A Tale of Two Narratives: The Unsealed Documents
“The story that they’re not telling, of course, is the story of the tactics because the question has to become who is it who is trying to elicit this information in court anyway and for what purpose. And so what they’re not telling you is that these are Team Amber Heard tactics.”
— Attorney Andrea Burkhart
On July 19th, attorney Andrea Burkhart, crowdfunded via social media to purchase the unsealed documents from the Depp Vs. Heard trial with the intention to make them available to the public. Once unsealed on July 29th, Andrea posted all documents to her personal website. This has enabled the public to parse through the more than 6,000 pages of previously confidential trial documents. Since then there has been a tidal wave of evocative headlines across a plethora of mainstream-media outlets that leave much to be desired.
Publications such as The Rolling Stone, The Daily Beast, The Daily Mail and Newsweek, along with many others, have penned articles that mischaracterize the “bombshell revelations” and “damning allegations”. In fact, a majority of these headlines are not factual and grossly misrepresent the contents of the unsealed documents. Lengthy threads on Twitter have also been retweeted to the masses, many of which contain cherry-picked snippets of the unsealed documents accompanied by skewed opinion. These threads have been referenced in articles, which has created an unreliable and disingenuous narrative surrounding the contents of these documents.
The Protective Order and Intention to Unseal
During a June 24th hearing, Judge Penney Azcarate indicated the Court’s intention to unseal all previously sealed documents that were under a protective order to “protect sensitive information and to ensure an untainted jury”. The Court also indicated that should anything go up to “the Court of Appeals on appeal there shouldn’t be anything sealed. We’ve had the trial”.
Both parties were asked to review the Court’s intention and objected to a “blanket unsealing of the entire record including all documents currently filed under seal”. Eventually, the parties agreed on a collection of 45 documents to be unsealed by the Court and 22 documents to remain sealed. On July 13th, the Court ordered the agreed upon documents to be unsealed, which included things such as “pleadings, motions, attachments to pleadings and motions, deposition transcripts, attachments to deposition transcripts, hearing transcripts, and exhibits not introduced at trial”. Since the trial had concluded and the verdict deemed final, the unsealed documents would not be uploaded to the Fairfax County website.
The Public Unsealing and Crowdfunding
As previously mentioned, Andrea Burkhart ordered the newly unsealed documents from the Fairfax Circuit Court on July 19th. Ms. Burkhart reported that, in less than an hour, viewers had raised nearly all the funds that were needed to cover the cost of securing all documents, which were about $0.50 per page. As donations continued to pour in, Ms. Burkhart donated $2,000 to the Children’s Hospital of Los Angeles and $5,250 to The Art of Elysium. See the annotated tweets below:
Within a day or two of the documents being uploaded to Andrea Burkhart’s personal website, mainstream-media outlets began reporting on the contents. News of the crowdfunding flooded headlines, claiming that “Depp fans,” were responsible for the amassed funds. It would be duplicitous not to acknowledge that Andrea Burkhart does indeed seem to be pro-Depp. Nevertheless, as the information flourished and articles began citing one another, there was a noticeable consistency across many of them: very few, if any, were reporting on the contents of these documents accurately and fully.
The “Bombshell Revelations” and “Damning Allegations”
Amongst the legal jargon, case references and litigator quarrels, the unsealed documents did indeed reveal many interesting aspects of Depp Vs. Heard. Many news outlets decidedly reported on the following:
- Depp accused of altering audio and photo evidence
- Depp accused of attempting to admit “revenge porn” as evidence
- Depp allegedly suffers from erectile dysfunction
- Depp alleging that Heard inflicted no physical or mental injury
Needless to say, there is a lot more to these documents than just this short list. Not coincidentally, some of these news outlets referenced Twitter threads that had gained traction no less than 24-hours after the documents became unsealed. Newsweek referenced a Twitter thread by user @cocainecross, who put together snippets of the unsealed documents and provided her opinions. The issue at hand is that this thread, along with many others by Twitter user @k4mil1aa, are riddled with misinformation and misrepresentation of the contents of these documents, as well as various evidentiary elements from the trial. These threads do not contain any impartial analysis and present only the components that allegedly support a one-sided narrative.
