Sands v. News America Pub. Inc.

• Decision Date: 11 September 1990
• Citation: 560 N.Y.S.2d 416,161 A.D.2d 30
• Parties: , 18 Media L. Rep. 1064 Nicholas M. SANDS, Plaintiff-Appellant, v. NEWS AMERICA PUBLISHING INC., d/b/a New York Magazine and Nicholas Pileggi, Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 416

560 N.Y.S.2d 416

161 A.D.2d 30, 18 Media L. Rep. 1064

Nicholas M. SANDS, Plaintiff-Appellant, v. NEWS AMERICA PUBLISHING INC., d/b/a New York Magazine and Nicholas Pileggi, Defendants-Respondents.

Supreme Court, Appellate Division First Department.

Sept. 11, 1990.

Arlene R. Smoler, of counsel (Jonathan W. Lubell, with her on the brief; Morrison Cohen Singer & Weinstein, New York City, attys.), for plaintiff-appellant.

Slade R. Metcalf, of counsel (Mark H. Jackson, with him on the brief; Squadron, Ellenoff, Plesent & Lehrer, New York City, attys.), for defendants-respondents.

Before SULLIVAN, J.P., and CARRO, KASSAL and ELLERIN, JJ.

ELLERIN, Justice.

In this defamation action, plaintiff appeals from the IAS court's denial of numerous discovery requests to which the media defendants objected on various grounds including the Shield Law (Civil Rights Law § 79-h) and the litigation material exception to CPLR § 3101.

The underlying action involves an article entitled "The Mob & The Machine", written by the defendant Nicholas Pileggi, which appeared in the May 5, 1986 issue of New York magazine of which defendant News America Publishing Inc. is the publisher. Published at a time of intense publicity regarding corruption scandals in New York City government, the article discussed the purported interrelationship between "organized crime" and the operation of local New York City government. Reporting about the plaintiff, the article stated:

Agents have also gone back to look at Manes' appointment in 1978 of Dominick Santiago as director of the city's Public Development Corporation, an agency charged with attracting new industry to New York. Santiago led a remarkable double life, one that in itself epitomizes the close connections between the mob and the machine. As Dominick Santiago, he was Carlo Gambino's godson, ran trucking companies suspected of mob infiltration, and served as president of Independent Local 3108 of the Brotherhood of Carpenters. Also under that name, he was arrested, indicted, and given a six-month federal-court sentence in 1975 for embezzling $500,000 in pension funds. Under the name Nick Sands, however, he became a Democratic state committeeman in the 33rd Assembly District in Queens; he got his Public Development Corporation appointment; he was a fund-raiser for Governor Carey; he became a member of local School Board 24; and he organized a 1979 fund-raiser for Representative Geraldine Ferraro.

On May 8, 1980, two men opened fire on Santiago/Sands as he left his home in Middle Village, Queens. He was hit nine times, but he survived and has since kept a low profile, according to the Feds. Today, agents are trying to figure out why so little was done to investigate the matter.

After the shooting, Manes said he was "shocked" to learn about the background of the man he had appointed: "He came well recommended as a union president and school-board member and a member of the State Democratic Committee."

Plaintiff thereafter commenced the instant action for defamation contending that the article contains certain false and defamatory statements, and that it falsely implies that he is a member of "organized crime" or the "mob". Specifically, plaintiff alleges that he is not Carlo Gambino's godson, that he legally changed his name from Dominick Santiago to Nicholas Sands, in 1967, for independent reasons, and that he does not lead a "double life". While he conceded that he was convicted in 1975 of the crimes of converting union welfare funds to the use of the general fund, filing false reports regarding said funds, and converting funds to his own use, and was sentenced to six months on those charges, he asserts that the amounts involved were significantly lower than the $500,000 specified in the article.

The complaint also alleges that by reason of the injury to his reputation by the distribution of the defamatory article in the Pittsburgh area, he sustained damages when the Board of Commissioners of Allegheny County, Pennsylvania rescinded a $3,107,160 public works contract awarded to a construction firm in which plaintiff is a principal.

