ZIMMERMAN v. AL JAZEERA AMERICA, LLC et al

REPLY to opposition to motion re MOTION to Compel

D.D.C.June 11, 2018

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA RYAN W. ZIMMERMAN, Plaintiff, v. AL JAZEERA AMERICA, LLC, et al., Defendants. Case No. 1:16-cv-13-KBJ-RMM RYAN J. HOWARD Plaintiff, v. AL JAZEERA AMERICA, LLC, et al., Defendants. Case No. 1:16-cv-14-KBJ-RMM PLAINTIFFS RYAN W. ZIMMERMAN’S AND RYAN J. HOWARD’S REPLY MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION TO COMPEL Case 1:16-cv-00013-KBJ-RMM Document 121 Filed 06/11/18 Page 1 of 31 i TABLE OF CONTENTS Page PRELIMINARY STATEMENT .....................................................................................................1 ARGUMENT ...................................................................................................................................2 I. THE FIRST AMENDMENT DOES NOT LIMIT PLAINTIFFS’ RIGHT TO RELEVANT DISCOVERY.................................................................................................2 II. AL JAZEERA FAILS TO DEMONSTRATE THE REASONABLENESS OF ITS DATE RANGE .............................................................................................................4 III. AL JAZEERA DOES NOT SHOW WHY IT SHOULD NOT BE REQUIRED TO COLLECT AND PRODUCE DOCUMENTS FROM AL JAZEERA AMERICA ...........................................................................................................................7 IV. AL JAZEERA FAILS TO DEMONSTRATE THAT DISCOVERY RELATED TO MOTIVE IS IRRELEVANT .........................................................................................9 V. AL JAZEERA CONCEDES THAT DOCUMENTS RELATING TO PUNITIVE DAMAGES ARE RELEVANT TO PLAINTIFFS’ CLAIMS ..........................................12 VI. AL JAZEERA CANNOT JUSTIFY ITS FAILURE TO RESPOND TO OTHER SPECIFIC DOCUMENT REQUESTS .............................................................................14 A. Al Jazeera Concedes That Grand Jury And DEA-Related Documents Are Relevant .................................................................................................................14 B. Plaintiffs’ Request For Organization Charts Is Not Duplicative, Overbroad, Burdensome, Or Irrelevant .................................................................15 C. The Documents Relating To Al Jazeera’s Investigation Of Charlie Sly Are Relevant And Not Protected Work Product ...........................................................16 D. Al Jazeera Fails To Demonstrate That Davies’ Personnel File Is Irrelevant .........18 VII. AL JAZEERA FAILS TO ADEQUATELY EXPLAIN WHY IT HAS NOT PRODUCED ALL RESPONSIVE TEXT MESSAGES ...................................................19 VIII. AL JAZEERA FAILS TO SHOW THAT ITS RESPONSES TO PLAINTIFFS’ REQUESTS FOR ADMISSIONS ARE ADEQUATE .....................................................20 CONCLUSION ..............................................................................................................................24 Case 1:16-cv-00013-KBJ-RMM Document 121 Filed 06/11/18 Page 2 of 31 ii TABLE OF AUTHORITIES Page Cases *AmeriPride Servs., Inc. v. Valley Indus. Servs., Inc., 2011 WL 1321873 (E.D. Cal. Apr. 1, 2011)............................................................................. 23 Banks v. Office of Senate Sergeant-At-Arms, 228 F.R.D. 24 (D.D.C. 2005) .................................................................................................... 17 Cohen-Esrey Real Estate Servs., Inc. v. Twin City Fire Ins. Co., 2009 WL 10675923 (D. Kan. Nov. 6, 2009) ............................................................................ 16 Crocs, Inc. v. Effervescent, Inc., 2017 WL 1325171 (D. Colo. Feb. 24, 2017) ............................................................................ 16 Dowd v. Calabrese, 577 F. Supp. 238 (D.D.C. 1983) ............................................................................................... 18 Foretich v. Am. Broad. Companies, 1997 WL 669644 (D.D.C. Oct. 17, 1997) ................................................................................ 11 Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) .................................................................................................................... 2 In re Greenwood Air Crash, 161 F.R.D. 387 (S.D. Ind. 1995) ............................................................................................... 24 Grossman v. Goemans, 631 F. Supp. 972 (D.D.C. 1986) ............................................................................................... 12 *Harris v. Koenig, 271 F.R.D. 356 (D.D.C. 2010) ...................................................................................... 21, 22, 24 Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657 (1989) .............................................................................................................. 9, 11 Herbert v. Lando, 73 F.R.D. 387 (S.D.N.Y. 1977) .............................................................................................. 6, 7 *Herbert v. Lando, 441 U.S. 153 (1979) ............................................................................................................ 2, 3, 7 *Jankovic v. Int’l Crisis Grp., 822 F.3d 576 (D.C. Cir. 2016) ...................................................................................... 10, 11, 12 Case 1:16-cv-00013-KBJ-RMM Document 121 Filed 06/11/18 Page 3 of 31 iii In re Kemper Ins. Cos., 2003 WL 25672797 (N.D. Ga. June 17, 2003) ......................................................................... 16 *Kendrick v. Sullivan, 1992 WL 119125 (D.D.C. May 15, 1992) ................................................................................ 24 McBride v. Merrell Dow & Pharms., 717 F.2d 1460 (D.C. Cir. 1983) ................................................................................................ 13 *Meijer, Inc. v. Warner Chilcott Holdings Co., III, 245 F.R.D. 26 (D.D.C. 2007) .................................................................................................... 15 ODS Techs., L.P. v. Magna Entm’t Corp., 2008 WL 11343031 (C.D. Cal. July 31, 2008) ......................................................................... 24 Parsi v. Daioleslam, 890 F. Supp. 2d 77 (D.D.C. 2012) ............................................................................................ 