For #CaseoftheWeek Episode 28, we discuss how the relationship of custodians to the allegations of the complaint impacts proportionality considerations on a motion to compel. The case we analyze is Blankenship vs. Fox News Network, 2020 WL 9718873 (S.D. W. Va. 2020) presided over by United States Magistrate Judge Omar J. Aboulhosn.
Good morning and welcome to our #CaseoftheWeek for June 15, 2021. My name is Kelly Twigger. I am the CEO and founder of eDiscovery Assistant and the Principal at ESI Attorneys. Thanks so much for joining us this week. Each week, through our partnership with ACEDS, we select a different case from eDiscovery Assistant’s case law database and talk about the practical implications of what that decision means for you, your practice, and for your clients.
There is a link to this week’s case in the comments section of the platform that you’re viewing us on—whether you’re on LinkedIn, YouTube or Twitter. You’ll also find a link to the 2020 Annual Case Law Year in Review Report as well in the comments. We’ve also just launched our new website at ediscoveryassistant.com, if you want to pop over there and take a look.
Let’s get into this week’s case. Our decision this week is essentially ripped from the headlines.
It is a decision from the case titled Blankenship vs. Fox News Network. This decision is out of the Southern District of West Virginia from September 21, 2020. This is from United States Magistrate Judge Omar Aboulhosn—I knew I was going to mispronounce his name so my apologies, Judge—and comes as a result of the 2018 Senatorial Election Campaign for the West Virginia primary. In this case, Don Blankenship was a candidate for the United States Senate from West Virginia in 2018, which of course was during the Trump administration. During the primary for the West Virginia Senate campaign, Blankenship lost to the state’s attorney general, who subsequently then lost in the general election to Senator Joe Manchin.
If you follow politics or news at all, you know that Senator Joe Manchin has been in the press a lot lately. There’s a lot of politics behind what happened that are the facts of this particular case and that lead to some interesting discovery issues and some great points for us to be able to illustrate as a result of this case.
Now this case when you get into it—again you can use the public link that’s in the comments to be able to view the case on eDiscovery Assistant, even if you’re not a user—and when you look at this decision, you’ll see that it’s a long one. But it’s long, primarily because there are huge bulleted lists of the requests for production and the custodians that plaintiff requested on this motion to compel.
Let’s talk a little bit about the facts behind the case.
Don Blankenship was a coal baron in West Virginia who went to prison for his role in a deadly mine disaster. My understanding is that there was conflict between what was reported on multiple news networks, in particular FOX, as to whether or not he was a convicted felon versus his conviction being for a misdemeanor. So it’s unclear to me, and I wasn’t able to suss out before today’s discussion, which of those things is true. But one of the basis for allegations in the complaint is that Fox, together with the other news network, CNN and MSNBC, that are listed as defendants, essentially engaged in a defamatory campaign to destroy his bid for the West Virginia Senate in the primary.
There are multiple reports from The New York Times and other news outlets that showed that Republicans wanted Blankenship to lose, and according to the plaintiff in his complaint, essentially weaponized defamation to derail his senatorial campaign. There are specific allegations in the complaint that Senator Mitch McConnell and others implemented a clandestine campaign to smear him and that he alleges a conspiracy between numerous Republican leaders and operatives who used Fox News network to perpetuate the campaign to derail his candidacy and to defame him in order to influence voters.
The plaintiff claims that not only did it cost him the campaign, but also that it has since limited his ability to make money. As part of the derailment of the campaign, of course, our former president weighed in via Twitter and sent out a tweet that said to the great people of West Virginia, “we have together a really great chance to keep making a difference. Problem is, Don Blankenship, currently running for Senate, can’t win the General Election in your State…No way! Remember Alabama. Vote Rep. Jenkins or A.G. Morrisey!” Effectively going after Blankenship. That was not unusual for the former president, but in this instance, it’s a huge piece of evidence with regard to the conspiracy from the Republican Party. In previous motions in this case, the court had allowed the plaintiff’s conspiracy claim to go forward and the claim not only involves the defendants that are named, which are FOX, CNN and MSNBC, but also those within the highest ranks of the Republican Party. The plaintiff asserted that Fox News executives and or its directors were complicit by way of their non-interference and facilitation of the defamatory statements.
