LaRouche v. National Broadcasting Co., Inc.
| Decision Date | 09 January 1986 |
| Docket Number | Nos. 84-2327,s. 84-2327 |
| Citation | 780 F.2d 1134 |
| Parties | , 4 Fed.R.Serv.3d 42, 19 Fed. R. Evid. Serv. 990, 12 Media L. Rep. 1585 Lyndon H. LAROUCHE, Jr., Appellants, v. NATIONAL BROADCASTING COMPANY, INC.; Anti-Defamation League of B'Nai B'Rith; Brian Ross; Pat Lynch; Mark Nykanen and Irwin Suall, Appellees, and Abbott Rosen; Dennis King; Chip Berlet and John Does 1, 2 and 3, Defendants. Lyndon H. LAROUCHE, Jr., and Michael F. Dennis, Appellee, Intervenor, v. NATIONAL BROADCASTING COMPANY, INC.; Abbott Rosen; Dennis King; Chip Berlet; Brian Ross; Pat Lynch; John Does 1, 2 and 3 and Mark Nykanen, Defendants, and Anti-Defamation League of B'Nai B'Rith and Irwin Suall, Appellants. Lyndon H. LAROUCHE, Jr., Appellant, v. NATIONAL BROADCASTING COMPANY, INC., Appellee, and Anti-Defamation League of B'Nai B'Rith; Abbott Rosen; Dennis King; Chip Berlet; Brian Ross; Pat Lynch; John Does 1, 2 and 3; Mark Nykanen and Irwin Suall, Defendants. Lyndon H. LAROUCHE, Jr., Appellant, v. NATIONAL BROADCASTING COMPANY, INC., Appellee, and Anti-Defamation League of B'Nai B'Rith; Abbott Rosen; Dennis King; Chip Berlet; Brian Ross; Pat Lynch; John Does 1, 2 and 3; Mark Nykanen and Irwin Suall, Defendants. (L), 84-2371, 85-1340 and 85-1265. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Robert L. Rossi (Odin P. Anderson, Anderson & Associates, P.C., Boston, Mass., on brief), for appellant/cross-appellee.
M. Elizabeth Medaglia (Jackson & Campbell, P.C., Washington, D.C., on brief), for intervenor/appellee Dennis.
Floyd Abrams (Thomas J. Kavaler, Devereux Chatillon, Ellen Rosen, Cahill, Gordon & Reindel, New York City, Peter K. Stackhouse, Tolbert, Smith, Fitzgerald & Ramsey, Arlington, Va., on brief), and Wayne H. Matelski (Rodney F. Page, Barbara S. Wahl, Craig Iscoe, Arent, Fox, Kintner, Plotkin & Kahn, Washington, D.C., on brief), for appellees/cross-appellants.
Before PHILLIPS, ERVIN and CHAPMAN, Circuit Judges.
These appeals arise from an action filed by Lyndon LaRouche against NBC, the Anti-Defamation League of B'Nai B'Rith (ADL) and others. LaRouche alleged that the defendants conspired to, and did, defame him in two NBC television broadcasts. NBC filed a four count counterclaim alleging, inter alia, that LaRouche had interfered with its business relations. NBC prevailed on the defamation claim and on its counterclaim for interference with business relations. On that counterclaim, the jury awarded NBC $2,000 in actual damages and $3,000,000 in punitive damages. The punitive damages were reduced to $200,000 on remittitur, which NBC accepted. After the trial, the ADL moved for sanctions against LaRouche and his lawyers pursuant to Rule 11, Fed.R.Civ.P. The district court denied this motion.
On appeal LaRouche presents four issues. First, whether the district court erred in denying him judgment n.o.v. as to the counterclaim. Second, whether the district court erred in refusing to compel discovery of NBC's confidential sources. Third, whether the district court erred in permitting NBC to rely at trial upon evidence from these confidential sources which it refused to disclose. Fourth, whether the district court erred in refusing to declare a mistrial on the ground that the jury had been improperly influenced. The ADL also appeals alleging error in the district court's denial of its motion for sanctions against LaRouche and his lawyers. Finding no error, we affirm.
Lyndon LaRouche bases his claim for defamation upon two news stories which NBC broadcast about him and his organization. The first story was broadcast during the "Nightly News" program of January 30, 1984, the second, during the "First Camera" program of March 4, 1984. "First Camera" was a prime time weekly news magazine type program and that broadcast is at the heart of this action.
The "First Camera" story was produced by defendant Pat Lynch, an NBC employee. In the story, NBC published statements to the effect that LaRouche believes that Jews are responsible for all the evils in the world, that any serious investigation of the LaRouche organization by the IRS would lead to criminal indictment, and that LaRouche once proposed the assassination of President Carter and several of his aides.
On January 30, 1984, during the preparation of the "First Camera" story, Lynch went to LaRouche's residence in an attempt to gain an interview with him. While she was there, a LaRouche security guard removed her camera crew's schedule from the NBC van and read the contents of the schedule into a walkie-talkie. According to the schedule, Lynch and her crew were to interview Senator Daniel Patrick Moynihan later that afternoon.
