Fine v. ESPN, Inc.
Fine v. ESPN, Inc.
Opinion of the Court
MEMORANDUM-DECISION and ORDER
I. INTRODUCTION
This libel action returns to the Court on Defendants ESPN, Mark Schwarz, and Arthur Berko’s (collectively, “Defendants”) Motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c). Dkt. No. 45 (“Motion”); see Dkt. Nos. 45-2 (“Memorandum”); 50 (“Response”); 52 (“Reply”). Because the Court determines that it cannot now consider certain materials upon which the Motion is based, the Motion is denied.
II. BACKGROUND
The Court stated the basic facts of this case in a Memorandum-Decision and Order granting Defendants’ Motion under Federal Rule of Civil Procedure 12(b)(6) to dismiss part of Plaintiff Laurie J. Fine’s (“Plaintiff’) claim as barred by New York Civil Rights Law § 74. See Dkt. No. 21 (“February Order”) at 1-4, available at 2013 WL 528468. The Court will discuss additional facts as needed. The thrust of Plaintiffs Complaint is that Defendants defamed her in two articles and an accompanying video describing allegations that she and her husband, Bernie Fine (“Mr. Fine”), sexually abused underage boys in their care. See generally Dkt. Nos. 1 (“Complaint”); 45-14 (“First Article”); 45-15 (“Second Article”) (collectively with the First Article, the “Articles”); 45, Ex. C-5 (“Video”) (collectively with the Articles, the “Publications”); see also Dkt. No. 45-16 (“Video Transcript”).
Defendants now seek judgment that the remainder of Plaintiffs claim is barred by § 74, or that the Publications are not actionable because Defendants merely reported Plaintiffs own words and were not grossly irresponsible in their reporting. See generally Mem.; Reply. Defendants’ arguments are premised almost exclusively on the following materials appended to their Motion: (1) a digital copy of the Tape; (2) Syracuse Police Department (“SPD”) reports; (3) a transcript of a press conference given by Onondaga County District Attorney William Fitzpatrick (“Fitzpatrick”); and (4) a search warrant application filed by Secret Service Agent
III. LEGAL STANDARD
Rule 12(c) motions for judgment on the pleadings are decided under the same standard as Rule 12(b)(6) motions to dismiss for failure to state a claim upon which relief can be granted. Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010). Thus, “[t]o survive a Rule 12(c) motion, the complaint must contain sufficient factual matter to ‘state a claim to relief that is plausible on its face,’ ” Graziano v. Pataki, 689 F.3d 110, 114 (2d Cir. 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)), when the complaint’s factual allegations are taken as true and all reasonable inferences are drawn in a plaintiffs favor. Kirkendall v. Halliburton, Inc., 707 F.3d 173, 178 (2d Cir. 2013). The mov-ant bears the burden of showing “ ‘that no material issue of fact remains to be resolved and that [it] is entitled to judgment as a matter of law.’ ” Juster Assocs. v. City of Rutland, 901 F.2d 266, 269 (2d Cir. 1990) (quoting 5 Chaelbs Alan WRIGht & ArthuR R. Miller, Federal Practice and Procedure § 1368 (1969)); accord 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1368 (3d ed. 2012).
IV. DISCUSSION
A. New York Civil Rights Law § 74
Section 74 of New York Civil Rights Law provides that “fair and true” reports of any “official proceeding” are absolutely privileged.
1. “Official Proceeding”
Defendants assert that the Publications constitute reports on two official proceedings: (1) the SPD’s investigation (“SPD Investigation”) into the sexual abuse allegations; and (2) Agent Brown’s application for a warrant to search the Fines’ home. See Mem. at 16-20; Reply at 6-7. Plaintiff responds that the SPD Investigation was not an official proceeding. See Resp. at 4-7.
