scheduled in the Judicial Review actions.

“In fact, the upcoming hearings in the Judicial Review actions concern respondents’ efforts to delay by refusing to produce documents.”

Mr Snyder said Save the Bays “has no intention” of seeking adjournments in the Judicial Reviews, and wanted to use the video material obtained in New York to rapidly prosecute the Judicial Reviews.

“It is respondents in the Judicial Review actions [the Government and Mr Nygard], not Save the Bays, that have sought to delay adjudication of the Judicial Review actions,” Mr Snyder added.

Once the New York video reviews are completed, the action will shift to the Bahamas, with Mr Bacon and Save the Bays needing to persuade the Supreme Court that they should be admitted into evidence. That is by no means a certainty.