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Case 1:19-cv-11294-PAE Document 93 Filed 02/19/21 Page 1 of 4

250 VESEY STREET • NEW YORK, NEW YORK 10281.1047

TELEPHONE: +1.212.326.3939 • FACSIMILE: +1.212.755.7306

February 19, 2021

VIA ELECTRONIC FILING

Re: Brittany McHenry v. Fox News Network, LLC, et al., Case No. 1:19-CV-11294-PAE

Dear Judge Engelmayer:

Defendant Fox News Network, LLC, writes pursuant to Local Rule 37.2 for an order
directing Plaintiff Brittany McHenry to submit her electronic devices for a neutral forensic
examination to determine whether she lost or destroyed text messages critical to her claims. Her
claims turn on whether the text messages she received from Defendant George Murdoch
(“Tyrus”) were unwanted harassment or instead part of a consensual exchange of lewd banter, as
found by independent investigators. Plaintiff has never produced the actual texts. Instead, she has
produced only a “log” of the texts, which are incomplete and cannot be independently verified.
Now we know why: after more than a year of litigation, Plaintiff claimed for the first time on
January 4 of this year that she “lost” her phone on a trip in July 2019—six months before she
filed this lawsuit. Her repeated offers to allow a forensic examination of her phone were thus
based on a long-running pattern of deception involving several misrepresentations to Fox News
and this Court. Accordingly, the only way to determine whether relevant texts were lost or
deleted is to conduct a full forensic examination of all of Plaintiff’s remaining devices, which
may contain backups of the phone that she claims to have lost.
Background
A. Plaintiff Repeatedly Refuses to Provide Text Communications

In April 2019, Plaintiff first complained that Tyrus sent her sexually harassing texts
between October and December 2018. When Fox News attempted to investigate, Plaintiff
provided only screenshots of carefully selected messages that were devoid of any context and
refused to provide original copies or any other texts during the same time period. Even after Fox
News retained an outside firm to conduct an independent investigation, Plaintiff and her counsel
still refused to provide a single actual text message to the investigators. At the end of April 2019,
the investigators concluded that Tyrus did not sexually harass Plaintiff, but rather that the two of
them consensually exchanged text messages using inappropriate language.

In July 2019, Plaintiff took a trip to Portugal, and upon her return she retained new
counsel at the Bloom Firm. On August 6, 2019, Plaintiff and her new counsel informed Fox
News of new allegations of sexual harassment against Tyrus. Fox News launched a second
independent investigation. During that investigation, Plaintiff still refused to provide original
copies of any text messages. The day before the investigators were set to interview her, she gave
them what she claimed was a “log” of all text messages between her and Tyrus. Shortly
thereafter, however, the investigators discovered what appeared to be additional text messages
from her to Tyrus that were not in the “log” she created. The investigators also uncovered

AMS TERDAM • ATL ANTA • BEIJING • BOSTON • BRI SBANE • BRUSSE L S • CHICAGO • CLEVE L AND • COLUMBUS • DAL L AS • DETROIT
DUBAI • DÜS SELDORF • FRANKFUR T • HONG KONG • HOUSTON • IRVINE • LONDON • LOS ANGELES • MADRID • MELBOURNE
MEXICO CIT Y • MIAMI • MIL AN • MINNEAPOLIS • MOSCOW • MUNICH • NEW YORK • PARIS • PER TH • PITTSBURGH • SAN DIEGO
SAN FRANCISCO • SÃO PAULO • SAUDI ARABIA • SHANGHAI • SILICON VALLEY • SINGAPORE • SYDNEY • TAIPEI • TOKYO • WASHING TON
Case 1:19-cv-11294-PAE Document 93 Filed 02/19/21 Page 2 of 4

records of many hours of phone calls between Plaintiff and Tyrus that took place around the
same time as the alleged harassment. Based on Plaintiff’s text “log” and the hours of phone calls,
the investigators again concluded in October 2019 that the communications were mutual and
consensual and did not constitute harassment.

After the conclusion of the second investigation, Plaintiff claimed that the additional text
messages found on Tyrus’ phone were not authentic. That same month, in October 2019, she also
made her first offer to conduct a forensic examination of her cell phone, without even hinting
that it had been “lost.” Plaintiff then filed this lawsuit in December 2019.

B. Plaintiff Falsely Offers a Forensic Examination of Her Phone

Over the next year, Plaintiff continued the charade of offering to submit her cell phone
for forensic examination, never mentioning that it had been lost. When she filed her Complaint
and Amended Complaint, she disingenuously bragged that she had “immediately offered to have
a forensic expert examine her cell phone” to confirm her side of the story. See Dkts. 6, 39, at ¶
108. At the initial conference in September 2020, Tyrus’ counsel stated her understanding that
Plaintiff had “retained [her] messages [with Tyrus] and did not change numbers or cell phones,”
and Your Honor emphasized the importance of “preserv[ing] and protect[ing]” those messages.
(Ex. A, Tr. at 19, 17). In response, Plaintiff’s counsel gave no indication that the cell phone had
been lost. Finally, in responding to Fox News’ request that she conduct a forensic examination of
her cell phone in November 2020, she still failed to mention that she had lost the phone. (Ex. B).

On January 4, 2021, Fox News attempted to meet and confer with Plaintiff about the
forensic examination that she had repeatedly promised. It was only then that Plaintiff finally
confessed that she “lost” the phone during her trip to Portugal in July 2019.

C. Plaintiff Obfuscates Information About the Lost Phone and Backups

Even after finally revealing the phone was lost, Plaintiff continued to obfuscate
information about the loss, repeatedly changed her explanations of where the information from
the phone may have been backed up, and made but then revoked various offers to conduct
forensic examinations. On January 4, 2021, Plaintiff’s counsel stated that they believed all
messages with Tyrus had been backed up on Plaintiff’s laptop, and agreed to submit the laptop
for examination. However, Plaintiff refused to search for any messages about Tyrus that she had
with third parties, even after Fox News explained the importance of those messages. (Ex. C). On
January 19, Plaintiff attempted to revoke her offer to conduct the forensic examination. (See Ex.
D). On January 27, she revealed that she had discovered an old phone (which she called “Phone
2”) that contains a backup, allegedly created in April 2019, of messages between Plaintiff and
Tyrus between late August 2018 and early April 2019. Plaintiff then offered to produce Phone 2
for a forensic examination and withdrew her offer to submit her laptop for examination. (Ex. E).

