Travis D.A. Seeks a Roadblock in Sexual Assault Suit
Moore, Montford on defense after disclosure of alleged misconduct
By Sarah Marloff,
10:10AM, Tue. Apr. 2, 2019
U.S. District Judge Lee Yeakel will hold a second hearing today (Tue., April 2) in the ongoing sexual assault class action lawsuit.
The suit, filed last summer against local law enforcement and the Travis County District Attorney’s office by eight rape survivors, alleges systemic mishandling of their sexual assault cases led to gender-based violations of their constitutional rights.
Last Friday (March 29), Travis County D.A. Margaret Moore and her predecessor Rosemary Lehmberg filed for an injunction against plaintiff Emily Borchardt’s request for discovery, prompted by First Assistant District Attorney Mindy Montford telling a third party that Borchardt had consensual sex with one of the men she accused of kidnapping and raping her.
Borchardt’s petition, filed last month in Nueces County, accused Montford of making “false and defamatory communications” regarding Borchardt’s sexual assault case, which the D.A.’s office declined to prosecute last year. According to a September 14 recording, a transcript of which was obtained by the Chronicle, Montford returned a call to Dawn McCracken – a family friend of Borchardt's and Montford's former sister-in-law – and "repeatedly” said that Borchardt "admitted" the rapes were consensual, provided written statement to APD confirming this, and was relieved that prosecution was declined because she "did not want her family to learn the 'truth' about the rapes." Montford is also accused of violating Borchardt's privacy and confidentiality for sharing intimate and confidential details about Borchardt's case without consent.
Borchardt has asked for depositions from Montford, Moore, and assistant D.A. Mona Shea, as well as their phone records, and for the D.A’s office to share any information it has about her case, along with any policies, procedures, protocols, or training materials regarding communications with Austin police or others about adult sexual assault cases and survivors, including confidentiality obligations. With this information, Borchardt hopes to investigate the potential for a defamation claim in state court, separate from the federal lawsuit. A hearing on that request is scheduled for Thursday (April 4) in Corpus Christi, but not if Moore has anything to do with it.
Travis County and the D.A.’s office requested Friday that Yeakel halt any discovery requests made by Borchardt until he rules on their December motion to dismiss the class-action suit. Yeakel issued an order staying discovery in that case until a ruling is made, and Moore asserts that if Nueces County grants Borchardt’s request after Thursday’s hearing, it would “clearly” result in “commencement of discovery pertaining to the claims of Borchardt, as well as the other Plaintiffs” in the sexual assault suit. As such, she argues, an injunction is necessary to prevent the state court from interfering with the higher court’s consideration.
Moore’s filing accuses Borchardt of “attempting to circumvent” Yeakel’s December order by requesting a “wide array of discovery exclusive of supporting the elements of her defamation claim.” The filing further suggests that Borchardt currently possess all the evidence needed to pursue a state defamation suit, including portions of her police file (in which she states she did not consent to sex) and a copy of the phone call transcript between Montford and McCracken. Yeakel is requested to enjoin Borchardt, “any other named plaintiffs” in the sexual assault lawsuit, “or unnamed parties from seeking pre-litigation discovery” in Nueces County or “any other lower court,” on issues related to the claims within the original lawsuit.
Meanwhile, Travis County and the D.A.’s office also filed Friday a motion to dismiss Borchardt's case in Nueces County, citing the aforementioned arguments plus an addition three claims: 1) the state district court in Corpus Christi lacks jurisdiction; 2) the Texas Tort Claims Act protects Montford as a government employee if she was “acting within the scope of employment”; 3) Montford is protected by the Texas Citizen Participation Act because the information she shared with McCracken was made “in connection with a matter of public concern;” Borchardt, the filing argues is responsible for establishing “clear and specific” evidence of defamation, especially since she “already self-disclosed to the public” details of her sexual assault and law enforcement’s handling of her case when she joined the lawsuit in August 2018 – a month before Montford spoke with McCracken.