11 Patmont Motor Werks, Inc. v. CSK Auto Inc., 2006 WL 2591042 (D. Nev. Sept. 8, 2006) .............................................................................. 24 Pfizer, Inc. v. Amgen Fremont Inc., C.A. No. 10667-VCL (Del. Ch. July 6, 2015) .......................................................................... 23 Prins v. Int’l Tel. & Tel. Corp., 757 F. Supp. 87 (D.D.C. 1991) ................................................................................................. 17 Reuber v. Food Chemical News, Inc., 925 F.2d 703 (4th Cir. 1991) .................................................................................................... 11 Secord v. Cockburn, 747 F. Supp. 779 (D.D.C. 1990) ................................................................................................. 6 *Sourgoutsis v. United States Capitol Police, 323 F.R.D. 100 (D.D.C. 2017) .................................................................................................. 10 *St. John v. Napolitano, 274 F.R.D. 12 (D.D.C. 2011) ................................................................................................ 6, 17 *Tavoulareas v. Piro, 93 F.R.D. 35 (D.D.C. 1981) .................................................................................................. 4, 18 *Tavoulareas v. Piro, 763 F.2d 1472 (D.C. Cir. 1985) ................................................................................................ 10 Case 1:16-cv-00013-KBJ-RMM Document 121 Filed 06/11/18 Page 4 of 31 iv Wadelton v. Dep’t of State, 208 F. Supp. 3d 20 (D.D.C. 2016) .......................................................................................... 4, 7 Waters v. U.S. Capitol Police Bd., 216 F.R.D. 153 (D.D.C. 2003) ................................................................................................ 4, 5 Zimmerman v. Al Jazeera Am., LLC, 246 F. Supp. 3d 257 (D.D.C. 2017) .......................................................................................... 13 Rules and Regulations Fed. R. Civ. P. 26 ...................................................................................................................... 2, 17 Fed. R. Civ. P. 26(b)(1)................................................................................................................... 3 Fed. R. Civ. P. 36 .................................................................................................................... 22, 24 Fed. R. Civ. P. 36(a) ..................................................................................................................... 21 Fed. R. Civ. P. 36(a)(4) ................................................................................................................. 24 Case 1:16-cv-00013-KBJ-RMM Document 121 Filed 06/11/18 Page 5 of 31 1 Plaintiffs Ryan W. Zimmerman and Ryan J. Howard (collectively, “Plaintiffs”) respectfully submit this Reply Memorandum of Law in Support of their omnibus Motion to Compel (“Motion”) that seeks the production of numerous categories of documents and communications that Defendants Al Jazeera America, LLC, Al Jazeera Media Network, Al Jazeera International (USA) Inc., and Deborah Davies (collectively, “Al Jazeera”) have improperly withheld from production. PRELIMINARY STATEMENT Al Jazeera refuses to provide relevant discovery on a number of key topics, including documents and communications relating to its investigation of Charlie Sly (“Sly”)—Al Jazeera’s sole source who recanted his statements about Plaintiffs prior to the publication of the documentary entitled The Dark Side: The Secrets of Sports Dopers (“Documentary”). Al Jazeera also has refused to collect documents from employees of Al Jazeera America, which broadcasted the Documentary and had final say as to its content. The limitations Al Jazeera has placed on its productions have no support in the First Amendment or the Federal Rules of Civil Procedure, contrary to Al Jazeera’s arguments. Rather, Al Jazeera’s opposition is just further proof that it is actively thwarting Plaintiffs’ access to relevant information based on meritless objections. For example, Al Jazeera has limited its document production to a narrow fifteen (15) month window. At the same time, however, Al Jazeera concedes, as it must, that numerous relevant documents exist well outside that date range. In fact, Al Jazeera recently produced documents from this time frame—conceding the existence of relevant documents but apparently cherry-picking the ones it decides to produce. Separately, Al Jazeera has refused to collect documents from any employees of Al Jazeera America—a named defendant—even though it freely admits that a number of Al Jazeera America employees actually worked on the Case 1:16-cv-00013-KBJ-RMM Document 121 Filed 06/11/18 Page 6 of 31 2 Documentary. Beyond that, Al Jazeera also refuses to respond to numerous discovery requests based on a distorted view of “relevance” under Fed. R. Civ. P. 26, claiming that because it is a media defendant, it is somehow entitled to a narrowed interpretation of that term. It is not. And firmly established Supreme Court precedent establishes as much. Because Al Jazeera’s objections to Plaintiffs’ discovery requests are meritless, the Court should grant Plaintiffs’ Motion and order Al Jazeera to respond in full to the requests for production, interrogatories, and requests for admissions (“RFAs”) discussed below and in Plaintiffs’ opening brief ARGUMENT I. THE FIRST AMENDMENT DOES NOT LIMIT PLAINTIFFS’ RIGHT TO RELEVANT DISCOVERY At the outset of its opposition, Al Jazeera loosely invokes the First Amendment to bolster its dubious argument that relevancy is narrowly construed in libel actions brought against media defendants. See ECF No. 110-1, Al Jazeera’s Opposition to Plaintiffs’ Motion to Compel (“Opp.”) at 12–13. Al Jazeera, however, never links these general First Amendment principles to either the discovery Plaintiffs seek here or the allegations in the complaint—which this Court held in its ruling on the motion to dismiss pleaded claims for relief. As a preliminary matter, Al Jazeera’s reliance on the First Amendment is misplaced. Plaintiffs have alleged that the accusations in the Documentary that Plaintiffs used Delta-2 are false and that Al Jazeera published the accusations with actual malice. The “[s]preading [of] false information in and of itself carries no First Amendment credentials.” Herbert v. Lando, 441 U.S. 153, 171 (1979). “[T]here is no constitutional value in false statements of fact.