The FBI said in a court filing Friday that it will reprocess video files requested by Gawker Media under the Freedom of Information Act to eliminate irregularities in the evidence.
The filing represents the latest twist in an ongoing open records tussle between Gawker Media and two federal law enforcement agencies to obtain evidence that may figure into a high-stakes legal battle between the Manhattan-based news organization and former professional wrestler Hulk Hogan.
To recap: Since 2012, Hogan — real name Terry Bollea — has been fighting Gawker Media in court over the outlet’s decision to publish an edited sex tape showing the former professional wrestler having sex with Heather Clem, the ex-wife of shock jock Bubba the Love Sponge Clem. In June, that legal battle appeared as if it was about to culminate in a $100 million invasion-of-privacy trial originally slated to begin this week.
But just days before the trial was set to begin, Florida’s Second District Court of Appeal ordered the proceeding postponed on the grounds that a lower court had disregarded rules governing the scheduling of trials. That contest has been put on hold until Oct. 20, when another hearing will be held to determine the status of the case.
In the meantime, Gawker Media is fighting a separate court battle with the FBI and the Executive Office of United States Attorneys to obtain records under the Freedom of Information Act that might have some bearing on the case. Late last month, it looked like the battle had reached a conclusion when a federal judge ordered the bureau and the EOUSA to turn over evidence related to an investigation — initiated by Hogan himself — into the sale and distribution of the sex tape. The evidence requested by Gawker Media contained two audio recordings plus three DVDs allegedly showing Hogan having sex with Heather Clem.
But during the hearing, Seth Berlin, an attorney for Gawker Media, told the court that there were multiple inconsistencies in the video evidence provided by the FBI. Specifically, he noted that one of the DVDs purportedly showing a sexual encounter between Hogan and Heather Clem appeared to be dubbed over with audio from one of the other discs. He also noted that another DVDs contained nothing except “dead air.” In response, the judge ordered the FBI to review the video evidence and determine if it needed to be reprocessed.
The FBI’s filing today appears to acknowledge those inconsistencies. Kenneth Stegeby, an assistant U.S. attorney, notes that one of the videos contains “corrupt” footage that was “a little over one minute.” Stegeby says that another one of the videos has an audio track that is partially out of sync with its video footage, which dovetails with Berlin’s statements.
It remains to be seen whether the video evidence will figure into Hogan’s lawsuit against Gawker Media, but representatives from the news organization seem to think it will. Earlier today, Gawker Media co-founder Nick Denton hinted in a blog post that the evidence might reveal some secret that would shed light on the legal battle.
There will be a third act which we believe will center on the real story: the additional recordings held by the FBI, the information in them that is Hulk Hogan’s real secret, and irregularities in the recordings which indicate some sort of cover-up. In the way of so many news stories, the deeper you go, the more interesting it gets.
The next steps of the FOIA dispute were laid out Friday in a document filed jointly by Gawker Media and representatives from the FBI and the EOUSA. According to the document, the FBI will produce the reprocessed videos by July 17. In the ensuing days, Gawker Media will have a chance to argue that some of the records still held by the FBI should be disclosed. After that, the FBI and the EOUSA will have another week to make their case as to why those records should remain undisclosed.
