73 F.R.D. 387 (S.D.N.Y. 1977), 74 Civ. 434-CSH, Herbert v. Lando

Docket Nº:74 Civ. 434-CSH.
Citation:73 F.R.D. 387
Opinion Judge:HAIGHT, District Judge.
Party Name:Anthony HERBERT, Plaintiff, v. Barry LANDO et al., Defendants.
Attorney:Cohn, Glickstein, Lurie, Ostrin & Lubell, New York City, for plaintiff. Coudert Brothers, New York City, for defendants Mike Wallace and CBS Inc. Green & Hillman, New York City, for defendant Barry Lando. Rembar, Wolf & Curtis, New York City, Choate, Hall & Stewart, Boston, Mass., for defendant A...
Case Date:January 04, 1977
Court:United States District Courts, 2nd Circuit, Southern District of New York

Page 387

73 F.R.D. 387 (S.D.N.Y. 1977)

Anthony HERBERT, Plaintiff,


Barry LANDO et al., Defendants.

No. 74 Civ. 434-CSH.

United States District Court, S.D. New York.

January 4, 1977

Page 388

[Copyrighted Material Omitted]

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In defamation action brought by a " public figure," plaintiff sought an order compelling discovery. The District Court, Haight, District Judge, held, inter alia, that a " public figure" plaintiff in a defamation action is entitled to liberal interpretation of the rules concerning pretrial discovery, and nothing in the First Amendment requires a contrary result; that discovery relating to conclusions, opinions and intentions of producer of telecast and author of magazine article, formulated at time he was researching and preparing television program and article, was not precluded on ground that such matters were irrelevant or would constitute violation of First Amendment privilege or privilege of " editorial judgment" ; that postpublication activities, writings or statements might lead to the discovery of admissible evidence with respect to reckless disregard of falsity, and were relevant; then memorandum from attorney would be within attorney-client privilege only to the extent that it was based upon, and consequently might reveal, information furnished by the client in confidence; that certain communications were made " in anticipation of litigation," but plaintiff nevertheless made the requisite showings of need and hardship; and that plaintiff was entitled to discovery of certain documents in defendants' files, though not specifically known to individual defendants at the time of the production of the telecast.

Ordered accordingly.

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Cohn, Glickstein, Lurie, Ostrin & Lubell, New York City, for plaintiff.

Coudert Brothers, New York City, for defendants Mike Wallace and CBS Inc.

Green & Hillman, New York City, for defendant Barry Lando.

Rembar, Wolf & Curtis, New York City, Choate, Hall & Stewart, Boston, Mass., for defendant Atlantic Monthly Co.


HAIGHT, District Judge.

Plaintiff in this defamation action seeks an order compelling discovery pursuant to Rule 37(a)(2), F.R.C.P. Defendants vigorously resist the motion. The case presents interesting questions, one of which, insofar as the excellent briefs of counsel and the Court's own research indicate, is one of first impression. That question is:

Within the context of New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) and its progeny, and the heavy burdens of proof they place upon

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" public figure" plaintiffs in defamation actions, what are the proper boundaries of pre-trial discovery?


The plaintiff is Lieutenant Colonel Anthony B. Herbert (U.S. Army, Ret.) (" Herbert" ). He has brought an action for defamation against defendants Columbia Broadcasting System, Inc. (" CBS" ), Mike Wallace (" Wallace" ), Barry Lando (" Lando" ) and Atlantic Monthly Company (" Atlantic" ). The subjects of the action are a broadcast presented by CBS on its 60 MINUTES Program, produced by Wallace and Lando, and an article subsequently published by Atlantic and written by Lando.

Herbert alleges that both the program and the article maliciously portrayed him as a liar, one who had committed acts of brutality and atrocities in Viet Nam and an opportunist seeking to use the war crimes issue to cover his own alleged failures in the Army.

Col. Herbert, a much-decorated Army officer, was stationed in Viet Nam from September, 1968 until early April, 1969, first as Acting Inspector General for the 173rd Airborne Brigade and thereafter as Commanding Officer of the 2nd Battalion of the Brigade until he was relieved of his command on April 4, 1969. Herbert has consistently contended that, while in Viet Nam with the 173rd Brigade, he observed and was distressed by many war crimes and atrocities, committed by American troops. According to Herbert's account, he reported these events to his superior officers, a Col. Franklin and a General Barnes; and, when these officers took no action in respect of Herbert's reports, Herbert brought formal charges against Franklin and Barnes. These charges resulted in an investigation by the Army, the results of which are not material to this motion.