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974). Nonetheless, Al Jazeera claims that the First Amendment dictates here that “relevance should be narrowly construed,” and Plaintiffs’ Motion should be denied outright. Opp. at 12. Case 1:16-cv-00013-KBJ-RMM Document 121 Filed 06/11/18 Page 7 of 31 3 Neither the First Amendment, the Federal Rules of Civil Procedure, nor any Supreme Court decision supports Al Jazeera’s attempt to minimize the extent to which it is required to produce relevant discovery simply because it is a media defendant. To the contrary, the Supreme Court has recognized that in the context of a public figure libel action, like this case, there “is a significant public interest in according to civil litigants discovery of such matters as may be genuinely relevant to their lawsuit.” Herbert, 441 U.S. at 180 (Powell, J., concurring). “To this end, the requirement of Rule 26(b)(1) that the material sought in discovery be ‘relevant’ should be firmly applied . . . .” Id. at 177 (majority opinion). Nor do the recent 2015 amendments to Rule 26 change the fact that the First Amendment does not allow Al Jazeera to hide relevant discovery material. Indeed, Al Jazeera itself recently recognized as much, arguing in a separate motion to compel that “relevance is broad at the discovery stage.” ECF No. 84-1 at 8. The First Amendment does not change that, regardless of whether or not the defendant happens to be a media company. See Herbert, 441 U.S. at 165 (“The rules are applicable to the press and to other defendants alike, and it is evident that the courts across the country have long been accepting evidence going to the editorial processes of the media without encountering constitutional objections.”) (emphasis added). Thus, far from Al Jazeera’s characterization of Herbert v. Lando and its progeny as cases that establish limitations on a public figure libel plaintiff’s access to relevant discovery (see Opp. at 12–13), these decisions demonstrate the opposite to be the case: public figure libel plaintiffs, like Plaintiffs, who survive a motion a dismiss are entitled to full and complete discovery from media defendants to support their defamation claims. This Court recognized as much in a similar libel action brought by a public figure plaintiff against a media company defendant where, after losing a motion to dismiss, that defendant invoked the First Amendment to severely limit the Case 1:16-cv-00013-KBJ-RMM Document 121 Filed 06/11/18 Page 8 of 31 4 public figure plaintiff’s access to relevant information. See Tavoulareas v. Piro, 93 F.R.D. 35, 41 (D.D.C. 1981). This Court soundly rejected the media defendant’s blanket invocation of the First Amendment, finding that “[b]ecause plaintiffs have not yet had the opportunity to explore adequately the facts surrounding the publication of the [defamatory material], . . . the appropriate course of action, as with most litigation, is to permit full and complete discovery by both sides within the rather broad limits authorized by the Federal Rules of Civil Procedure.” Id. at 37 n.1 (emphasis added). So too here. The Court should, therefore, reject Al Jazeera’s abuse of its First Amendment protection in an attempt to thwart Plaintiffs’ request for relevant discovery and grant Plaintiffs’ Motion in full. II. AL JAZEERA FAILS TO DEMONSTRATE THE REASONABLENESS OF ITS DATE RANGE Al Jazeera bears “the burden of demonstrating that the temporal scope it used was reasonable.” Wadelton v. Dep’t of State, 208 F. Supp. 3d 20, 30 (D.D.C. 2016). Al Jazeera fails to carry this burden. As Plaintiffs demonstrated in their opening brief, Al Jazeera’s narrow fifteen (15) month date range beginning December 1, 2014 and ending February 29, 2016 will result in the wholesale exclusion of highly relevant categories of information that pre- and post- date the broadcast of the Documentary. See ECF No. 98-1, Pls.’ Mem. of Law in Support of Their Mot. to Compel (“Mot.”) at 15–17. Plaintiffs have, therefore, proposed an alternative date range—August 1, 2013 (the date on which Al Jazeera America launched) through the present. Plaintiffs contend and, indeed, have shown that their proposal will capture all relevant information. See id. Al Jazeera offers no compelling response to refute this showing. See Opp. at 14–17. And the one case that Al Jazeera cites in support of its narrow fifteen (15) month discovery date range is readily distinguishable. That case, Waters v. U.S. Capitol Police Bd., 216 F.R.D. 153 (D.D.C. 2003), involved a Title VII employment discrimination case brought against Case 1:16-cv-00013-KBJ-RMM Document 121 Filed 06/11/18 Page 9 of 31 5 a police department. The police department sought to severely limit the discovery period, but the Court rejected its attempt and ordered the department to collect and produce documents spanning seven and one half (7.5) years. Id. at 159. The Court did so notwithstanding the fact that the police department was “a relatively small and self-contained agency.” Id. The seven- and-one-half (7.5) year date range ordered in Waters is a far cry from the fifteen (15) months Al Jazeera has offered here and more akin to the nearly five (5) year date range suggested by Plaintiffs (which is itself only half the period of time for which Plaintiffs have themselves collected documents). Al Jazeera makes virtually no attempt to demonstrate how or why Plaintiffs’ proposal is unreasonable or inappropriate. At most, it claims that Plaintiffs’ August 1, 2013 requested start date is inappropriate because “Plaintiffs have shown no connection between [Al Jazeera America’s] launch and the Documentary.” Opp. at 15. But that is incorrect. Plaintiffs have shown that Al Jazeera America’s historically low ratings and its weak financial performance contributed to (i) Al Jazeera’s initial decision to produce an explosive documentary targeting high-profile U.S. athletes, including Plaintiffs, with outrageous allegations of performance- enhancing drug (“PED”) use; and (ii) Al Jazeera’s related, subsequent decision to publish that documentary, notwithstanding the fact that its sole source, Sly, had recanted his statements about Plaintiffs three (3) times prior to the publication. See Mot. 2–6, 18–23. Al Jazeera does not dispute