7.23 Litigation: Other Issues

• Library: The Virginia Lawyer: A Deskbook for Practitioners (Virginia CLE) (2018 Ed.)

7.23 LITIGATION: OTHER ISSUES

7.2301 In General. Although the special defamation rules most clearly affect litigation at the very beginning (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." ¹²²³

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.

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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. ¹²²⁴

D. Discovery of an Anonymous Internet Poster's Identity. The Virginia Supreme Court has allowed a plaintiff in a California state court case to conduct discovery of Virginia-based America Online (AOL) in an effort to ascertain the identity of a person who posted defamatory statements using AOL. ¹²²⁵ That discovery was permitted under the Uniform Foreign Depositions Act. ¹²²⁶

In 2002, the General Assembly enacted section 8.01-407.1 of the Virginia Code governing discovery of the identity of anonymous persons engaged in tortious communications over the Internet. In essence, the party seeking the discovery must show that the communicator's identity is important and that the party has been unsuccessful in learning the identity through other means. The court may consider whether there is a dispositive motion pending, presumably so the court can stay the discovery proceeding until that motion is heard. The subject of the discovery must receive notice (the law provides the notice language, which must be in boldface capital letters) from the party seeking the discovery and must, in turn, notify the anonymous communicator of the discovery request. The anonymous communicator may oppose the discovery motion through counsel.

However, section 8.01-407.1 is not the appropriate device for subpoenaing this information from an out-of-state third party to the litigation. In 2015, in Yelp, Inc. v. Hadeed Carpet Cleaning, Inc., ¹²²⁷ the Virginia Supreme Court pointed to section 8.01-412.10 and 8.01-412.13, Virginia's version of the Uniform Interstate Depositions and Discovery Act (UIDDA), as the correct method of obtaining subpoena power over an out-of-state third party for discovery purposes, finding that the plaintiff rug cleaning retailer had not satisfied the standard and could therefore not discover the identity of those who had posted derogatory comments about the business. The case vacated the Virginia Court of Appeals opinion and the circuit court contempt

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order against Yelp and remanded for further proceedings consistent with the Supreme Court's opinion. Section 8.01-407.1 now tolls the statute of limitations if the person who makes those statements posts them anonymously or under a false identity on the Internet to give the plaintiff time to learn that person's identity.

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. ¹²²⁸ In that case, the court granted a motion for protective order but directed the police to preserve the documents "until the case is fully resolved." ¹²²⁹ Although it is unclear what happened to the case after that ruling, presumably the plaintiffs were not able to continue to pursue the case without knowing the identity of the alleged defamers.

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. ¹²³⁰ 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

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allowing Trulock's case to proceed. The district court did not err in its decision to dismiss. ¹²³¹

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. ¹²³²

7.2303 Dilemma Facing Defendants Who Deny Making the Defamatory Statements. As explained above, ¹²³³ 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. ¹²³⁴

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 "acquired by the press in the course of their newsgathering process." ¹²³⁵ Courts apply the reporter's privilege to both confidential and nonconfidential sources. ¹²³⁶ In determining whether the party seeking information is entitled to overcome this qualified privilege, courts examine: "(1) whether the information sought is relevant to the proceeding; (2) whether the information can be obtained by alternative means; and (3) whether there is a compelling interest in the information which overcomes the burden to the press." ¹²³⁷

Most reporters' privilege cases do not involve defamation claims against the reporters themselves. Common sense might dictate that reporters should not be entitled to the protection in those cases. All plaintiffs face a difficult challenge in pursuing a defamation case against media defendants,

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and public plaintiffs face a tremendous burden. It might seem inappropriate to allow media defendants to rely on information in rebutting claims of constitutional malice while at the same time preventing plaintiffs from examining that information or its source.

Nevertheless, some courts have emphasized First Amendment considerations in applying the reporter's privilege to defamation cases. In Philip Morris Co. v. ABC, Inc., ¹²³⁸ which is a compilation of many orders, the court presented a thoughtful and thorough analysis of the reporter's privilege. Philip Morris claimed that an ABC television story defamed it by alleging that Philip Morris "spiked" its cigarettes with nicotine to addict smokers. The ABC reporter had relied on a number of confidential sources, including a source called "Deep Cough." Philip Morris moved to compel ABC to identify the confidential sources and also to produce travel records, such as hotel bills and telephone receipts, that showed the itineraries of the ABC investigators.

The court held that "under the U.S. Constitution . . . the press enjoys a qualified privilege against disclosure of confidential sources in public figure defamation cases where the reporter is a defendant." ¹²³⁹ It cited the following three-part test from the concurring opinion in Branzburg v. Hayes: ¹²⁴⁰ (i) whether the information is relevant; (ii) whether the information can be obtained by alternative means; (iii) whether there is compelling interest in the information. ¹²⁴¹

In Philip Morris, the court initially ordered ABC to disclose the confidential sources' identities but later vacated the order pending Philip Morris's establishing a record "that further convinces the court that its need for discovering the confidential sources is, indeed, compelling." ¹²⁴²

In analyzing the reporters' travel records, the court described Philip Morris's efforts to obtain the ABC investigators' records as "an affront to...