Just two days later, on January 29, 2021, Plaintiff posted a video on Instagram in which
she stated, contrary to her counsel’s offer, that she was “more than willing” to submit all of her
devices for forensic examination. (See Ex. F). On February 9, 2021, her counsel finally agreed to

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do so. (Ex. G). Plaintiff still maintained, however, that she would not allow her phone to be
searched for any communications with third parties even if they were relevant. She also said that
her offer was contingent on Fox News agreeing never to raise the issue of her lost phone with the
Court. If Fox News refused to accept these terms, she would not agree to any examination.

Argument

Only a forensic examination will reveal what Fox News strongly suspects: Plaintiff
intentionally deleted highly relevant messages between her and Tyrus and/or third parties that
would definitively prove that their relationship was consensual and not harassing. Under these
circumstances, courts have repeatedly ordered forensic examinations to obtain critical evidence
or determine whether it was destroyed. See Genworth Fin. Wealth Mgmt., Inc. v. McMullan, 267
F.R.D. 443, 448 (D. Conn. 2010) (ordering examination of devices where party admitted losing
relevant evidence); Peskoff v. Faber, 251 F.R.D. 59, 62-63 (D.D.C. 2008) (compelling forensic
examination where information sought was highly relevant, not duplicative, and could not be
obtained from other sources); Freres v. Xyngular Corp., No. 2:13-cv-400, 2014 WL 1320273, at
*4-5 (D. Utah March 31, 2014) (granting motion to compel inspection and copying of plaintiff’s
cell phone where defendant sought a “narrow” category of relevant information). If the Court
denies this relief, Fox News may be deprived of evidence that could conclusively prove that the
relationship between Plaintiff and Tyrus was consensual.

Plaintiff has effectively conceded that a forensic examination is appropriate, but she
argues that her devices should not be searched for any relevant messages she may have had with
any third parties outside of Fox News. She relies on Your Honor’s recent Order regarding Tyrus’
communications (Dkt. 89), but the reasoning of that Order does not apply here. In that instance,
Plaintiff sought communications between Tyrus and third parties based solely on her retaliation
and intentional-infliction claims. The Court found that Tyrus’ outside messages were not
relevant to those claims because nobody outside of Fox News had any authority to retaliate
against her, and she did not allege that Tyrus sent offensive images to anyone outside of the
company. (Id. at 2). Here, by contrast, Plaintiff’s messages with outside third parties regarding
her relationship or interactions with Tyrus may bear on whether her text exchanges with Tyrus
were consensual or harassing. If she was upset by Tyrus’ messages, or if she was having a
consensual relationship with him, it is likely that she may have texted with friends or family
about the situation. There is cause for suspicion because Plaintiff has not produced a single text
she had with anyone else before July 2019. Fox News is thus entitled to probe whether any
relevant communications with third parties exist (or were willfully deleted prior to the “loss” of
Plaintiff’s phone). Whether or not Plaintiff’s misrepresentations warrant other sanctions, they
certainly heighten the need for Fox News to investigate and verify her allegations. The only way
Fox News can do that is through forensic examination of the electronic devices that remain.

Fox News respectfully asks the Court to order a neutral forensic examination of
Plaintiff’s laptop, Phone 2, and any other communications devices she used during the relevant
time period. The forensic examiner should search for and produce all of her communications
with Tyrus, and any relevant communications with Fox News employees or other third parties.

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Respectfully submitted,

/s/ Matthew W. Lampe


Matthew W. Lampe

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EXHIBIT A
Case 1:19-cv-11294-PAE Document 93-1 Filed 02/19/21 Page 2 of 4 1
K9aWmchC

1 UNITED STATES DISTRICT COURT


SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------x

3 BRITTANY McHENRY,

4 Plaintiff,

5 v. 19 Civ. 11294 (PAE)

6 FOX NEWS NETWORK, LLC, et al.,

7 Defendants.
Telephone Conference
8 ------------------------------x
New York, N.Y.
9 September 10, 2020
10:30 a.m.
10
Before:
11
HON. PAUL A. ENGELMAYER,
12
District Judge
13

14 APPEARANCES

15 SARAH BLOOM
ARICK W. FUDALI
16 Attorneys for Plaintiff

17 JONES DAY
Attorneys for Fox Defendants,
18 Rauchet, Finley and Mekeel
BY: MATTHEW W. LAMPE
19 KRISTINA A. YOST

20 CLARE LOCKE LLP


Attorneys for Defendant Murdoch
21 BY: ARIEL V. LIEBERMAN

22

23

24

25

SOUTHERN DISTRICT REPORTERS, P.C.


(212) 805-0300
Case 1:19-cv-11294-PAE Document 93-1 Filed 02/19/21 Page 3 of 4 17
K9aWmchC

1 having difficulty with the enunciation. It sounds almost like

2 you're under water. That may be a function of a cell phone, or

3 something, but just please try to be as precise as you can for

4 the court reporter's benefit and everyone else's.

5 Go ahead.

6 MS. LIEBERMAN: I apologize. My signal can sometimes

7 be a little bit tricky. Is that better? Are you able to hear

8 me?

9 THE COURT: Somewhat. Absolutely. Thank you. No

10 worries. It's an artifact of the remote-lawyering era that

11 these sorts of things happen, but go ahead.

12 MS. LIEBERMAN: Right.

13 So we are trying to discern exactly which information

14 he still has. It is our understanding that he changed cell

15 phones before any of these allegations were brought up and that

16 the prior cell phone, which would have had the most relevant

17 information, that he may not have retained those messages, but

18 we are not certain. So we would be very interested in Ms.

19 McHenry's, because we understand that she did retain those

20 messages and did not change numbers or cell phones.

