Flowers v. Carville

• Decision Date: 08 March 2004
• Docket Number: No. CVS991629PMP(LRL).,CVS991629PMP(LRL).
• Citation: 310 F.Supp.2d 1157
• Court: U.S. District Court — District of Nevada
• Parties: Gennifer FLOWERS, Plaintiff, v. James CARVILLE, George Stephanopoulos, Little, Brown & Company, Defendants.

310 F.Supp.2d 1157

Gennifer FLOWERS, Plaintiff, v. James CARVILLE, George Stephanopoulos, Little, Brown & Company, Defendants.

No. CVS991629PMP(LRL).

United States District Court, D. Nevada.

March 8, 2004.

John Lukens, Rex Bell, Bell Lukens Marshall & Kent, Las Vegas, NV, Larry Klayman, Michael Hurley, Paul Orfanedes, Judicial Watch, Inc., Washington, DC, for Plaintiff.

Andrew Gordon, McDonald Carano Wilson, Walter Cannon, Rawlings, Olson, Cannon, Gormley & Desruisseaux, Paul Hejmanowksi, Lionel, Sawyer & Collins, Las Vegas, NV, Patricia Lundvall, McDonald Carano Wilson, Reno, NV, Laura Handman, Matthew Leish, Davis Wright Tremaine LLP, David Kendall, Gabriel Gore, Williams & Connolly LLP, Washington, DC, Jo Marsh, William McDaniel, McDaniel & Marsh, Baltimore, MD, for Defendants.

ORDER and JUDGMENT

PRO, Chief Judge.

Currently before the Court are the Motion of Defendant James Carville for Summary Judgment (Doc. # 149), filed August, 22, 2003, and Defendants George Stephanopoulos and Little, Brown & Company's Motion for Summary Judgment (Doc. # 183), filed January 9, 2004. Plaintiff Gennifer Flowers ("Flowers") filed her Plaintiff's Memorandum of Points and Authorities in Opposition to Defendant Carville's Motion for Summary Judgment (Doc. # 164) on September 26, 2003, and Supplemental Memorandum of Points and Authorities in Opposition to Defendant Carville's Motion for Summary Judgment (Doc. # 190) on February 9, 2004. On February 9, 2004, Flowers also filed Plaintiff's Memorandum of Points and Authorities in Opposition to Defendants George Stephanopoulos and Little, Brown & Company's Motion for Summary Judgment (Doc. # 191). On February 23, 2004, Defendants filed Reply Memorandum in Further Support of the Motion of Defendant James Carville for Summary Judgment (Doc. # 195) and Reply Memorandum of Defendants George Stephanopoulos and Little, Brown & Company in Further Support of Summary Judgment (Doc. # 193).

I. BACKGROUND

This case arises from a 1992 news story carried by the Star in which Flowers described her affair with then presidential candidate, Bill Clinton. Flowers supported the Star report with audio tapes of conversations which she said were held between her and Clinton during the affair. On January 27, 1992, Flowers held a press conference during which she played one tape containing excerpts from the taped conversations. (Reply Memorandum in Further Support of the Mot. of Def. Carville for Summ. J. (Doc. # 195), Ex. A at 137.)

Flowers' Complaint claims Defendants James Carville ("Carville"), George Stephanopoulos ("Stephanopoulos") and Stephanopoulos's publisher, Little, Brown & Company ("Little Brown") defamed her and held her in a false light when they said CNN and KCBS had found the tapes were "doctored" or "selectively edited." Additionally, the Complaint alleges Carville and Stephanopoulos conspired to defame her.

A. The News Reports

Most of the allegedly defamatory statements involve two news reports that appeared in early 1992 in response to the Star story and the Flowers press conference. CNN aired a report on the authenticity of the tapes on February 1, 1992. (Defs. Stephanopoulos and Little Brown Mot. for Summ. J. at 7.) The KCBS report appeared on January 29, 1992. (Id. at 5.)

In the CNN report, Brooks Jackson introduced Steve Cain ("Cain") (also spelled Kean in various pleadings), an expert who "subjected the tapes to more than 20 hours of analysis." (Mot. of Def. Carville for Summ. J. (Doc. # 149), Ex. A at 2.) Jackson reported "Kean says he found indications that somebody may have doctored the tapes. Indications including four breaks in the audio." (Id. at 2-3.) Cain also appeared in the report stating: "And again this happens on several occasions. I found a number of suspicious areas that we call anomalies, which would indicate that perhaps there may have been some deliberate editing of the tapes." (Id. at 3.)

The report observed Flowers and the Star"denied any tampering with the tapes" and noted Cain had also said the anomalies could have an innocent explanation. The piece ends with Cain's final quote and Jackson's follow-up:

Cain: I don't think the evidence should be trusted. I think an examination should be made of the original tape.

Jackson: But we're not getting the original tapes. Instead the tabloid is printing in its next edition more transcripts of alleged conversations between Clinton and Flowers. But this, a tabloid spokesman says, is there (sic) Gennifer Flowers finale.

(Id. at 3-4.)

