7.23 Litigation: Other Issues

• Library: The Virginia Lawyer: A Deskbook for Practitioners (Virginia CLE) (2022 Ed.)

7.23 LITIGATION: OTHER ISSUES

7.2301 In General.

Although the special defamation rules most clearly affect litigation at the very beginning of a case (in connection with initial pleadings) and at the very end (in connection with appeals), defamation litigants often deal with some special twists during the course of litigation.

7.2302 Discovery.

A. In General.

The unique principles governing a defamation action often result in special discovery issues.

B. Counterintuitive Role of Truth.

Because no defendant can be punished for speaking the truth, the defendant can always argue that the statements were true, eliminating any chance of liability. This argument is not an affirmative defense but rather an argument that the plaintiff has not carried the burden of proving falsity.

This principle leads to the odd result that a defendant might avoid liability even if he or she publishes a statement believing it to be false and hoping to injure the plaintiff. As the Restatement explains, "if the defamatory matter is true, it is immaterial that the person who publishes it believes it to be false; it is enough that it turns out to be true." ⁴⁹²¹

This principle also means that discovery in a defamation case is not necessarily limited to taking a "snapshot" of what was in the defendant's mind when he or she communicated the allegedly false statement. At first blush, one would think that a "snapshot" approach would be appropriate, especially when discussing the concept of "actual malice," which looks at the defendant's knowledge of falsity. However, the requirement of falsity allows defendants to conduct discovery in an effort to establish in an ex post facto way that they spoke the truth.

C. Plaintiff's Right to Discover a Media Defendant's Editorial Process.

When suing a media defendant, plaintiffs normally focus their discovery on the defendant's editorial decisions. The United States Supreme Court has held that plaintiffs may engage in that discovery free of any evidentiary privilege defense grounded in editorial decision-making. ⁴⁹²²

D. Discovery of an Anonymous Internet Poster's Identity.

In the cyber world, defamatory statements may be published on blogs, websites, and social media. They may come from competitors, customers, disgruntled employees, or rogue trolls—any of whom may be using an anonymous name. In general, the First Amendment protects anonymous speech on the Internet. ⁴⁹²³ But the First Amendment does not protect defamatory anonymous speech on the Internet. In these matters, courts balance the right to pursue a defamation claim against the right to speak anonymously by employing various tests in determining whether to unmask the identity of an anonymous defamation defendant. ⁴⁹²⁴

A Virginia court has held that

a court should only order a non-party, Internet service provider to provide information concerning the identity of a subscriber (1) when the court is satisfied by the pleadings or evidence supplied to that court (2) that the party requesting the subpoena has a legitimate, good faith basis to contend that it may be the victim of conduct actionable in the jurisdiction where suit was filed and (3) the subpoenaed identity information is centrally needed to advance that claim. ⁴⁹²⁵

Outside Virginia, courts have adopted more restrictive unmasking tests. Some courts have required the claim to be balanced against the defendant's First Amendment interests or sufficient to defeat summary judgment. ⁴⁹²⁶

Enacted in 2002, Virginia Code section 8.01-407.1 sets forth a subpoena procedure for the unmasking of anonymous Internet tortfeasors. In essence, the subpoenaing party seeking the identity of the alleged tortfeasor must satisfy the America Online "good faith basis" test above, as well as demonstrate other things such as that "reasonable efforts to identify the anonymous communicator have proven fruitless." The court may consider any pending dispositive motions "in determining whether to enforce, suspend or strike the proposed disclosure obligation under the subpoena." The subpoenaing party must provide statutory notice language (in boldface capital letters) to the subpoena target that must, in turn, be provided to the alleged anonymous tortfeasor. That person, as well as the subpoena target, may oppose the subpoena on procedural and substantive grounds. ⁴⁹²⁷

Section 8.01-407.1, however, is limited by the normal subpoena powers of Virginia courts. In 2015, the Supreme Court of Virginia held in Yelp, Inc. v. Hadeed Carpet Cleaning, Inc. ⁴⁹²⁸ that the plaintiff could not enforce a section 8.01-407.1 subpoena against non-party Yelp for records located in California for purposes of the underlying defamation case against John Doe defendants in Virginia:

Our holding is consistent with the traditional limits on subpoena power of state courts and the public policy established by the General Assembly through enactment of the UIDDA. ⁴⁹²⁹ Although the General Assembly has expressly authorized Virginia courts to exercise personal jurisdiction over nonresident parties, it has not expressly authorized Virginia courts to compel nonresident non-parties to produce documents located outside of Virginia. ⁴⁹³⁰

Notably, Virginia Code Section 8.01-247.1 tolls the statute of limitations for claims against anonymous Internet persons so as to give plaintiffs time to discover their identities, whether through section 8.01-407.1 or other lawful means.

