HBO Endures Harrowing Opening to Defamation Trial With Intense Video Images

Bryant Gumbel - H 2015
AP Images/Invision

Bryant Gumbel - H 2015

Six and a half years after HBO carried a Real Sports With Bryant Gumbel report about child labor in India, a defamation trial began Monday with a blistering opening statement by an attorney for Mitre Sports International, one of the biggest soccer brands in the world.

HBO's Sept. 16, 2008, segment titled “Children of Industry" allegedly tarnished Mitre's reputation by blaming the company for child laborers stitching soccer balls for pennies or nothing.

Today, the tables were turned as HBO was forced to sit through a mixed-media presentation that portrayed the network as being so heartless as to exploit young children to produce a "hoax" report full of lies, fabrications, doctored interviews and tricky editing. "The day of reckoning has come," bellowed Mitre's lawyer Lloyd Constantine, and during a two-hour summary of his case, he had a couple of jurors in tears and several other jurors looking away in distress.

HBO is the first national broadcaster in years to face a defamation trial. Other big broadcasters have been sued for libel in recent times, but those cases have settled or never survived pretrial scrutiny. In this case, U.S. District Judge George Daniels not only considered the evidence and threw it to a jury to decide, he also made HBO's chore of defending itself that much harder by ruling that Mitre was not a "public figure." As such, the plaintiff only will have to demonstrate that HBO was "grossly irresponsible" by publishing alleged falsehoods against Mitre.

The day started out with a small victory for HBO when the judge ruled that HBO chairman and CEO Richard Plepler won't be forced to testify about how he encouraged prominent journalists to pick up the network's "important work" concerning foreign child labor. The judge will, however, permit Mitre to call to the witness stand Charlotte Ponticelli, who served as deputy under secretary for international labor affairs in the George W. Bush administration. She was interviewed for the HBO program, as was last year's Nobel Peace Prize winner Kailash Satyarthi. According to Constantine, both will testify how Real Sports producers "duped" them into implicating Mitre in the HBO report, how producers selectively used their interviews and how the experts were "shocked" when they saw the results.

Jurors  — 10 women, two men — were picked for trial and are now facing service in a case that, according to the judge, could last three to four weeks. Before opening statements started, the jurors were treated to the 22-minute “Children of Industry" segment, said to have run 104 times on HBO to millions of viewers. (The report no longer is on HBO's website.) The report opens with Gumbel saying, "Given [soccer's] global popularity, the balls are big business, which is why governments, manufacturers and retailers all say they abhor the practice of child labor. Yet, clearly they are all letting it happen.”

The trial will feature testimony from Gumbel and correspondent Bernie Goldberg — either from their depositions or live (as HBO has both on its witness list). In his opening statement, Constantine skewered both for participating in an end-of-segment cross-talk the attorney called the "biggest sham." Constantine showed short clips of their depositions where they admitted to not even having seen the "Children of Industry" final cut when talking about it on-camera. Goldberg — who often rails against the liberal biases of the media on Fox News — was particularly singled out for scathing treatment today. Constantine said Goldberg was "substantially clueless about his own show" and never went to India, instead doing interviews from a Indian-themed hotel in England. When asked about the segment in depositions, Goldberg was supposedly "only concerned about diction and grammar."

The bulk of Constantine's opening statement was focused on how HBO "confronted the truth" and yet decided to report "a pack of lies." Constantine referenced some of HBO's current hits by saying “Children of Industry" was supposed to be nonfiction unlike Girls and Boardwalk Empire but that it ended up being handled like the "twisted spires on Game of Thrones."

The case is important to Mitre because two decades ago under the auspices of parent company Pentland chairman Stephen Rubin, the soccer ball brand led international efforts on the child labor front — particularly in Pakistan and India. Since then, an industry association known as the Sports Goods Foundation of India has monitored abuse and, according to Mitre, has made 24,000 unannounced visits on factories and homes to ensure compliance of labor standards. The plaintiff believes it was "singularly perverse" for HBO to feature it in the child labor story.

Constantine said that HBO knew all about the SGFI, and the attorney presented internal memos of HBO staffers warning that parents were the ones making their kids stitch and that there was no direct connection between the company and the kids. One particularly damaging memo comes from Zehra Mamdani, the associate producer on the segment, outlining concerns about showing kids abused at the hands of corporations before telling her bosses the story was still “do-able, if it's done in a clever way.”

"We have wads of memos," said Constantine, who kept reiterating Mamdani's use of the word "clever" and showing her being deposed and failing to recall who had written the “Children of Industry" script and more. "This was the first show she was associate producer, and according to her, she never recalls watching it," he said.

As much as written statements like Goldberg's where he once told an editor, "I think this is unfair to Wal-Mart and Mitre," are harmful to HBO as it looks to escape potential punitive damages if found liable, the most scorching evidence appears to come from unedited videos as well as testimony from children saying they were paid by producers to pretend to be child laborers and, in some instances, given instructions on how to actually stitch soccer balls.

Constantine promised to "deconstruct" the statements made in the HBO segment, and on Monday, he began to do so by pointing to various flaws like Mitre soccer balls never having been manufactured in one of the two Indian cities that comprise the focus of "Children of Industry."

Mitre's attorney also went for the emotional jugular by telling the jury how HBO researchers "pulled two girls out of playdates and made them cry" to film them. Not stopping there, Constantine also showed the jury a jaw-dropping six-minute video outtake where a cameraman films a young boy mishandling a sick infant with no intervention. A couple of weeks later, that child died, and while HBO's segment allegedly poured blame on Mitre for essentially letting this happen, Constantine's point seemed to be that HBO should look in the mirror.

With some of the jurors in tears after the video was shown, the attorney said, "I'm sorry, I apologize for having to show that."

A short time later, he quoted William Shakespeare's Othello, "Who steals my purse steals trash. ... But he that filches from me my good name/Robs me of that which not enriches him/And makes me poor indeed."

The lengthy time it took the parties to pick the jurors and Constantine to deliver his opening remarks left HBO just 10 minutes for a rebuttal before the close of the court. HBO's attorney Dane Butswinkas was given the option of starting his own summary of the case tomorrow, but given the harrowing indictment of the network's journalism practices, he wasn't about to let the jury have a night to think about Constantine's remarks without retort.

Butswinkas had several potential cards to play. According to court documents, HBO plans to argue that “Children of Industry" wasn't “of and concerning” Mitre, a key requirement of a defamation claim. The defendant also will tell the jury that comments during the report constituted subjective opinion rather than actionable factual statements.

Instead, HBO's advocate went with another defense in his short time — that what was shown on Real Sports With Bryant Gumbel was substantially true. By doing this, Butswinkas got to turn the tables back on Mitre and on Constantine, whom he accused of making "tricky lawyer edits" on videos.

"After [the 'COI' segment] ran, we heard from [Constantine] that children are not stitching soccer balls in Jalandhar [India]," said Butswinkas. "I've been waiting a better part of an hour for him to repeat that. It never came. You'll know why when when you hear the evidence."

Butswinkas said that the other side had sent investigators over to Jalandhar after the report came. "You know what they found? Exactly what HBO found."

HBO's lawyer quoted one coming witness as comparing the SGFI to the "Mafia," that they "keep children in fear" and accused the plaintiffs of basically ensuring cooperation with Mitre's investigation into HBO's report by threatening the closing of factories.

Who is exploiting Indian children — sending lawyers over there in intimidation attempts — and what the truth of the matter is will be explored in the coming weeks. It took nearly six years and millions of dollars in litigation costs to get to trial. Neither side appears willing to back down now.