Planet Aid, Inc. v. Reveal, Center for Investigative Reporting

Background

The order addresses outstanding discovery disputes arising from discovery concerning the defendants’ anti-SLAPP motion. The court had previously required the parties to identify discovery needed to respond to that motion and had held proceedings in November 2019 to resolve remaining disputes.

Rulings on the discovery disputes

Documents concerning 15 sources

The plaintiffs requested additional production concerning 15 key sources who submitted declarations or were named in stories. The court denied that request. It stated that the plaintiffs had not raised the issue during the November discovery proceedings, despite the court’s direction to identify additional discovery needed for their opposition to the anti-SLAPP motion. The court also found that the plaintiffs had not persuasively explained why the additional discovery was important to that opposition.

The court clarified that it was not deciding whether the plaintiffs were entitled to this discovery in the lawsuit generally. It decided only that the plaintiffs were not entitled to compel the discovery at that time for purposes of opposing the anti-SLAPP motion.

Communications involving Mwiza Nkhata and Harrison Longwe

The defendants had submitted a declaration from Mwiza Nkhata describing his meetings with Harrison Longwe while preparing Longwe’s declaration. The court had previously directed the defendants to search for and obtain communications between Nkhata and Longwe because Nkhata was not and had not been Longwe’s attorney.

The defendants later reported that Nkhata had no emails or other correspondence with Longwe and that they were still exploring whether draft declarations existed. The opinion states that the parties filed nothing further on this issue. The text provided does not clearly state a separate final disposition of this dispute.

Matt Smith’s statement and the motion to compel

The plaintiffs sought further information concerning Matt Smith’s statement that he had reviewed files from Planet Aid’s computers and had found no “smoking gun” concerning the alleged conduct discussed in the statement. The plaintiffs deposed Smith, but he said he did not know whether the material came from a laptop, hard drive, or mainframe. The court reviewed the deposition excerpts and found that the plaintiffs had not asked Smith to identify the documents he reviewed or where the files came from. The court therefore denied the motion to compel.

Communications involving Trish Thompson and NBC

The plaintiffs sought materials concerning former NBC I-Team reporter Trish Thompson. They argued that communications about efforts to encourage the public to stop using Planet Aid donation bins could support their claim that the defendants acted with malice and could show conduct beyond ordinary reporting.

The court found that communications among the defendants and Thompson about Planet Aid’s donation bins and stores were potentially relevant to malice. It rejected the defendants’ and NBC’s assertion that the reporters’ privilege protected those communications. The court explained that the privilege is a qualified protection for journalists against compelled disclosure of information gathered during their work, but the plaintiffs’ request concerned communications about encouraging the public not to donate to Planet Aid rather than information gathered in the course of reporting.

The court ordered the defendants to produce communications with Thompson that discussed or referred to donations to Planet Aid within two weeks. Information about the information-gathering process that was not relevant to the plaintiffs’ stated use of the documents could be redacted.

Disposition

The court denied the plaintiffs’ request for additional production concerning the 15 sources, denied the motion to compel concerning Matt Smith’s statement, and ordered production of specified communications involving Trish Thompson. The opinion does not clearly state a separate final disposition for the Nkhata-Longwe communications issue. The order was signed by United States Magistrate Judge Jacqueline Scott Corley.