Gray v. St. Martins Press

• Court: District Court, D. New Hampshire
• Decided: March 18, 1997
• Docket: CV-95-285-M
• Status: Published

Opinion

Gray v. St. Martins Press CV-95-285-M 03/18/97 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Robert K. Gray, Plaintiff

v. Civil No. 95-285-M

St. Martin's Press, Inc. and Susan Trento, Defendants

O R D E R

Plaintiff, Robert Gray, brings this action against St.

Martin's Press and Susan Trento, seeking damages for allegedly

defamatory statements made in The Power House, a book authored by

Trento and published by St. Martin's. The parties are embroiled

in several discovery disputes. Presently pending before the

court are two motions in which Gray asks the court to reconsider

certain orders, issued by the Magistrate Judge, denying Gray's

motions to compel discovery. Defendants object. Also pending

before the court are St. Martin's motions for the appointment of

a commissioner to oversee discovery and for summary judgment.

For the reasons set forth below, Gray's motions for

reconsideration are granted. Having reconsidered plaintiff's

motions to compel, the court grants them in part and denies them

in part. And, because Gray credibly alleges that the lack of

discovery has prevented him from adeguately and fully responding

to St. Martin's motion for summary judgment, that motion for

summary judgment is denied without prejudice. St. Martin's and Trento are granted leave to resubmit a motion (or motions) for

summary judgment not sooner than 30 days and not later than 60

days after all discovery referenced in this order has been

provided to plaintiff. Plaintiff should then be able to fully

respond to defendants' motion(s) for summary judgment.

Background

On August 31, 1995, following a preliminary pretrial

conference, the court established the following two-tiered

discovery schedule:

Discovery Limitations: The parties will limit discovery between now and April 1, 1996, to matters relevant to or likely to lead to evidence relevant to defendants' "opinion" and actual "malice" defenses anticipated to be the subject of their motion for summary judgment.

Completion of Discovery: February 1, 1997. The parties are unsure at this time whether additional extensive discovery may be needed subseguent to the court's ruling on the anticipated dispositive motions. Accordingly, at the reguest of either party, the court will revisit the discovery schedule following its ruling on dispositive motions to be filed on or before May 1, 1996.

Pretrial Order (August 31, 1995). On November 7, 1995, plaintiff

reguested Trento to produce "copies of all draft manuscripts of

the book, or any portion thereof, submitted by Ms. Trento to St.

Martin's." Plaintiff's Reguest for Production no. 20. On

December 6, 1995, Trento objected, claiming that the reguested

documents are shielded from discovery by, among other things, the

First Amendment to the United States Constitution.

2 Also on November 7, 1995, plaintiff served interrogatories

and requests for the production of documents upon St. Martin's.

According to plaintiff, in January of 1996, St. Martin's produced

some of the requested information and documents, but objected to

the production of much of that material. Subsequently, on April

25, 1996, plaintiff filed motions to compel Trento and St.

Martin's to produce the requested discovery materials. The

matter was routinely referred to the Magistrate Judge, who ruled

that plaintiff's motions to compel were untimely because they

were filed after the court's April 1, 1996, preliminary discovery

deadline. Plaintiff filed timely motions for the court to review

and reverse the Magistrate Judge's orders, to which defendants

objected. The court held a hearing on the matter at which all

parties appeared and presented oral argument.

Discussion

I. Plaintiff's Motions to Reconsider.

By order dated June 25, 1996, the Magistrate Judge ruled

that plaintiff's motion to compel production of certain discovery

from St. Martin's (document no. 20) was untimely because it was

filed after the April 1, 1996, discovery deadline. And, by order

dated July 3, 1996, the Magistrate Judge ruled that plaintiff's

motion to compel production of certain discovery from Trento

(document no. 36) was, for the same reason, untimely. The court

disagrees.

3 Although plaintiff filed the motions to compel after the

close of preliminary discovery, those motions were filed within a

reasonable time after that date. The April 1, 1996, deadline

represented the close of preliminary discovery; it did not

represent the date by which the parties were required to file

motions to compel compliance with otherwise timely discovery

requests. So, for example, if defendants had provided plaintiff

with incomplete discovery on April 1, 1996 (i.e., the close of

preliminary discovery), they could not legitimately complain that

plaintiff's motions to compel were "untimely" simply because they

were not filed on or before that date.