a. SPD Investigation
Plaintiff argues that a police investigation does not constitute an official proceeding until an arrest is made or a request for judicial action is lodged. See Resp. at 4-5. But the weight of authority indicates otherwise. “New York courts have broadly construed the meaning of an official proceeding as used in Section 74.” Test Masters Educ. Servs., Inc. v. NYP Holdings, Inc., 603 F.Supp.2d 584, 588 (S.D.N.Y. 2009). “The test is whether the report concerns actions taken by a person
Although many of the investigations at issue did culminate in formal action, the investigations themselves, independent of any culminating action, were explicitly deemed to constitute official proceedings. See Test Masters, 603 F.Supp.2d at 589 (“The official proceeding in this case was the ... investigation.” (emphasis added)); Freeze Right, 475 N.Y.S.2d at 388 (noting that “the announcement of an investigation by a public agency, made before the formal investigation has begun”; “an ongoing investigation,” and a “completed investigation” are all official proceedings); Ibrahim, 2011 WL 3198879, at *2 (“[T]he court disagrees with plaintiffs argument that the investigation ... did not constitute an official proceeding, but only the ... hearing did.”); Farrell, 3 N.Y.S.2d at 1022 (“The investigation ... was a public and official proceeding. It was action taken by a person officially empowered to do so.”); Pinero v. NYP Holdings, Inc., 17 Misc.3d 1102(A), No. 117438, 2007 WL 2781843, at *6 (N.Y.Sup.Ct. Sept. 17, 2007) (“[T]he statements concerning the Investigation were absolutely privileged under the New York Civil Rights Law § 74”).
“Given the range of investigatory proceedings that have been held to be official proceedings for purposes of Section 74, there can be no doubt that the [SPD] [I]nvestigation ... constitutes an official proceeding.” Test Masters, 603 F.Supp.2d at 588. The SPD is “officially empowered”
b. Search Warrant
Defendants also argue that the application for the search warrant constitutes an official proceeding. See Reply at 6-7. Plaintiff does not dispute this. See Resp. at 1 (acknowledging that § 74 covers, inter alia, “search warrant applications.”); see also Law Firm of Daniel P. Foster, P.C. v. Turner Broadcasting System, Inc., 844 F.2d 955, 961 (2d Cir. 1988) (finding report concerning “the execution of a warrant issued upon the authorization of a federal judge” privileged under § 74). The Court therefore finds that the application for the search warrant constitutes an official proceeding.
2. Report “of’ an Official Proceeding
Section 74 applies only where the challenged report is “of’ a proceeding. See also Cholowsky v. Civiletti, 69 A.D.3d 110, 887 N.Y.S.2d 592, 596 (2009) (“[I]t is ... incumbent on the party asserting the privilege to establish that the statements at issue reported on a ... proceeding.” (quotation marks omitted and emphasis added)). An overlap between the subject matter of the report and the subject matter of a proceeding does not suffice; the ordinary viewer or reader must be able to determine from the publication itself that the publication is reporting on the proceeding. See Wenz v. Becker, 948 F.Supp. 319, 323 (S.D.NY. 1996) (“If the context in which the statements are made make[s] it impossible for the ordinary viewer to determine whether defendant was reporting [on a proceeding], the absolute statutory privilege does not attach.” (quotation marks omitted)); Corp. Training, 868 F.Supp. at 509 (finding report unprotected where “[t]he ordinary viewer ... would not have been under the impression that he was being presented with a report of the ... proceedings”); Cholowsky, 887 N.Y.S.2d at 596 (“If the publication does not purport to comment on a ... proceeding, Civil Rights Law § 74 is inapplicable.” (emphasis added)). Thus, there must be some perceptible “connection between the challenged report and the ... proceeding.” Corp. Training, 868 F.Supp. at 509; see also Wenz, 948 F.Supp. at 322 (“[T]he privilege applies only where ... the allegedly defamatory statement is connected to a ... proceeding.”).
How “direct” this connection must be has not been clearly defined. Corp. Training, 868 F.Supp. at 509. Quotations from, and summaries of, documents or other material that the report indicates are
However, a report’s mere mention of an official proceeding does not automatically extend the privilege to an entire publication; the privilege may apply to some portions of a report and not others. See. e.g., Easton, 1991 WL 280688, at *3-7; Freeze Right, 475 N.Y.S.2d at 388-89 (finding that first two paragraphs of newspaper article were protected by privilege but another section was not). If context indicates that a challenged portion of a publication focuses exclusively on underlying events, rather than an official proceeding relating to those events, that portion is insufficiently connected to the proceeding to constitute a report of that proceeding. See Corp. Training, 868 F.Supp. at 509 (where television story regarding incident was “told in a narrative fashion” through “a succession of interviews with participants in the incident,” and only mentioned an official proceeding regarding that incident “in passing” at the end of the story, it was not a report of an official proceeding because “[t]he ordinary viewer ... would not have been under the impression that
Here, Defendants argue that the putatively defamatory parts of Publications constitute a report of official proceedings because they describe: (1) the Tape submitted to the SPD; (2) the SPD’s investigative conclusions regarding the Tape and Plaintiffs conduct: (3) Davis’s and Roach’s statements to the SPD; and (4) the Warrant Application. See Mem. at 1-20; Reply at 6-10. The Court finds that, while many of the challenged parts of the Publications likely constitute reports of the SPD Investigation because they describe the Tape submitted to the SPD, none are reports of investigative conclusions regarding the Tape or Plaintiffs conduct, witness statements given to the SPD, or the Warrant Application.
