Lluberes v. Uncommon Productions, LLC

40 Media L. Rep. 1013

663 F.3d 6

Felipe Vicini LLUBERES and Juan Vicini Lluberes, Plaintiffs–Appellants,

v.UNCOMMON PRODUCTIONS, LLC, et al., Defendants–Appellees.

No. 10–2082.

United States Court of Appeals, First Circuit.

Heard May 5, 2011.Decided Nov. 23, 2011.

Joan A. Lukey, with whom Maria G. Arlotto and Ropes & Gray, LLP were on brief, for appellants.

Elizabeth C. Koch, with whom Thomas Curley, Levine Sullivan Koch & Schulz, LLP, Jonathan M. Albano and Bingham McCutchen LLP were on brief, for appellees.

Before HOWARD, SELYA and THOMPSON, Circuit Judges.

HOWARD, Circuit Judge.

This case raises issues of First Amendment law. At the center of the dispute is The Price of Sugar, a documentary film released in 2007 by film company Uncommon Productions, LLC, and its principal William M. Haney, III. The film depicts the treatment of Haitian laborers on sugarcane plantations in the Dominican Republic. It refers by name to brothers Felipe and Juan Vicini Lluberes, senior executives of a family conglomerate that owns and operates Dominican sugar plantations. The Vicinis contend that the film is defamatory and sued the filmmakers in federal court. The filmmakers moved for summary judgment, which the court granted. The Vicinis appeal the entry of summary judgment and the denial of a motion to compel production of discovery materials.

For the reasons that follow, we affirm in part the entry of summary judgment but otherwise vacate the judgment, vacate the order denying the motion to compel, and remand for further proceedings consistent with this opinion.

I. BACKGROUND

The controversy that spawned The Price of Sugar is well catalogued in the district court's rescript, Lluberes v. Uncommon Prod'ns, LLC, 740 F.Supp.2d 207 (D.Mass.2010), and we will not rehash it. Suffice it to say that the treatment of Haitian laborers on Dominican sugarcane plantations and the conditions of company towns (or bateyes ) where they live have received scrutiny from many sectors for many years.

In 2004, the filmmakers began shooting in the Dominican Republic. Much of the film follows Fr. Christopher Hartley, a Roman Catholic priest critical of the Vicinis, as he seeks to improve conditions for his parishioners in the bateyes. Those conditions, the film highlights, include shanty quarters, inadequate provisions, and little if any education for children. At several points, Fr. Hartley and the film's narration reference Vicini-owned bateyes and identify Felipe and Juan as bearing some measure of responsibility for their disrepair. The film was released publicly on March 11, 2007, at a film festival in Texas. It has since received limited screenings in a handful of major cities and other venues.

Later in 2007, the Vicinis sued the filmmakers in federal district court in Massachusetts.¹ Invoking the court's diversity jurisdiction, the Vicinis alleged that the film was defamatory and identified fifty-three statements, although they later winnowed the number of allegedly defamatory statements down to seven. The filmmakers seasonably moved for summary judgment on these remaining statements; they argued that Felipe and Juan were “public figures” required to prove “actual malice” in accordance with New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and its progeny, and that the Vicinis could not so prove. The district court agreed and granted summary judgment in the filmmakers' favor.

At the same time, the court denied a motion to compel that the Vicinis had initially filed during discovery and later renewed. The motion sought production of several categories of documents; those at issue here include communications with a third-party “script annotator” that the filmmakers had withheld on attorney-client privilege grounds. The judge did not explain his reasoning. This appeal followed.

II. DISCUSSION

We begin with the public-figure question, then turn to the discovery dispute and go no further.

A. Public–Figure Status1. Defamation and the First Amendment

Before the Supreme Court's decision in New York Times, defamation law was shaped by the states and strongly favored their interest in protecting an individual's reputation. See Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 586 (1st Cir.1980) (“Once a plaintiff put into evidence a reputation-harming statement and proof that defendant caused it to be disseminated, he enjoyed an irrebuttable presumption of injury and a rebuttable presumption of falsity.”); see generally Joel D. Eaton, The American Law of Defamation Through Gertz v. Robert Welch, Inc. and Beyond: An Analytical Primer, 61 Va. L.Rev. 1349, 1351–57 (1975) (surveying defamation law in the various states that existed prior to New York Times ).

