By NEIL HARTNELL
Tribune Business Editor
More than 1,000 hours of alleged videotape evidence against Peter Nygard would be “suppressed for all time” if the Bahamian court system was allowed to determine its admissibility for trial, it was claimed yesterday.
Documents filed in the southern New York courts allege that the evidence and testimony from the footage’s creator, purported ‘whistleblower’ Stephen Feralio, would be “unobtainable” in the Bahamian courts because he is not subject to their jurisdiction.
The filings also attempt to rebut Mr Nygard’s assertion that the New York proceedings are irrelevant, because Feralio had ‘voluntarily submitted’ to Bahamian jurisdiction via the agreement made with the Canadian fashion mogul’s arch rival, and Lyford Cay neighbour, Louis Bacon.
Attorneys representing Mr Bacon and the Save the Bays/Coalition to Protect Clifton environmental advocacy group alleged that Feralio would not travel to the Bahamas due to fears of legal retaliation from Mr Nygard.
Responding to the Canadian’s attempt to quash the subpoenas that Mr Bacon/Save the Bays want to serve on Feralio, in a bid to obtain video evidence he allegedly possesses for use in seven separate Bahamian court actions, the documents alleged: “They [Mr Nygard’s attorneys] again argue that this court should not consider the 1782 Application in deference to courts in California and the Bahamas - an obvious gambit to suppress the evidence for all time.
“The 1782 Application seeks highly relevant and valuable evidence for use in foreign proceedings brought to advance the societal and environmental rights of the Bahamian people, and to finally end the unprecedented four-year smear campaign against Mr Bacon..... The subpoenaed video footage and testimony are critical evidence in the pursuit of these causes.
“The Nyg�rd Parties attempt to trivialise this proceeding by ignoring the merits of the underlying Bahamian lawsuits. But tellingly absent from their brief is any denial that Mr Nyg�rd was involved in the..... unlawful destruction of the Bahamian environment. The Nyg�rd Parties also do not deny that the subpoenaed video footage will reveal these bad acts.”
Tribune Business yesterday e-mailed a series of detailed questions to Mr Nygard’s New York public relations advisers, seeking a comprehensive response to the Bacon/Save the Bays filings prior to press time. Neither the e-mail nor phone calls were returned.
Meanwhile, Mr Bacon and Save the Bays argued that because Feralio was not a party in any of the seven Bahamian actions, and he was living in the US, his evidence was ‘unobtainable’ in this nation.
“The Nyg�rd Parties baldly assert that petitioners have ‘no need for Section 1782 relief’ because Mr Feralio has ‘voluntarily agreed to submit to the jurisdiction of the Bahamian courts’ and petitioners have agreed to pay for his trip,” they alleged.
“In reality, the Bahamian courts have no extraterritorial powers to compel a non-party abroad to provide discovery, and individuals cannot contractually expand the Bahamian courts’ jurisdictional reach.”
Pressing on, Mr Bacon and Save the Bays further alleged: “Mr Feralio has been asked to cooperate with this proceeding and to subject himself to the jurisdiction of this court.
“He will not travel to the Bahamas because he lives in mortal fear of Mr Nyg�rd and his many associates there. Petitioners have no intention of requesting that Mr Feralio travel to the Bahamas, which is precisely why they filed this 1782 Application.”
Mr Bacon and Save the Bays argued that the protections given to Mr Nygard in Bahamian law would not ne compromised by the New York action, and were “in no way limited or hindered”.
“And the Nyg�rd Parties do not - and cannot - point to a single specific proof-gathering restriction under Bahamian law that would be circumvented by this discovery,” they added.
Fred Smith QC, the Callenders & Co attorney and partner, who is Save the Bays’ legal counsel, alleged in an affidavit that the so-called ‘public interest immunity’ defence available to government ministers and officials in relation to the Nygard video tapes was “limited”.
He claimed that arguments by Mr Nygard’s attorney, Thomas Evans QC, that the Bahamian Supreme Court would be best placed to rule on ‘privilege’ or ‘public interest immunity’ defences, had no support.
And, Mr Smith noted, none of the Government ministers named in the two Nygard-related Judicial Review actions launched by Save the Bays had sought to “intervene” in the New York hearings, even though the Attorney General’s Office had been served with the filings.
Apart from Prime Minister Perry Christie, the respondents also include Deputy Prime Minister Philip Davis, and minister of transport and aviation, Glenys Hanna Martin.
“The Nygard parties lack standing to assert such claims on behalf of the Government respondents,” Mr Smith alleged.
“In any event, those privilege and immunity claims to which Mr Evans refers are limited and qualified, and cannot be determined until after discovery is made.
“In the event a government respondent has any such privilege and/or immunity claims, those claims may be raised, if at all, when Save the Bays attempts to introduce evidence obtained from Mr Feralio in the Bahamian Judicial Review actions.”