Blankenship v. Fox News Network, LLC

DON BLANKENSHIP, Plaintiff, v. FOX NEWS NETWORK, LLC et al., Defendants.

Civil Action No. 2:19-cv-00236

United States District Court, S.D. West Virginia, Charleston

August 20, 2021

MEMORDANDUM OPINION AND ORDER

John T. Copenhaver, Senior United States District Judge.

Pending is the objection by the defendant Fox News Network, LLC (“Fox News”) to the Magistrate Judge's order denying Fox News's Fed.R.Civ.P. 54(b) motion to reconsider his previous discovery order, filed on July 15 2021 (ECF No. 974).

I. Background

In the operative amended complaint, the plaintiff alleges that during the 2018 election cycle, in which he campaigned for the Republican nomination to be United States Senator from West Virginia, “mainstream” Republicans engaged in a “clandestine campaign” along with “contacts in the establishment media, including Fox News in particular, ” to defeat the plaintiff's candidacy. ECF No. 14 ¶¶ 3-4. As part of this “concerted plot, ” the plaintiff alleges that, in the days leading up to the West Virginia Republican primary election, numerous news media outlets, including Fox News and several of its reporters and contributors, falsely referred to him as a “‘convicted felon, '” resulting in his losing the primary election and sustaining reputational and financial injuries. Id. ¶ 6; see also id. ¶¶ 24, 190.

Based on these allegations, the plaintiff asserts claims against Fox News, other news media outlets and figures, as well as non-media entities, for defamation and conspiracy to defame (Count I) and false light invasion of privacy and conspiracy to commit false light invasion of privacy (Count II). See id. ¶¶ 222-250. Although the complaint states that both counts, including the conspiracy claims, are asserted against “all defendants, ” the conspiracy related allegations contained in the counts involve only three defendants: (1) the National Republican Senatorial Committee (“NRSC”); (2) Kevin McLaughlin, whom the complaint identifies as the current director of NRSC and “a longtime Republican Party operative”; and (3) and 35th Inc (“35th PAC”^[1]), a political committee that used independent expenditures to support West Virginia Attorney General Patrick Morrissey's candidacy for the Republican nomination for the same Senate seat that the plaintiff sought in 2018. Id. at 53, 56 (capitalization altered). Specifically, the complaint alleges that 35th PAC, NRSC, Mr McLaughlin, and other unnamed conspirators shared a common plan to defame the plaintiff and to cast him in a false light and agreed to publish or cause others to publish claims that he was a convicted felon, despite knowing the claims were false. See id. ¶¶ 234, 247.

Although the conspiracy allegations set forth in the complaint's two counts focus on 35th PAC, NRSC, and Mr. McLaughlin, other portions of the complaint concern Fox New's involvement in the conspiracy. For instance, the complaint alleges that Senate Majority Leader Mitch McConnell, who opposed the plaintiff's candidacy, “set in motion the wheels of a clandestine campaign, ” “using . . . [NRSC] and his contacts in the establishment media, including Fox News in particular, to do [his] (and in turn, the NRSC's) bidding, ” “including lying and smearing to stop [the plaintiff] from winning the primary.” Id. ¶¶ 4, 14; see id. ¶¶ 3, 19, 150. It further alleges that “multiple news personalities, . . . some at the direction of [Senator] McConnell and other GOP leaders, repeatedly and falsely called [the plaintiff] a ‘felon' and ‘convicted felon'” and that “[t]hese defamatory statements were made on Fox News . . . by conservative commentators.” Id. ¶ 21; see id. ¶ 6; see also id. ¶¶ 16-17, 156 57, 166-68, 196 (alleging certain Fox News hosts and commentators referred to the plaintiff as a felon on Fox News broadcasts).

During discovery, Fox News proposed to collect and produce materials from 16 custodians who were likely to have been involved in the matters alleged in the complaint. See ECF No. 589 at 6. The plaintiff, however, complained that the proposed field of custodians was too limited and filed a motion to compel production from 37 named individuals, which included the 16 identified by Fox News, as well as other unnamed individuals, all of whom the plaintiff sought to designate as custodians. See ECF No. 486; ECF No. 536; ECF No. 551. Fox News has divided the named custodians into five categories, one of which is relevant here, namely:

six Fox News senior business executives (John Fiedler, Danny O'Brien, Sharri Berg, Irena Briganti, Suzanne Scott, and Jay Wallace).

See ECF No. 565 at 2 n.1; ECF No. 589 at 6 n.1, 7-9.^[2] The court hereinafter refers to these six executives as the “Fox Executives.”

