9:18am PT by Eriq Gardner
Discovery Channel Must Navigate Around NDA to Air Abraham Lincoln Documentary
As the nation was riveted — or disgusted — by a presidential debate Tuesday night, Discovery Communications was in the midst of filing something in California federal court concerning a documentary about the country's 16th president. It turns out that Abraham Lincoln has one last secret, but TV viewers will only get a chance to see it if a judge agrees that a nondisclosure agreement isn't cause for a temporary restraining order on the scheduled airing this Sunday night of Undiscovered: The Lost Lincoln. Who says the Pentagon Papers say nothing about Abraham Lincoln?
What secret? A photograph, or more precisely, an ambrotype of Lincoln believed to be an image of him as he lay mortally wounded after being shot by John Wilkes Booth.
Jerry Spolar, a dentist who resides in Illinois, acquired the photo at an estate auction sale in 1996 and then spent two decades authenticating its provenance. After hiring dozens of experts, his journey brought him to Whitny Braun, a historical researcher with connections to Unrealistic Ideas, a production company specializing in unscripted fare co-owned by Mark Wahlberg.
According to a complaint that Spolar filed on Friday, Braun and Unrealistic president Archie Gips in 2018 signed an NDA and were shown confidential information in connection with a proposed documentary about the decades-long project to authenticate the Lincoln photo. Shortly after a meeting, Braun is said to have asked for verification on a typed list of Spolar's experts and consultants, only to be admonished for creating such a sensitive document.
Despite apparent efforts between the parties to collaborate on a documentary, National Geographic and the History Channel passed on the project, and Spolar says he didn't like Unrealistic's $2,000 offer for rights when it was previously represented as being worth "seven digits." But of course, it didn't end there. According to court papers, two executives at National Geographic and the History Channel joined Discovery while Braun kept working on filming something allegedly in violation of the deals she had signed. Eventually, despite several cease and desist demands, Discovery on Sept. 14 announced the forthcoming Lincoln documentary.
Spolar and his partner Tonny Jill Williamson are now claiming breach of contract, violation of trade secrets, and unfair competition. The two are asking a federal judge to stop the planned broadcast so they can review the documentary and evaluate and expose any misconduct. "Indeed, if Defendants are permitted to continue unfettered, Plaintiffs’ life’s work, consisting of two decades of painstaking research and investigation, will be falsely attributed to Whitny Braun," states an application for a TRO being handled by attorneys at Buchalter.
In responsive court papers filed late yesterday, Discovery says it wasn't aware of competing claims of ownership when it entered a deal with Unrealistic in late summer 2019. They knock the plaintiffs for going to court at the eleventh hour to stop the airing when allegedly Spolar had known about what was happening since January 2020.
But Discovery's biggest argument at this point is a First Amendment one.
"The Supreme Court’s precedent on prior restraint is ironclad," writes Discovery's attorney Aaron Moss. "In the famous Pentagon Papers case, the Supreme Court established that a plaintiff must make an extraordinary showing of harm in order to obtain a court order that stops the news media from publishing information on a matter of public concern."
Here, adds Moss, there's no such showing.
"Plaintiffs fear that Discovery’s 'competing documentary' will 'impair or destroy Plaintiffs’ first-to-market advantage' and prevent Plaintiffs from someday developing and releasing their own documentary," continues the opposition. "If a prior restraint will not issue in the face of a national security threat, it certainly should not issue to protect Plaintiffs’ hypothetical right to someday make a documentary about a photograph of President Lincoln."
There's another big argument — and it's one that will be familiar to anyone who paid attention to the recent legal fight over the publication of a book from Donald Trump's niece. Recall that the president's brother, Robert Trump, had sued Mary Trump to block publication with the claim that it violated a confidentiality agreement. A judge later lifted a block partly because Simon & Schuster was never a party to such a hush deal.
Discovery is looking for similar treatment.
"Here, Discovery did not enter into any non-disclosure or other confidentiality agreement with Plaintiffs," states the company's brief. "Plaintiffs avoid admitting this fact outright in their ex parte application, vaguely referring to 'several of the Defendants' as having entered into non-disclosure agreements when what they really mean is 'several Defendants, but not Discovery.' Discovery did not contractually agree to any restraint on its speech, and this Court should not order any. The request for a temporary restraining order should be rejected on this basis alone."
UPDATE 10/2 5 pm PST: A judge has denied a TRO.
"The Lost Lincoln is speech protected by the First Amendment and by the prior restraint doctrine," writes U.S. District Court Judge . "The Lost Lincoln also constitutes speech on a matter of public concern... Plaintiffs argue that the prior restraint doctrine does not protect a party who has bargained away First Amendment rights by contract. However, it is undisputed that Discovery, the only party against whom injunctive relief is presently sought, is not a party to a non-disclosure or confidentiality agreement with Plaintiffs.""
Here's the full 12-page order that also concludes the plaintiffs are unlikely to succeed on the merits of a trade secrets claim, and that as far as irreparable harm is concerned, plaintiffs have failed to show that monetary damages won't suffice.