Magistrate Judge in Don Lemon Assault Case Recommends Plaintiff Be Sanctioned For Deleting Evidence

A magistrate judge has recommended that a man who accused the CNN host of assault be ordered to pay a portion of his legal fees after he deleted evidence in the case, including homophobic text messages

Don Lemon CNN
Don Lemon. Photo: CNN

CNN anchor Don Lemon saw a legal victory recently, after a magistrate judge in his assault case recommended that the accuser be sanctioned for engaging in "egregious conduct," including deleting social media posts and messages in which he alludes to paying a friend (and potential witness) if he won his court case.

In a ruling issued in November, the magistrate in a federal district court in New York said Lemon's accuser, Dustin Hice, should be ordered to pay a portion of the CNN anchor's legal fees and recommended that Lemon be granted "an adverse inference instruction" once the case goes to trial in January. Hice has filed an objection to the magistrate's recommendation, and the trial judge has not yet ruled.

That instruction would allow Lemon's legal team to tell the jury ultimately deciding the case that Hice had intentionally deleted or destroyed evidence (including text messages containing homophobic language and photos that show him near Lemon's home) and that the jury may presume that the intentionally lost or destroyed evidence would have been unfavorable to Hice.

Hice's attorney told PEOPLE that he is contesting the magistrate's recommendation. "That issue is pending before the district court and Lemon's position has not been adopted by the district court at this time. We are contesting the magistrate's recommendation," attorney Robert Barnes told PEOPLE in an emailed statement.

Lemon, 55, has emphatically denied the allegations laid out in the lawsuit — filed in August 2019 and stemming from an alleged July 2018 incident — which claims that the anchor physically and verbally attacked Hice, a bartender, during a night out in the Hamptons in Long Island, New York.

Those claims have been resurfaced in recent weeks, as CNN works to manage the fallout from another of its notable faces: Chris Cuomo, who was fired after the network reviewed his involvement in the defense of his brother, former Gov. Andrew Cuomo, against sexual harassment charges.

In the lawsuit against Lemon, Hice, who was working as a bartender at The Old Stove Pub in Sagaponack, claims he recognized Lemon during a night out with colleagues at Murf's Backstreet Tavern in Sag Harbor.

He claims he offered to buy Lemon a cocktail, but the Emmy-winning journalist declined the gesture, telling Hice he was "just trying to have a good time."

The two had no further interaction until later that night, when Hice claims Lemon approached him and "put his hand down the front of his own shorts, and vigorously rubbed his genitalia, removed his hand and shoved his index and middle fingers into [Hice's] mustache," the lawsuit alleges.

Lemon then allegedly pressed Hice on his sexual preferences, asking, "Do you like p— or d—?" as he continued to shove his fingers into Hice's face with "aggression and hostility."

A "shocked and humiliated" Hice said he left the bar after the "demeaning unprovoked and offensive assault," and Lemon was gone upon his return 5-10 minutes later.

The latest legal decision finds that Hice offered contradictory testimony during an earlier deposition about the case, and that he engaged in "egregious" behavior after filing his suit. That includes selectively destroying text messages, deleting social media posts, including his entire Twitter account, just one week after his suit was filed), and concealing unfavorable witnesses.

That behavior, Lemon's attorneys suggested in court filings, "directly undermined [Hice's] factual allegations and claims of 'emotional distress.' "

The federal district court magistrate judge at least partially agreed, recently recommending the CNN anchor be awarded "reasonable attorney's fees associated with Hice's deletion of evidence."

A CNN spokesperson previously alleged in a statement that Hice had lashed out against the network on social media, and had made extortion attempts against Lemon in the past. A source earlier told PEOPLE Hice's team asked Lemon for $1.5 million, a sum the anchor refused to pay. Hice's lawyer dismissed those claims as "victim-blaming."

"The plaintiff in this lawsuit has previously displayed a pattern of contempt for CNN on his social media accounts," the CNN statement, obtained by PEOPLE, read. "This claim follows his unsuccessful threats and demands for an exorbitant amount of money from Don Lemon. Don categorically denies these claims and this matter does not merit any further comment at this time."

Hice's former lawyer Andrew Miltenberg previously hit back at CNN's claims regarding his social media activity, telling PEOPLE in a statement: "The assertion that Mr. Hice would put himself through the painful process of filing a sexual assault lawsuit against his attacker all because he doesn't like a cable TV station is ludicrous. It's shameful that the CNN attack machine is resorting to victim-blaming in order to detract from Mr. Lemon's gross sexual misconduct."

Miltenberg withdrew from the case in February. Hice is now represented by Robert Barnes, an attorney and pro-Trump YouTuber.

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A witness in the case, who earlier testified that he had seen Lemon touch Hice's face the evening the alleged incident occurred, said in a later deposition that he could no longer remember whether it had happened.

That witness — who has since been withdrawn — added that Hice had also insinuated that he would pay him in exchange for favorable testimony, writing in an Instagram message: "You know if I get $$ I'll take care of you, dude."

Asked about that message in a sworn deposition taken August 6, Hice said: "Yes, apparently I was offering him money."

The case is scheduled to go to trial in January.

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