In addition to comments and segments that were aired on multiple of these news networks, there was also a book that was written by Brian Stelter, who was a journalist at CNN. Brian initially reported a story that the White House, through the attorney general, had directly influenced Fox programing by influencing a high ranking Fox board member, Rupert Murdoch, who was the owner of Fox News at the time. Mr. Stelter subsequently wrote a book that described the relationship between the high ranking GOP officials and the media. What we’re sitting on here in this particular decision is a motion to compel documents from CNN, FOX and NBC as a result of the failure to produce information subject to requests for production.
As we know, generally, the scope of production usually includes custodians and date ranges of information. And sometimes we’re talking about search terms. Here we’re only focused on custodians and date ranges of information. There were search terms, but there’s no real dispute about those. They were pretty clear. The question on this motion to compel for the court is the vast quantities of information that the plaintiff wants. If you look at the bullet list here, you’ll see that there are dozens of custodians or at least a dozen or more custodians for each individual news outlet, as well as multiple years of information being sought for one particular news outlet.
The other general rule that we see or that the producing party always pays, but often when disproportional content is sought, there can be cost shifting as provided under Federal Rule of Civil Procedure 26. In this particular case, all three defendants sought cost shifting if the court were to grant the motion to compel and the plaintiff sought sanctions against each defendant for noncompliance. We’re going to get into the nitty gritty for each individual news area, but on all three claims, the court said that cost shifting was not warranted and no sanctions were warranted at this point in time. We just kind of want to deal with those at the outset.
All right. In terms of each individual, we’re going to kind of handle each individual news network because there are different issues that were raised for each news network. With regard to the motion to compel documents from CNN, there was a bulleted list of requests for production as well as a bulleted list of custodian sought from CNN. The court looked at each one individually (or each list individually I should say), and what’s compelling about the court’s analysis here is that it really demonstrates how as a moving party, you need to be able to demonstrate a nexus between the claims or the discovery that you already have and the new discovery or new custodians that you’re seeking.
That’s really going to be our biggest takeaway here. We see a lot of cases where parties are seeking discovery and the court shoots them down as a fishing expedition because there’s no real relationship between what the party is asking for and what is being sought in the case, or there’s no nexus created in the motion papers. It’s that creation of a nexus that we really want to focus on as we’re looking at this analysis by the court.
I’m not going to go through each one of the bulleted points. In essence, with regard to CNN, the plaintiff argued that the discovery was relevant to the conspiracy claim (which, again, a conspiracy claim is going to be pretty broad) and proportional to the needs of his case. In support of that argument, the plaintiff points out that the close relationship between Fox News officers and agents with the Republican or the GOP establishment had been well documented prior to the primary. While the plaintiff was on the cusp of securing the Republican nomination for the US Senate seat for West Virginia, those close relationships underscore the importance of his production requests as they would be probative to his conspiracy claim. As a result of what happened in the primary, following what the plaintiff alleges to be the campaign of defamation, plaintiff alleged that he had been grievously injured in terms of reducing his income and that all of the information regarding any potential defamation campaign or any ability to smear him or put obstacles in the way of him winning the West Virginia primary was at issue in this case.
Fox mentions that it doesn’t believe that any of the new information that plaintiff is seeking is relevant and that expanding the number of custodians is improper and not proportional to the needs of the case. With regard to the FOX section of this motion to compel—apologies for getting that incorrect at the outset and saying it was CNN—with response to what the plaintiff is requesting from FOX, they’re essentially looking at expanding the list of custodians that the parties had originally agreed upon.