a. The Tape
Many of the challenged portions of the Publication constitute reports of an official proceeding, because they quote from or describe the Tape, see, e.g., First Article at 2
b. Investigative Conclusions Regarding the Tape and Plaintiff’s Conduct
However, while the Publications describe the Tape, they do not, as Defendants implicitly contend, report on the SPD’s conclusions regarding the Tape or Plaintiffs conduct. See Mem. at 19 (“[L]aw enforcement officials understood her statements [on the Tape] exactly the same way ESPN presented them which is what matters for purposes of applying the privilege.”). Indeed, the Second Article
The Publications make clear that their descriptions of Plaintiffs conduct, as well as them descriptions of the content and meaning of the Tape, were made by Defendants themselves or non-law-enforcement persons Defendants interviewed, not the SPD. See, e.g., First Article at 2 (“ESPN hired a voice-recognition expert who said the tape matches the voice of Laurie Fine”), id. (“‘Laurie was a person I talked to a lot about this situation as I got older,’ Davis said in an interview with ESPN. ‘And she was there a lot of the times, and had seen a lot of the things that were going on when Bernie would come down to the basement in his house at night.’ ” (emphasis added)), id. at 3 (“[A]t another point in the call, Fine says of her husband.... ”); Second Article at 5 (“Davis also acknowledged in the ESPN interview that he and Laurie Fine had a sexual relationship when he was 18, and that he eventually told Bernie fine about it.” (emphasis added)); Video Tr. at 5
c. Witness Statements
Defendants also seemingly argue that the portions of the Publications quoting Roach and Davis or describing their opinions constitute reports of Roach and Davis’s statements to the SPD. See Mem. at 17 (“ESPN ... reported] on the substance of the allegations made in the official investigation.”); id. at 19 (“The allegations of Davis and Roach [in the Publications] ... are also not materially different than what they had previously
d. Warrant Application
Defendants also implicitly argue that some of the allegedly defamatory portions of the Publications constitute reports of the Warrant Application. See Mem. at 19 (noting that “law enforcement officials understood her statements exactly the same way ESPN presented them, which is what matters for purposes of applying the privilege” and citing to the Warrant Application), 5 (extensively quoting the Warrant Application’s description of the Tape), 12 (noting that “the excerpts ESPN selected from the Tape were largely the same excerpts that Special Agent Brown quoted in his search warrant application.”). Again, the Publications makes no mention of the Warrant Application, let alone its description and analysis of the Tape and Plaintiffs conduct. See generally Publications.
e. Conclusion
The challenged parts of Publications may be reports “of’ an official proceeding only because they quote and describe, and provide background information regarding, the Tape. They do not describe the SPD’s investigatory conclusions, Davis’s and Roach’s statements to the SPD, or the Warrant Application.
S. Fair and True Report
To be protected under § 74, a report of a proceeding must be “fair and true.” The New York Court of Appeals has deemed this requirement tantamount to “substan-tia^ ] accura[cy].” Holy Spirit Ass’n for Unification of World Christianity v. New York Times Co., 49 N.Y.2d 63, 424 N.Y.S.2d 165, 399 N.E.2d 1185, 1187 (1979). Defendants argue that substantial accuracy vel non may be determined by comparing the putatively defamatory parts of the Publications with the Tape Copy and the Law Enforcement Records. The Court finds, however, that it cannot consider these materials at this stage and there
a. Tape Copy
“In ruling on a 12(c) motion, a district court generally must confíne itself to the four corners of the complaint and look only to the allegations contained therein.” Kotova Milk Bar of White Plains, Inc. v. PRE Properties, LLC, No. 11 Civ. 3327, 2013 WL 417406, at *6 (S.D.N.Y. Feb. 4, 2013). However, “[consideration of materials outside the complaint is not entirely foreclosed.” Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006). A court may consider other material “where the pleadings rely ‘heavily upon its terms and effect, thereby rendering [it] integral to the pleadings.’ ” Daniels v. Comrn’r of Soc. Sec., 456 Fed.Appx. 40, 41 (2d Cir. 2012) (quoting DiFolco v. MSNBC Cable LLC, 622 F.3d 104, 111 (2d Cir. 2010)) (brackets omitted).
