Earlier this week, we discussed the continuance (for non-lawyers, that means “postponement”) of the hearing on the petition for a restraining order filed against Dodgers pitcher Trevor Bauer. Yesterday, Bauer’s lawyers filed another request for a continuance; the hearing is now set for August 16-18. A source close to the legal team representing the petitioner tells Beyond the Box Score that they did not agree to the continuance, and want to proceed as quickly as possible.
Beyond the Box Score obtained a copy of the motion for continuance filed by Bauer’s attorneys, Shawn Holley, Kate Mangels, and Jon Fetterolf. In it, Bauer asked “that the Court consider whether an additional continuance is required . . . in order for Respondent to meaningfully respond to Petitioner’s Request,” and proposed September 27 and 28, 2021 as new dates. This was not granted by the Court; instead, the Court issued an Order resetting the hearing beginning August 16.
Bauer’s attorneys offer multiple reasons for their requested postponements. First, they argue that they need the additional time to prepare for witness examination. Notably, Bauer’s attorneys state that they believe “Petitioner has expanded this dispute beyond the normal bounds of a restraining order hearing,” and further state they will be bringing additional motion practice to delay the hearing further.
Petitioner’s witness list also included a previously undisclosed “expert” witness and two previously undisclosed other witnesses who were not previously subpoenaed by Petitioner. In addition, the witness list first disclosed that other witnesses subpoenaed by Petitioner, including two San Diego Police Department detectives, would be testifying beyond the purpose of authenticating certain records—which was the reason they were subpoenaed. For example, the detectives would now purportedly testify about Petitioner’s “injuries” and “observations, opinions, and knowledge of all matters relevant to Petitioner’s allegations.” While we doubt such testimony would be admissible or proper in the context of this proceeding, at the moment we have been provided no documents from the San Diego Police department, and our subpoena to them is returnable on August 2, 2021 at 10:00 a.m.
A few things jump out here. First, the hearing in question is what we lawyers call an evidentiary hearing - a type of court hearing which is more than argument, but less than a full-blown trial. Discovery, whilst permitted, is typically less formal and stringent with evidentiary hearings than trials, and continuances for discovery purposes are usually frowned upon absent good cause. That the Court granted a continuance of less than what Bauer’s team requested suggests that perhaps the judge is not convinced that the voluminous discovery they are requesting is entirely necessary, but is erring on the side of caution for potential appellate proceedings.
Second, Bauer’s attorneys seem to be taking a very different in-courtroom tack than in public. Despite their public protestations that Bauer did nothing wrong because his encounters with the petitioner were purportedly consensual, his lawyers argue that the issue isn’t relevant to the proceedings.
Petitioner planned to introduce expert testimony as to consensual versus non-consensual sex. Specifically, [Petitioner] intends to introduce the testimony of Dr. Ellen Stein, “as a general expert on domestic violence” who will testify on “consensual versus non-consensual sex, and any other matters as raised in Petitioner’s DVRO application.” See Ex. A at p. 3. Respondent plans to file a motion to strike this expert testimony because it far exceeds the limited scope of this matter and is not a proper topic for expert testimony in any event.
In fact, Beyond the Box Score has learned via sources that Bauer’s attorneys wrote to the petitioner’s attorneys arguing that the hearing “may not be used to speculate as to whether [petitioner] provided her consent to any of the alleged conduct.” This is fundamentally counter to the public narrative provided by Bauer’s attorneys and is being used as another basis to continue proceedings.
So why is Bauer’s team so intent on delaying? One possibility we heard is that his team is hoping that if proceedings are delayed through September, the MLB Players’ Association will stop agreeing to extend his administrative leave, which currently expires on August 6. If Bauer does return to the mound, MLB would be hard-pressed to suspend Bauer during the stretch run and into the playoffs. In other words, Bauer would be able to use the bully pulpit of the playoffs stage to pressure the petitioner to drop her case, especially, if he plays a key role in a deep Los Angeles playoff run and gains fan popularity in the process. We did reach out to the MLBPA regarding whether the union plans to stop agreeing to extend Bauer’s administrative leave, and the union declined comment through a spokesperson.
Sheryl Ring is a consumer rights and civil rights attorney practicing in the Chicago, Illinois area. You can reach her on Twitter @Ring_Sheryl. This post is for informational purposes only and is not legal advice, and does not create any attorney-client relationship.