Judge Reopens Nicholas Sandmann lawsuit against Washington Post
Despite prior dismissal of entire case, Court now will allow discovery on three of the alleged defamatory statements, as well as the filing of a First Amended Complaint.
In late July 2019, a federal district Judge in the Eastern District of Kentucky dismissed the lawsuit by Covington Catholic High School student Nicholas Sandmann against The Washington Post.
For background on the dismissal and the underlying legal issues, see our post, Nicholas Sandmann lawsuit against Washington Post DISMISSED.
Sandmann filed a motion for relief from the judgment of dismissal so he could gather evidence to support his dismissed claims, and also to file a propose First Amended Complaint.
The same Judge who dismissed the case in its entirety has just reinstated a portion of the case in an Order (pdf.)(full embed at bottom of post), which provides both for discovery and allows the filing of the First Amended Complaint (pdf.)(full embed at bottom of post).
The Order provides the following reasoning, in pertinent part:
The Court first notes that the statements alleged by plaintiff to be defamatory have not changed in the proposed First Amended Complaint. They are the same 33 statements alleged in the original Complaint and set forth in the chart attached to the Court’s July 26, 2019 Opinion and Order (Doc. 47).
The Court will adhere to its previous rulings as they pertain to these statements except Statements 10, 11, and 33, to the extent that these three statements state that plaintiff “blocked” Nathan Phillips and “would not allow him to retreat.” Suffice to say that the Court has given this matter careful review and concludes that “justice requires” that discovery be had regarding these statements and their context. The Court will then consider them anew on summary judgment.1
[Fn. 1 The Court has reviewed the videos filed by both parties and they confirm this conclusion.]
The Court also notes that the proposed First Amended Complaint makes specific allegations concerning the state of mind of Phillips, the principal source of these statements. It alleges in greater detail than the original complaint that Phillips deliberately lied concerning the events at issue, and that he had an unsavory reputation which, but for the defendant’s negligence or malice, would have alerted defendant to this fact. The proposed First Amended Complaint also alleges that plaintiff could be identified as the subject of defendant’s publications by reason of certain photographs of plaintiff and the videos. This should also be the subject of proof.2
Of course, these allegations will be subject to discovery and summary judgment practice. However, they do pass the requirement of “plausibility.” See generally 2 James Wm. Moore et al., Moore’s Federal Practice § 12.34[1] (Supp. 2019).
The Order provides the following relief, in pertinent part:
IT IS ORDERED that:
1) The motion of the plaintiff for relief from judgment under Rule 60, reconsideration of the Court’s previous Order granting defendant’s motion to dismiss under Rule 59, and for leave to amend the complaint (Doc. 49) be, and is hereby, GRANTED IN PART AND DENIED IN PART, consistent with the above discussion;
2) The judgment (Doc. 48) previously entered herein be, and is hereby, SET ASIDE AND HELD FOR NAUGHT;
3) The proposed First Amended Complaint (Doc. 49-2) shall be DEEMED FILED CONCURRENTLY HEREWITH; ….
ANALYSIS TO FOLLOW
(9 p.m.) Finally getting to analysis.
While on the surface a relatively narrow ruling, reopening only a limited number of factual claims, it is in fact a big win for Sandmann. His attorneys now get to take discovery on the WaPo process that went into the story. That inquiry will not be limited to the three factual statements, because the process by which those statements made it into the WaPo reporting is the same process by which all the dismissed statements were reported. The entire process will be subject to depositions and document discovery. Sandmann’s attorneys likely will find facts to bolster a number of their claims, so expect a Second Amended Complaint with the results of the discovery process.
————————-
Sandmann v. Washington Post… by Legal Insurrection on Scribd
————————-
Sandmann v. Washington Post – First Amended Complaint w Exhibits by Legal Insurrection on Scribd
DONATE
Donations tax deductible
to the full extent allowed by law.
Comments
By crickey this could get awfully interesting. Wonder how much evidence has been destroyed by the journalists and organisations in the law suits??
It’s always the cover up.
No, you don’t wonder, you KNOW: All they could manage.
Which, even with their best and brightest intentions and motives, results in imperfect sequestration and whistleblowers by incompetence and redemption. The tell-tale hearts beat ever louder.
WAPO hired the Hillary, Inc. E-Mail Deleting Service …. guaranteed to wipe everything clean “like with a cloth”. ROFLMAO!
Yeah, unfortunately after the dismissal, WaPo was probably free to destroy whatever it wanted. And if they destroy it tomorrow, how will we know they didn’t destroy it last month?
I wonder about that. I’ll be somewhat surprised if the Post has been able to wipe everything, but you never know.
The downvote was my fumble. It should have been “reply.”
I’m going to go out on a limb with this, and say “none.” If reporters are like researchers, they will pack up and retain every bit of information as it accumulates, because they never know when they might want to dip back into it. Assuming they think of themselves as honest, as well, not to mention protected by Times v. Sullivan, et al., they have it all, with the possible exception of the complete draft series.