“However, ‘even if a document is ‘integral’ to the complaint, it must be clear on the record that no dispute exists regarding the authenticity or accuracy of the document.’ ” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010) (quoting Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006)) (emphasis added). The “no dispute” requirement has been interpreted strictly: even implicit, conclusory, contradictory, or implausible objections to the authenticity or accuracy of a document render consideration impermissible. See, e.g., Barberan v. Nationpoint, 706 F.Supp.2d 408, 415-16 & n. 4 (S.D.N.Y. 2010) (refusing to consider documents even though plaintiffs authenticity objections were “less than genuine” and of “questionable viability”); Cram v. PepsiCo Exec. Income Deferral Comp. Program, No. 08-CV-10627, 2010 WL 4877275, at *4 (S.D.N.Y. Aug. 9, 2010) (refusing to consider document attached as an exhibit to the complaint, even though complaint alleged that the document was authentic, where plaintiff subsequently “seemingly dispute[d] the authenticity” of his exhibit); Brown v. DeFrank, No. 06-CV-2235, 2006 WL 3313821, at *22 (S.D.N.Y. Nov. 15, 2006) (finding that court could not consider exhibits attached to plaintiffs complaint because he challenged the authenticity of some); see also Cooper v. Pickett, 137 F.3d 616, 622-23 (9th Cir. 1997) (affirming district court’s refusal to consider call transcripts attached to motion to dismiss
Defendants argue that the Tape Copy may be considered because it is integral to the Complaint. See Mem. at 2 n. 1. The Complaint’s extensive allegation that the Publications misinterpreted the Tape arguably render the Tape Copy — as a purportedly accurate copy of the Tape, see Dkt. No. 45-3 ¶ 4.b — integral to the Complaint. See, e.g., Compl. ¶ 184 (arguing that the Second Article’s statement that the Tape indicates that Plaintiff acknowledged alleged sexual abuse is false because it relies on “selective statements taken out of context from the ... [T]ape”). But Plaintiff has disputed both the authenticity and accuracy of the Tape (and therefore, transitively, of the Tape Copy).
Defendants argue that the Court may consider the SPD Reports and Warrant Application as public records. See Mem. at 2 n. 1. In deciding a motion to dismiss, a court may take judicial notice of public records, including the type of records Defendants offer. See Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007); Liang v. City of New York, No. 10-CV-3089, 2013 WL 5366394, at *5 (E.D.N.Y. Sept. 24, 2013) (taking judicial notice of police reports and court filings); Wims v. N.Y.C. Police Dep’t, No. 10-Civ-6128, 2011 WL 2946369, at *2 (S.D.N.Y. July 20, 2011) (finding that a district court may take judicial notice of “arrest reports” when deciding a 12(b)(6) motion). However, a court may take judicial notice of such documents “only to establish their existence and legal effect, or to determine what statements [they] contained ... not for the truth of the matters asserted.” Liang, 2013 WL 5366394, at *5 (quotations marks omitted and ellipsis in original); see also Roth, 489 F.3d at 509 (“If the court takes judicial notice, it does so in order to determine what statements they contained — but ... not for the truth of the matters asserted.”); Korova, 2013 WL 417406, at *6 (“[T]he Court may consider statements set forth in documents of which judicial notice may be taken, but ... solely to establish the existence of the opinions or assertions contained therein, rather than for the truth of the matters asserted.” (citations omitted and emphases added)). Defendants also ask the Court to consider the Fitzpatrick Transcript because it constitutes a document integral to the Complaint. See Mem. at 2 n. 1. While, as noted supra, integral documents may be considered in deciding a motion for judgment on the pleadings, they too may not be considered for the truth of the matters asserted. See In re Lehman Bros. Securities and ERISA Litigation, 903 F.Supp.2d 152, 168-69 (S.D.N.Y. 2012) (citing Staehr v. Hartford Fin. Servs. Group, Inc., 547 F.3d 406, 424-25 (2d Cir. 2008)).
