The Defamation Derby

Judge Peter Leisure has denied Dominick Dunne’s request for a protective order barring public dissemination of the videotape transcript of his September 2004, deposition in Gary Condit’s defamation case against him. Dunne claimed that the transcript would deprive him of his right to a fair trial in the case by prejudicing potential jurors against him. Dunne did not seek to bar dissemination of the written transcript, but argued that the videotape presented him in a poor light, partly because the plaintiff’s attorney “bullied” him. After carefully examining the defendant’s arguments, and balancing them against the public right to free access to information, Judge Leisure refused to issue the order. He did note however that that “as of now, Dunne’s videotaped deposition is not a judicial record giving rise to the common law presumption of a public right of free access” (citing U.S. v. Amodeo, 71 F. 3d 1044 (2d Cir. 1995); U. S. v. Amodeo, 44 F. 3d 141 (2d Cir. 1995)). “Dunne’s videotape has not been filed with the Court and is currently, at best, “tangential to the Article III functions of the Court” as its content does not yet affect any judicial decision-making, save being the subject of the instant motion. In re NASDAQ MarketMakers Antitrust Litig., 164 F.R.D. 346, 353 (S.D.N.Y. 1996, Sweet, J.)). The case is 02 Civ. 9910, Opinion and Order, (dated December 15, 2004).

A Kansas convict serving a life sentence for murder and kidnapping is unlikely to prevail on the merits in a defamation claim against a reporter who makes misstatements about him in print, according to the 10th Circuit. In Lamb v. Rizzo, the court upheld the lower court’s dismissal of the case based on reporter Tony Rizzo’s 12(b)(6) motion. Thomas Lamb had alleged that Rizzo’s incorrect statements about him cost him a chance at parole in 2001, but the district court suggested instead that Mr. Lamb’s own actions, including repeated escapes, rendered him libel-proof, essentially adopting the position of the defendant. “Because damage to one’s own reputation is the heart of a defamation action in Kansas..Mr. Lamb’s claims must be dismissed.” Although Kansas has not adopted the libel-proof plaintiff doctrine, the district court suggested, and the 10th Circuit agreed, that the Kansas Supreme Court was likely to take that course, should it ultimately hear the case. “”Because we agree with the district court’s prediction that the Kansas Supreme Court would adopt the libel-proof plaintiff doctrine and hold that it is a bar to Mr. Lamb’s claims, and because the district court did not abuse its discretion in denying Mr. Lamb’s motion to alter or amend the judgment, we affirm.” The decision includes a good summary of the libel-proof plaintiff doctrine, including citations to law review articles and the doctrine’s underlying policy and use.