Lundin v. Discovery Commc'ns Inc.

• Decision Date: 02 November 2018
• Docket Number: No. CV-16-01568-PHX-ROS,CV-16-01568-PHX-ROS
• Citation: 352 F.Supp.3d 949
• Parties: Cody LUNDIN, Plaintiff, v. DISCOVERY COMMUNICATIONS INCORPORATED, et al., Defendants.
• Court: U.S. District Court — District of Arizona

352 F.Supp.3d 949

Cody LUNDIN, Plaintiff,

v.DISCOVERY COMMUNICATIONS INCORPORATED, et al., Defendants.

No. CV-16-01568-PHX-ROS

United States District Court, D. Arizona.

Signed November 2, 2018

Jeffrey A. Silence, Kraig J. Marton, David N. Farren, Jaburg & Wilk PC, Phoenix, AZ, for Plaintiff.

Craig Carson Hoffman, David Jeremy Bodney, Shayna Fernandez Watts, Ballard Spahr LLP, Daniel Clayton Barr, Katherine Elizabeth May, Perkins Coie LLP, Phoenix, AZ, for Defendants.

ORDER

Honorable Roslyn O. Silver, Senior United States District Judge

Plaintiff Cody Lundin believes the manner in which he was portrayed on an episode of the television show "Dual Survival" was defamatory and depicted him in a false light. Defendants believe Lundin's portrayal on the show was substantially accurate and, even if not, Lundin has no evidence that Defendants knew the allegedly defamatory statements were false or that the statements were published with reckless disregard for their truth. Having watched the episode and reviewed all other evidence proffered by the parties, the Court need not address Defendants' knowledge or intent in crafting the episode. None of the statements identified by Lundin as allegedly supporting his claims are a sufficient basis for his claims.

BACKGROUND

The parties have voluminous factual disputes but Lundin's claims are based on the broadcast version of the episode, which the parties have provided. Therefore, the vast majority of the facts necessary for resolving the motion for summary judgment are undisputed. Where appropriate, however, the following describes the facts in the light most favorable to Lundin.

Lundin is a "world-renowned survival expert" who has been a "professional survival instructor" for close to thirty years. (Doc. 128 at 2; Doc. 135 at 64). In 2009, Discovery Communications, Inc., and Original Media, LLC, approached Lundin to cohost a television show called "Dual Survival." The show aimed to depict survival skills and scenarios with "realism" and "competency." (Doc. 135 at 63). Lundin's expertise fit in with those aims and he agreed to cohost the show. Lundin worked as the show's cohost for approximately three and a half years. (Doc. 135 at 64). During the first two seasons of the show, Lundin's cohost was Dave Canterbury. (Doc. 135 at 65). At the beginning of season three, Canterbury was replaced by Joe Teti.

Consistent with its professed intent to portray realistic survival skills and scenarios, Dual Survival was marketed as an "observational reality show." In truth, however, each episode was "scripted with a story intended to convey a theme or story to its audience." (Doc. 135 at 6). In deciding whether Lundin was falsely and unlawfully portrayed, it is significant that the show more than just occasionally falsely depicted what was actually occurring. For example, the show often portrayed the hosts as having little access to food and water. In reality, the hosts ate breakfast and dinner at "resorts, hotels, [and] game lodges" while lunches were catered on location. (Doc. 135-2 at 272). In addition, one episode depicted Teti tracking and killing an allegedly wild boar. In truth, the show arranged to have a domestic pig tied to vegetation so Teti could easily locate and kill it. (Doc. 135-2 at 274). And another episode depicted Lundin and Teti as unexpectedly coming across a rattlesnake. That rattlesnake, however, was purchased and transported to the filming location in a container. (Doc. 135-2 at 273). The rattlesnake was then placed in an area for Lundin and Teti to "find." Overall, Dual Survival lied "to the show's audience about nearly all aspects of the so-called ‘reality’ show and the characters on the show." (Doc. 135-2 at 269).

Lundin was happy to participate in the charade as long as he was portrayed in the manner he preferred. Lundin contends the episodes often portrayed conflict between Lundin and Teti but much of that conflict was scripted. Some of that conflict, however, appears to have been genuine and a few episodes into season four, Defendants Discovery Communications, Original Media, and Executive Producer Brian Nashel ("Defendants") decided to replace Lundin with another individual. Defendants then compiled and aired an episode titled "Journey's End to a New Beginning" depicting Lundin's departure from the show. That episode is the basis of Lundin's claims in this litigation.

