Price v. Time, Inc.
| Decision Date | 16 September 2005 |
| Docket Number | No. 04-13027.,04-13027. |
| Citation | 425 F.3d 1292 |
| Parties | Michael B. PRICE, Plaintiff-Appellee, v. TIME, INC., Don Yaeger, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Scott Burnett Smith, Gary C. Huckaby, Kimberly Bessiere Martin, Bradley, Arant, Rose & White, LLP, Huntsville, AL., for Defendants-Appellants.
Stephen D. Heninger, Heninger, Burge, Vargo & Davis, LLP, Birmingham, AL, for Price.
Laura R. Handman, Davis Wright Tremaine, LLP, Washington, DC, amicus curiae, for ABC, Inc.
Appeal from the United States District Court for the Northern District of Alabama.
ON PETITION FOR REHEARING
(Opinion July 15, 2005, 11th Cir.2005, 416 F.3d 1327)
Before CARNES and PRYOR, Circuit Judges, and FORRESTER*, District Judge.
The opinion we issued in this case requires Price, as a condition for a disclosure order, to depose four women, one of whom probably is the confidential source for the article that gave rise to this lawsuit. Price v. Time, Inc., 416 F.3d 1327, 1347 (11th Cir.2005). In imposing that requirement, we took into account this assurance given to us by counsel for the defendants: If the woman who is the confidential source testified during her deposition that she was not the source, counsel would "do his duty as an officer of the court and inform the district court that the witness' sworn denial was false." Id. That is the commitment counsel made to us during oral argument.
The defendants have filed a petition for rehearing requesting that we delete from our opinion any suggestion that their counsel is obligated to inform the court if the woman, whose identity as the confidential source they and he have been protecting, falsely denies under oath that she is the source. They take the position that a lawyer has no obligation to inform the court if a witness, other than his own client, has lied under oath. They insist that it is the perfect prerogative of an officer of the court to stand silently by as the search for truth is led astray by perjury — assuming, of course, that the perjury serves his client's interests.
That is an interesting position. Whatever its merit in general circumstances there may be problems with it in situations involving the search for a confidential source in a libel case, as this case illustrates. Through their counsel, defendants have steadfastly refused to divulge their confidential source for the article in question; they have attempted to shield her identity by every legal means; they have insisted that the plaintiff depose the four most likely suspects; and they have argued that deposing those women is a way to get at the truth that is less painful to their interests than requiring that they themselves disclose it. Now they say that if the confidential source lies under oath and obstructs the pathway to the truth that their counsel has urged us to take, he has no duty to remove the obstruction by reporting the lie. We have some problems with that position.
We need not resolve those problems in this case. We asked counsel during oral argument if he would inform the district court should the confidential source falsely deny under oath that she is the source. He assured us he would. We took that assurance into account in reaching our decision. That is enough to hold counsel to his word. Even if...
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