Depp Accused of Altering Audio and Photo Evidence
In a Memorandum in Support of Motion to Compel Production, filed by Heard’s counsel on December 22nd, 2021, Depp was accused of altering audio recordings that his counsel had produced. Heard’s counsel indicated that the recordings seem partial since they begin and end in the middle of a sentence. There were also highlighted concerns pertaining to the audio’s metadata, specifically modified dates and creation dates. Within the same document, Depp was accused of producing photos with the same aforementioned issues. This is how Twitter user @cocainecross presented this information versus the content of the full document itself. It would seem as though they shared a redacted version:
Cocainecross’s Tweet:
Full Court Document:
This document had two versions. The redacted version has been circulating. A lot of the commentary surrounding this snippet is completely lacking the expert declarations and finding of facts that entirely debunks these allegations. Both parties had retained forensic experts to authenticate numerous evidentiary exhibits, as well as forensic imaging of devices. Julian Ackert of iDiscovery Solutions (iDS) was retained by Heard. Bryan Neumeister of USAForensic LLC was retained by Depp. A declaration from Julian Eckert was submitted as part of the Memorandum, in which he notes his findings pertaining to creation and modification date metadata either missing or significantly after the alleged date of the incident to which it correlates. Eckert notes that “missing creation dates and/or modification dates that post-date the facts can be a sign of digital evidence manipulation”.
More importantly, Eckert explicitly indicates that when metadata anomalies such as these are present, forensic imaging is needed to analyze the device(s) for any potential manipulations. However, Eckert never concluded that Depp altered any photos or audio recordings because he did not perform forensic imaging. The Memorandum includes a previously filed Opposition to a Motion to Compel Production of Forensic Evidence and for Sanctions, filed by Depp’s counsel on October 22nd, 2021. It notes that the images cited in Heard’s Memorandum were from a third-party, Sean Bett, therefore imaging of Depp’s devices wouldn’t provide any additional information pertaining to the photographs.
Furthermore, these images were also part of the UK trial bundle, produced in the same format without metadata. Depp seemingly was willing to cooperate and secure native versions of particular documents if Heard requested. Coincidentally, it would seem that Heard also produced photos in the same format without metadata.
Shockingly, the audio recordings in question by Heard’s counsel were not originally produced by Depp. In fact, the audio recordings were originally produced by The Sun during the UK proceedings and then provided to Depp’s British counsel. Presumably, Heard provided The Sun with these recordings as their primary witness. These same audio recordings were reproduced in the same version in Depp Vs. Heard by Depp.
In an Opposition to Motion to Compel filed by Depp’s counsel on January 20th, 2022, Depp’s counsel points to an alleged pattern of “retaliatory discovery,” with the forensic imaging being the most recently sought discovery request that even Heard deemed was not necessary in a previous filing from October 13th, 2021. Heard was also seeking every piece of multimedia including Depp for nearly a four-year period, which Depp’s counsel argues is overbroad, considering Depp only received photos of Heard during the specified time periods when she allegedly suffered serious and severe injuries at the hands of Depp.
With metadata in question, alleged altered and manipulated audio recordings and photos with varying creation and modification dates, what are we to make of this? A declaration from Bryan Neumeister was submitted as part of this Opposition, where he explains how creation and modification dates can be changed by simply opening and saving a file or when a file is copied. If a file has been sent to, say litigators to prepare for trial, a new creation date will be present. This is essentially the other side of the argument.
Julian Eckert noted “missing creation dates and/or modification dates that post-date the facts can be a sign of digital evidence manipulation,” and Bryan Neumeister noted “just because a certain file of data has a creation or modified date after the original creation date when the file first came into existence, it does not follow that the data has necessarily been manipulated or altered in any way”. Depp’s counsel even highlights that Heard’s counsel was well aware of this and stated so in open court during an October 21st, 2021 hearing.
Lastly, attorney Joelle Rich who represented Depp during the UK trial, reviewed the six audio recordings in question and confirmed that they were the same versions previously produced in the UK. They had not been altered, edited, manipulated or otherwise changed by their law firm in any way.