21 THE COURT: May I ask you, Ms. Lieberman, whether you

22 and your firm are the first lawyers to represent Mr. Murdoch in

23 connection with this overall controversy.

24 MS. LIEBERMAN: We were brought in after he, after he

25 had filed with the New York State division of human rights, so

SOUTHERN DISTRICT REPORTERS, P.C.


(212) 805-0300
Case 1:19-cv-11294-PAE Document 93-1 Filed 02/19/21 Page 4 of 4 19
K9aWmchC

1 THE COURT: All right. Look, enough on this for now.

2 It goes without saying that he, too, is a potential custodian

3 of the same text messages with the plaintiff as the plaintiff

4 is, and I fully expect that there will be reciprocal requests

5 for those materials, and I would appreciate, Ms. Lieberman,

6 your urgently taking ownership of this issue and making sure

7 that, A, everything that currently exists is preserved and

8 protected, and given what you've said, I expect it will be an

9 area of inquiry even if something may or may not be destined to

10 come out of it as to the circumstances under which he ceased to

11 have a full collection of those records. Anyway, an issue for

12 down the road.

13 Ms. Lieberman, same issue to you about settlement,

14 also interested --

15 MS. LIEBERMAN: Yes.

16 THE COURT: -- in the referral?

17 MS. LIEBERMAN: Yes.

18 THE COURT: All right. Look, one action item coming

19 out of this is that I will issue the standard order that I do

20 that refers the matter to our magistrate judge, Judge Freeman,

21 for the purposes of settlement, and I will write down the same

22 admonition that I do on 99 percent of those referrals, which is

23 that I'm putting the scheduling onus on plaintiff's counsel to

24 reach out to the magistrate judge to do the scheduling of the

25 settlement conference but only when all parties are ready, so

SOUTHERN DISTRICT REPORTERS, P.C.


(212) 805-0300
Case 1:19-cv-11294-PAE Document 93-2 Filed 02/19/21 Page 1 of 4

EXHIBIT B
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UNITED STATES DISTRICT COURT


SOUTHERN DISTRICT OF NEW YORK

BRITTANY MCHENRY,
Plaintiff,
Case Number: 1:19-CV-11294-PAE
-against-

FOX NEWS NETWORK, LLC; FOX PLAINTIFF’S RESPONSES TO


CORPORATION; GEORGE MURDOCH (A/K/A DEFENDANT FOX NEWS NETOWRK
“TYRUS”); JENNIFER RAUCHET; JOHN LLC’S REQUEST FOR PRODUCTION
FINLEY; and MONICA MEKEEL, OF DOCUMENTS

Defendants.

PRELIMINARY STATEMENT

This preliminary response is incorporated into each and every response herein by this

reference.

These responses are made solely for the purpose of, and in relation to, this action. Each

response is given subject to all appropriate objections including, but not limited to, objections

concerning competency, relevancy, materiality, propriety, and admissibility, which would

require the exclusion of any statement contained herein where made by a witness testifying in

court. All such objections and grounds therefore are reserved and may be interposed at time of

trial.

It should be noted that this Responding Party has not fully completed an investigation of

the facts relating to this case and has not completed her preparation for trial. All of the responses

herein provided are based solely upon such information and documents which are presently

available to and specifically known to this Responding Party. It is anticipated that further

discovery, independent investigation, legal research, and analysis will supply additional facts,

1
Case 1:19-cv-11294-PAE Document 93-2 Filed 02/19/21 Page 3 of 4

RESPONSE TO REQUEST FOR PRODUCTION NO. 29:

Plaintiff will conduct a reasonable search and produce all non-privileged documents in

her possession, custody, and control responsive to this request.

REQUEST FOR PRODUCTION NO. 30.

All documents and communications that relate to, support, or undermine Plaintiff’s

allegations in Paragraph 71 of the Complaint that Murdoch made “sexual advances” and

“sexually harassing comments” towards Plaintiff and sent her “inappropriate text messages.”

RESPONSE TO REQUEST FOR PRODUCTION NO. 30:

Plaintiff will conduct a reasonable search and produce all non-privileged documents in

her possession, custody, and control responsive to this request.

REQUEST FOR PRODUCTION NO. 31:

All communications, including but not limited to text messages, e-mails, or messages on

any social media platforms, between Plaintiff and Murdoch.

RESPONSE TO REQUEST FOR PRODUCTION NO. 31:

Plaintiff will conduct a reasonable search and produce all non-privileged documents in

her possession, custody, and control responsive to this request.

REQUEST FOR PRODUCTION NO. 32.

All data and images from your electronic devices, including but not limited to your cell

phone(s) and any laptops or computers, that you used to communicate with Murdoch, reflecting

or regarding your communications with Murdoch (stored or deleted) including but not limited to

text messages, e-mails, or messages on any social media platforms. The data and images should

be produced pursuant to a forensic examination and imaging of such devices by a neutral third-

party examiner, who will review and produce the responsive data and images.

16
Case 1:19-cv-11294-PAE Document 93-2 Filed 02/19/21 Page 4 of 4

RESPONSE TO REQUEST FOR PRODUCTION NO. 32:

Plaintiff objects to this request on the grounds it is overbroad and an invasion of privacy.

Subject to and without waiving the aforementioned objections, Plaintiff responds as follows:

Plaintiff is willing to meet and confer with Defendants to discuss mutual parameters and rules for

forensic examination of both Plaintiff and Defendant Murdoch’s devices.

REQUEST FOR PRODUCTION NO. 33.

All documents and communications that relate to, support, or undermine Plaintiff’s

allegations in Paragraph 75 of the Complaint including but not limited to Plaintiff’s allegations

that she “politely replied to his grossly sexualized texts with friendly but non-sexual responses,”

and “never crossed the line or sent Mr. Murdoch any sexual messages.”

RESPONSE TO REQUEST FOR PRODUCTION NO. 33:

Plaintiff will conduct a reasonable search and produce all non-privileged documents in

her possession, custody, and control responsive to this request.

REQUEST FOR PRODUCTION NO. 34.

