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February 2013

Articles & Reports – Litigation Committee

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in this issue

Discovery Roadmap

 Download Publication In 2004, the Pre-Trial Committee, now known as the Litigation Committee, put together a “Discovery Roadmap” to help media law practitioners strategize discovery in defamation/invasion of privacy lawsuits.  Since that time, the increased prevalence of electronically stored information (ESI) has transformed the discovery process in a number of ways.  In 2012, the Litigation…

Defending Against a Defamation Claim – Post-Publication Considerations

 Download Publication Prepared by the Litigation Committee, July 2011 INTRODUCTION Today, in a newsroom somewhere in America, the subject of an article or broadcast will demand a retraction or threaten a lawsuit over an allegedly defamatory statement or publication.  For the media publisher, several questions may come to mind: Can the publication be republished? Should…

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Motion To Stay Discovery Pending Resolution of a Dispositive Motion

 Download Publication Federal and state rules of civil procedure give trial courts the power to limit discovery in order to “protect a party or person from . . . undue burden or expense . . . .”1 Similarly, the Supreme Court has held that trial courts have the power to stay discovery in order to…

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Excluding Expert Witnesses In Actual Malice Cases

 Download Publication In defamation, invasion of privacy, and other types of cases in which a plaintiff must establish that the defendant acted with “actual malice,” i.e., knowing falsity or reckless disregard for the truth, plaintiffs will occasionally offer expert testimony to demonstrate actual malice. Such testimony almost always addresses whether the defendant followed standard journalistic…

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Prevailing on Summary Judgment under a Negligence Standard

 Download Publication Media lawyers defending defamation claims brought by private-figure plaintiffs need not resign themselves to seeing the cases proceed to trial. Summary judgment is not an impossible goal. Courts frequently regard questions of ordinary negligence as jury issues ill-suited for consideration on a motion for summary judgment. However, in the particular context of defamation…

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The Reporter’s Privilege: Can it be Preserved in a Civil Lawsuit Against the Press?

 Download Publication Executive Summary Individual journalists and their media employers often find it difficult to protect confidential sources and newsgathering materials while defending themselves from civil lawsuits arising from their news reports. This paper examines this dilemma and offers suggestions and observations for lawyers defending media clients in civil cases involving confidential sources and newsgathering…

Model Trial Brief

 Download Publication Arguments contained in this Model Brief are supported by the authorities cited. Other supporting and contradicting authorities may exist in some jurisdictions. Before filing a brief incorporating these arguments, counsel should research legal authorities in the applicable jurisdiction. The Model Brief sometimes distinguishes or mentions contrary authority, but it does not always do…

Preliminary Report of Committee on Libel Jury Instructions: DCS’s Libel Jury Reform Project

Download Publication As part of the Defense Counsel Section’s Jury Reform Project, the committee on libel jury instructions has undertaken a multi-phase project to formulate and administer an empirical study of the semantics of libel jury instructions. The study represents an attempt to discover whether manipulation of the semantics of libel jury instructions would significantly…

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