Other laws may also limit the plaintiff's ability to discover information about anonymous Internet tortfeasors through subpoena. The Federal Stored Communications Act limits civil discovery of Internet service providers to disclosure of user "records" (for example, registered names, addresses, phone numbers, and Internet protocol information). ⁴⁹³¹ Records, however, do not include user email communications. ⁴⁹³²

Whether subpoenaed information generates leads about the identity of an anonymous Internet tortfeasor is never certain. "John Does" often register fake online subscriber information (or none at all) or use Internet connections that mask their identity and location. Without the identity of a tortfeasor, securing relief in litigation is virtually impossible. ⁴⁹³³

E. Limitations on Discovery.

In certain situations, various other legal principles block a defamation plaintiff's ability to conduct the discovery necessary to pursue a defamation case. In those narrow circumstances, courts simply dismiss the case, essentially finding that some more important legal principle trumps the plaintiff's ability to pursue a defamation claim.

For instance, one Virginia court found that the "public policy of maintaining the confidentiality of criminal investigative files" prohibited defamation plaintiffs from learning the identity of certain police informers who allegedly made defamatory statements about the plaintiffs. ⁴⁹³⁴ In that case, the court granted a motion for a protective order but directed the police to preserve the documents "until the [criminal] case is fully resolved." ⁴⁹³⁵ Although it is unclear what happened to the criminal case after that ruling, presumably the plaintiffs were not able to continue to pursue the defamation case without knowing the identity of the alleged defamers who had provided information to the police.

Similarly, the Fourth Circuit dismissed a defamation case filed by a federal official against Oak Ridge scientist Dr. Wen Ho Lee, alleging that Dr. Lee falsely accused him of bigotry. ⁴⁹³⁶ The court found that the plaintiff could not prove his case without discovery. The court then held that the plaintiff could not conduct discovery because the government had successfully invoked the "state secrets privilege" that guarded the underlying facts.

Trulock [plaintiff] has alleged serious damage to his reputation, and we do not take that lightly. But in the face of the government's unchallenged assertion of the state secrets privilege, we see no middle ground between guarding national security and providing Trulock a forum to litigate his case. In this instance, the public interest in national security must take precedence over allowing Trulock's case to proceed. The district court did not err in its decision to dismiss. ⁴⁹³⁷

F. Other Discovery Issues.

The Virginia Supreme Court has held that a television station defending itself from a defamation claim does not involve the type of "extraordinary" circumstances that would trump the Virginia Code's medical peer review records privilege. ⁴⁹³⁸

In rare cases, the defamation litigation may continue notwithstanding limitations on discovery. A defendant's fault (negligence or malice) could be shown through available circumstantial evidence (for example, biased or unverified sources, inherently improbable allegations, continuing false and defamatory statements) or discovery methods that still protect certain rights of a defendant.

For example, in the First Amendment anonymity context, a plaintiff might seek to depose an anonymous defendant by telephone or written questions or through an attorneys-eyes-only protective order. ⁴⁹³⁹ A defendant should not, however, be permitted to assert good faith or lack-of-malice defenses to a defamation claim without allowing a plaintiff the right to inquire into the defendant's state of mind.

7.2303 Dilemma Facing Defendants Who Deny Making the Defamatory Statements.

As explained above, ⁴⁹⁴⁰ defendants who "put all their eggs in one basket" by denying making the allegedly defamatory statement may find themselves without any defense on the issue of fault if the jury disagrees with them and finds that they did make the statements. ⁴⁹⁴¹

7.2304 Reporter's Privilege.

In most states, there is a special privilege that protects reporters from having to reveal some or all of their sources. Some states have adopted statutes that serve this purpose; in Virginia, the courts have created the protection.

Virginia law recognizes a reporter's privilege that qualifiedly protects information...