That balance shifted in 1964, when the Court considered whether “the constitutional protections for speech and press limit a State's power to award damages in a libel action brought by a public official against critics of his official conduct.” N.Y. Times, 376 U.S. at 256, 84 S.Ct. 710. Recognizing the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” id. at 270, 84 S.Ct. 710, the Court reasoned that even falsehoods “must be protected if the freedoms of expression are to have the breathing space that they need to survive,” id. at 271–72, 84 S.Ct. 710 (internal quotation marks and ellipsis omitted). On that basis, the Court held that the First Amendment “prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Id. at 279–80, 84 S.Ct. 710.²

The Court soon applied the New York Times rule to nonofficial “public figures.” Curtis Publ'g Co. v. Butts, 388 U.S. 130, 154–55, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). Under Curtis, a defamation plaintiff was to be considered a public figure when he “commanded sufficient continuing public interest and had sufficient access to the means of counter-argument to be able to expose through discussion the falsehood and fallacies of the defamatory statements.” Id. at 155, 87 S.Ct. 1975 (internal quotation marks and citation omitted).

For a time, the New York Times rule was also extended to private individuals. Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971) (plurality opinion). According to the Rosenbloom plurality: “If a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual is involved, or because in some sense the individual did not ‘voluntarily’ choose to become involved. The public's primary interest is in the event[.]” Id. at 43, 91 S.Ct. 1811. Rather, the linchpin became simply “whether the utterance involved concerns an issue of public or general concern.” Id. at 44, 91 S.Ct. 1811; see also id. at 43–44, 91 S.Ct. 1811 (“We honor the commitment to robust debate on public issues, which is embodied in the First Amendment, by extending constitutional protection to all discussion and communication involving matters of public or general concern, without regard to whether the persons involved are famous or anonymous.”).

The plurality's approach in Rosenbloom, however, was repudiated in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), which established the current framework. Gertz sought an accommodation between the “need to avoid self-censorship by the news media,” id. at 341, 94 S.Ct. 2997, on the one hand, and the “legitimate state interest underlying the law of libel,” id., on the other. It did so by linking “the constitutionally required showing in a defamation action to the plaintiff's status.” Pendleton v. City of Haverhill, 156 F.3d 57, 67 (1st Cir.1998). Under this new model, public figures could succeed only on proof of actual malice as defined by New York Times. Gertz, 418 U.S. at 342, 94 S.Ct. 2997. As for purely private individuals, however, the states could “define for themselves the appropriate standard of liability” so long as minimal constitutional safeguards were met. Id. at 346–47, 94 S.Ct. 2997. ³

Gertz identified two justifications for this public-figure/private-figure dichotomy. The first, foreshadowed in Curtis, was that “public figures usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy.” Gertz, 418 U.S. at 344, 94 S.Ct. 2997. Thus, “[p]rivate individuals are ... more vulnerable to injury, and the state interest in protecting them is correspondingly greater.” Id. The second justification, which was said to be more important, was that public figures, like public officials, “have assumed roles of especial prominence in the affairs of society” and “must accept certain necessary consequences” of that status. Id. at 344–45, 94 S.Ct. 2997. One such consequence is “the risk of closer public scrutiny than might otherwise be the case.” Id. at 344, 94 S.Ct. 2997; see also id. at 345, 94 S.Ct. 2997 (reasoning that a private individual “has relinquished no part of his interest in the protection of his own good name, and consequently he has a more compelling call on the courts for redress of injury inflicted by defamatory falsehood”).

Gertz contemplated that public-figure status usually would arise in one of two ways, each with different repercussions. In one, “an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts”—the so-called general-purpose public figure. Id. at 351, 94 S.Ct. 2997. But far more commonly (and directly relevant in this case) “an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a...