As we followed the trail of where these audio recordings originated, it would seem as though Heard was the original source of these specific recordings. They were produced to The Sun, the Defendant in the UK trial, and then produced to Depp’s British counsel. These same audio recordings were reproduced in Depp Vs. Heard and verified to be identical to those from the UK trial bundles. Therefore, the allegation that Depp manipulated, edited or altered audio recordings is not factual and misplaced. Considering a third-party provided the alleged edited or manipulated photos, we can at best, determine that they did not originate on Depp’s devices. No forensic imaging was ordered for Depp’s devices.
Depp Accused of Attempting to Admit “Revenge Porn” as Evidence
In a Memorandum in Support of Motions in Limine, filed by Heard’s counsel on March 22nd, 2022, Depp is accused of attempting to admit nude photos of Heard into evidence. Heard’s counsel exclaimed that Depp sought to introduce such evidence as “sex-related distractions and tangential publicity bombshells”. It was argued that such photos could be damaging to Heard’s reputation and be demeaning. Lastly, it was argued that they would distract the jury from the issues at hand.
Depp had filed his exhibit list on March 14th, 2022, exactly one week prior to Heard’s Motion in Limine filing. Heard’s counsel cited no exhibits that relate to that issue, meaning that Depp did not have nude photos of Heard cited on his exhibit list for trial and his counsel noted this in Plaintiff’s Opposition to Motions in Limine, which was filed on March 28th, 2022. However, possible scenarios in which nude photos could become relevant in the context of the case were discussed by Depp’s counsel. For example, if a nude photo showed a visible lack of injuries around the time of an alleged incident. Depp’s counsel asked that the Court not resolve this issue in limine and that Depp reserved the right to introduce such evidence on rebuttal if deemed necessary.
This topic has circulated en masse as an alleged blatant display of misogyny and an act of distributing/using revenge porn against Heard. However, the court documents denote that no nude pictures of Heard were on Depp’s exhibit list, therefore they were not introduced as evidence, were never attempted to be introduced as evidence and were not to be distributed. Therefore, it would seem as though the allegation of nude photos being admitted was a legal strategy compared to a claim based in fact. Blocking such admissions was clearly a proactive measure, rather than reactive. In 2014, Heard was unfortunately a victim of a large-scale leak of celebrity nude photos. Among these photos, there were some of Heard with a message to Depp, presumably sent to him.
Depp Allegedly Suffers from Erectile Dysfunction
In Plaintiff’s Motions in Limine filed on March 22nd, 2022 by Depp’s counsel, it is highlighted that Heard alleged Depp would become angry at his inability to get an erection, attempt to have “angry sex,” with her and then blame her for his impotence. Heard included an alleged medication list of Depp’s as a trial exhibit, which included medications such as Nexium, Cialis, and Valtrex. Nexium is often used to treat stomach and esophageal issues, Cialis is often used to treat erectile dysfunction as well as high blood pressure, and Valtrex is often used to treat herpes, cold sores, and shingles.
In Defendant’s Opposition to Plaintiff’s Motions in Limine filed on March 28th, 2022, Heard and her counsel allege that Depp suffered from erectile dysfunction and, as a result, became increasingly angry at Heard during any sexual encounters. However, Heard’s counsel alleges this is definitively relevant to Depp’s alleged sexual violence towards Heard, citing that his “erectile dysfunction makes it more probable that Mr. Depp would be angry or agitated in encounters with Amber Heard, and that he would resort to a bottle”. Depp’s counsel argued there was no probative value, arguing that Heard was attempting to wield Depp’s medications and/or medical conditions that have no relevance to his treatments received for alleged injuries caused by Heard.
Evidently, this was not presented at trial, which one can assume means that the Court found it more prejudicial than probative. Heard’s counsel provided no additional context, evidentiary exhibits, medical records, etc., to support their claim that Depp’s alleged erectile dysfunction resulted in any sexual assault or violence. No experts were identified to speak to a connection between Depp’s medical condition and Heard’s alleged assault. In fact, Heard’s counsel seemingly hoped the jury would make the “rational” connection themselves and evaluate the “proper evidentiary weight”.