As discussed supra, the challenged parts of the Publications are “of’ the SPD investigation only through quoting, describing, and providing background information regarding the Tape. Thus, to determine whether the challenged parts of the Publications are “fair and true” reports, the Court would have determine whether those quotations, descriptions, and provisions of background material are substantially accurate. Consideration of the Law Enforcement Records is impermissible for this purpose, because such consideration would be for the truth of the matters asserted; ie., the Court would have to find the Tape description and analysis in these documents true, and then determine whether the Publications made the same assertions and were therefore also true.
If the Publications had reported on the SPD’s, Agent Brown’s, or Fitzpatrick’s descriptions and conclusions regarding the Tape, or on Davis’s and Roach’s statements to the SPD, consideration of the Law Enforcement Records would be permissible: the Court would examine them in order to determine whether the reported-on Tape descriptions or witness statements were made, not whether those determinations and conclusions were true. As noted supra, the Publications did not
c. Conclusion
Because the Court cannot consider the Tape or Law Enforcement Records, it cannot determine whether the challenged portions of the Publications were fair and true reports of the SPD Investigation. Defendants’ Motion, to the extent it seeks dismissal on the basis of § 74, is therefore denied.
B. “Own Words” Defense
“Truth is an absolute defense to an action based on defamation.” Goldberg v. Levine, 97 A.D.3d 725, 949 N.Y.S.2d 692, 693 (2012). Defendants argue that a comparison of the Tape Copy and Law Enforcement Records to the challenged portions of the Publications indicates that the latter truthfully describe Plaintiffs words. See Mem. at 21. For the same reasons discussed supra, the Court cannot now make that comparison. Defendants’ Motion, to the extent it seeks dismissal based on the truth of the challenged parts of its Publications, is therefore denied.
C. Gross Irresponsibility
Defendants argue that, even if the Publications were not truthful, Defendants did not act in a grossly irresponsible manner in publishing them. See Mem. at 22. “[W]here the content of the article is arguably within the sphere of legitimate public concern, which is reasonably related to matters warranting public exposition, the party defamed may recover; however, to warrant such recovery he must establish, by a preponderance of the evidence, that the publisher acted in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties.” Chapadeau v. Utica Observer-Dispatch, 38 N.Y.2d 196, 379 N.Y.S.2d 61, 341 N.E.2d 569, 571 (1975) (emphasis added). Both parties agree that, at least with respect to determination of the Motion, the gross irresponsibility standard governs. See Resp. at 18-19; Mem. at 22 n. 9.
In determining gross irresponsibility, New York courts consider, inter alia, “whether sound journalistic practices were followed in preparing the defamatory article, whether normal procedures were followed and whether an editor reviewed the copy, whether there was any reason to doubt the accuracy of the source relied upon so as to produce a duty to make further inquiry to verify the information, and whether the truth was easily accessible.” Dalbec v. Gentleman’s Companion, Inc., 828 F.2d 921, 924-25 (2d Cir. 1987) (ellipses omitted).
Defendants advance two arguments regarding their lack of gross irresponsibility. First, they contend that they cannot have been grossly irresponsible because they relied on the Tape — a putatively reliable “source” regarding Plaintiff’s words. See Mem. At 24 (“[T]he principal source ESPN used to verify what is reported about her was one whose reliability she cannot challenge — ie., herself.”). But, as noted supra, the Complaint alleges that the Tape was not a reliable source, and that Defendants knew this to be so. Factual disputes regarding Defendants’ perception of the Tape’s reliability cannot be resolved at this stage.
Second, Defendants argue that they cannot have been grossly irresponsible in describing the Tape or Plaintiffs conduct because, as reflected in the Law Enforcement Records, the SPD, Fitzpatrick, and Agent Brown drew the same conclusions as the Publications. See id.
Y. CONCLUSION
Accordingly, it is hereby:
ORDERED, that Defendants’ Motion (Dkt. No. 45) for judgment on the pleadings is DENIED; and it is further
ORDERED, that the Clerk serve a copy of this Memorandum-Decision and Order on all parties.
