To back up, Bain was retained by Jackson in 2003 to be his spokesperson, performing duties such as arranging for the 25th-anniversary edition of "Thriller." Later, Bain became Jackson's general manager, and according to a personal services agreement signed in 2006, she was to receive a 10-percent finder's fee of any agreement entered into by the singer due to the direct efforts of Bain.
In 2009, Bain sued Jackson and claimed to be owed compensation amounting to at least $44 million. One week before the singer died, Michael Jackson Productions filed a motion to dismiss; a district court rejected Bain's lawsuit based upon a 2007 "Payment and Release Agreement." The contract gave Bain $488,820 as "full and final satisfaction of any [and] all monies, known or unknown, to be owed as you..."
Bain contended that it was a fraud or a mistake. She wanted an investigation into the authenticity of Jackson's signature, but the district judge wouldn't allow it and granted summary judgment in favor of Jackson.
In October 2010, a few months after that decision, Bain moved for relief from the judgment based on "newly discovered evidence." She had come into possession of a letter from Jackson to Bain stating, "I have never terminated your services nor did I null and void any of your Agreements. I know nothing about a release form. I neither authorized or signed the same. Therefore, I am authorizing you to continue to communicate with Mr. Yakoob regarding the Sultan's property in Las Vegas, and to continue your role as my General Manager and President/COO of The Michael Jackson Company."
And why wasn't the letter presented to the court earlier?
According to Bain's affidavit, an unnamed real estate consultant who worked for the Michael Jackson Company had taken a collection of files from Bain's office and boxed them up. The consultant returned the box in the summer of 2010, where after Bain had discovered the letter misfiled in the "Sultan of Brunei Finance" batch.
"Not in my wildest imagination did I suspect that a box containing documents relating to real properties would contain any material relating to my relationship or employment with Mr. Jackson before this Court," Bain explained to the judge. "I knew I had correspondence from Mr. Jackson, but I could not find it. I made a diligent search of all the records and files in my office. I did not know, nor was I able to look in the Sultan of Brunei’s file, which was in the possession of the consultant. I looked for this file for months, spending many, many hours looking into all of the files which were in my office, but it was no where [sic] to be found."
Despite the unearthed evidence, the judge refused to reconsider the prior judgment.
Bain appealed. In the appellate court's decision on Tueday, judge Srinivasan examines the epistemological nature of what happened. He points to Webster's definition of "discover" -- "to obtain for the first time sight or knowledge of" -- as well as added meaning by Merriam-Webster's -- "to detect the presence of."
Evidence lost, hidden or unavailable can qualify as "newly discovered," writes the judge, but on the other hand, "a party’s unannounced awareness of evidence can affect the assessment of whether it exercised the 'reasonable diligence'” proscribed by law. In other words, Bain could have taken steps to find the lost letter if she knew it existed somewhere.
"Bain’s efforts to find her own copy of the letter did not relieve her of all responsibility to undertake reasonable efforts to obtain the original letter (or a separate copy) from Jackson, his estate, or his counsel," writes judge Srinivasan. "And by failing to apprise the district court of the letter, Bain denied the court any opportunity to assist with locating it."
For that reason, the mysterious letter that had gone missing in a box concerning the relationship between the King of Pop and the Sultan of Brunei, does Bain no good. The district judge's order is affirmed. The publicist's best evidence is without any voice.