I think the edits just might be fascinating. Where did this story get tarted up?
I’d also love to know just how the Washington Post knew this character, and had assessed its past dealings with him. I have watched fabulists in action, as they massage their stories over time. What did Phillips learn over time about setting up a sellable story?
It is defamatory to accuse someone of a crime they did not commit. Blocking someone can be considered an assault. The judge is correct to reconsider– especially in light of the 2nd Circuit’s ruling on Palin.
Based on this I don’t see how that’s relevant, even though Palin is a public figure and so if she gets to sue for libel, one could think Sandmann should too. An article https://blogs.findlaw.com/second_circuit/2019/08/2nd-circuit-sarah-palins-libel-suit-against-nyt-should-go-to-discovery.html says the basis for the Palin ruling was:
The 2nd Circuit held that the case should proceed to full discovery, since the district court judge improperly relied on testimony from a hearing in dismissing the lawsuit, rather than the pleadings itself. The district court had taken the unusual step of having a hearing on the “close” question of whether Palin’s suit established that actual malice existed, a requirement in libel cases under New York law.
Why can’t we have different standards for professional newsmen? They have training and procedures that they are supposed to follow.
HAHAHAHAHAHAHAHAHAHA! Thanks – best laugh I’ve had this week. 😀
Agreed. They should be held to much stricter standards than people just talking. There’s a presumption that they’ve done some sort of “investigation” or “reporting” before making their false claims.
Carter-appointed judge hostile to the suit sees himself getting reversed on appeal.
Stupid judge incorrectly dismissed the case. He is now trying to regain some half a$$ semblance of credibility.
100% they will settle for a huge undisclosed amount and an NDA.
They WILL NOT allow discovery because they know goddamn well exactly what would come out. Whether they eventually won the case or not is irrelevant, it would DESTROY them.
I figure they’ll probably settle too. But, what if the kid decides to make a political statement and won’t settle?
I agree they would be wise to settle. At this stage it is reasonable for a variety of reasons. I disagree that discovery will show anything. Facts and truth, brains and reason, law and order, are not at all part of the modern Democratic Party. There will be no documents etc. The Democrats have reverted to the ignorant mob mentality of 1861-1900 that made them so powerful in the first place. They feast on nothing but hatred, they ignore facts and logic..they don’t need them in their lives.
Maybe not. This is about more than Sandmann. This is the crack in the wall that will open up the “news” media to liability which will require more accountability in the future. First WaPo, then NYT, then…. IMHO, if settling with WaPo means it can’t be used to pursue the next target, I doubt they will settle. I hope not.
Lin Wood indicated from the start that this is only the first lawsuit he intends to bring. The looming possibility of billions of dollars in possible settlements might just bring the commie “news” industry to heel. And followed by maybe another “#me too” event?
Just wishing out loud.
I can see WaPo pulling an Oberlin and fighting the case when the smart move is to settle and hush it up. They strike me as having that kind of hubris.
Their owner has that kind of money.
“ Their owner has that kind of money. ”
Not for much longer.
What was an assembly of beautiful men, women, and children, to remember human rights, evolved with a wicked progression to paint an innocent boy as a diversitist and warlock. #NoColorJudgments #StorkIsAPoliticalMyth #HateLovesAbortion
There was a political cartoon, I think at TownHall this morning that featured a WaPo description of Sandman as a terrorist, next to their original description of the late Bagdadi.
I wonder if the judge saw the cartoon.
The guy with the really nasty teeth reminds me of Elizabeth Warren.
I keep expecting him to say “precious” in a raspy voice.
Because Lie-a-watha Lizzie wishes she had his high cheekbones?
When the cold wind blows, it’ll turn your head around. Bob Dylan…and a frequent admonition to clients.
BRAVO!
BRAVO!
I completely agree with the analysis that focuses on discovery. Nathan Phillips was not acting alone, nor was he there by accident. Absent a settlement with an NDA attached, I think discovery will shed a great deal of light on the network behind Phillips, including the activist p.r. operation that instantly connected with the major media to turn this into a big story.
There is a big swamp underneath the surface, and discovery will reveal it. The establishment media will do their best to ignore it, but they’ll fail because of alternate sources like the one we’re reading right here. I hope LI will follow this case with the same diligence they applied to the Oberlin case, because I think there’s a whole lot of “there” there.
Past that, my gut feel is that the defamation case against the Post is the hardest of the bunch. If I were CNN, I’d be a tad bit worried, to put it mildly. Nick Sandmann’s lawyers are far from some pack of amateurs. They are the best of the best in the defamation world. If anyone can make this hurt, they are the ones.
Anyone know anything more about this?
Judge in Covington Suit Makes It Official That The Politico-Media Class Has Greater Rights Than The Plebians, Ruling That Elizabeth Warren Cannot be Sued for Slandering a Child Because of “Sovereign Immunity”
http://ace.mu.nu/archives/384203.php#384203