When Lynch returned to the NBC Washington office around midday, her research assistant Kathi Paterno told her that Senator Moynihan's office had called and cancelled the interview. While Lynch was in the office, Paterno received another call from someone claiming to be Senator Moynihan's aide. Under the guise of reconsidering the cancellation, the caller solicited, and received, information about whom NBC had contacted in the course of the story about LaRouche. Becoming suspicious, Lynch rang off and called Senator Moynihan's office only to learn that someone purporting to be from NBC had called the Senator's office and cancelled the interview. Senator Moynihan's office had not called NBC. The interview did take place that afternoon as originally scheduled. That same day a release appeared on LaRouche campaign letterhead bearing the dateline, "Washington, D.C. January 30". It stated: "According to today's NBC-TV log, Pat Lynch and her NBC-TV roving camera crew have an appointment to do a filming in the Senate offices of Senator Pat Moynihan at 5:15 p.m. this afternoon." NBC's counterclaim for interference with business relations rises from these events.
This action was filed on February 10, 1984. Early in discovery, LaRouche moved to compel NBC to disclose the confidential sources of its story. A U.S. Magistrate heard and denied the motion because LaRouche had not exhausted other possible sources of this information. Shortly before the discovery and pretrial motion cutoff date, LaRouche renewed his motion to compel discovery of the confidential sources. Although he had taken several depositions since his earlier motion, there were some obvious sources of information to which he had not applied. A former LaRouche associate, Larry Cooper, the revealed source of the Carter assassination story was not deposed. Gordon Novel, a confidential source who had come forward during the litigation, had not been deposed, though his deposition had been noticed. In addition, the following statement was published in New Solidarity, a LaRouche publication:
NBC argued that it needs to protect the confidentiality of its sources from disclosure to LaRouche and his staff. The absurdity of this contention is shown by the fact that the names of all of NBC's principal sources were known to LaRouche well before the subject broadcasts and were widely publicized. New Solidarity, May 14, 1984 at 5.
The district court denied LaRouche's motion again on the ground that LaRouche had not exhausted alternative sources of information.
Before trial, LaRouche moved the court to preclude NBC from relying at trial on information from confidential sources. The district court denied the motion, ruling that NBC could rely on information received from confidential sources who had appeared on the broadcast in disguised form and from those sources who did not appear on camera.
On the third day of trial, The Washington Post printed an article concerning an alleged death threat to defendant Pat Lynch, who was then in the process of testifying. LaRouche moved for a mistrial. The district court polled the jury and found that two jurors had seen the article. The court interviewed these jurors individually and out of the presence of the rest of the jury to determine if they had been influenced by the article. Satisfied that these jurors were not so influenced the district court permitted the trial to continue over LaRouche's objections.
The next day the jury expressed concern in a note to the judge over the presence of a New Solidarity sketch artist in the courtroom. Again a voir dire was conducted to determine whether the artist's presence, or anything else, was causing the jurors to fear. Juror Kelly testified that she feared for her personal safety. The court questioned her closely and determined that her fears were not the result of any outside influence, but from evidence of alleged harassment carried out by the LaRouche organization against its perceived enemies. She was excused. Alternate juror Fewel expressed concern over the presence of the sketch artist in the courtroom. She did not testify that she was afraid, only that she did not like the sketch artist being there. Alternate juror Fewel was not excused, neither did she participate in any jury deliberations. Again LaRouche moved for a mistrial or for additional questioning. This motion was denied.
The jury found for NBC and the ADL on LaRouche's case in chief, for defamation. On NBC's counterclaim for interference with business relations, the jury awarded NBC $2,000 in actual damages and $3,000,000 in punitive damages. LaRouche moved for judgment non obstante verdicto, a mistrial, and remittitur. The district court denied the first two motions, but granted remittitur to $200,000 on the punitive damages, which NBC accepted.
After judgment was entered, the ADL moved for sanctions in the form of attorney's fees and costs against LaRouche and his lawyers. These sanctions were sought under Rule 11, Fed.R.Civ.P.; the inherent powers of the court; and 28 U.S.C. Sec. 1927 (1982). Discovery had turned up an internal memorandum of the LaRouche organization which ordered LaRouche followers all over the country to sue the ADL whenever possible. The ADL saw this memo as evidence...
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§ 41.03 JOURNALIST'S PRIVILEGE
...the target of discovery, a qualified privilege against compelled disclosure comes into play."); LaRouche v. National Broadcasting Co., 780 F.2d 1134, 1139 (4th Cir. 1986) ("In determining whether the journalist's privilege will protect the source in a given situation, it is necessary for th......
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§ 41.03 Journalist's Privilege
...the target of discovery, a qualified privilege against compelled disclosure comes into play."); LaRouche v. National Broadcasting Co., 780 F.2d 1134, 1139 (4th Cir. 1986) ("In determining whether the journalist's privilege will protect the source in a given situation, it is necessary for th......