IT IS SO ORDERED.
. The Court may consider the Publications, because they are integral to Plaintiffs Complaint and there is no dispute as to their accuracy or authenticity. See generally Compl.; Resp.; see also DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010)
. Plaintiff asserts that these parts of the Publications defamed her by indicating that she: (1) knew Mr. Fine was abusing Davis; (2) had a sexual relationship with Davis; (3) witnessed her husband molest Davis but did not try to prevent him from doing so; (4) created a space in her home where children could be molested in secret; and (5) betrayed Davis’s trust. See Compl. ¶¶ 174-222, 232-41.
. The full text of § 74 is as follows:
A civil action cannot be maintained against any person, firm or corporation, for the publication of a fair and true report of any judicial proceeding, legislative proceeding or other official proceeding, or for any heading of the report which is a fair and true headnote of the statement published.
This section does not apply to a libel contained in any other matter added by any person concerned in the publication; or in the report of anything said or done at the time and place of such a proceeding which was not a part thereof.
. Plaintiff correctly notes that a few older Appellate Division cases held that police investigations are not "official proceedings” under § 74's predecessors. See Nunnally v. Press Pub. Co., 110 A.D. 10, 96 N.Y.S. 1042, 1044 (1905) ("[M]ere investigations of a detective character conducted by persons connected with the coroner's office and by members of a municipal police force do not constitute such judicial or other public and official proceedings.”); Kelley v. Hearst Corp., 2 A.D.2d 480, 157 N.Y.S.2d 498, 502 (1956) ("It would be difficult to apply the term ‘proceeding’ ... to merely informal statements or assertions by public officers concerning their investigations.”). But these decisions run contrary to substantial recent authority applying the broad "official empowerment” test and deeming a variety of investigations official proceedings.
. The Warrant Application also likely consti-lutes a "judicial proceeding” under § 74.
. The pagination corresponds to the page numbers assigned by ECF.
. The pagination corresponds to the page numbers assigned by ECF.
. Because, as discussed infra, the Court cannot determine whether any allegedly defamatory part of the Publications is a fair and true report of the SPD Investigation, the Court need not decide, and refrains from deciding, precisely which Publication parts are "of,” and which are not "of,” the SPD Investigation. This section serves to illustrate merely that at least some of the statements are of the SPD Investigation by virtue of their discussion of the Tape.
.The Video does not even mention the SPD Investigation. Like the Articles, it cannot be a report of the SPD’s investigatory conclusions. Nevertheless, the Court refrains from deciding whether the Video’s description of the Tape may constitute a report “of” the SPD Investigation because, although the Video does not mention the SPD Investigation or the provision of the Tape to the SPD, the accompanying Articles do.
. The pagination corresponds to the page numbers assigned by ECF.
. The parties dispute the significance of ESPN’s reliance on non-SPD sources. See Mem. at 11-13; Reply at 7-9. The Court finds this irrelevant. The issue is not that ESPN quoted non-SPD sources; rather, the issue is that those non-SPD sources say nothing about the SPD’s conclusions.
. The Second Article itself presents an example of a report of a statement given to the SPD. In a portion of the Second Article unchallenged by Plaintiff, Defendants quote Zach Tomaselli, another accuser of Mr. Fine's, as stating “I told them (police) that Laurie was standing right there when Bernie asked me to sleep in a bed. Laurie knew all about it.” Second Article at 4 (emphasis added).
. The Second Article does note that “federal authorities carried out a search at ... Fine’s suburban Syracuse home.” A home search is often conducted without a warrant, see Fernandez v. California, - U.S. -, 134 S.Ct. 1126, 1132, 188 L.Ed.2d 25 (2014) (discussing warrantless home searches), and thus this passage does not necessarily indicate to an ordinary reader that a warrant was applied for. But even if it did, see id., ("[A] warrant is generally required for a search of a home.”), Defendants contend that the allegedly defamatory statements are "of” the substance of the Warrant Application, not its mere existence. The challenged portions of the Publications cannot be construed as a report of the mere fact that a search warrant was applied for.
.Some of Roach's and Davis’s statements may constitute reports of the SPD Investigation by virtue of their description of the Tape.