This matter does not require further discussion or

elaboration. Plaintiff filed his motions to compel in a timely

fashion. See generally. Fed. R. Civ. P. 37; Resolution Trust

Corp. v. North Bridge Associates, Inc., 22 F.3d 1198, 1204-06

(1st Cir. 1994). Accordingly, the court concludes that the

Magistrate Judge's ruling to the contrary was clearly erroneous.

See 28 U.S.C. § 636(b)(1)(A). Having ruled that plaintiff's

motions to compel were filed in a timely fashion, the court now

turns to a substantive review of those motions.

A. Plaintiff's Motion to Compel Production Directed to Defendant St. Martin's Press (document no. 20)

In interrogatories 4 and 5, plaintiff seeks copies of all

draft manuscripts of the book. St. Martin's objects, arguing

4 that such materials are neither relevant nor reasonably likely to

lead to the discovery of relevant evidence. The court disagrees.

As defendants repeatedly note, Trento's reputation for

accuracy and thoroughness is relevant. In fact, defendants have

interposed her reputation as a significant component of their

defense. Plainly, if the draft manuscripts contain factual

inaccuracies which were deleted from the final version of the

book, that fact would be relevant and material to this case

(e.g., it may suggest that, upon close examination, St. Martin's

found Trento's work to be inaccurate, insupportable, and/or

otherwise unreliable). Moreover, defendants have failed to

establish that those materials are shielded from discovery by the

so-called "press privilege" or the "editorial process privilege."

See generally, Herbert v. Lando, 441 U.S. 153 (1979); Bruno &

Stillman, Inc. v. Globe Newspaper C o . , 633 F.2d 583 (1st Cir.

1980); Downing v. Monitor Publishing Co., Inc., 120 N.H. 383

(1980). Accordingly, St. Martin's shall comply with plaintiff's

reguest for production of those materials.

In interrogatories 10 (b), (c), and (d), plaintiff seeks

information regarding certain sources upon which Trento and/or

St. Martin's relied in the preparation and verification of

material contained in the book. St. Martin's objects, arguing

that at least some of Trento's sources are "confidential" and,

therefore, protected by a gualified news gathering privilege. It

5 also claims that plaintiff has failed to meet the preliminary

showing required by Bruno & Stillman, Inc. v. Globe Newspaper

C o ., 633 F.2d 583, 597 (1st Cir. 1980) (requiring that a

plaintiff seeking discovery of "confidential" sources demonstrate

that his or her defamation claims are not frivolous, the desired

information is more than remotely relevant, and there is a need

for the allegedly confidential materials).

St. Martin's is directed to provide plaintiff with complete

responses to interrogatories 1 0 (b), (c), and (d) with regard to

all sources that it cannot, in good faith, assert are

"confidential." If plaintiff believes that St. Martin's response

is inaccurate or incomplete, it may petition the court for

further relief. If necessary and/or appropriate, the court will

schedule a further hearing on the matter, at which defendants

will be expected to provide the court with a well-supported,

credible, and legally sound basis for any and all assertions of

privilege, and plaintiff will be expected to provide credible

legal and factual arguments in support of his claim that such

materials are properly discoverable.

In interrogatories 11 through 20, 22, and 30, plaintiff

seeks information relating to statements contained in the book

proposal which Trento submitted to St. Martin's. St. Martin's

objects, asserting that such information is not relevant to its

"knowledge" and "actual malice" defenses and is, therefore,

6 outside of the limited scope of preliminary discovery. The court

disagrees and for the reasons discussed above with regard to

draft manuscripts of the book, St. Martin's shall produce the

reguested information.

In interrogatory no. 21, plaintiff seeks the source of a

certain statement contained in the book proposal, along with

certain information relating to that source. St. Martin's

objects, asserting the attorney-client privilege. St. Martin's

has, however, failed to demonstrate that the reguested material

is shielded from discovery by that privilege. Instead, it merely

claims that such information was "provided to" it's attorneys

and, therefore, concludes that it is not discoverable. As the

party invoking the attorney-client privilege, St. Martin's bears

the burden of demonstrating that the privilege applies and

shields from discovery the specific material sought by plaintiff.

St. Martin's has failed to carry that burden. See generally,

Klonoski v. Mahlab, ____ F.Supp. ,No. 95-153-M (D.N.H.

