Tuesday, September 20, 2005

Deposition of alleged confidential source in libel case

[CASE] Sports Illustrated reported in 2003 that Alabama football coach Mike Price had two women in his hotel room and had sex. Price (who lost his job) is suing for libel.

Price's attrorneys are trying to find the reporter's confidential source. The 11th Circuit conditioned a disclosure order on their first deposing four women, one of whom is likely to be the source. Price v. Time, Inc., 416 F.3d 1327, 1347 (11th Cir. 2005). If one of the women falsely denied that she was the source, counsel for defendant was to notify the court of her perjury.

Last week, the court addressed the issue on rehearing. In addition to the discovery challenges of a libel case with a confidential source, this case illustrates how an attorney can be bound by a concession made in oral argument:

Through their counsel defendants have steadfastly refused to divulge their confidential source for the article in question; they have attempted to shield her identity by every legal means; they have insisted that the plaintiff depose the four most likely suspects; and they have argued that deposing those women is a way to get at the truth that is less painful to their interests than requiring that they themselves disclose it. Now they say that if the confidential source lies under oath and obstructs the pathway to the truth that their counsel has urged us to take, he has no duty to remove the obstruction by reporting the lie. We have some problems with that position.

We need not resolve those problems in this case. We asked counsel during oral argument if he would inform the district court should the confidential source falsely deny under oath that she is the source. He assured us he would. We took that assurance into account in reaching our decision. That is enough to hold counsel to his word. Even if lawyers cannot be counted upon to inform the court on all occasions when a witness is perjuring herself, we think courts still have the right to hold lawyers to their word. And counsel for the defendants, to be fair, does not suggest to the contrary.
The court accepted a compromise the attorney presented. If the clients revealed the source -- which they would be required to if it wasn't revealed by the depositions -- then it would be unnecessary for the attorney to disclose the perjury because it would be evident.
We amend our prior opinion in only this respect: Insofar as our decision is concerned, if the confidential source falsely denies under oath that she is the confidential source, counsel for the defendants has no obligation to report her perjury to the court if his clients’ disclosure pursuant to our decision reveals her identity as the source. If for any reason his clients’ disclosure does not reveal that the witness lied when she denied being the confidential source, counsel will be obligated to report her perjury to the court. This solution will remove counsel from the difficult situation he is in, unless his clients attempt to defy a court order, and we are confident they will not do that.
Price v. Time, Inc., No. 04-13027 (11th Cir. Sept. 16, 2005).
The Fulton County Daily Report's article about the case is here.

The 11th Circuit is not one of the jurisdictions this blog usually watches. For a local angle, recall that Mike Price had just left his coaching position at Washington State University when this story broke.

(I'm not obsessed with sports -- it just happens that interesting discovery cases involve college sports two days in a row.)

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