All documents and communications that relate to, support, or undermine Plaintiff’s

allegations in Paragraph 76 of the Complaint including but not limited to Plaintiff’s allegations

that Murdoch “grabbed Ms. McHenry’s hand and held it in an aggressive and overtly sexualized

manner.”

RESPONSE TO REQUEST FOR PRODUCTION NO. 34:

Plaintiff will conduct a reasonable search and produce all non-privileged documents in

her possession, custody, and control responsive to this request.

REQUEST FOR PRODUCTION NO. 35.

All documents and communications that relate to, support, or undermine Plaintiff’s

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Case 1:19-cv-11294-PAE Document 93-3 Filed 02/19/21 Page 1 of 5

EXHIBIT C
Case 1:19-cv-11294-PAE Document 93-3 Filed 02/19/21 Page 2 of 5

250 VESEY STREET • NEW YORK, NEW YORK 10281.1047

TELEPHONE: +1.212.326.3939 • FACSIMILE: +1.212.755.7306

January 11, 2021

VIA ELECTRONIC MAIL


Arick Fudali
85 Delancey St. #29
New York New York 10002

Re: McHenry v. Fox News Network, LLC et al., Case No. 1:19-cv-11294-PAE-DCF

Dear Arick,

We write regarding your disclosure to us on our January 4, 2021 call that Plaintiff claims
that she lost the cell phone containing the allegedly harassing texts she received from George
Murdoch (“Tyrus”). During our call, you explained that Plaintiff lost the phone on an airplane
prior to the commencement of The Bloom Firm’s representation of her on or before August 6,
2019. Separately, you also informed us during the call that Plaintiff no longer possesses any of
her Instagram messages with Tyrus.

As you are well aware, Plaintiff’s harassment claims turn almost entirely on allegedly
harassing messages she claims to have received from Tyrus. The authenticity and completeness
of the body of evidence consisting of these electronic messages is of paramount importance to
the conduct of this litigation. The fact that Plaintiff no longer has the phone containing these
messages is extremely troubling and raises serious concerns both about spoliation of evidence,
and potential misrepresentations to the Defendants, investigators, government agencies, the
Court, and the public about the existence of such evidence. Specifically, despite the critical
nature of this evidence, you and your client waited until January 4, 2021 – over a year into this
litigation – to inform us that Plaintiff allegedly lost the source of this evidence. Even more
concerning is that during that same time period, Plaintiff and your firm have made multiple
statements – including several under oath – affirming she had the phone in question. 1 Those
statements include the following, each of which occurred after The Bloom Firm started
representing Plaintiff and thus after Plaintiff claims she lost her phone:

1
Plaintiff’s phone is critical since Tyrus is not in possession of his texts with Plaintiff.

AMS TERDAM • ATL ANTA • BEIJING • BOSTON • BRI SBANE • BRUSSE L S • CHICAGO • CLEVE L AND • COLUMBUS • DAL L AS • DETROIT
DUBAI • DÜS SELDORF • FRANKFUR T • HONG KONG • HOUSTON • IRVINE • LONDON • LOS ANGELES • MADRID • MELBOURNE
MEXICO CIT Y • MIAMI • MIL AN • MINNEAPOLIS • MOSCOW • MUNICH • NEW YORK • PARIS • PER TH • PITTSBURGH • SAN DIEGO
SAN FRANCISCO • SÃO PAULO • SAUDI ARABIA • SHANGHAI • SILICON VALLEY • SINGAPORE • SYDNEY • TAIPEI • TOKYO • WASHING TON
Case 1:19-cv-11294-PAE Document 93-3 Filed 02/19/21 Page 3 of 5

January 11, 2021


Page 2

• During the second independent investigation into Plaintiff’s complaint about Tyrus,
which occurred in August-October of 2019, Plaintiff prepared and submitted a log of the
text messages she exchanged with Tyrus. During the investigation, she represented to the
investigator that the log was “a true representation of what she had provided to her
attorneys from her phone and a true representation of her cellular text messages with
Tyrus.” FOXBM000057.
• On October 23, 2019, you represented to us via email that “Ms. McHenry is willing to
provide her phone to be forensically examined.”
• On or around October 30, 2019, Plaintiff stated in her Verified Complaint to the New
York State Division of Human Rights that “I have offered my cell phone to Fox for a
forensic examination in exchange for Tyrus doing the same with his phone.”
• On December 11, 2019, in her federal court Complaint, Plaintiff likewise stated that she
“immediately offered to have a forensic expert examine her cell phone to prove that she
did not send those messages, provided Mr. Murdoch do the same.” Dkt. 6, at ¶ 108. She
affirmed this same statement again in her Amended Complaint filed on March 30, 2020.
Dkt. 39, at ¶ 108.
• At the parties’ Rule 26(f) Conference on August 20, 2020, we requested and you agreed
to a forensic examination of Plaintiff’s cell phone. In fact, in response to my question as
to whether everything on Plaintiff’s phone was being preserved, you expressly said that it
was and did not disclose at any point that she no longer even had the phone in question.
• At the Initial Pretrial Conference before Judge Engelmayer on September 10, 2020,
counsel for Tyrus stated that “we would be very interested in Ms. McHenry’s [texts],
because we understand that she did retain those messages and did not change numbers or
cell phones.” Tr. at 17. You did not correct this apparent misstatement at any time
during or after the Conference to reflect that Plaintiff in fact did change (and indeed lost)
the relevant cell phone.
• On November 5, 2020, Plaintiff responded to Fox News’ Document Request No. 32 for
“All data and images from [Plaintiff’s] electronic devices, including but not limited to
[Plaintiff’s] cell phone(s) and any laptops or computers, that [she] used to communicate
with [Tyrus]” by agreeing to an exam of her “devices,” without mentioning that she no
longer has the cell phone she used to communicate with Tyrus.

