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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