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A Manhattan-based journalist may not use or sell the recordings of her interviews with the Egyptian-born businessman Mohamed al-Fayed, a state judge has ruled. In June, Mr. al-Fayed-best known as the owner of London’s Harrods department store and the father of Dodi al-Fayed, who died alongside Diana, Princess of Wales-obtained a default judgment against Daphne Barak, an Israeli-born celebrity interviewer whose subjects have ranged from Kid Rock to Muammar al-Gaddafi. The default judgment precluded Ms. Barak from selling, disseminating or using the video and audio recordings and transcriptions from her interview with Mr. al-Fayed. This week, Manhattan Supreme Court Justice Walter B. Tolub ( See Profile ) denied Ms. Barak’s motion to vacate the judgment, instead scheduling a hearing to determine whether she should be sanctioned for intentionally avoiding service in the case. “Ms. Barak, at best, behaved like the proverbial ostrich, burying her head in the sand in the belief that somehow, the ‘storm’ would blow over and that she would emerge unscathed,” Justice Tolub wrote in al-Fayed v. Barak , 601354/06. “Ms. Barak, as demonstrated by her imperious conduct [appears to have] intentionally sought to evade service. That, simply, is inexcusable. No one is immune from the service of process. Judges, mayors, governors, celebrities, journalists, even the most syndicated interviewer of ‘A-list’ personalities in the world, are subject to the mandate of the court.” The decision will be published Wednesday. Mr. al-Fayed agreed to be interviewed by Ms. Barak in February, subject to a contract that permitted him to make “corrections” to the final edit and that gave him the “right to withdraw permission for broadcast of any material relating to him acquired during his interview.” Shortly thereafter, Mr. al-Fayed demanded that Ms. Barak hand over the tapes and transcripts. After she refused, Mr. al-Fayed initiated preliminary injunction proceedings, claiming that the interviewer breached their contract when she released the videotapes to British tabloids and other media outlets. “The interview apparently was an embarrassment for Mr. Al Fayed, as it contained among other things, Mr. Al Fayed’s allegations that Princess Diana was pregnant by Dodi Fayed and that the British Royal Family, acting through MI6, engineered the fatal accident,” Justice Tolub wrote. “The interview apparently also contained some unflattering characterizations of the Royal Family.” After Ms. Barak failed to appear in the matter, a default judgment was entered in favor of Mr. al-Fayed. Ms. Barak then moved to vacate the judgment and Mr. al-Fayed moved to hold her in contempt of court for failing to comply with the judgment. Last week, Justice Tolub denied the motion to vacate and allowed Mr. al-Fayed’s contempt motion to go forward. Both motions centered on whether Ms. Barak’s initial failure to appear-which resulted in the default judgment against her-had constituted “excusable default.” More specifically, the court asked whether, and to what degree, Ms. Barak sought to evade service. In an affidavit accompanying her motion to vacate, Ms. Barak claimed that her work as an international celebrity interviewer made her unreachable for long stretches of time. “Typically, I am traveling 25 days each month,” she stated. “At the time the summons and complaint were first served at my apartment building, I was traveling outside the country.” She stated that upon her return to New York, she avoided dealing with Mr. al-Fayed or his lawsuit because she was afraid of him, following his “attempt to assault [her] physically” in 1998. She returned a mailed summons and complaint unopened, she testified, because she obeyed a professional obligation to avoid “things which I’m not supposed to accept.” Explanations Rejected Ms. Barak’s excuses failed to qualify as excusable default, the court held. First, Mr. al-Fayed presented a security videotape from Ms. Barak’s building taken one hour after a paralegal had left a summons and complaint with Ms. Barak’s doorman on April 19, 2006 – the date on which Ms. Barak claimed to be “traveling outside the country.” The tape showed Ms. Barak exiting the building. Justice Tolub also dismissed Ms. Barak’s claim that a 1998 encounter with Mr. al-Fayed left her fearful of him, considering that the videotapes of the interviews from 2006 that are the subject of this suit took place “without incident.” The court called Ms. Barak’s explanation regarding her reason for returning her mail unopened “unpersuasive.” “But even were the Court to believe Ms. Barak’s story that she was not aware of the lawsuit, it still would not suffice, because her failure to receive notice was occasioned by her deliberate attempt to avoid service,” Justice Tolub concluded. “The court is of the opinion that Ms. Barak had actual knowledge of this litigation, that she could have taken action to prevent a default, but consciously chose to ignore the proceedings.” Robert S. Churchill and Robert K. Gross of Eaton & Van Winkle represented Mr. al-Fayed. Neither returned calls seeking comment. Solo-practitioner Joseph M. Heppt represented Ms. Barak. Mr. Heppt declined to comment. - Mark Fass can be reached at [email protected] .

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