The plaintiff argued that the expanding the number of custodians is proper because all of the custodians are directly linked to the six defamatory statements made during broadcast that were featured on Fox News Network or Fox Business News between April 25, 2018 and May 8, 2018. The reason that that is important is because of what I mentioned earlier, which is that these requests and these requests for additional custodians — sorry, I mean requests for production and requests for additional custodians are specifically related to defamatory statements that were made on the air during a certain time period during the primary.
They’re narrow enough that the Court says these are sufficient and to Fox, you agreed to do the 16 custodians, so you have to do them. In this particular instance, there are two things happening. One, we’re asking for additional custodians. And two, Fox had agreed to produce information for 16 custodians and had previously only produced information for 10. The Court looked at both of those things and said, you need to produce information for all 16 custodians.
The court also found that the requests were not overly burdensome, irrelevant or disproportional to the needs of the case. I think if we look at this case, I mean, as I read some of these categories of information and the searches that were being done without a specific date limiting parameter, they seem very broad. But what you have to remember here is that on a conspiracy theory, the plaintiff is required to show actual malice. That’s a very high bar, which means that you’re going to have to piece together a lot of information from different parties to be able to demonstrate such a conspiracy existed, to be able to destroy his senatorial campaign.
With that background in mind, with regard to the malice requirement, the court looks at these requests for production and says, nope, these are tailored enough to be able to get to that information and be able to determine whether malice exists on a conspiracy theory. Again, we’ve got a few things happening. We’ve got specific requests by the plaintiff. We’ve got an actual nexus between the custodians and the information sought. We’ve got a sufficient date range for information, and we’ve got relevance to the claims at issue. That’s really going to be your checklist when you’re looking at a motion to compel and what you’re trying to argue against or in favor of.
The Court does go through a good discussion as to why the plaintiff’s requests are specific enough because they identify the custodians. The Court also draws a direct relationship between information that has already been created. Information that’s already been produced, that subsequently identifies some of these new custodians. That is something that the court leans on a couple of different times in this opinion is that whether or not the existing discovery shows that additional custodians had some sort of interplay here.
As we get to discussing the CNN data, later, you’ll see that the Court differentiates whether the participation in those email communications by the custodians impacts whether they should actually be a custodian for purposes of providing information.
With regard to Fox, the Court goes through a lot of specific facts as to different categories of employees and whether or not they had a direct impact on issues that would be relevant to the case. For example, the Court looks at employees Peter Doocy, Bret Baier and Martha MacCallum and says that they’re not alleged to have made defamatory statements. Because of information that was provided via the network, that it does question as to how Fox News network permitted others to make false statements about the plaintiff during its broadcast when Fox News was aware that they were false. That’s as it relates to Mr. Blankenship’s conviction.
The court looks at these these connections and says, OK, well, we understand that as a general rule, these people didn’t have a lot of involvement. But we also know that there are documents that show that they knew what his conviction was and yet they allowed other people at Fox News Network to make false statements. So therefore, we’re going to allow discovery from those individuals.
I think what’s really important here, again, are these relationships and that when you’re arguing these motions to compel that you’re considering all of this information and that you’re painting a picture for the Court that allows it to really see what the relationship is and why you should be entitled to the information or why you shouldn’t be.
The Court also looked specifically at the Fox News Network executives and board members and said that there was no dispute between the parties as to their identities and no dispute that there’s ample documentation from other sources of the intertwining relationships between them, which meant that information from those individuals and was not required to be produced. As I mentioned, the Court declined to shift any costs or award any sanctions, but did note that Fox essentially required the Plaintiff to file a motion to compel to be able to get documents here, and that Fox is also dragged its feet in discovery. While the court did not award any sanctions against Fox here, it will be worth watching future opinions to see what kind of conduct is engaged in and whether the court goes there on the next time around.
OK, now, with regard to MSNBC, this is where we get into the date restriction, that’s really important when you’re engaging in discovery. With regard to MSNBC, the plaintiffs sought documents back to 2011 because one of the claims that the plaintiffs alleged were three statements that were published during the show, All in with Chris Hayes on MSNBC.