The instant action was commenced in April 1987 and on July 21, 1987, plaintiff served upon defendants an extensive set of interrogatories together with a request to produce documents. Plaintiff's request for interrogatories contained 4 pages of "instructions and definitions" followed by 49 separate interrogatories, many with multiple subdivisions. While defendants' initial answer to the interrogatories, dated October 9, 1987, provided some of the information sought, objection was raised to the majority of the interrogatories on the grounds that they were "unduly burdensome" or were "attorney work product" or both. While using the phrase "attorney work product", the thrust of the objection was, in fact, material prepared for litigation. Shortly thereafter, defendants served "Supplemental Answers and Objections", dated October 22, 1987, which for the first time raised the Shield Law (Civil Rights Law § 79-h) and the state and federal constitutions as additional grounds for objection to all but a few of the previously objected to interrogatories. The only additional information provided by the "Supplemental Answer" was in partial response to Interrogatory No. 10 (which sought any material containing statements made by the plaintiff Sands). Defendants' third response to the interrogatories was by way of a letter from defendants' counsel, dated January 21, 1988, which provided certain additional information and again asserted the Shield Law, and for the first time formally raised the "litigation material" exception under CPLR 3101(d) as an additional basis for objection to the interrogatories to the extent they remained unanswered or only partially answered.

It is the denial of plaintiff's motion to compel defendants to answer those interrogatories that is the subject of this appeal. In denying that motion, the IAS court held that all of the objected to interrogatories seek material protected by both the Shield Law and the "material prepared for litigation rule", without reference to any specific interrogatories or the nature of the information sought beyond briefly noting, in connection with documents containing statements made by plaintiff to third parties, that such statements are not within the purview of CPLR 3101(e). While plaintiff had alternatively sought a preclusion order with respect to information found to be covered by the Shield Law, such relief was denied without discussion.

Defendants frame the issue before us as one involving interrogatories seeking only documents or information "which came into the journalist's possession after the publication of the Article". While, indeed, most of the material sought does relate to information obtained post publication, the record and defendant's own brief make clear that certain pre-publication information is also in issue.

Both Pileggi's affidavit in the record and defendants' brief state that in writing the section of the article on Sands, Pileggi spoke with at least seven individuals, including two law enforcement officials who are named, and five other sources, also involved in law enforcement, who were confidential. Yet in responding to Interrogatory No. 6, which required identification of all interviews conducted in connection with the preparation of the article, defendants, in their original answer, while objecting to the interrogatory as too broad, expressly stated that "the only two interviews conducted by Pileggi in connection with the preparation of the article as to the portion concerning plaintiff's name are the following:" setting forth the names of two law enforcement officials and further noting that Pileggi may also have spoken to a third named person about plaintiff prior to publication. Despite this seemingly finite response, defendants, in their Supplemental Answer, included Interrogatory No. 6 among those to which objection was asserted both on the basis of the Shield Law and the federal and state constitutions. This, of course, is consistent with defendants' present assertion that 5 confidential sources, beyond those sources specifically named, were relied upon by the writer prior to publication of the article. A similar situation exists with respect to Interrogatory No. 8 which expansively requested all documents relating to plaintiff gathered or read by Pileggi prior to publication of the article. Defendants' initial response to this request identified specific articles and reports, again seemingly without reservation. However in the letter from defendants' counsel which constituted the third response to the Interrogatories, No. 8 was included among those to which objection was asserted based upon the Shield Law and CPLR 3101(d). Since that particular request related only to documents prior to publication, it must be assumed that in raising the Shield Law defendants are seeking to protect additional confidential documentation that Pileggi had available at that time. Thus, an issue still exists with respect to pre-publication confidential sources and documentation as well as with respect to information obtained subsequent to the article's appearance in print.

We turn first to the issue of the additional pre-publication information which defendants concededly possess beyond that already provided by them in response to interrogatories Nos. 6 and 8.

At the outset we note that the injunction of CPLR 3101(a) that there "shall be full disclosure of all evidence material and necessary in the prosecution or defense of an action" has been "interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason". (Allen v. Crowell-Collier Publishing Co., 21 N.Y.2d 403, 406, 288 N.Y.S.2d 449, 235 N.E.2d...