During the course of these activities, Col. Herbert received considerable publicity. It is conceded that, in consequence, Herbert is a " public figure" as defined by the United States Supreme Court in Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), and more recently in Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 345, 94 S.Ct. 2997, 3008, 41 L.Ed.2d 789 (1974):

" Those who, by reason of the notoriety of their achievements or the vigor and success with which they seek the public's attention, are properly classed as public figures . . .

" For the most part those who attain this status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment."

On February 4, 1973 CBS broadcast a program in its television series 60 MINUTES. A major segment of that telecast concerned Col. Herbert. Herbert alleges in this suit that the program falsely and maliciously portrayed him as a liar in his assertions that he had reported atrocities to Col. Franklin or General Barnes; as a man capable of brutality to Vietnamese prisoners; and as a person who had used the war crimes charges against his superior officers as an excuse for his own relief from command.

Defendant Lando was the producer of the telecast in question; defendant Wallace was the narrator and one of the interviewers. In its May, 1973 issue, defendant Atlantic published an article by Lando about Herbert, which discusses the 60 MINUTES Program, Lando's activities in producing the program, and a book which Herbert had written entitled " Soldier" . Herbert puts forward comparable allegations of defamation in respect of the Atlantic article.

The defendants deny that the statements concerning Herbert appearing in the telecast or the article are false. In addition, defendants deny knowledge of any falsity that may be present, or that they

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proceeded with reckless disregard of truth or falsity. Thus defendants, as they are of course entitled to do, cast upon Herbert the onerous burden of proof that applies in cases of this nature, as summarized recently by the Second Circuit in Buckley v. Littell, 539 F.2d 882, 889-890 (2d Cir. 1976):

" The appellee, a public figure, must rather have demonstrated with convincing clarity not only that the appellant's statements were false, but that appellant knew they were false or made them with reckless disregard of their truth or falsity."


Herbert has launched extensive pre-trial discovery, including the taking of depositions of the defendants and notices to produce documents pursuant to Rule 34. Numerous disputes arose, both in respect of answering questions on depositions and producing documents. Counsel for the parties worked effectively and in a good spirit of cooperation to narrow the areas of dispute. Additional issues were resolved by the Court following a hearing. At that hearing, the remaining areas of dispute were reserved for decision, following the submission by counsel of further memoranda. Those remaining disputes will be considered in this opinion.


Many of the issues arise out of the deposition of defendant Lando, the producer of the 60 MINUTES telecast and the author of the Atlantic article. Upon a number of occasions, counsel for Lando instructed him not to answer questions posed by counsel for Herbert. Herbert now seeks an order compelling answers to those questions.

The questions involved are numerous, and will not be set forth here. They may for convenience be separated into areas of inquiry, which the main brief for defendants CBS, Wallace and Lando (pp. 2-3) accurately summarizes as follows:

" 1. Lando's conclusions during his research and investigation regarding people or leads to be pursued, or not to be pursued, in connection with the ‘ 60 Minutes' segment and the Atlantic Monthly article;

" 2. Lando's conclusions about facts imparted by interviewees and his state of mind with respect to veracity of persons interviewed;

" 3. The basis for conclusions where Lando testified that he did reach a conclusion with respect to persons, information or events;

" 4. Conversations between Lando and Wallace about matter to be included or excluded from the broadcast publication;

" 5. Lando's intentions as manifested by the decision to include or exclude material;

" 6. Conversations between Lando and source persons subsequent to the inception of this action;

" 7. Lando's activities as well as conversations between Lando, Wallace and/or other CBS employees concerning Herbert or the ‘ 60 Minutes' segment between broadcast and publication of the Atlantic Monthly article."

In addition, disputes exist with respect to Herbert's following discovery demands:

1. Production of a CBS memorandum prepared by a CBS " house" attorney in response to an inquiry made by Lando, under circumstances to be discussed below.

2. Questions and demands concerning communications between Atlantic and its counsel involving Lando's manuscript and the article which ultimately appeared in Atlantic.

3. Herbert also demands production of documents in the possession of CBS, Wallace or Lando during stated periods of time, regarding Herbert, the 173rd Airborne Brigade while in Viet Nam, individuals appearing or referred to on the 60 MINUTES segment, and...

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