that Plaintiffs would be prevented from obtaining discovery on topics relating to past ratings and historical financial performance if the Court were to adopt its December 1, 2014 proposed start date. Nor does Al Jazeera dispute that its February 29, 2016 cutoff date would also result in the exclusion of relevant evidence, including documents and communications relating to Al Case 1:16-cv-00013-KBJ-RMM Document 121 Filed 06/11/18 Page 10 of 31 6 Jazeera’s cooperation with various ongoing public and private investigations relating to the Documentary. See Mot. at 16–17. Instead, Al Jazeera maintains that these investigations are “in no way relevant to Plaintiffs’ claims.” Opp. at 16. Again, that is not true; these various investigations are directly relevant to Plaintiffs’ claims and Al Jazeera’s defenses. Take, for example, the Major League Baseball (“MLB”) investigation. MLB launched an investigation (which lasted through August 2016) to assess the truth or falsity of Sly’s claims that Plaintiffs took Delta-2. Documents and communications relating to this investigation are, therefore, highly relevant to Al Jazeera’s truth defense. The same is true for the investigations being conducted by the Drug Enforcement Agency (“DEA”) and the various U.S. Attorneys’ Offices.1 Notably, Al Jazeera appears to now concede that information pertaining to these investigations is relevant and discoverable. Two days after Plaintiffs filed their Motion, Al Jazeera produced some (but not all) of the documents relating to these investigations (all of which, of course, post-date February 29, 2016). See infra Section VI.A. Having voluntarily produced these documents to Plaintiffs, Al Jazeera cannot credibly claim, as it does, that these investigations do not relate to the Documentary or that these investigations are not properly the subject of discovery. They are, and the fact that Al Jazeera has produced them establishes as much. C.f. Herbert v. Lando, 73 F.R.D. 387, 396–97 (S.D.N.Y. 1977) (ruling post-publication activities, writings, and statements relevant and discoverable), aff’d, 441 U.S. 153 (1979). 1 Al Jazeera cites Secord v. Cockburn, 747 F. Supp. 779, 792 (D.D.C. 1990) to support its argument that these investigations are irrelevant for purposes of discovery. See Opp. at 16. Specifically, Al Jazeera claims that because the investigations do not relate to Al Jazeera’s “state of mind” at the time of publication, these investigations are not relevant to Al Jazeera’s actual malice defense. See Secord, 747 F. Supp. at 792. But information is discoverable if it is “relevant to any claims or defenses in th[e] action.” St. John v. Napolitano, 274 F.R.D. 12, 15 (D.D.C. 2011) (emphasis added). Plaintiffs are, therefore, entitled to discovery relating to any of Al Jazeera’s affirmative defenses, not just its actual malice defense. See ECF No. 46 (“Al Jazeera’s Answer”) at 17–19. As discussed, these investigations are relevant to Al Jazeera’s truth defense. Secord is, therefore, inapposite. Case 1:16-cv-00013-KBJ-RMM Document 121 Filed 06/11/18 Page 11 of 31 7 Furthermore, Al Jazeera offers no explanation for how or why it selected its arbitrary February 29, 2016 cutoff date, stating only that this date is when “the period of public discussion of the Documentary” ceased. Opp. at 14. Even if it were true that “the period of public discussion of the Documentary” ceased on February 29, 2016 (and it did not2), this explanation does not satisfy Al Jazeera’s burden to show that this cutoff date would be reasonable, especially given that there is no dispute that numerous additional responsive documents exist well beyond this particular date. See Wadelton, 208 F. Supp. 3d at 30. Having failed to satisfy its burden of demonstrating the reasonableness of its proposed date range, the Court should order Al Jazeera to collect and produce responsive, non-privileged documents from August 1, 2013 through the present.3 III. AL JAZEERA DOES NOT SHOW WHY IT SHOULD NOT BE REQUIRED TO COLLECT AND PRODUCE DOCUMENTS FROM AL JAZEERA AMERICA Al Jazeera does not dispute that it has already identified six (6) employees of Al Jazeera America who actively worked on the Documentary. See Mot. at 18 (citing ECF No. 98-42 at 6– 7). Despite this acknowledgment, Al Jazeera has steadfastly refused to collect documents from any of these employees (or any other employee of Al Jazeera America). Al Jazeera’s refusal is baseless, and nothing in its opposition changes this conclusion. 2 In fact, the public discussion about the Documentary persists to this very day. See Eriq Gardner, Al Jazeera Says Peyton Manning Was “Source” Confirming Doping Claims in Film, The Hollywood Reporter, June 1, 2018; see also Young, Jeremy (@YoungRJeremy). “Looks like our investigation into #PEDS is back in the news. If you have never watched the full film it’s still online.” June 1, 2018. Tweet. 3 Plaintiffs emphasize that Al Jazeera has a duty to collect and produce all responsive, non-privileged documents. It cannot simply avoid that responsibility by hand-selecting certain categories of information that extend beyond February 29, 2016 for which it will voluntarily produce documents. That is particularly so here, where Plaintiffs have already demonstrated the existence of numerous categories of additional relevant information for which Al Jazeera has still not produced documents. See Mot. at 16–17. Plaintiffs are entitled to discovery of this information through the collection of custodial files and the application of the agreed-upon search terms. Case 1:16-cv-00013-KBJ-RMM Document 121 Filed 06/11/18 Page 12 of 31 8 At best, Al Jazeera claims “[t]here is no evidence to support” Plaintiffs’ claim that anyone from Al Jazeera America was involved in the production and publication of the Documentary. Opp. at 17. As an initial matter, whatever supposed lack of “evidence” there may be is the result of Al Jazeera’s refusal to provide any discovery relating to Al Jazeera America. It is not, to be sure, a result of the fact that Al Jazeera America was not involved in the production or publication of the Documentary. It was. And Al Jazeera’s own sworn discovery response that identified six (6) high-level Al Jazeera America employees as having worked on the Documentary demonstrates as much. See Mot. at 18. To avoid that conclusion, Al Jazeera retreats from this sworn discovery response by claiming