In addition to that, the plaintiffs also allege that Chris Hayes joined MSNBC back in 2010, right around the time of the mine disaster, and that as such, he would have had additional information on Mr. Blankenship back to that date. The Court looked at that date range and said, no, that previous issue back in 2010 has no relationship to your claims as they are here. And that information is not relevant. That’s really important from a time perspective, because that’s an additional seven years of information, even if for one or two custodians that could be seriously problematic for a company like MSNBC who’s engaged in news stories all the time. There’s all kinds of all kinds of reasons why when we’re providing information on behalf of our clients and discovery, we want it to be narrowly tailored to respond to the issues in the case and not open ourselves up to additional issues no matter what the context is.
Same analysis by the Court here as it was for the requests from Fox, they looked at the plaintiffs bulleted list of production requests and identified custodians and the pertinent rules governing discovery with regard to Rule 26, 34 and 37 and found that the plaintiff’s requests were not overly burdensome or relevant or disproportional, but again, did limit that timeframe from January 21, 2018 or the start of the senatorial campaign.
There are some news stories out there about the facts here, but there are not any real facts in this case about a lot of the allegations in terms of the the tweets or the other information or the statements that were made on the news networks. What we do see just by looking at news stories that I took a look at before we got on this morning, that Mr. Blankenship began his senatorial campaign very early. The date with which he began his campaign, would be relevant to the determination of when discovery would be allowed.
The Court also looked at separate categories of custodians that the plaintiff asked for, and they analyzed each category separately, looking at whether or not there was a nexus of those custodian’s to the claims in the case. I’m using that word nexus. That’s not what the Court uses. The Court talks about relevance as would normally. What I see is that where the court looked at and said, you’ve got this broad list of executives in the Fox News Network case, we did see a nexus because there were false statements that were made by Fox News, and those executives should have known that those false statements were made and should have prevented them from being made.
Here with regard to MSNBC, there’s no such relationship. The Court denied the motion to compel as it related to those executives or board members. Further, to the extent that plaintiffs sought new custodians or documents from custodians that were in email chains that had previously been produced and were relevant to the claims, then those additional custodians documents were required to be produced from them.
The Court did note that MSNBC had agreed to produce documents back to 2015 for some of the custodians, despite the date range that the court came up with of January 1, 2018 forward. The court said, if you agreed to that, you have to produce them. That’s going to be another thing we’re going to discuss in our takeaways.
Now, turning to CNN. Same issue here; a list of bulleted requests for production list of bulleted custodians to be sought from CNN. This is a situation where the plaintiff was trying to expand the list of custodians that it sought from CNN. The Court looked at the list of requests for production and said that generally these are all fine, they’re all relevant and proportional, except for one request that listed all documents that mentioned Blankenship at all without reference to the specific broadcast dates. The Court looked at that one and said, no, all you can have are documents from January 1, 2018 forward for these custodians that are specifically related to the broadcast dates in which you claim defamatory statements were made.
That’s a specific limitation that the Court put on that one request for production. I really do commend this decision to you to read, because a lot of times we don’t include in our motion papers sufficient detail to give the court really what it needs to conduct such a specific analysis. Here it appears that both sides did a great job in their motion papers. It really allows the Court to provide a thorough analysis of each individual request.
Now, of course, the parties that are involved may completely disagree with me on that front in that there are always things in a judicial decision that aren’t addressed that you feel like really should have been and that you included in great detail in your motion papers. All I can go off of is exactly what we see in the Court’s decision.
Back to CNN. The plaintiff here sought discovery from eight additional journalists at CNN that were not part of the show at issue — not part of the shows on which the defamatory statements were made. CNN argued that to the extent those journalists received mass email mailings that those emails have been produced, but that the fact that those journalists received mass emails did not create a burden to search those journalist files. The Court looked at the emails that were received, found that, in fact, they were sent to hundreds of people and and agreed with CNN to limit the requirement that those eight additional journalists not be added as custodians.
