Judge Rules That John Wiley Price Can Take County Judge Jim Foster's Deposition

Today Dallas County Commissioner John Wiley Price made some progress in his legal battle against Dallas County Judge Jim Foster, who has been ordered to submit to a deposition so that Price might investigate whether he wishes to pursue a defamation claim against Foster for statements he made to the Dallas Observer about Price's role and vote regarding the Inland Port, a mega-development in southern Dallas. Price petitioned the court earlier this month to take the pre-suit depositions of both Foster and U.S. Congresswoman Eddie Bernice Johnson, whose case has been removed to federal court. In a separate December 18, 2008 article, Johnson made statements to the Dallas Observer, which Price now alleges were defamatory.

In the Foster matter, Judge Ken Tapscott of County Court No. 4 ruled that "the benefits of allowing the requested deposition to investigate this potential claim outweigh the burden or expense of the procedure itself."  Yet he limited the oral deposition of Foster to two hours, and ordered that it take place within the next 30 days.

The court allowed Price to subpoena four out of the six documents he requested, including "all documents supporting [Foster's] contention" in a February 19, 2008, Observer article that "[Mr. Price] almost hit [Mr. Foster]"; and "all documents supporting Foster's contention Mr. Price's position with respect to the Inland Port '[is]all about a shakedown.'" The decision came earlier this afternoon, although the hour-long hearing regarding Price's petition occurred yesterday morning.

During the hearing, Foster's lawyer, Christopher Weil, asked that the court dismiss "this anticipatory or cautionary pleading," arguing, among other reasons, that Foster was immune from suit under the doctrine of judicial immunity "as long as those statements are not made with malice."

Price's lawyer, Mark D. Johnson, countered that the deposition was necessary to determine whether Foster was speaking within his official capacity or out of malice.

"We understand that we would have to find malice, but without speaking with Judge Foster, we can't make that determination," said Johnson.

The judge began yesterday's scheduled 8 a.m. hearing 20 minutes late. When he appeared, Tapscott explained that the motions in this high-stakes case required additional time to review before the hearing.

"I'm not trying to nit-pick it," Tapscott said. "But this is a rather big issue, wouldn't you agree?  These are two of Dallas County's leaders. So I went through this very, very closely."

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