The KCBS report began with a clip of Anthony Pellicano ("Pellicano"), identified in the report as an "audio expert," showing a graphic rendition of the voices on the tape and pointing out an audio break within a conversation between Flowers and Clinton. (Defs. Stephanopoulos and Little Brown's Mot. for Summ. J. (Doc. # 183), Ex. E at 2.) Pellicano opined, "Someone took the original tapes and edited down different portions to give you an audio movie, so to speak, of something that wasn't within continuity. There are portions missing." (Id. at 3.)

Although the KCBS report contains no qualifiers regarding the conclusiveness of Pellicano's findings, a Los Angeles Times article, published the day after Pellicano appeared on television, quoted him as saying, "I don't know that it was `doctored,' but it was `selectively edited.'" (Defs. Stephanopoulos and Little Brown's Mot. for Summ. J. (Doc. # 183), Ex. L.) The article states Pellicano's final conclusion is that "[t]he tape is suspect at best," but notes "without access to the original tapes he cannot prove his suspicions." (Id.)

B. Defendants' Statements

Defendants made four statements based on these news reports which Flowers alleges are defamatory. The first is James Carville's statement made during his appearance on the cable television show Larry King Live, on January 21, 1998. In response to a caller who suggested the tapes made by Linda Tripp might be "dubbed, like the Gennifer Flowers and Elgene Lewis' tapes were," Carville said: "One of the things is — remember, we'll go back to the Gennifer Flowers statement, I think the [sic] found that tape was doctored and CNN even found out, like 10 or 12 different places. So you have to be careful." (Mot. of Def. Carville. for Summ. J. (# 149), Ex. D.)

The final three statements were made by George Stephanopoulos. The first is also from an appearance on Larry King Live, on February 2, 1998, in which Stephanopoulos participated in the following exchange regarding Gennifer Flowers:

KING: The tape was damaging?

STEPHANOPOULOS: The tape was damaging, but it was also doctored.

KRISTOL: It wasn't doctored. She merely taped, as I understand it, the messages he left. She had to put them together on one tape so she taped from a tape. There's no evidence of doctoring of what had been said.

STEPHANOPOULOS: Absolutely untrue. Both Brooks Jackson of CNN and KCBS ... in 1992 showed that the tapes were doctored and that's what we said in 1992.

(Defs. Stephanopoulos and Little Brown's Mot. for Summ. J. (Doc. # 183), Ex. T at 15.) Stephanopoulos made his second statement in his book, All Too Human, published in March of 1999 by Little Brown. (Defs. Stephanopoulos and Little Brown's Mot. for Summ. J. (Doc. # 183) at 12.) In the book, Stephanopoulos describes what he thought while watching the Flowers press conference in 1992: "The conversation did sound stilted; her questions were leading — maybe the tapes were doctored? It's a setup." The passage continues in the present, "Later investigations by CNN and KCBS would show that the tapes were `selectively edited,' but there was no getting around the fact that by talking to her on the phone, Clinton had put everything we had worked for at risk." (Id.) Finally, Stephanopoulos appeared on Tim Russert on May 20, 2000, and made another statement about the tapes: "Oh it was absolutely his voice, but they were selectively edited in a way to — to create some — some impression." (Id. at 14-15.)

C. Discovery

The Ninth Circuit Court of Appeals has held that Flowers is a public figure in regard to this controversy and must prove Defendants acted with actual malice to sustain her claims. Flowers v. Carville, 310 F.3d 1118, 1129 (9th Cir.2002). On August 18, 2003, Defendants filed Defendants' Motion for Entry of Defendants' Proposed Discovery Plan and Scheduling Order (Doc. # 146) proposing that the Court bifurcate discovery with "an initial discovery period limited to actual malice, followed by dispositive motions." Discovery on the issue of falsity, damages, and other issues would follow only if the Court denied summary judgment for the Defendants on the issue of actual malice. (Mot. for Entry of Defs.' Proposed Disc. Plan and Scheduling Order (Doc. # 146) at 8.) The Magistrate Judge, Lawrence R. Leavitt, granted Defendants' motion and set December 8, 2003, as the date for close of discovery on the issue of actual malice. (Order, September 8, 2003 (Doc. # 156).)

Later, Magistrate Judge Leavitt granted Flowers' request to extend the discovery deadline to December 19, 2003, in order to depose Pellicano who was then incarcerated at the Metropolitan Detention, Los Angeles, California, awaiting sentencing of federal convictions for two counts of illegal possession of firearms. (Order, December 5, 2003 (Doc. # 182). at 1; Plaintiff's Emergency Mot. for Leave of Court to Depose Witness Confined in Prison (Doc. # .179) at 2.) Flowers alleges Pellicano appeared on KCBS while he was also working as a private detective for the Clinton campaign. (Id. at 1-2.) However, Flowers did not depose Pellicano at the prison in which he was incarcerated because he did not receive the subpoena informing him of the deposition, scheduled for 8:00 am on December 19, until noon of the same day. (Letter from Anthony Pellicano to Nevada District Court, filed January 5, 2004.) Because he had not received the subpoena and his lawyers were not present, Pellicano refused to...