We come back now to the Brian Stelter issue, who was the journalist at CNN that ultimately wrote a book about the close relationship between Fox News networks and high ranking members of the Republican Party, including the White House, and which plaintiff allege dovetails with his conspiracy allegations. The Court said, hey, to the extent that CNN has any documents in its custody or control regarding Brian Stelter’s book, those need to be produced. Those can also serve as a basis to allow the plaintiff to request additional custodians after the parties had agreed upon a list previously. The Court did look at the additional list of custodians proposed by the plaintiff, and to the extent that those custodians did not appear in any email chains and had no demonstrable connection to the case, the Court denied the motion to compel with regard to those specific custodians.
That’s kind of a wrap up of what happened with regard to each of the defendants on the motion to compel here. What are our takeaways from this case? Well, we talk about this every week. Document, document, document. What you discussed during the meeting confirmed and what you agree on during the meeting confers — exchange that information with the other side. Here, there are a couple of different situations where the parties had agreed on either a separate date range or a list of custodians or a date range for specific custodians. The court held those parties to that agreement even once the court made a determination of what the date range should be for the case.
I mentioned to you that there were some custodians that were agreed to be produced back to 2015. When the Court ultimately decided that the date range was January 1, 2018 forward, that did not supersede the parties agreement. If you’ve agreed to something, that is what you will be held to by the Court.
It’s really important that you’re, again, planning your discovery strategy and that everybody’s communicating regarding what they’re seeing in discovery before you make those agreements.
Next takeaway, once you agree to a scope of information that you’re going to provide, you’re not going to be able to narrow. This kind of goes back hand-in-hand with what I just mentioned. Even if it’s broader than what the Court would have required, you’re going to be stuck with it. When you’re arguing for additional documents like the plaintiff is here, you need to be able to demonstrate a nexus between the custodians and other information that has already either been produced or that is publicly available. You need to give the court a sufficient basis for understanding what information is going to be available and why you should be entitled to it. Sometimes we see when there are so many issues on a motion to compel that we don’t get as granular as we need to to be able to provide that basis for the court. Get granular.
Next takeaway, draft specific requests that can show a tie to the claims of the case. Here, what would have otherwise been a fishing expedition in another case was not because of the scope of the conspiracy claims and the number of people that the Court saw could have been involved in those conspiracies.
There’s another takeaway that I see from a technical perspective, and that is there is specific mention here that the plaintiffs filed this motion to compel after having the productions only from some of the defendants, only a short amount of time. Clearly, they used the metadata in those productions to be able to sort and say to the Court, here are the number of people that we have received information from. Here are the people we have not received information from. Here are the types of files that we received from individuals. Here are the types of files we didn’t receive. It’s pretty compelling when you read the decision and see that, for example, CNN only produced some videos of the broadcast. They didn’t produce any actual unstructured data.
By having the metadata in your production fields, you can sort by custodian, you can sort by file type and get a very good overview of your production very quickly. That’s really productive when it comes to needing to move to compel to produce additional data. In the case that we talked about last week, we talked about the length of time it took the party to move to compel. It was months after they receive the production. I think it was six months or nine months after they received the production. Oftentimes, we get data and nothing pertinent is going on in the case. We’re not scheduling depositions, and we sit on it. That’s dangerous. Here, the plaintiff didn’t do that. They moved pretty quickly, and they used that metadata. If you’re not getting metadata with your productions, if you’re in the group of folks and no condemnation here, still getting a non searchable PDF or searchable PDF, but with no metadata associated with them, you are losing out on the ability to be able to understand the breadth of the production you are getting or the lack of breadth of production you are not getting.
Get that metadata! We will be producing another segment next week on metadata in our series on the protocols. You can use the metadata feels that we’ll identify in that blog post to be able to discuss what you want to get from parties going forward. But again, that metadata can be huge in helping you understand what you have in a production versus what you do not.
That’s our #CaseoftheWeek for this week. Thanks so much for joining me.
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Have a great week. Stay safe and thanks again for joining me. See you next week.
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