The episode touts itself as a "behind the scenes" view of the filming of previous Dual Survivor episodes involving Lundin and Teti. The episode is structured around the fact that either Lundin or Teti would not continue on the show. The episode paints the relationship between Lundin and Teti as involving repeated instances of conflict which, eventually, became unsustainable. Lundin believes the episode viewed as a whole depicts a "False Narrative" of him "walking off the Show in disgrace as a burned-out, irrational, incompetent and mentally ill has-been." (Doc. 128 at 3). Lundin argues the "False Narrative" was "the primary point and purpose of the episode as a whole." (Doc. 128 at 6). After the show was aired, Lundin filed the present suit alleging the episode constituted defamation and false light invasion of privacy because of the "False Narrative" it presented of him.

According to Lundin, the episode must be viewed in its entirety to appreciate the "False Narrative" and the myriad ways in which he was harmed. While the Court has viewed the entire episode, any analysis of its contents requires consideration of discrete portions. See Rinsley v. Brandt , 700 F.2d 1304, 1310 (10th Cir. 1983) (holding plaintiff must "identify particular false statements" to allow for analysis). During discovery, Lundin provided a twenty-page list of all the "defamatory and false or implied statements" in the episode that supported his claims. (Doc. 135-2 at 269). Lundin appears to have retreated from that list, possibly because he realized many of the statements he originally listed cannot be deemed actionable by Lundin.¹ Lundin's current briefing has focused on eight portions of the episode. The Court will describe and analyze those eight portions as well as a few portions of the episode that painted Lundin in a positive light and Teti in a negative light.

1. Spear and Lighter Throwing Incident

During the portion of the episode showing events in Hawaii, Teti is shown standing in a pool of water while Lundin is standing a few feet above him. The episode's narrator sets the scene by stating: "Joe and Cody are attempting to get their only resources, a hunting spear, a gourd full of water, and a lighter wrapped in a bandana down to lower ground in a controlled manner." (Doc. 117-2 at 92). Lundin is then depicted as holding the lighter and stating "This needs to remain dry, this needs to remain dry so I'm going to wrap this up ..." to which Teti replies "Okay." The narrator then states "But as you'll see, something causes Cody to begin tossing [the items] haphazardly to Joe, causing tempers to flare for both men." After Teti repeatedly tells Lundin to throw the items down to him, Lundin is shown throwing everything into the water, making no effort to allow Teti to catch the items. Lundin states "How about that? You can make fire with wet [BEEP]. How about if I [BEEP?] That [BEEP] work?"

Immediately after Lundin's outburst, the episode shows Nashel commenting: "I don't know and nobody really knows exactly what happened, if there was an incident that set them off, it definitely got a little hairy and we definitely saw the tension between Joe and Cody really come to a head during that episode." Teti is then shown commenting: "I don't [BEEP] know what just happened. I—I—I don't know, is he freaking dehydrated or just like had a complete brain fart. I don't know. It's unacceptable. That kind of behavior, where I came from, he'd be [BEEP] history." (Doc. 117-2 at 95).

After depicting Lundin throwing the items, Lundin is depicted as stating,

I lost my cool. They're not going to run that or I'll quit. They need to pick that up somehow or cancel it off or stay the [BEEP] out of my way with what I want to do with my career for now. I'm not jeopardizing that. They can run it and they can face the consequences, it's that simple. You tell Brian or I'll—I'll tell him myself, but don't have him waste a whole bunch of time with that scene. I—I don't care at this point. I'm just fried man. I'm fried.

Lundin describes this scene as a "cornerstone piece of the False Narrative that makes Cody look grossly incompetent in his life-long profession and mentally ill for no explained or apparent reason." Lundin claims the "truth" is that he had resisted throwing the items down to Teti but a producer "coerced and forced Cody to throw the lighter into the water." (Doc. 135 at 27). But Lundin admits, as reflected by his own statement shown during the episode, he was angry at the time he threw the items into the pool. However, Lundin believes it was defamatory for the episode to depict him as angry at Teti when, in truth, he was "angry at [the producer] for making him" throw the items. In addition, Lundin believes everyone knew he was upset at the producer, not Teti. Thus, the statements by Teti and Nashel that they did not know exactly why Lundin was upset were false and generated a misleading picture of Lundin.

2. Cooling Off Scene

Shortly after the spear and lighter throwing incident, the episode depicts Nashel as stating "From a production standpoint it was a pretty scary time. The production was down for two days while the guys cooled off and while the producers figured out how to work around this incident." (Doc. 117-2 at 96). Lundin claims Nashel's statement was false and misleading in two respects. First, Lundin states production was not down for "two days." Instead, the production was down only for the afternoon and evening of one day and the following morning. And second, Lundin believes it was Teti's "violent threats and mentally unbalanced behavior"...