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25 Comm. Law. 1 (2007-2008)

handle is hein.journals/comlaw25 and id is 1 raw text is: ( In this issue COVER STORY Defamation & Privilege Defamation actions must be dismissed if the plaintiff cannot divulge critical information. What does this mean for media defendants? Social Networks & Predators ...... 3 A look at a series of highly publicized lawsuits in which MySpace and other social websites have been used by predators to seduce minors. VolP & the Feds ......................... 9 Despite the federal government's efforts to ensure the safety of VoIP and other means of communication, hackers seem to be one step ahead of government regulators. Seditious Libel ........................ 12 A work of fiction illustrates the use of First Amendment Due Process in criminal actions under the Espionage Act. Cross-Ownership .................... 22 The authors argue that FCC prohibitions against newspaper-broadcast cross- ownership do not make sense in the Internet age. Privacy vs. Access ................. 32 The FCC has promulgated regulations to protect customer proprietary network information from unauthorized disclosure. But the new rules are overly broad and vulnerable to constitutional challenge. Practice Pointers ..................... 36 The first in a series of articles on litigation techniques. This issue: How to pick a jury that you can live with. Privilege Paves the Road to Dismissal in Defamation Cases BY GAYLE C. SPROUL AND JEANETTE MELENDEZ BEAD Given the pivotal role of truth in a defamation action,1 it is not uncommon for plaintiffs to resist the full disclosure of evidence bearing on the truth of the statements they challenge. When the in- formation is crucial to the case, courts routinely order plaintiffs to produce it; 'and, in a typical case, they comply. But sometimes the plaintiff cannot produce the information because it is privileged, its disclosure would violate some law or rule of ethics, or it is not available to ei- ther the plaintiff or the defendant. If that is an accurate assessment of the circum- stances, how can the case be fairly pros- ecuted or defended? The answer is that it cannot be. In those instances where the defendant is deprived of evidence that is of central importance to the de- fense of a defamation action, the action must be dismissed. Although this proposition may seem Draconian, it is a matter of fairness and the justifiable consequence of a failure of proof. In the normal course of events, courts supervising discovery have the power to dismiss cases in which a plain- tiff fails to produce critical evidence. In most jurisdictions, as a matter of rule2 and precedent,3 it is well settled that a plaintiff must disclose in discovery infor- mation that he himself has put in issue, or the court will dismiss his case. These cases permit dismissal as a sanction for a plaintiff s willful refusal to produce evi- dence or for a plaintiff s obstruction of the use of such evidence. Simply put, fundamental fairness requires that a de- fendant be allowed to discover and ex- plore the facts underlying the claims that a plaintiff has put in issue. Should there be a distinction, though, where the plaintiff can accurately say that his hands are tied, i.e., where a privi- lege (e.g., state secrets privilege or attor- ney-client privilege) bars him or another party from disclosing the information, or a law (right against self-incrimination) gives him a constitutional right to refuse to divulge the information? Those courts that have squarely wrestled with the is- sue say no. Whether a plaintiff willfully or involuntarily refuses to produce evi- dence, the defendant is deprived of infor- mation critical to its defense, and the plaintiff cannot carry the burden imposed by Philadelphia Newspapers, Inc. v. Hepps4 to prove falsity. Dismissal is ap- propriate when the merits of the contro- versy at issue are inextricably inter- twined with privileged matters.5 State Secrets Privilege The state secrets privilege, a privilege that protects from disclosure classified government information, has proven the most fertile ground for the test of the principle of dismissal for refusal to pro- duce evidence in defamation actions.' Indeed, at our firm we have dubbed a motion to dismiss on this basis a Trulock motion, referring to Trulock v. Lee,' a case in which the Fourth Circuit affirmed the dismissal of a defamation action be- cause factual questions about the truth or falsity of the statements at issue could (Continued on page 38) Gayle C. Sproul is a partner in the Philadel- phia office of Levine Sullivan Koch & Schulz, L.L.P. Jeanette Melendez Bead is a partner in thefirm's Washington, D.C., office. The authors thank Benjamin Battles of Brooklyn Law School and Aaron Johansen of the George Washington University School of Law for their research assistance. 0 Communicati ons Publication of the Forum on Communications Law American Bar Association Volume 25, Number 1, Spring 2007 er C onL Co m nia k A a ,6~ *L L *eL ± L

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