that the individuals it identified as having worked on the Documentary “did not have any input into the final version of the Documentary” and, therefore, Al Jazeera does not need to collect documents from them. Opp. at 17. Here again, Al Jazeera’s claim is contradicted by its sworn discovery response that identified five (5) specific Al Jazeera America employees who reviewed the documentary prior to publication in order to ensure that it “conform[ed] with [Al Jazeera America’s] editorial standards.” ECF No. 98-42 at 6–7. Beyond that, several documents produced by Al Jazeera provide further evidence that Al Jazeera America and its employees did, in fact, provide “input into the final version of the Documentary.” Opp. at 17. For example, Al Jazeera’s documents reveal that Al Jazeera would not air the Documentary without final “sign off” from the President of Al Jazeera America. See E-mail from K. Bondy to P. Charley, dated Dec. 16, 2015 (Exhibit A); see also E-mail from K. Bondy to P. Charley, Dec. 18, 2015 (Exhibit B). Additionally, Al Jazeera’s documents demonstrate that Al Jazeera America was involved in “edit[ing]” the Documentary prior to publication. E-mail from K. Bondy to P. Charley, dated Dec. 24, 2015 (Exhibit C). Al Jazeera America was also Case 1:16-cv-00013-KBJ-RMM Document 121 Filed 06/11/18 Page 13 of 31 9 involved in numerous other aspects of the Documentary, including coordinating its “roll-out,” developing and implementing a social media campaign, drafting pre-publication press releases, and coordinating post-publication follow-up news reports, among other activities.4 Thus, although Al Jazeera now tries to claim that Al Jazeera America’s only involvement in the Documentary “was that it was one of the outlets that carried the Documentary” (Opp. at 17), that is simply not true. Accordingly, there is no basis to excuse Al Jazeera America from participating in discovery. The Court should, therefore, order Al Jazeera to collect and produce responsive documents from the six (6) Al Jazeera America employees identified in Plaintiffs’ opening brief, as well as from Jocelyn Austin, the Senior Vice President of Public Relations and Communications, who coordinated Al Jazeera America’s promotional and public relations activities in connection with the Documentary. See Exs. E, F. IV. AL JAZEERA FAILS TO DEMONSTRATE THAT DISCOVERY RELATED TO MOTIVE IS IRRELEVANT Al Jazeera’s opposition to Plaintiffs’ request for discovery concerning motive misses the mark. Al Jazeera claims, unequivocally and without qualification, that “financial ‘motive’-based discovery is completely irrelevant to actual malice.” Opp. at 18 (emphasis added). That is wrong, and Al Jazeera’s reliance on Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 667 (1989), to support this argument is entirely misplaced. Harte-Hankes holds only that motive-based evidence is not sufficient, on its own, to prove actual malice. See id. at 667 (“that the defendant published the defamatory material in 4 See, e.g., Ex. B; E-mail from K. Bondy to P. Charley, dated Dec. 27, 2015 (Exhibit D) (discussing post-publication follow-up projects for Al Jazeera America); E-mail from P. Charley to J. Austin, dated Dec. 22, 2015 (Exhibit E) (discussing pre-publication press outreach by Al Jazeera America); E-mail from J. Austin to P. Charley, dated Dec. 22, 2015 (Exhibit F) (showing pre-publication press releases drafted by Al Jazeera America relating to the Documentary); E- mail from D. Robbins to P. Charley, dated Dec. 27, 2015 (Exhibit G) (showing Al Jazeera’s involvement in coordinating a social media campaign to promote the Documentary). Case 1:16-cv-00013-KBJ-RMM Document 121 Filed 06/11/18 Page 14 of 31 10 order to increase its profits [cannot] suffice to prove actual malice”) (emphasis added). At this stage, however, Plaintiffs need not actually prove or satisfy their actual malice case; instead, they must only demonstrate that such evidence is relevant to their claims or Al Jazeera’s defenses. Relevance is, of course, “construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter[s] that could bear on a party’s claim or defense.” Sourgoutsis v. United States Capitol Police, 323 F.R.D. 100, 107 (D.D.C. 2017) (Meriweather, M.J.) (internal citation omitted). Here, Plaintiffs have more than amply demonstrated that the motive-based evidence they seek is relevant to their claims and Al Jazeera’s defenses.5 Specifically, Plaintiffs contend (and the facts have now shown) that Al Jazeera America’s dire financial condition and weak ratings, as well as Al Jazeera’s massive financial investment into the Documentary, led it to abdicate all journalistic responsibilities by publishing a documentary that it knew contained wholly unsupported and disavowed allegations of Plaintiffs’ alleged PED-use. See Mot. at 2–6, 18–23. Under these circumstances, Plaintiffs are undoubtedly entitled to discovery as to what motivated Al Jazeera to publish its wholly unsupported statements about them. Such information is plainly relevant to Plaintiffs’ actual malice showing insofar as it is probative of Al Jazeera’s bad faith motive in publishing a documentary that it knew contained unsupported allegations about Plaintiffs. See Tavoulareas Piro, 763 F.2d 1472, 1476 (D.C. Cir. 1985) (“Petitioners’ claim that New York Times bars such [motive-based] evidence confuses relevancy with the actual malice standard of proof, which itself affords protection to media defendants and the First Amendment. That the Court set a high standard of proof does not mean that it also meant to exclude relevant evidence.”) (emphasis in 5 Al Jazeera has not objected to the motive-based evidence on any grounds other than relevancy. See Opp. at 18–21. Thus, to the extent the Court concludes that Plaintiffs’ motive- based discovery requests are relevant (as it should), Al Jazeera must be ordered to respond to these requests as written (and subsequently narrowed by Plaintiffs). Case 1:16-cv-00013-KBJ-RMM Document 121 Filed 06/11/18 Page 15 of 31 11 original); see also Jankovic, 822 F.3d at 590 (D.C. Cir. 2016) (evidence of motive is relevant in a defamation action when it is “probative of a ‘willingness to publish unsupported allegations’”) (emphasis in original). Having failed to overcome Plaintiffs’ demonstration of the relevance of this discovery, the Court should order Al Jazeera to provide discovery on