Given these representations, it appears that either Plaintiff lost her phone later than you
claim, or that you and Plaintiff repeatedly misrepresented that she had possession of her phone
when she did not. Thus, please immediately let us know when Plaintiff lost her phone and when
she notified The Bloom Firm that she lost her phone.
Case 1:19-cv-11294-PAE Document 93-3 Filed 02/19/21 Page 4 of 5

January 11, 2021


Page 3

While Plaintiff has agreed to a forensic exam of the laptop containing a backup of her
phone, that may not sufficiently cure the prejudice that this loss has caused to the Defendants in
this action. The backup of Plaintiff’s phone on her laptop may not be complete – for example, it
might not contain messages that were deleted from her phone prior to the backup, and it would
not contain data that wasn’t backed up. It also may not include any forensic information, such as
whether any texts or messages have been deleted, duplicated, or altered. Accordingly, the only
existing record of the communications between Plaintiff and Tyrus may be incomplete and/or
inaccurate. The phone itself, as well as a forensic examination of its contents would have been
necessary to defend this case, but now is apparently foreclosed, according to Plaintiff’s belated
revelation.

We need to immediately ascertain whether a complete and accurate version of all the text
and Instagram messages between Plaintiff and Tyrus, and between Plaintiff and anyone else
concerning her claims, can be recovered in order to assess our potential remedies, including
sanctions.

In light of the loss of Plaintiff’s phone and Instagram messages, we also cannot agree that
the forensic examination be limited to only Plaintiff’s communications with Tyrus. It must also
include all of Plaintiff’s communications with anyone else regarding her claims since the backup
from her phone may be incomplete. Moreover, Plaintiff must preserve and produce any
information in her possession relating to the loss of her phone, including but not limited to the
suspected location of the loss, any messages communicating that loss to any other person, any
efforts to locate or retrieve the lost phone, and any information regarding the date of the loss,
including the date she purchased a new phone to replace the lost phone.

Accordingly, we request that Plaintiff immediately undergo a forensic examination of her


laptop in accordance with the agreed upon protocols set forth in our December 28, 2020 email.
We suggest retaining BDO or Berkeley Research Group as the neutral examiner.

Please let us know by no later than January 15, 2021 whether you agree to either of these
suggested examiners conducting a complete forensic examination of Plaintiff’s laptop, current
phone, and any other devices in her possession. Please also get back to us by no later than that
date as to when Plaintiff lost her phone and when she notified The Bloom Firm of same.
Case 1:19-cv-11294-PAE Document 93-3 Filed 02/19/21 Page 5 of 5

January 11, 2021


Page 4

Respectfully,

Kristina A. Yost

cc: Tom Clare (counsel for Defendant George (Tyrus) Murdoch)


Case 1:19-cv-11294-PAE Document 93-4 Filed 02/19/21 Page 1 of 4

EXHIBIT D
Case 1:19-cv-11294-PAE Document 93-4 Filed 02/19/21 Page 2 of 4

250 VESEY STREET • NEW YORK, NEW YORK 10281.1047

TELEPHONE: +1.212.326.3939 • FACSIMILE: +1.212.755.7306

January 22, 2021

VIA ELECTRONIC MAIL


Arick Fudali
85 Delancey St. #29
New York New York 10002

Re: McHenry v. Fox News Network, LLC et al., Case No. 1:19-cv-11294-PAE-DCF

Dear Arick,

We write to memorialize our January 19, 2021 call regarding Plaintiff’s claimed loss of
her cell phone containing the allegedly harassing texts from George Murdoch (“Tyrus”) and to
request additional information from Plaintiff regarding the lost phone.

As you know, it was not until January 4, 2021 that you disclosed to us on a telephone call
that Plaintiff claims to have lost her phone. Your disclosure came up in the context of a
discussion concerning whether Plaintiff would submit her devices for a forensic examination and
the parameters of any such exam. On this call, you agreed that Plaintiff would submit to a
forensic examination of her laptop containing the backup of her text messages as well as a
forensic examination of any other devices she used to communicate with Tyrus.

Then, on our January 19, 2021 call, you conveyed the following:

• You represented that Plaintiff lost her phone in a taxicab in Portugal in July 2019, prior to
The Bloom Firm’s representation of her (and thus prior to her creation of the text log that
she submitted during the course of the second independent investigation).

• You refused to provide us with the date that The Bloom Firm learned of the lost phone,
stating that you believed that information was privileged. As we stated on the call, the
date of a such a communication is not privileged. You adjourned our call to reassess
your position and confer with your client on this point. Please let us know your position
by January 27, 2021.

AMS TERDAM • ATL ANTA • BEIJING • BOSTON • BRI SBANE • BRUSSE L S • CHICAGO • CLEVE L AND • COLUMBUS • DAL L AS • DETROIT
DUBAI • DÜS SELDORF • FRANKFUR T • HONG KONG • HOUSTON • IRVINE • LONDON • LOS ANGELES • MADRID • MELBOURNE
MEXICO CIT Y • MIAMI • MIL AN • MINNEAPOLIS • MOSCOW • MUNICH • NEW YORK • PARIS • PER TH • PITTSBURGH • SAN DIEGO
SAN FRANCISCO • SÃO PAULO • SAUDI ARABIA • SHANGHAI • SILICON VALLEY • SINGAPORE • SYDNEY • TAIPEI • TOKYO • WASHING TON
Case 1:19-cv-11294-PAE Document 93-4 Filed 02/19/21 Page 3 of 4

January 22, 2021


Page 2

• While you claimed that Plaintiff had backed up her phone before losing it, you were not
able to provide us with the date of the last backup.

• You conceded that you do not know whether the backup contains all of the texts,
indicating that you do not know how backups to the cloud work.

• You represented that you would not have asserted in Plaintiff’s NYSDHR, original and
amended complaints that she was willing to submit her phone for a forensic examination
had you known that she no longer had the phone.

• As to the forensic examination that you agreed to on January 4, 2021, you initially
changed your position, indicating that Plaintiff would submit to the examination only if
Tyrus also agreed to forensically examine his devices, but at the end of the call, you said
that Plaintiff would proceed with the forensic examination without the condition that
Tyrus also agree to an exam.

• You apologized for your prior misleading representations to us regarding the preservation
of Plaintiff’s cell phone.

