A.P. Roberto

This screenshot of Jennifer McCabe, from a never-before-seen video dated January 28, 2022, is confirmed to be from The Waterfall. This was confirmed by her best friend, Kerry Lama (who also helps fundraise for her civil defense). Jen is seen seated on the opposite side of the table from where she is later seen sitting in surveillance footage when Karen Read and John O'Keefe enter the bar. As you can see, she is sitting closest to the band. Next to her was likely her sister, Nicole Albert. We can reasonably infer this because Nicole was drinking White Claws, which she later left the bar with, including one that was already open. Jen is drinking a Corona. Both beverages match what the ladies were drinking in the other video footage from that evening. It is interesting that this footage was never seen in either of Read's two criminal trials. It clearly shows the drinking that was taking place prior to Read and O'Keefe's arrival. That drinking then continued at 34 Fairview Rd, according to the testimony of witnesses who were inside the house. This footage could have been used by Read's defense to establish how much drinking was taking place and potentially challenge the accuracy and credibility of witnesses' recollections of the evening. It also could have provided additional impeachment material. At least two people knew this video existed: Jennifer McCabe and whoever recorded it. Whoever possessed the footage ultimately provided it to Netflix. This raises questions about why it was never produced during the criminal proceedings and, if McCabe knew about it, whether she disclosed its existence to investigators or attorneys. Being involved in multiple civil litigations, this could become a significant headache for McCabe and her attorneys. The footage will likely be sought by multiple parties, as recordings fall within the scope of discovery under Rule 26(b). If this material was previously requested but omitted from discovery and is now being used by Netflix, that creates an entirely different issue. Depending on the circumstances, McCabe could face additional deposition questioning, a motion to compel, or potentially other discovery sanctions. Another issue is the lawsuit that was moved to federal court, with McCabe among the defendants involved in the removal. Their spokespeople stated that the move was intended, in part, to avoid the "media circus" and cameras. One of those same spokespeople also confirmed that this very video was from the evening in question. Cameras are generally prohibited in federal courtrooms. So how do we think a federal judge will view the contrast between seeking to avoid cameras in the courtroom while participating in a globally distributed Netflix documentary about the very case she is presiding over? It is not unlawful to participate in a media production. However, it is a decision that comes with potential consequences when you are actively involved in litigation and your statements and materials could become relevant evidence. And let's not forget, the documentary itself could become a source of additional discovery. Relevant, nonprivileged footage, including unused material, could potentially be sought through subpoenas. Communications concerning the footage, production agreements, and compensation may also become subjects of discovery, depending on their relevance to the claims and defenses. It's quite an oxymoron to claim reputational harm from public accusations while simultaneously accepting a substantial platform to present your own version of events. If the concern was protecting yourself from the spectacle surrounding the Karen Read trials, why participate in a globally distributed documentary while the possibility of televised courtroom proceedings was apparently undesirable? This short clip may have opened up a new can of worms for McCabe. And this Netflix special could create an entirely new evidentiary record.