. “In deciding a motion under Rule 12(c), the district court may [also] consider ... documents attached to the pleadings as exhibits or incorporated by reference.” Daniels, 456 Fed.Appx. at 41 (citing see Samuels v. Air Transp. Local 504, 992 F.2d 12, 15 (2d Cir. 1993)). Defendants do not argue that the Tape Copy falls in either category, and it does not: it was not attached to the pleadings and, although it is referenced in the Complaint, it was not incorporated by reference. See Sahu v. Union Carbide Corp., 548 F.3d 59, 67-68 (2d Cir. 2008); Korova, 2013 WL 417406, at *6 n. 3 (“Limited quotations or references to a document in a complaint are insufficient to deem an entire document incorporated into the complaint”); Black’s Law Dictionary (9th ed. 2009) (defining "incorporation by reference as “[a] method of making a secondary document part of a primary document by including in the primary document a statement that the secondary document should be treated as if it were contained within the primary one”).
. Plaintiff clearly asserts that the Tape is an inaccurate and inauthentic recording of a purported conversation she had with Davis. It is unclear whether she also asserts that the Tape Copy is an inauthentic and inaccurate recording of the Tape.
. Although authenticity and accuracy are somewhat fluid and overlapping concepts, with respect to a recording, authenticity generally speaks to whether the recording is of the person(s) of whom it purports to be of; accuracy speaks to the degree of correlation between the recording and the actual conversation. See United States v. Tropeano, 252 F.3d 653, 661 (2d Cir. 2001) (finding tape properly authenticated where participants in recorded conversation “identified the voices on the tapes”); Fed.R.Evid. 901(b)(5) (noting that sufficient authentication of a recording may include, "[a]n opinion identifying a person's voice ... based on hearing the voice at any time under circumstances that connect it with the alleged speaker”); United States v. Singleton, 455 Fed.Appx. 914, 916 (11th Cir. 2012) (noting that, to be admissible, a recording must be an "accurate reproduction of relevant sounds”); United States v. Brown, 688 F.2d 1112, 1116 (7th Cir. 1982) ("[A]u-thentication relates only to whether the documents originate from [their alleged source]; it is not synonymous to vouching for the accuracy of the information contained in those records.”).
. The Court also notes that the Complaint’s single mention of Fitzpatrick, see Compl. ¶ 164 (“[S]hortly after VanHooser accused Bernie of sexual abuse Onondaga County District Attorney William Fitzpatrick made clear that VanHooser’s claims were not credible”), is likely insufficient to render the Fitzpatrick Transcript "integral” — particularly because Fitzpatrick’s press conference is not explicitly mentioned and this allegation has little, if any, bearing on Plaintiff's claim. See Korova, 2013 WL 417406, at *6-7 & nn. 3-6.
. To the extent Mott v. Anheuser-Busch, Inc., 910 F.Supp. 868 (N.D.N.Y. 1995) suggests otherwise, the Court finds this to be a departure from the weight of authority holding that process, not conclusions, determine gross irresponsibility vel non. Moreover, even Mott suggests that a law enforcement conclusion that accords with a report independently reaching the same conclusion is not disposi-tive as to the lack of gross irresponsibility of that report See id. at 875-76.
. For this reason, the Court disagrees with Defendants’ contention that, because it is not grossly irresponsible to report information obtained from law enforcement records, it is necessarily not grossly irresponsible to report independently-reached information that happens to accord with information in a law enforcement record. See Mem. at 25. Even where a report relying on law-enforcement-provided information and a report developed independently of law enforcement reach the same conclusions, the processes used are necessarily different. Second, Defendants’ premise is overstated: it may be grossly irresponsible to rely on law enforcement conclusions where the reporter “is aware of the probable falsity of the reports or has some reason to doubt their accuracy.” Mitchell v. Herald Co., 137 A.D.2d 213, 529 N.Y.S.2d 602, 605 (1988). The Complaint is replete with allegations that Defendants had such awareness and reason to doubt, see generally CompL, and thus, even if Defendants had relied upon law enforcement sources, they would not necessarily be entitled to judgment at this stage.
Reference
- Full Case Name
- Laurie J. FINE v. ESPN, INC., a subsidiary of Walt Disney, Inc. Mark Schwarz, in his individual capacity and as an employee of ESPN and Arthur Berko, in his individual capacity and as an employee of ESPN
- Cited By
- 29 cases
- Status
- Published