these topics.6 Al Jazeera has not cited to a single case that has disallowed motive-based discovery as a threshold matter. In fact, all of the cases cited by Al Jazeera deal with the ultimate question of whether the libel plaintiff has ultimately satisfied his or her standard of proof and not whether that motive-based evidence is relevant to discovery. See Opp. at 18–21 (citing e.g., Parsi v. Daioleslam, 890 F. Supp. 2d 77, 90 (D.D.C. 2012) (motive-based evidence insufficient to overcome journalist defendant’s motion for summary judgment)); Reuber v. Food Chemical News, Inc., 925 F.2d 703, 715-16 (4th Cir. 1991) (en banc) (“evidence of a defendant printing material to increase its profits does not suffice to prove actual malice”); Foretich v. Am. Broad. Companies, 1997 WL 669644, at *8 (D.D.C. Oct. 17, 1997) (motive-based evidence insufficient to overcome media defendant’s motion for summary judgment)). In fact, in each of these cases, the courts evidently permitted the plaintiffs to obtain motive-based discovery, as demonstrated by the fact that, in each case, the plaintiffs relied upon that motive-based evidence in connection with summary judgment or a trial (albeit unsuccessfully). 6 It also bears noting that Al Jazeera’s substantive argument that discovery concerning motive is “completely irrelevant to actual malice” is fundamentally incorrect. Opp. at 18 (citing Harte-Hanks, 491 U.S. at 667). In Harte-Hanks, the Supreme Court recognized that even though motive-based evidence may not be independently sufficient to prove actual malice, it can still be used to support such a showing. The Court stated that “[a]lthough courts must be careful not to place too much reliance on such [motive] factors, a plaintiff is entitled to prove the defendant’s state of mind through circumstantial evidence, and it cannot be said that evidence concerning motive or care never bears any relation to the actual malice inquiry.” Id. at 668 (internal citations omitted). The cases cited by Plaintiffs in their opening brief are no different. See Mot. at 19–23. In each of those cases, the courts recognized that motive-based evidence could be used to support an actual malice showing, even if that evidence was not sufficient, independently, to prove it. Case 1:16-cv-00013-KBJ-RMM Document 121 Filed 06/11/18 Page 16 of 31 12 Al Jazeera places specific emphasis on Jankovic v. Int’l Crisis Grp., 822 F.3d 576 (D.C. Cir. 2016), a recent decision from the United States Court of Appeals for the District of Columbia Circuit to support its argument “that actual malice cannot be proven through showing that the publisher had some ulterior motive.” Opp. at 19 (citing Jankovic., 822 F.3d at 596) (emphasis added). But again, Plaintiffs are not required at this stage to prove their actual malice case; they are only required to show that such evidence is relevant to their claims or Al Jazeera’s defenses. Plaintiffs have adequately made this showing. See Mot. at 2–6, 18–23. If anything, Jankovic expressly supports Plaintiffs’ request for motive-based discovery. In Jankovic, the court held that “when the evidence of ill will or bad motive is also probative of a ‘willingness to publish unsupported allegations’” that evidence can be used to support a showing of actual malice. Jankovic., 822 F.3d at 590–91 (emphasis in original). That is precisely what Plaintiffs maintain happened here. See Mot. at 2–6, 18–23. Under Jankovic, Plaintiffs should, at the very least, be entitled to discovery as to Al Jazeera’s motivation.7 V. AL JAZEERA CONCEDES THAT DOCUMENTS RELATING TO PUNITIVE DAMAGES ARE RELEVANT TO PLAINTIFFS’ CLAIMS Al Jazeera does not dispute that a punitive damages award in a defamation case “may take into account any profit made by the defendant as a result of the libel.” Mot. at 24 (citing Grossman v. Goemans, 631 F. Supp. 972, 974 (D.D.C. 1986)). Plaintiffs have, therefore, sought discovery relating to the profits and revenues Al Jazeera generated from the Documentary. See Mot. at 23–24. Nor Al Jazeera dispute that this information is relevant and discoverable; instead, 7 Al Jazeera ultimately acknowledges, as it must, that the language from Jankovic demonstrates that motive can, in fact, be relevant to the actual malice inquiry. See Opp. at 20. Recognizing this fact, Al Jazeera claims that “Jankovic teaches that motive may be relevant where (1) the evidence shows that the defendant acted with ‘classic’ malice—a direct intention to harm the plaintiff, as through extortion, and (2) that evidence is strong enough to suggest that the defendant would willingly publish lies in order to harm the plaintiff.” Opp. at 20. Al Jazeera, however, cannot modify the holding of Jankovic by assigning its own, preferred definition of the phrase “bad motive.” Case 1:16-cv-00013-KBJ-RMM Document 121 Filed 06/11/18 Page 17 of 31 13 it claims that these requests are “premature” and must await the Court’s ruling on summary judgment. Opp. at 22. In support of this argument, Al Jazeera cites McBride v. Merrell Dow & Pharms., 717 F.2d 1460 (D.C. Cir. 1983). But McBride does not say that discovery relating to punitive damages is prohibited until summary judgment is decided. All that McBride says is that libel suits “bordering on the frivolous [] should be controlled so as to minimize their adverse impact upon press freedom.” Id. at 1466 (emphasis added). It was in that context that the court observed that in dealing with potentially “frivolous” and “possibly meritless” libel suits, it is “appropriate that discovery be limited initially to the extent feasible to those questions that may sustain summary judgment.” Id. at 1462, 1467 (emphases added). Those concerns do not apply here. Plaintiffs have already survived Al Jazeera’s motion to dismiss. See Zimmerman v. Al Jazeera Am., LLC, 246 F. Supp. 3d 257, 280 (D.D.C. 2017) (acknowledging that “the actual malice hurdle is a high bar that public-figure plaintiffs rarely surmount in cases such as this one”). Plaintiffs’ claims are, therefore, obviously not “frivolous” nor “possibly meritless” as was the concern in McBride. If there were any doubt, the limited discovery that Al Jazeera has produced amply demonstrates the strength of Plaintiffs’ claims. See Mot. at 2–13. Beyond that, Al Jazeera has, through its own discovery objections, already “limited initially” discovery to those matters that may sustain summary judgment. Having