December 12, 1996). Accordingly, St. Martin's shall produce the

The information sought in interrogatories 49, 50, 51, and

58, is not relevant to matters relating to defendant's

"knowledge" and "actual malice" defenses. Instead, those

interrogatories relate primarily to damages issues. At this

juncture, the parties will limit discovery to matters relating to

7 defendants' defenses (the court will revise the discovery

deadlines accordingly). Therefore, plaintiff's motion to compel

responses to those interrogatories is denied.

Finally, in interrogatory no. 62, plaintiff seeks production

of St. Martin's "entire file concerning the book." At the

hearing on all outstanding discovery motions, counsel for St.

Martin's represented that they would produce a privilege log,

specifically itemizing all materials which would be responsive to

plaintiff's discovery reguest, but which St. Martin's claims are

privileged. See Fed. R. Civ. P. 26(b) (5) . Presumably, counsel

has produced the privilege log. And, because plaintiff has not

renewed or otherwise supplemented his motion to compel, the court

will assume that the parties have resolved this matter

cooperatively and in the prevailing spirit in this district. If

the parties have not settled this dispute, they should attempt,

in good faith, to resolve this matter before they seek additional

relief from the court.

In light of the foregoing, plaintiff's motion to compel

production of materials responsive to interrogatory no. 62 is

denied as moot. Otherwise, plaintiff's motion to compel is, to

the extent discussed above, granted, and in all other respects it

is denied.

8 B. Plaintiff's Motion to Compel Production Directed to Defendant Trento (document no. 36)

In interrogatory number 20 directed to defendant Trento,

plaintiff seeks the production of "all draft manuscripts of the

book, or any portion thereof, submitted by Ms. Trento to St.

Martin's." For the reasons discussed above, the court holds that

such materials are relevant (or are likely to lead to the

discovery of admissible evidence) with regard to defendants'

"knowledge" and "actual malice" defenses. The court also finds

that Trento has failed to demonstrate that such materials are

shielded from discovery. Accordingly, Trento shall comply with

plaintiff's reguest for production number 20.

In all other respects, plaintiff's motion to compel is

denied.

C. Defendant St. Martin's Press's Motion for Summary Judgment (document no. 24)

St. Martin's moves for summary judgment, arguing that

plaintiff cannot, as a matter of law, demonstrate that St.

Martin's published the eight (8) allegedly defamatory statements

contained in the book with actual knowledge of their falsity or

serious doubts as to their truth. Plaintiff objects, arguing

among other things that because defendants have failed to provide

him with necessary discovery, he cannot adeguately respond to St.

Martin's assertions. Because the court has ordered defendants to produce a number

of materials which plaintiff previously requested and which

directly affect plaintiff's ability to adequately and fully

respond to St. Martin's motion for summary judqment, the court

will afford plaintiff additional time within which to respond to

defendant's motion for summary judqment. Accordinqly, St.

Martin's motion for summary judqment (document no. 24) is denied

without prejudice. St. Martin's may refile its motion (or an

amended motion) for summary judqment not fewer than 30 and not

more than 60 days after it has produced all discovery material

which is the subject of this order. Then, havinq been provided

all pertinent discovery, plaintiff shall file his objection

within 30 days thereafter. If the court denies defendants'

motion for summary judqment, it will afford plaintiff additional

time for further discovery on the merits.

Conclusion

Plaintiff's motion for leave to file a memorandum in support

of his motions for reconsideration (document no. 47) is qranted.

Plaintiff's motion for reconsideration (document no. 40) is

qranted. Plaintiff's motion to compel (document no. 20) is, as

discussed above, qranted in part and denied in part.

10 Plaintiff's motion for reconsideration (document no. 42) is

granted. Plaintiff's motion to compel (document no. 36) is, as

discussed above, granted in part and denied in part.

Plaintiff's motion for reconsideration of endorsed order

granting plaintiff's motion to extend time (document no. 48) is,

in light of the court's restructuring of discovery deadlines,

denied as moot.

Defendant Trento's motion for the appointment of a

commissioner to oversee discovery (document no. 53) is denied.

Defendant has failed to demonstrate that the appointment of a

commissioner is either necessary or warranted at this point under

Fed. R. Civ. P. 53.

Plaintiff's motion to compel Ronald Goldfarb (document no.

72) is denied. See Fed. R. Civ. P. 3 7 (a) (1) .

SO ORDERED.

Steven J. McAuliffe United States District Judge

March 18, 1997

cc: James G. Walker, Esg. Mark D. Balzli, Esg. Cletus P. Lyman, Esg. William L. Chapman, Esg.