The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Ministry of Tourism and ex-Miss Bahamas Universe, Khiara Sherman, pictured, have become embroiled in a new row over an alleged “shell game” involving other government agencies.

The two sides, who are currently in the document “discovery” phase of their copyright battle in the south Texas federal court, are contesting the Ministry of Tourism’s alleged failure to provide documents said to be held by other Bahamian government entities.

Ms Sherman, the beauty queen-turned-songstress, and her attorneys claimed in a November 16 letter to the court that the Ministry is hiding behind the US Foreign Sovereign Immunities Act and “playing a shell game to hide incriminating information” supposedly held by other government agencies.

The ministry’s attorneys, hitting back on November 19, said a search of the entire Bahamian government and its records “would be grossly disproportionate” to the case given that Ms Sherman purportedly licensed use of her song, Fly Away With Me, for the sum of just $1,250 over the past three years.

Nick Brown, Ms Sherman’s attorney, fired the first salvo by telling the court: “Following a meet-and-confer on this issue, defendant has confirmed that it refuses to search for documents or respond to discovery that is in the possession of the Commonwealth of the Bahamas, as opposed to the Ministry of Tourism.

“For example, in addition to refusing to respond to requests for admission, Defendant [the Ministry of Tourism] denies having entered into any licenses to use musical works in US television advertising in the last five years, an incredible position considering the litany of tourism advertisements that have been aired by the Bahamas in the United States.”

He charged: “Defendant appears to be playing a shell game to hide incriminating information in the possession of relevant custodians of the Bahamian government. Rather than having to file a separate suit that explicitly names the Commonwealth of the Bahamas, or seek to recaption the case to make it clearly part of this suit, plaintiffs simply seek an order compelling defendant to provide the requested information which is in the possession, custody or control of the Commonwealth of the Bahamas, which is the defendant in this suit.”

Among the information sought by Ms Sherman and her attorneys is the production of other advertisements by The Bahamas that feature Fly Away With Me, and whether the country has entered into licensing agreements for musical works within the past five years. The details were said to be “vital” to her case.

The Ministry’s attorneys, in response, argued: “Plaintiffs have sued the Ministry of Tourism and no other entity. Despite this fact, plaintiffs now seek a certification that all documents of the entire Commonwealth of The Bahamas have been searched for responsive documents. They have not been. Nor should they be.

“The requested search of the records of the entire Bahamas government would be grossly disproportionate to the needs of this case, which involves the alleged use of a song that, in the last three years, has been licensed by plaintiff for $0, for $500, and for $750. Moreover, the Ministry of Tourism does not have possession, custody, or control over the records of the entire Bahamas government.”

Ms Sherman is claiming that the Ministry of Tourism violated her copyright by using her song, Fly Away With Me, in its advertising promoting The Bahamas to foreign tourists without her permission. She is also accusing it of breach of contract over a potential job opportunity with it.

Attacking the latter, the Ministry wrote in its letter: “It is undisputed that Ms Sherman makes more money at her current job than the salary she alleges she would have received had the Ministry employed her. She also made more money at her existing job when she first applied to work for the Ministry in 2016.

“After realizing that this higher salary was dispositive of her breach-of-contract claim, Ms Sherman concocted an additional category of ‘damages’ in her second amended complaint in an effort to avoid this fatal flaw.

“She now claims that she cancelled performances in reliance on the Ministry’s alleged employment offer. Ms Sherman, however, has refused to provide a single piece of paper, e-mail or text to support this last-ditch effort to save her breach of contract claim from dismissal. She has also refused to admit that no such documents exist.”

Ms Sherman and her attorneys, meanwhile, alleged that the Ministry had yet to provide details on every use of her song, including the dates the allegedly offending promotions were aired.