prevented Plaintiffs from taking discovery on matters relating to punitive damages for one (1) year, the time is now for Plaintiffs to obtain this important information, which will, among other things, help Plaintiffs understand the true value of their claims. Plaintiffs should not have to wait any longer for this information, Case 1:16-cv-00013-KBJ-RMM Document 121 Filed 06/11/18 Page 18 of 31 14 particularly given the strength of their actual malice case and given the fact that Al Jazeera does not dispute the relevance of this information. See Mot. at 2–13; see Opp. at 22–23.8 VI. AL JAZEERA CANNOT JUSTIFY ITS FAILURE TO RESPOND TO OTHER SPECIFIC DOCUMENT REQUESTS A. Al Jazeera Concedes That Grand Jury And DEA-Related Documents Are Relevant Three (3) days after Plaintiffs filed their Motion seeking to compel the production of all documents and communications relating to two (2) grand jury and DEA investigations arising from the Documentary, Al Jazeera produced a handful of documents and communications relating to these investigations. Upon review of that production, however, it became clear that there were numerous additional documents and communications relating to these investigations that Al Jazeera had still not produced to Plaintiffs, including 4,000 pages of documents produced in response to grand jury subpoenas that were affixed with the Bates prefix AJ_LA_GJSUBPOENA and AJ_GJSUBPOENA.9 Because Al Jazeera persists in its refusal to produce all documents and communications relating to these investigations, Plaintiffs request that the Court order Al Jazeera to produce these documents, including copies of the all of the documents and materials produced in response to the grand jury subpoenas, as well as any other responsive documents that Al Jazeera has still not produced. 8 Separately, Plaintiffs will withdraw their request for an order to compel the production of “documents sufficient to show any actual or threatened defamation actions against Al Jazeera America or Al Jazeera Media Network since 2010.” Mot. at 24. Plaintiffs will pursue this information through deposition testimony and withdraw their request for production without waiving any of their rights or conceding any of the arguments raised by Al Jazeera concerning the relevancy of this information. 9 See Ltr. from R. Stevens to B. Phillips, dated Aug. 2, 2017 (transmitting documents Bates stamped AJ_LA_GJSUBPOENA_0000003-AJ_LA_GJSUBPOENA_0002286 to the DEA) (Exhibit H); see also Ltr. from R. Stevens to J. Gonzalez, dated June 16, 2016 (transmitting documents Bates stamped AJ_GJSUBPOENA_0000001-0000070 to the Department of Justice) (Exhibit I). Case 1:16-cv-00013-KBJ-RMM Document 121 Filed 06/11/18 Page 19 of 31 15 B. Plaintiffs’ Request For Organization Charts Is Not Duplicative, Overbroad, Burdensome, Or Irrelevant Al Jazeera also has refused to produce organization charts from 2015 and 2016 for the three (3) corporate defendants, Al Jazeera Media Network, Al Jazeera International USA, and Al Jazeera America, on the basis that this request is “duplicative, overbroad, and burdensome.” Opp. at 24. Al Jazeera, however, makes no effort to demonstrate how or why this request is overbroad or burdensome. On this basis alone, the Court should reject Al Jazeera’s objections and order them to produce the requested organization charts. See Meijer, Inc. v. Warner Chilcott Holdings Co., III, 245 F.R.D. 26, 33–34 (D.D.C. 2007) (granting motion to compel when objecting party failed to show why production would be burdensome). Nor has Al Jazeera identified how Plaintiffs’ narrow request for organization charts is duplicative. At most, Al Jazeera attaches to its opposition a tortuous declaration from Phil Rees, the Acting Director for the Investigative Journalism Unit (the “Investigative Unit”), which purports to describe, among other things, the “organizational structure” of the Investigative Unit. See ECF No. 110-2 (“Rees Declaration”). But the Rees Declaration raises more questions about Al Jazeera’s corporate structure than it answers. For example, the Rees Declaration says that the Investigative Unit is “situated with [Al Jazeera Media Network].” Id. ¶ 6. But that is contrary to what Al Jazeera said in its Answer when it stated that the Investigative Unit is maintained by both Al Jazeera Media Network and Al Jazeera International (USA). See Al Jazeera’s Answer ¶ 6. In addition to the burdensome/overbreadth objections, Al Jazeera separately claims that it is not required to produce organization charts for Al Jazeera America’s because that information is “irrelevant in this case.” Opp. at 25. Not so. As discussed supra Section III, Al Jazeera America and its employees played an integral role in the production, promotion, and publication of the Documentary. Plaintiffs are entitled to understand the organization structure of this Case 1:16-cv-00013-KBJ-RMM Document 121 Filed 06/11/18 Page 20 of 31 16 corporate defendant prior to taking depositions. The Court should, therefore, order Al Jazeera to produce organization charts for the three (3) corporate defendants from 2015 and 2016.10 C. The Documents Relating To Al Jazeera’s Investigation Of Charlie Sly Are Relevant And Not Protected Work Product Al Jazeera refuses to produce all documents and communications relating to an investigation of Sly conducted by an investigator, Investigative Group International (“IGINT”), which was retained by Al Jazeera’s outside counsel at Davis Wright Tremaine, LLP (“DWT”). Al Jazeera contends that these documents and communications are irrelevant and, in any event, protected from compelled disclosure as work product. See Opp. at 25–27. Neither is true. First, Al Jazeera contends that because IGINT’s investigation supposedly occurred after the Documentary aired, any information relating thereto “is not probative of [Al Jazeera’s] state of mind in broadcasting the Documentary on the day of broadcast” since “[a]ctual malice focuses 10 The authority Al Jazeera cites to support its argument that Plaintiffs’ request for organization charts is improper and distinguishable. See Opp. at 23. For example, in Cohen- Esrey Real Estate Servs., Inc. v. Twin City Fire Ins. Co., 2009 WL 10675923 (D. Kan. Nov. 6, 2009), the court found the request for organization charts to be overbroad, in part, because it sought “charts or documents for a three and a half year period prior to the