The deposition will be a continuation of one terminated in July by plaintiffs after Jimmy Flynt Sr. asserted his 5th Amendment privilege.
Jimmy Flynt Sr. was expected to discuss the formation of Flynt Media Corp. and the use of the Flynt name and mark at the deposition, but LFP counsel terminated the deposition after repeated 5th Amendment objections.
Larry Flynt and LFP Inc. are suing Jimmy Flynt Sr.’s sons, Jimmy II and Dustin, over the use of Flynt Media Corp. name, claiming it is too similar to their own. LFP already has won a preliminary injunction against Flynt Media Corp. and a judge denied summary judgment motions by Flynt Media Corp. The case goes to trial in December.
On Friday, U.S. Magistrate Judge Timothy S. Hogan said that Jimmy Flynt Sr. must re-deposed and that his attorney, Louis Sirkin, won’t be disqualified.
Larry Flynt and LFP Inc., in court filings, said that Sirkin shouldn’t be able to represent Jimmy Flynt Sr. because he also has represented Larry Flynt for HH-Lexington LLC, which does business as Hustler Hollywood in Lexington, Ohio, and is appealing a criminal conviction over breaking a Lexington zoning ordinance that prohibits adult-oriented businesses near interstate highway interchanges.
Hogan in his ruling said that Sirkin shouldn’t be disqualified because “he took no stance adverse to Larry.” The judge also said that “Sirkin has the skill and experience necessary to advise Jimmy Flynt Sr. without compromising any interest of Larry’s. If [he] does assert any position adverse to Larry during Jimmy Flynt Sr.’s deposition, the court will intervene if and when put on notices."
As for Jimmy Flynt Sr.’s testimony, where he invoked his 5th Amendment privilege in not answering LFP questions, Hogan said that finding him in contempt would be inappropriate.
“While Jimmy Flynt Sr. may have been ill-advised to assert his 5th Amendment privilege as frequently as he did, he complied with the directive of the subpoena and did appear for his deposition," Hogan said.
Sirkin told XBIZ that the judge was correct in declining to require Jimmy Flynt Sr. to show cause why he should not be held in contempt.
“Jimmy didn’t do anything wrong,” Sirkin said. “He had a right to invoke his 5th Amendment privileges. They simply didn’t ask the right questions, and they made the choice to stop.”
The judge ordered the parties to continue its July deposition and that LFP counsel should seek other ways to obtain the same information.
“Should the [5th Amendment] privilege be improperly asserted, the deponent will be ordered to answer, and likely found in contempt if he refuses,” Hogan said.