The plaintiff argued that collection and production from the Fox Executives is relevant in light of his claim that Fox News conspired with establishment Republicans to defame him. See ECF No. 536; ECF No. 551. He asserted that a close relationship between establishment Republicans and the Fox Executives and executives and officers of entities related to Fox News has been well-documented in the press and that responsive materials in the Fox Executives' custody would be probative of his conspiracy claims. See ECF No. 536; ECF No. 551.

In a September 21, 2020 order, the Magistrate Judge granted the plaintiff's motion to compel. See ECF No. 573 at 2834. The Magistrate Judge rejected Fox News's argument that the plaintiff's requested expansion of custodians was based on speculation. See id. The Magistrate Judge explained that the complaint alleges a conspiracy between Fox News and establishment Republicans to defame the plaintiff and that such a conspiracy would likely involve senior Fox News officials beyond those who produced the programs on which the allegedly defamatory statements were made. See id. The Magistrate Judge also pointed to documentation - specifically, press reports cited in the plaintiff's briefing - evidencing an “intertwining relationship between [Fox News] executives and Board members” and “high-ranking Republican officials.” Id. (citing ECF No. 551 at 20-23). The Magistrate Judge further noted that some Fox News broadcasts had accurately reported that the plaintiff had been convicted of a misdemeanor, indicating that Fox News was aware of the falsity of the allegedly defamatory statements made in other broadcasts, and concluded that the plaintiff was thus entitled to seek discovery from the Fox Executives in order to explore further evidence of actual malice. See id.

On October 5, 2020, Fox News filed an objection to the Magistrate Judge's order granting the plaintiff's motion to compel. See ECF No. 589. Fox News argued that the Magistrate Judge clearly erred in compelling discovery from the Fox Executives because he incorrectly concluded that the complaint adequately alleged a relationship between them and establishment Republicans. See id. at 11-14. In a June 8, 2021 memorandum opinion and order, the court rejected Fox News's arguments and overruled its objection. See ECF No. 919.

While its objection to the Magistrate Judge's order compelling it to produce materials from the Fox Executives remained pending, Fox News apparently did not produce all of the materials at issue.^[3] Shortly after Fox News filed its objection, the case developed in ways pertinent to the current objection. First, by a December 17, 2020 order, the court dismissed NRSC following the plaintiff's and NRSC's submission of a stipulation of dismissal. See ECF No. 692; ECF No. 694. Second, the claims against Mr. McLaughlin, which had been pursued in another forum, were dismissed.^[4] And, third, the plaintiff's briefing in response to 35th PAC's motion for summary judgment indicates that he has abandoned his conspiracy claims against 35th PAC.^[5]

After the court overruled Fox News's objection to the Magistrate Judge's order compelling it to produce materials from the Fox Executives, Fox News filed a Rule 54(b) motion to reconsider, which it directed to the Magistrate Judge. See ECF No. 949. The motion asked the Magistrate Judge to reconsider his order “in light of intervening events . . . that occurred after” the Magistrate Judge's September 21, 2020 order and thus “could not have properly been presented” as an objection to the order. Id. at 1. As relevant here, Fox News raised two arguments.

First, in Fox News's view, the Magistrate Judge, in his September 21, 2020 order had determined that materials from the Fox Executives were discoverable only because they may be relevant to the conspiracy claims asserted in the complaint. See id. at 34 & n.2 (citing ECF No. 573 at 6-7, 28-30); ECF No. 962 at 1-2. However, Fox News argued, following the September 21, 2020 order, the conspiracy claims - which the complaint asserts against only 35th PAC, NRSC, and Mr. McLaughlin - were extinguished by the dismissals of NRSC and Mr. McLaughlin and the plaintiff's abandonment of his conspiracy claims against 35th PAC. See EFC No. 949 at 4; ECF No. 962 at 4-7. Thus, because no conspiracy claims remained, Fox News contended, the Fox Executives' materials that might shed light on a conspiracy were no longer relevant.

Second Fox News argued that, since the September 21, 2020 order, it had searched for and produced all communications concerning the plaintiff between the Fox Executives and Fox News personnel or commentators involved in producing the programs on which the allegedly defamatory statements were made. See ECF No. 949 at 5. In Fox News's view, the only materials in the Fox Executives' custody that might be relevant are limited to communications between the Fox Executives and those who produced the programs at issue. See id. at 5-6. Fox News thus argued that it had produced all relevant materials from the Fox Executives and...