We also discussed a dispute we have over the parameters of the forensic examination,
specifically, whether Plaintiff will agree that the forensic examination will include Plaintiff’s
communications with others besides Tyrus regarding her claims in the case. As we discussed,
since the backup from her phone may be incomplete, it is equally as important that we
forensically examine the backup to determine whether any additional relevant messages with
other individuals can be recovered. Plaintiff’s position is that such a request is objectionable on
privacy grounds. Given the grave prejudice that Fox News and Rauchet stand to suffer without
such discovery, we ask that you reconsider your position on this subject and let us know by
January 27, 2021 whether you agree that the forensic examination will encompass Plaintiff’s
relevant communications with individuals other than Tyrus.

We need to proceed with the forensic exam immediately thereafter. Please confirm that
Plaintiff will amend her Response to Fox News’ Interrogatory No. 8, which seeks the
identification of all platforms, applications, or websites that Plaintiff used to communicate or
exchange information or photos with Tyrus, by January 27, 2021 so that the results can be used
in the forensic examination. Additionally, please confirm whether you prefer to retain BDO or
Berkeley Research Group as the neutral examiner and provide us with a date that Plaintiff agrees
to deliver her laptop to the vendor.

Finally, as we indicated on our January 19, 2021 call, we need additional information and
documents from Plaintiff to assess the potential spoliation of her communications contained on
Case 1:19-cv-11294-PAE Document 93-4 Filed 02/19/21 Page 4 of 4

January 22, 2021


Page 3

her phone, potential remedies (including under Rule 11), and to prepare for Plaintiff’s deposition.
Therefore, we will be serving additional requests for the production of documents and
interrogatories on Plaintiff. Given that you delayed disclosing the lost phone until long after
discovery began and the potential prejudice that any further delay would cause in light of the
upcoming discovery deadline, we request that Plaintiff respond to our forthcoming requests on
an expedited basis, within 15 days of receipt. Please confirm that you agreed to this expedited
timeline.

Respectfully,

Kristina A. Yost

cc: Tom Clare (counsel for Defendant George (Tyrus) Murdoch)


Case 1:19-cv-11294-PAE Document 93-5 Filed 02/19/21 Page 1 of 4

EXHIBIT E
Case 1:19-cv-11294-PAE Document 93-5 Filed 02/19/21 Page 2 of 4

January 27, 2021


Via Email
Kristina A. Yost, Esq.
Matthew W. Lampe, Esq.
Maryssa A. Mataras, Esq.
JONES DAY
250 Vesey Street
New York, NY 10281

Re: McHenry v. Fox News Network, et al.


Dear Ms. Yost,
Please allow this correspondence to serve as a response to your letter dated January 22,
2021.
Please be advised that we do not agree to many of the statements made in your letter that
attempt to “memorialize” our conversation. For instance, I never apologized for making
“misleading” representations. I have not misled anyone and in fact, have done just the opposite.
Prior to any exchange or forensic evaluation, I informed you that the phone was no longer in Ms.
McHenry’s possession and offered to meet and confer on a way to rectify the situation.
“Misleading” would have been going forward with a phone exchange and obtaining a forensic
evaluation of Mr. Murdoch’s phone under the false pretense that the phone Ms. McHenry was
providing was the phone in question. We did not do that. Instead, upon your request for a
forensic evaluation, we proactively let you know the phone was lost and offered other discovery
alternatives which go beyond the scope of normal discovery devices. Ms. McHenry has already
provided text messages to the investigators and in discovery.
Nevertheless, it was and still is our intention to work in good faith with you to move
forward with discovery in this matter. In fact, Ms. McHenry has done a diligent search and has
recovered an old phone (“Phone 2”), that has all of the relevant text messages preserved, due to a
backup of her original phone (“Phone 1”), conducted on April 24, 2019. To my understanding,
Phone 2 has preserved all of the text messages between Mr. Murdoch and Ms. McHenry between
approximately August 24, 2018 and April 10, 2019. This is the exact same information that
would have been retrievable from Phone 1, which was lost. To that end, we agree to produce
Phone 2 for forensic evaluation so that the entirety of her text conversations with Mr. Murdoch
may be retrieved. As you are likely aware, the Court just limited what communications with third
parties need to be produced by Mr. Murdoch. Ms. McHenry will abide by the same ruling for the
scope of the forensic examination of Phone 2. Of course, we will need to discuss the logistics of
this as we certainly want to protect any communication that would be subject to attorney client
privilege or beyond the scope of the Court’s Order.

1
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26565 Agoura Road., Suite 200 | Calabasas | CA | 91302 | Office: (818) 914-7397 | Fax: (818) 884-8079 | TheBloomFirm.com
Case 1:19-cv-11294-PAE Document 93-5 Filed 02/19/21 Page 3 of 4