Depp Alleging That Heard Inflicted No Physical or Mental Injury
Throughout the trial, we heard allegations of physical and psychological abuse from both Depp and Heard, each claiming the other was the sole aggressor and perpetrator of such abuse. So how is it that Depp was not claiming Heard had inflicted any physical or mental injury? In a Motion to Compel Independent Mental Examination filed by Depp’s counsel on September 3rd, 2022, it was posed that Heard had put her current mental condition and her mental condition during and preceding relevant events and timeframes at issue. Heard willingly submitted to 25-hours of psychological examination starting in September of 2019, spanning to January of 2021, with Dr. Dawn Hughes. Depp had filed the defamation lawsuit in March of 2019. Therefore, Depp’s counsel argued that Heard was placing her own mental condition at issue and, to appropriately dispute the proposed testimony of Heard’s expert, Heard should have to submit for an Independent Mental Examination (IME) with Dr. Shannon Curry, Depp’s retained expert.
In an Opposition to Motion to Compel Independent Mental Examination filed by Heard’s counsel on September 24th, 2021, they argued that Depp had designated Dr. David Kipper to testify to his mental health diagnoses and, specifically, the “pharmacological effects of the medications prescribed to Mr. Depp”. It is important to note that Dr. David Kipper is not a practicing psychologist or psychiatrist. Though Dr. Kipper was Depp’s treating physician for more than 6-years at the time, he does not hold the qualifications to appropriately diagnose any mental disorders with the appropriate evaluation and assessment tools used by psychiatrists or psychologists.
This was precisely what Depp’s counsel argued in their Opposition to Motion to Compel Rule 4:10 Examination filed on October 1st, 2021. Depp’s counsel highlighted that they hadn’t sought an IME for Heard until she served her expert disclosures, where it was noted that Heard willingly underwent a “forensic psychological evaluation,” and wished to introduce this evidence via her retained expert, Dr. Hughes. It was only then that Depp sought an IME of Heard. They also argued that Dr. Kipper was not designated to testify to the totality of Depp’s mental condition, but to offer relevant factual testimony.
Within the same Opposition is a previous Opposition to Rule 4:10 Motion for an Independent Mental Examination filed by Depp’s counsel on November 8th, 2019, where it is argued that Depp is not alleging any harm based on a specific physical or mental injury in context of the Op-Ed and alleged defamatory statements made by Heard. This is the basis as to why an IME was not granted by the Court. Lastly, Depp had already signed a broad HIPAA authorization that provided Heard access to any mental health records, therefore an IME conducted three and a half years after the alleged incidents would not constitute reliable evidence of Depp’s mental state then.
Since there was no claim of physical or psychological/mental injury stemming from the Op-Ed, why did we still hear of such claims allegedly perpetrated by Heard? Depp was able to provide testimony to counter Heard’s testimony. As an underlying basis of the defamation case, Depp sought to disprove the allegations cast on him therefore proving the statements were indeed defamatory. Heard had to prove the allegations were true therefore proving the statements were not defamatory. Securing an IME of Heard was an effort to fairly assess her mental condition and fully address her expert testimony alleging PTSD due to abuse allegedly perpetrated by Depp. Just because Depp wasn’t psychologically or physical injured by a written Op-Ed does not mean that Heard didn’t inflict psychological and physical injury on him in their relationship.
Conclusion
With such a complex and highly publicized case, new information pertaining to the allegations by both Depp and Heard was bound to spread like wildfire. The veracity of facts and authenticity of the unsealed documents quickly dissolved into “shock and awe”. Curiously enough, in my opinion, these documents display a contradictory narrative to the one hoisted up by mainstream-media. In many instances throughout these pre-trial motions and memorandums, it was Heard who employed “tit for tat” tactics, woefully hurled accusations at Depp that were unfounded and not rooted in any form of fact, and attempted to proactively position herself as the disadvantaged party. Whereas Depp seemingly reacted to new information, allegations and inquiries throughout the pre-trial period, attempting to limit his discovery only to what was necessary.
The ways in which the narrative has been misconstrued has resulted in many deeming that the “tide is turning”. Remember that the tide always comes in, comes out and back again. The pendulum was bound to swing back and forth once the trial concluded. However, when examining these documents, consider who was attempting to introduce certain information and why. Consider the strategic moves each party employed. For me, this trial is reminiscent of Depp and Heard’s relationship: Heard slinging allegations and misconstruing reality to situate herself as a victim and Depp reacting and attempting to stave off the blows.
