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Talk about a Catch 22: Documentarians and journalists are sensitive about being fair and accurate towards subjects, and to save themselves from legal threats, will often obtain “errors and omissions” insurance, requiring fact-checking and an analysis of potential defamation claims. But in analyzing the accuracy of a script or news article, is a paper trail being created that makes it more easy for potential plaintiffs to prove “actual malice”?
Consider a decision on Friday by the First Circuit Court of Appeals to revive a defamation lawsuit against makers of the The Price of Sugar, a 2007 documentary narrated by Paul Newman depicting the harsh treatment of Haitian laborers on sugarcane plantations in the Dominican Republic.
After the film was released, Felipe and Juan Vicini Lluberes, senior executives of a family conglomerate that owns and operates Dominican sugar plantations, sued Uncommon Productions and director Bill Haney for defamatory statements in the documentary which shows Haitians working 14 hours each day, seven days a week, under armed guard, without clean water, nutrition, or healthcare.
The defendant got a federal judge to dismiss the case on summary judgement because the Vicinis were determined to be “public figures.” As such, the plaintiffs would need to show that the filmmaker had actual malice instead of mere reckless disregard when presenting claimed false statements about their plantation operation. A judge found that the Vicinis couldn’t show actual malice.
On appeal, a three judge circuit agreed that the Vicinis were public figures, pointing to their ability to get out a retort in the news media. “Both enjoyed access to the press and exploited it by orchestrating a PR blitz to garner public support and mute their critics,” writes Judge Jeffrey Howard in the unanimous decision.
Nevertheless, the lawsuit is revived and remanded to the lower court because the First Circuit determines that the plaintiff’s motion to attain a pre-publication analysis of the script wasn’t properly addressed by the federal judge.
After producing The Price of Sugar, Haney consulted with his attorney, Frederick Leopold, who advised that in order to obtain E&O insurance, he would need a third-party report about the accuracy of the script. So the filmmakers hired a woman, Elizabeth Bardsley, who is in the business of annotating scripts for the purposes of providing documentation to insurance providers.
During discovery, the plaintiffs requested this document, and the film company said it was protected by attorney-client privilege. Eventually, the judge dismissed the request without much explanation.
The First Circuit isn’t very impressed with a judge’s laziness and thinks it’s possible that the document in question could go to the filmmaker’s state of mind when releasing the documentary. In other words, it could potentially be used to show there was actual malice here.
The appeals court doesn’t make a full determination whether or not the document should be shielded — it will be up to a federal judge to do that — but does guide the forthcoming analysis. The “key issue,” according to Judge Howard, is whether the document contains “confidences made in pursuit of legal advice,” in which case it would be protected, or whether it instead contains “facts acquired from non-client sources,” in which case it wouldn’t.
Judge Howard goes onto say that it appears that the circumstances favor the Vicinis here. He writes:
We seem not to be dealing with client confidences. According to the filmmakers, Bardsley functioned as a type of fact-checker of the assertions in the film. The very nature of that role would require her to verify those assertions with outside sources, and the filmmakers do not claim otherwise. Insofar as the filmmakers script is concerned, it is not confidential but is intended for public consumption And there is evidence that Bardsley’s report…was designed to be disclosed to third parties (prospective insurers), even if it ultimately was not.”
And there you have it. If this documentarian hadn’t been as scrupulous in fact-checking his documentary, this lawsuit would likely be over. Instead, it’s not, ironically meaning he’s now more in need of insurance than ever.
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