To summarize:
Ms. McHenry backed up Phone 1 on April 24, 2019.
All of the text messages between Ms. McHenry and Mr. Murdoch were saved and
preserved during that back up.
Ms. McHenry lost Phone 1 in July 2019.
The comprehensive original text conversation between Ms. McHenry and Mr.
Murdoch is fully preserved and retrievable on Phone 2.
Mr. Murdoch has apparently lost his phone.
Plaintiff has offered a forensic evaluation of Phone 2 to retrieve the entirety of the
preserved text conversation between Ms. McHenry and Mr. Murdoch.
This should completely resolve this matter.
I do not see any reason to expedite our discovery responses, and from a brief look at your
recent interrogatories, it appears those go well beyond the scope of permissible interrogatories in
the SDNY. That being said, we will do our best to provide responsive, non-objectionable
information as soon as possible. It seems necessary to remind you that the forensic evaluation of
a communication device is not a standard discovery mechanism in this Court, or any court.
Plaintiff is in no way obligated to submit her phone or computer to a forensic evaluation, absent
an order by the Court. The only reason this came up is because during Fox News’ “investigation”
of Ms. McHenry’s sexual harassment complaint, Plaintiff offered a reciprocal forensic phone
examination exchange between Mr. Murdoch and Ms. McHenry to specifically demonstrate that
certain texts the investigator relied on, purportedly between Mr. Murdoch and Ms. McHenry,
were fraudulent. Plaintiff never received a response. As it turns out, neither Mr. Murdoch nor
Ms. McHenry have the relevant phones anymore, making this proposal moot. Typically, a
request for a forensic evaluation of someone’s phone in litigation would be a gross violation of
privacy interests and would require substantial motion practice. Nevertheless, we are, in good
faith, and in an effort to resolve this matter, allowing for the forensic evaluation of Ms.
McHenry’s phone that contains the preserved text messages between Ms. McHenry and Mr.
Murdoch. Please be advised, however, that we are still amenable and would prefer to stipulate to
a reciprocal exchange with Mr. Murdoch.
Please also be advised that our agreement to produce Ms. McHenry’s phone for a
forensic evaluation is contingent on this agreement resolving this matter in its entirety. Plaintiff
is offering this solution as a means of resolving this matter without the necessity of motion
practice regarding the forensic evaluation or issues surrounding the lost phone. If such an offer
does not resolve this issue in its entirety, you will need to file a motion to compel the forensic
evaluation and explain to the Court why you need a forensic evaluation of Ms. McHenry’s
phone, despite there being no indication of impropriety, and her already having provided the text
messages she has.
Plaintiff maintains that the communication requested regarding the date we were
informed that Ms. McHenry’s phone was lost is protected by attorney client
privilege. To Mr. Clare’s point about a privilege log revealing the date of
conversations, such a log would not include the content of each conversation, of

2
Our attorneys are admitted to practice law in California, New York and Florida
26565 Agoura Road., Suite 200 | Calabasas | CA | 91302 | Office: (818) 914-7397 | Fax: (818) 884-8079 | TheBloomFirm.com
Case 1:19-cv-11294-PAE Document 93-5 Filed 02/19/21 Page 4 of 4

course, as that would violate the privilege. Moreover, that information is immaterial. We have
informed you that Ms. McHenry no longer has her phone and have offered an alternative beyond
the scope of normal discovery to accommodate any perceived prejudice. We have even provided
the timeframe and circumstances of when and how Ms. McHenry lost her phone and the date of
her last backup, for which you have made further discovery requests. When Plaintiff’s counsel
learned about the lost phone is not relevant to any issue in this matter. Even a potential spoliation
motion (which wouldn’t apply) would not require such information as the only relevant issue
would be the timing and circumstances of Ms. McHenry losing her phone. In response to your
brief mention of Rule 11, there are zero demonstrably false allegations in the First Amended
Complaint. Further, Defendants have not been prejudiced in any way as we proactively informed
you of the lost phone, prior to it actually becoming an issue, and Ms. McHenry has preserved the
relevant text messages. If anything, Defendants are being given the opportunity to utilize a
discovery device that would normally require motion practice and a Court order.
I expect our agreement to produce Ms. McHenry’s phone for forensic evaluation should
resolve this matter. If there is anything further you would like to discuss, we are more than
willing to continue to meet and confer. Please also be advised that any specific statement made
in your January 22, 2021 correspondence to which this letter does not directly address is deemed
as generally denied.

Very Truly Yours,


/s/ Arick Fudali
Arick Fudali
Cc: Tom Clare

3
Our attorneys are admitted to practice law in California, New York and Florida
26565 Agoura Road., Suite 200 | Calabasas | CA | 91302 | Office: (818) 914-7397 | Fax: (818) 884-8079 | TheBloomFirm.com
Case 1:19-cv-11294-PAE Document 93-6 Filed 02/19/21 Page 1 of 5

EXHIBIT F
Case 1:19-cv-11294-PAE Document 93-6 Filed 02/19/21 Page 2 of 5

250 VESEY STREET • NEW YORK, NEW YORK 10281.1047

TELEPHONE: +1.212.326.3939 • FACSIMILE: +1.212.755.7306

February 3, 2021

VIA ELECTRONIC MAIL


Arick Fudali
85 Delancey St. #29
New York New York 10002

Re: McHenry v. Fox News Network, LLC et al., Case No. 1:19-cv-11294-PAE-DCF

Dear Arick,

We write in response to your January 27, 2021 letter, in which you revealed that Plaintiff
has yet another phone—this one still in her possession—containing messages with George
Murdoch (“Tyrus”) and that she is now offering that device for forensic examination and
retracting her offer to submit her laptop for forensic examination. Especially in light of
Plaintiff’s continually shifting explanations about the existence of devices containing messages
between her and Tyrus and the doubt that these shifting explanations and other circumstances
surrounding Plaintiff’s untimely disclosure of her lost phone create as to whether any one device
contains a full, unaltered set of the communications, we have no choice but to request that
Plaintiff submit for forensic examination all available sources containing communications with
Tyrus. Specifically, we request a forensic examination of this newly disclosed phone (which you
call “Phone 2”), Plaintiff’s laptop, and any other devices that contain communications, or were
used to communicate with, Tyrus.

To recap, Plaintiff’s October 30, 2019 New York State Division of Human Rights
Verified Complaint, December 10, 2019 federal Complaint, and March 30, 2020 Amended
Complaint, each state that Plaintiff offered her phone for a forensic examination on the condition
that Tyrus agree to the same.

Yet, on our January 4, 2021 call, you revealed for the first time that Plaintiff had lost that
phone and stated that all of the communications Plaintiff deems relevant had been backed up
onto Plaintiff’s laptop. Accordingly, you agreed that she would submit her laptop for forensic
examination.

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Case 1:19-cv-11294-PAE Document 93-6 Filed 02/19/21 Page 3 of 5

February 3, 2021
Page 2

On our January 19, 2021 call, you initially revoked Plaintiff’s offer to submit her laptop
for forensic examination. At the end of the call, you changed your position again and said that
she would offer her laptop for forensic examination.

In your January 27, 2021 letter, Plaintiff changed her position again, revealing that
Plaintiff had discovered an old phone (Phone 2) that contains a backup, allegedly created on
April 24, 2019, of communications between Plaintiff and Tyrus between August 24, 2018 and
April 10, 2019. You offered to produce Phone 2 for a forensic examination and seem to have
withdrawn your previous offer to submit Plaintiff’s laptop for examination.

