The Virginia Defamation Law Blog
In a defamation case, like any other form of civil litigation, each side has a right of “discovery” to obtain information from each other and from third parties that may be relevant to the dispute. When the rules work as intended, there are no unexpected surpise witnesses or documents at trial–each side should be well aware of the information the other side intends to present at trial so they can plan accordingly. Federal Rule of Civil Procedure 26 allows parties to “obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). This rule allows parties to obtain just about any form of evidence provided it’s relevant and not protected by the attorney-client privilege, work-product doctrine, or other privilege. And for purposes of discovery, most courts apply a lower standard for relevance than they would apply at trial. Information may be discoverable even if only slightly relevant to the case, provided the burden of obtaining and producing the information is justified by the needs of the case. Generally speaking, the less money there is at stake in the litigation, the more relevant the information will have to be before a court will order a party to produce it in discovery. The rules dictate the courts consider “the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit” in assessing whether to compel a party to incur expense or burden in producing information not easily accessible. (See Fed. R. Civ. P. 26(b)(1)).
You can also obtain information from third parties who aren’t involved in the litigation if they are in possession of relevant information. This is accomplished through the issuance of subpoenas. (See Fed. R. Civ. P. 45(1)(A)(iii)). Courts typically won’t require third parties to incur substantial burden or expense unless the information is highly relevant and not obtainable from other sources, as third parties aren’t involved in the case and have no stake in the outcome. When a subpoena is directed to a third party, “courts must give the recipient’s nonparty status ‘special weight,’ leading to an even more ‘demanding and sensitive’ inquiry than the one governing discovery generally.” (See Va. Dep’t of Corrs. v. Jordan, 921 F.3d 180, 189 (4th Cir. 2019)). In particular, courts will consider (1) the extent to which the requesting party actually needs the information, measured by whether the information is likely to offer value over and above what the requesting party already has; (2) whether the requesting party can obtain the same or comparable information from other sources; and (3) the extent to which the request will impose a substantial burden on the recipient or others who might be affected (such as cost, overbreadth, privacy, and confidentiality interests).
Of course, the parties will often disagree about whether information sought in discovery is sufficiently relevant or whether production of the information would be unduly burdensome given the needs of the case. Third parties can move to quash or modify subpoenas that seek the production of privileged matter or which would expose them to an unreasonable burden or force them to incur excessive costs. (See Fed. R. Civ. P. 45(d)(3)(A)). Courts will presume that relevant, non-privileged information is discoverable unless and until the party resisting discovery meets its burden to establish that compliance with the discovery request would be unreasonably burdensome or should not be permitted. (See Jimmy A. Dunn Excavating Co. v. Eagle Pipeline, LLC, No. 2:16cv4409, (S.D. W. Va. Apr. 15, 2020)). If the requesting party can’t explain why the information is needed, however, this isn’t a particularly difficult burden to meet.
By rule, discovery requests may only be issued for a proper purpose. Rule 26(g) requires that every discovery request be signed by counsel, certifying “that to the best of [his] knowledge, information, and belief formed after a reasonable inquiry,” the request is consistent with the federal rules, is “not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation,” and is “neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.” Harassing your opponents by forcing them to incur great inconvenience or expense in responding to unnecessarily broad discovery requests is not considered a proper purpose.
Courts will readily quash overbroad, burdensome subpoenas issued to nonparties if the requesting party is unable to demonstrate a need for the information. Let’s look at an opinion issued earlier this year in Brennan Gilmore v. Alex Jones, a case arising out of the “Unite the Right” rallies in Charlottesville, Virginia, on August 11–12, 2017.
On August 12, supporters of “Unite the Right” and counter-protesters filled the streets of downtown Charlottesville. That afternoon, James Alex Fields Jr. drove his car into a crowd of counter-protesters, killing one woman, Heather Heyer, and injuring many others. Brennan Gilmore was a counter-protester who captured the attack on video. He posted the video on Twitter and spoke with reporters about what he had seen. Two days later, Jim Hoft published an article on his website, Gateway Pundit, titled, “Random Man at Protests Interviewed by MSNBC, NY Times Is Deep State Shill Linked to George Soros,” in which Hoft suggested Gilmore was part of an attempt by the State Department to cover up its involvement in instigating the attack in Charlottesville. Gilmore sued Hoft for defamation.
As the litigation got underway, Hoft issued a number of subpoenas to third parties in a supposed effort to prove the truth of the assertions made in the article, including subpoenas sent to the Commonwealth’s Attorney for the City of Charlottesville, the City of Charlottesville, and the Office of the Governor of Virginia. The subpoenas were extremely broad, seeking a wide variety of documents having anything to do with the Unite the Right rally, Richard Spencer, James Fields, Heather Heyer, Brennan Gilmore, and others, including photographs of Heather Heyer, hearing/trial transcripts relating to the Fields prosecution, and all photographs and videos of Brennan Gilmore from 2010 through the present. He asked for reports relating to ANTIFA and Black Lives Matter. This is the information he requested relating to former Governor McAuliffe’s motorcade:
All fuel logs, security logs, cargo manifests, fleet logs, travel logs, trip logs, deployment logs, transportation logs, flight logs, take-off and landing logs, time-in-flight logs, airframe logs, rotor logs, engine logs, logs to determine air-worthiness, personnel lists, receipts, invoices, payroll records, passenger manifests, itineraries, and/or maintenance logs, relating to Governor Terry McAuliffe, his motorcade, and/or all vehicles, automobiles, fixed-wing aircraft, and/or helicopters (including but not limited to security detail vehicles) associated with his motorcade, for the period of August 10, 2017 through August 14, 2017.
Not surprisingly, the subpoena recipients moved to quash the subpoenas, pointing out that compliance would be enormously costly and take months of full-time work. The burden of compliance, they argued, was vastly disproportionate to any possible relevance of the documents to the defamation case they were not even involved in. The court agreed, opining that “This is clearly a fishing expedition for which Hoft has shown no good faith basis.” The court quashed the subpoenas in their entirety.
In a sense, truth is a complete defense to a claim of defamation, given that a plaintiff cannot prove his case without showing that the statements made about him were false. So Hoft did have the right to obtain discovery designed to establish that the statements made about Gilmore in the article in question were true. But in this case, Hoft issued subpoenas that went way beyond the needs of the case, giving the appearance that Hoft was more interested in arguing his narrative of the Unite the Right rally than in actually establishing his defense. Very little of the discovery sought in the subpoenas actually mentioned Gilmore. While a small amount of the material requested would likely be relevant to the case, “the requests are also likely to require production of a massive number of wholly irrelevant documents,” which was enough to persuade the judge to quash the subpoenas altogether. “Hoft’s nonparty subpoena requests are overbroad, irrelevant, and disproportionate to the needs of the case,” the court ruled.