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Judges keep libel plaintiffs in check

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Newspaper defendants are awarded sanctions in two separate cases of plaintiff malfeasance. From the Fall 2007 issue of The News…

Newspaper defendants are awarded sanctions in two separate cases of plaintiff malfeasance.

From the Fall 2007 issue of The News Media & The Law, page 16.

By Matthew Pollack

Two recent libel suits ended with the rare result of defendants collecting sanctions based on the impropriety of the plaintiffs’ actions in the suit. At the heart of both sanction awards was the plaintiff’s failure to answer or truthfully respond to key questions posed by media defense attorneys.

An Arizona state court held in September that former Rep. Gary Condit (D-Calif.) must pay the Sonoran (Ariz.) News’ attorney fees in a failed libel claim against the small paper.

Condit sued the weekly publication, which bills itself as “the Conservative Voice of Arizona,” after it made a passing reference to him in a story about his brother in July 2005. 

One line of the article stated that Condit “became the main focus of the Chandra Levy case in 2001, after lying to investigators about his affair with Levy.” 

Condit, who spent 13 years in Congress and lost a re-election bid in 2002 after becoming embroiled in the investigation of Levy’s disappearance, disputed the characterization and argued that it damaged his reputation.

Levy’s remains were found in a Washington park in May 2002. No one has been charged in the investigation and Condit has denied any involvement in her disappearance or death.

Maricopa County Superior Court Judge Kristin Hoffman granted summary judgment for the defendant in July, finding that Condit did not set forth “any admissible evidence from which a reasonable jury could conclude that the sentence as published was not substantially true.” Significantly, Condit never denied that he lied to investigators and refused to answer questions as to whether he admitted or denied having a romantic or sexual relationship with Levy.

In September, Hoffman awarded $42,680 in attorney fees to the Sonoran News, determining that Condit’s suit was objectively groundless, was not made in good faith and constituted harassment. The 38,000-circulation paper serving several northern Phoenix suburbs did not have libel insurance and financed its defense of Condit’s suit with the personal funds of its editor and publisher. 

Again weighing prominently in Hoffman’s mind was Condit’s refusal to answer questions about his statements to police regarding the nature of his relationship with Levy. His refusal ultimately indicated to Hoffman that Condit “was aware that the lawsuit should not have been brought.”

The newspaper’s attorney Daniel Barr called Condit a “serial plaintiff” and criticized him for filing libel actions “to try to intimidate the news media and silence press coverage of him.”

Barr added that he thought Condit was encouraged by several quick settlements in previous libel claims, but when it came to the Sonoran News, “he just filed one libel suit too many.”

Meanwhile, a federal judge in Indiana also imposed sanctions on a libel plaintiff and her attorney for their failure to honestly respond to pre-trial discovery.

Judge James T. Moody of the U.S. District Court in Hammond, Ind., sanctioned a defamation plaintiff who, during discovery, claimed not to remember prior criminal charges against her, and also sanctioned her attorney, who made no effort to supplement and correct the plaintiff’s incomplete and evasive answers to discovery questions after being shown evidence of her criminal history.

In 2003, Lita Filippo was arrested for operating a vehicle while intoxicated. At the time of her arrest Filippo served as a director of the Partnership for a Drug Free Lake County, a governmental organization aimed at reducing drug and alcohol use.

The incident gave rise to several articles, editorials, cartoons and letters in The (Hammond, Ind.) Times, including a story in which the arresting officer was quoted as calling Filippo “the most obnoxious drunken female I have ever arrested.”

After police dropped all charges against her, Filippo sued the paper for defamation. The court granted summary judgment in favor of the defendant, holding that no reasonable jury could find that the elements of defamation were present in any of the articles, editorials, cartoons or letters. 

During discovery, The Times sought information from Filippo regarding her criminal background. Initially responding to a written interrogatory asking whether she had been “indicted, accused of a crime, and/or been arrested on any charge,” Filippo said: “None for the past 10 year [sic].” Filippo also refused to provide documents related to any previous criminal charges, convictions or investigations concerning her or her business interests. 

Later, during her first deposition, The Times again questioned Filippo regarding her previous criminal history. She again claimed that she was neither accused nor convicted of a crime prior to the 2003 incident. 

The Times though, had acquired a Petition for Hardship License, filed by Filippo in 1990 following a previous charge of operating a vehicle while intoxicated.

During the deposition, Filippo claimed not to have remembered the event, despite the fact that the petition bore her signature as well as that of her current counsel, Mark Van Der Molen.

Further research by defense counsel uncovered a plea agreement resolving the 1989 infraction that Filippo also signed. 

In the agreement, which referred to additional charges of disorderly conduct, criminal trespass, public intoxication and intimidation against her, Filippo agreed to pay a $500 fine and serve 180 days in jail, both of which would be suspended if she successfully completed six months probation. 

Again, Filippo and Van Der Molen signed the plea agreement. 

At a second deposition, however, Filippo again claimed ignorance to all the charges referred to in the plea agreement.

Upon The Times’ motion for sanctions, magistrate judge Andrew P. Rodovich found that Filippo’s responses in discovery were “evasive and incomplete to the point of failure” and recommended sanctions be imposed. 

Judge Moody agreed with the magistrate’s recommendation, finding that Filippo and her attorney were “disingenuous and lazy” in the discovery process and that her claims of forgetfulness were “near absurd.”

The court rejected the notion that Filippo could have forgotten that she was arrested at a bar, charged with four misdemeanors, pleaded guilty to one, signed a plea agreement and served six months’ probation, concluding that that Filippo “was hoping to hide her criminal record.”

Charles D. Tobin, who represented The Times in the suit, pointed to the importance of examining the plaintiff’s criminal history in such cases.

“We are gratified that the court agreed with the newspaper that plaintiff’s criminal past was relevant to her libel claim, and that she was wrong to withhold it from us,” Tobin said.

The court also concluded that Van Der Molen should face sanctions for his behavior during the discovery process. 

According to the judge, Van Der Molen should not have answered interrogatories solely based on Filippo’s memory, and instead should have made an effort to determine if there was further information to provide, by checking police records or even his own files from when he previously represented her. 

Moreover, once the defense presented evidence of her previous troubles with the law in contradiction with her testimony, Van Der Molen had a duty to “supplement or correct” Filippo’s responses.

In total, the court awarded the defendant $16,550. The cost of the defendant’s motions to compel Filippo’s testimony and for sanctions amounted to $9,665 and was charged to Filippo. 

The cost of defendant’s efforts to uncover information relating to Filippo’s criminal record – making up the remaining $6,885 – was charged to Van Der Molen.