Contrary to your contention, Plaintiff’s untimely disclosure of this additional phone 13


months into this case does not put to rest our serious concerns about potential spoliation of
evidence and the authenticity and completeness of the log of text messages that Plaintiff has
produced. Rather, your disclosure of the additional phone raises even more questions, including
whether Plaintiff actively used Phone 2 before or after what you refer to as her original phone,
how she performed the backup of the original phone on April 24, 2019, when that backup was
loaded onto Phone 2, how it was loaded onto Phone 2, and whether it differs from the backup
you previously indicated was contained on her laptop. Given Plaintiff’s continually shifting
explanations of the different sources of backups (i.e., whether it’s on her phone or laptop or both)
and the type of backup (i.e., is it actual messages or is it screenshots/PDFs, as Plaintiff stated in
her January 29, 2021 Instagram Story), an examination of her laptop, Phone 2, and any other
devices she used to communicate with Tyrus, or that contain communications with Tyrus, is
absolutely essential.

As to the parameters of the forensic examination that you have agreed to, you state in
your January 27, 2021 letter that Plaintiff agrees that the examination will encompass her
communications with third parties, but only third parties that Judge Engelmayer deemed the
relevant potential recipients of certain documents Tyrus was asked to produce. In Judge
Engelmayer’s Order (Dkt. 89), he reasoned that it was most likely that Tyrus would have
communicated about matters pertinent to this dispute with employees of Fox News and/or Fox
News affiliates. This reasoning does not apply here, where we are seeking the Plaintiff’s
communications about the alleged harassment and retaliation she claims to have experienced.
Indeed, she would have been much more likely to reveal pertinent facts about the alleged
harassment and/or retaliation, including her relationship with Tyrus, to individuals who are not
employees of Fox News and/or Fox News affiliates. And, in her Initial Disclosures Plaintiff has
identified several individuals who possess discoverable information and are not Fox News
employees and/or affiliates. Thus, Plaintiff should submit to a forensic examination that will
search for relevant communications with not only Tyrus but any third parties with whom
Plaintiff communicated about her claims.
Case 1:19-cv-11294-PAE Document 93-6 Filed 02/19/21 Page 4 of 5

February 3, 2021
Page 3

We understand from your January 27, 2021 letter that Plaintiff’s offer of a forensic
examination is an all or nothing offer, i.e., that if Fox News and Rauchet do not accede to
Plaintiff’s parameters for the examination, she will retract it in its entirely. Thus, while we likely
will need to raise this dispute with Judge Engelmayer, we want to ensure that we understand
your position on each of the following items:

• Plaintiff represented on January 29, 2021 that she would offer for forensic examination
all of her devices containing communications with Tyrus or used to communicate with
Tyrus (see Instagram Story dated January 29, 2021). Accordingly, we assume that
Plaintiff is now agreeing to submit Phone 2, her laptop, and any other devices she used to
communicate with Tyrus or that contain communications with Tyrus for forensic
examination. Please confirm by February 8, 2021 that we correctly understand your
position on this issue.1

• Does Plaintiff agree that the forensic examination will also include communications with
third parties pertinent to her claims in this case, or is she limiting it to only
communications with employees of Fox News and/or any Fox News affiliate? Please
confirm Plaintiff’s position on this issue by February 8, 2021.

• Please confirm by February 8, 2021 that Plaintiff agrees to use Berkley Research Group
for the neutral forensic examiner and that she will submit her devices for examination by
February 10, 2021.

• Please confirm by February 8, 2021 that you are sticking to your position that the date
The Bloom Firm first learned Plaintiff lost the phone is privileged.

1
In a similar vein, please confirm by February 5, 2021 that Plaintiff has been and will continue to preserve
her Instagram and Facebook Stories, and any other social media posts that disappear from the internet after being
posted. These communications are responsive to Fox News’ Request for Production of Document No. 56 and are
not generally available given that they require an account to be viewed.
Case 1:19-cv-11294-PAE Document 93-6 Filed 02/19/21 Page 5 of 5

February 3, 2021
Page 4

Respectfully,

Kristina A. Yost

cc: Tom Clare (counsel for Defendant George (Tyrus) Murdoch)


Case 1:19-cv-11294-PAE Document 93-7 Filed 02/19/21 Page 1 of 2

EXHIBIT G
Case 1:19-cv-11294-PAE Document 93-7 Filed 02/19/21 Page 2 of 2

February 9, 2021
Via Email
Kristina A. Yost, Esq.
Matthew W. Lampe, Esq.
Maryssa A. Mataras, Esq.
JONES DAY
250 Vesey Street
New York, NY 10281

Re: McHenry v. Fox News Network, et al.


Counsel,
This letter is in response to your correspondence dated February 3, 2021. Again, we
disagree with your characterization of certain representations and issues. Nevertheless, it is still
our intention to resolve this matter. In response to your bulleted questions:
Yes. Plaintiff will provide her laptop and Phone 2 for forensic examination.
Plaintiff maintains that she should be bound by the Court’s order relevant to this issue
concerning Mr. Murdoch.
Berkley Research Group is agreeable. There are some other matters that need to be
discussed, such as search terms, logistics, and the ability of Plaintiff’s counsel to review
production first, to ensure nothing privileged is provided.
Yes. We maintain the timing and substance of an attorney-client communication is
subject to attorney-client privilege.
Please also note that this agreement is contingent on the matter being resolved. If you still
intend to file any motions on this matter, then we do not have an agreement and you will have to
seek a Court order to obtain any forensic examination.
We are happy to meet and confer about these issues, as well as those brought up in our
correspondence of February 5, 2021.

Very Truly Yours,


/s/ Arick Fudali
Arick Fudali
Cc: Tom Clare

Our attorneys are admitted to practice law in California, New York and Florida
26565 Agoura Road., Suite 200 | Calabasas | CA | 91302 | Office: (818) 914-7397 | Fax: (818) 884-8079 | TheBloomFirm.com