The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A US judge yesterday granted Louis Bacon and Save the Bays the authority they were seeking to subpoena ‘whistleblower’ video footage for use in their legal battles with Peter Nygard, leaving the Bahamian judicial system to determine whether this is “admissible”.

The ruling, by Judge Denise Cote, is an important step in the Bacon/Save the Bays battle to have video evidence they believe is important to seven different legal actions admitted by the Supreme Court.

Stephen Feralio, the alleged ‘whistleblower’ and former Nygard employee, possesses more than 1,000 hours of video footage that could provide evidence for five defamation actions by Mr Bacon, and the two Judicial Review proceedings launched by Save the Bays over construction/development work at Nygard Cay.

The New York court’s ruling is also likely to further unnerve some government officials, as they will still be unaware of whether they are featured in the video footage, and in what circumstances. Judge Cote’s decision effectively brings the potential disclosure of this footage one step closer, via both the courts and, potentially, the public domain.

In granting the subpoenas sought by Mr Nygard’s opponents, Judge Cote rejected all arguments against non-disclosure that were advanced by Mr Nygard and his attorneys.

Referring to Feralio’s video footage and notes, and plans by Save the Bays/Mr Bacon to obtain his testimony as a witness, she added: “The admissibility of any of this material will be resolved by a Bahamian court, and it is not a matter that this court may determine or consider.” Over to you, Bahamian judicial system.

Judge Cote said there were no factors cited by Mr Nygard’s attorneys that weighed against granting the subpoenas sought by Mr Bacon and Save the Bays, even though Feralio had “agreed in writing.... that he will make himself available” to testify before a foreign court on their behalf.

While Mr Nygard and his attorneys had produced affidavit evidence suggesting that discovery had closed in one of the Bahamian court actions, and that there could be no more in one other, this did not amount to ‘proof gathering restrictions’ under the Bahamian legal system.

As for suggestions that they were attempting to harass Mr Nygard, Judge Cote found: “The Nygard parties point out that certain materials submitted in support of the petition contain certain allegations that besmirch Nygard’s character.

“Indeed, in connection with this action petitioners have submitted materials that reflect poorly on Nygard, and the Nygard parties have submitted materials that reflect poorly on Bacon.”

Judge Cote said she had dealt with this by ensuring the material was removed from the public court records, and added: “That petitioners’ submissions have included irrelevant allegations, however, does not indicate that the petition was brought solely or even principally to harass.

“The discovery that will follow the granting of this petition is of material created by Nygard’s own videographer, and it is intended for use in petitioners’ prosecution of the Bahamian proceedings.”

Mr Nygard’s attorneys attempted to argue that the subpoena should not be granted because Feralio had effectively stolen the video footage and breached his contract with his employer.

Yet Judge Cote said there was no such precedent for blocking the subpoenas Mr Bacon and Save the Bays are seeking.

“Having considered the factors that the law requires, the court chooses to exercise its discretion to grant the petition,” the judge concluded.