time” of the actions giving rise to the lawsuit. Id. at *6 (emphasis in original). That is not the case here, where Plaintiffs have requested organization charts for a narrow two (2) year period of time (from 2015 and 2016) during which the Documentary was conceived, produced, published, and broadcasted. This request is as narrowly tailored to the issues of the case as possible. Crocs, Inc. v. Effervescent, Inc. is similarly unhelpful. In that case, the plaintiff did, in fact, produce organization charts to the defendant. See Crocs, Inc. v. Effervescent, Inc., 2017 WL 1325171, at *3–4 (D. Colo. Feb. 24, 2017). Nevertheless, the defendant moved to compel the production of additional organizational charts in another, more useable format. See id. The court rejected the defendant’s request since the information sought had already been provided in the earlier- produced organization charts. Again, that is not the case here, where Al Jazeera has not produced a single organization chart. Finally, in In re Kemper Ins. Cos., the court denied a motion to compel the production of the defendants’ organizational charts because the defendant “already has identified all persons with knowledge of the facts related to this lawsuit.” In re Kemper Ins. Cos., 2003 WL 25672797, at *3 (N.D. Ga. June 17, 2003). Here, Al Jazeera has not identified a single employee from defendant Al Jazeera Media Network outside of the Investigative Unit who was involved in the Documentary, despite the fact that there were numerous such individuals involved in the production, promotion, and publication of the film. In re Kemper Ins. Cos. is, therefore, unhelpful to Al Jazeera. Case 1:16-cv-00013-KBJ-RMM Document 121 Filed 06/11/18 Page 21 of 31 17 on the subjective state of the mind of the publisher at the time of publication and not afterwards.” Id. at 25–26. Al Jazeera’s argument, however, reflects a distorted view of how “relevancy” is defined under Rule 26. Information is discoverable if it is “relevant to any claims or defenses in th[e] action.” St. John, 274 F.R.D. at 15. Plaintiffs are, therefore, entitled to discovery relating to any of Al Jazeera’s eleven (11) affirmative defenses, including its truth defense. Because IGINT’s investigation into Sly clearly relates to Al Jazeera’s truth defense, all documents and communications relating to that investigation must be produced. See Prins v. Int’l Tel. & Tel. Corp., 757 F. Supp. 87, 96 (D.D.C. 1991) (compelling interrogatory responses that would allow plaintiff to address a substantial truth defense because “plaintiff is entitled to try to rebut the [defendant’s] arguments”); see ECF No. 107-4 at New Doc. No. 360 (showing IGINT prepared a memorandum “regarding background research on Charlie Sly”). Second, the IGINT documents and communications relating to the Sly investigation are not protected work product. “To be protected by the work-product doctrine, a document must have been created for use at trial or because a lawyer or party reasonably anticipated that specific litigation would occur and prepared the document to advance the party’s interest in the successful resolution of that litigation.” Banks v. Office of Senate Sergeant-At-Arms, 228 F.R.D. 24, 26 (D.D.C. 2005) (internal citation omitted). If, as Al Jazeera contends, the IGINT “discovery is irrelevant” (Opp. at 25), then the documents and communications created in connection therewith were obviously not “created for use at trial” or because Al Jazeera “prepared the document[s] to advance [its] interest in the successful resolution of that litigation.” Banks, 228 F.R.D. at 26. And to the extent this material is (or was) protected work product, Al Jazeera has waived those protections. See ECF No. 107-1 at 16–18. Thus, should the Court find that Al Jazeera waived work product protections by putting DWT’s advice at-issue in this Case 1:16-cv-00013-KBJ-RMM Document 121 Filed 06/11/18 Page 22 of 31 18 litigation, the Court should also order the production of all documents and communications relating to IGINT’s investigation of Sly. D. Al Jazeera Fails To Demonstrate That Davies’ Personnel File Is Irrelevant Al Jazeera also refuses to produce Defendant Deborah Davies’ personnel file on the basis that Plaintiffs have made “no factual showing to justify this request” and that they have failed to “explain how the contents of her personnel file could have any relevance to Plaintiffs’ claims or Defendants’ defenses in this case.” Opp. at 27. Not so. Plaintiffs have more than adequately demonstrated in their opening brief that Davies’ personnel file is relevant to issues surrounding her credibility, which is a central issue in this defamation case. See Mot. at 27–28; see also Dowd v. Calabrese, 577 F. Supp. 238, 242 (D.D.C. 1983) (noting that in a defamation case a journalist’s “credibility is an important issue”). Al Jazeera disputes the notion that Davies’ personnel file is relevant to her credibility by citing to Tavoulareas, 93 F.R.D. at 44. In Tavoulareas, however, the libel plaintiff sought to compel the “mental health information contained in defendants’ personnel files,” which the Court found to be “an unwarranted invasion of the individual defendants’ privacy.” Id. at 37, 44. But that is not the information Plaintiffs seek here. In fact, prior to moving to compel the production of Davies’ personnel file, Plaintiffs explicitly narrowed their request to exclude “any personal health or medical information to the extent such information exists.” E-mail from S. Lerner to T. Toweill, dated Mar. 12, 2018 (Exhibit J). Thus, all that Plaintiffs seek here is responsive information about Davies’ purported qualifications, experience, expertise, and performance evaluations—all of which are relevant to Davies’ overall credibility and Plaintiffs’ defamation claims, and which will undoubtedly be found in her personnel file. See Dowd, 577 F. Supp. at 242. The Court should, therefore, Case 1:16-cv-00013-KBJ-RMM Document 121 Filed 06/11/18 Page 23 of 31 19 compel Al Jazeera to produce Davies’ personnel file (as subsequently narrowed by Plaintiffs). See Ex. J. VII. AL JAZEERA FAILS TO ADEQUATELY EXPLAIN WHY IT HAS NOT PRODUCED ALL RESPONSIVE TEXT MESSAGES Al Jazeera does not dispute that it was required to produce all responsive text messages. Instead, it claims that it has “already complied” with this demand. Opp. at 28. It has not. At most, Al Jazeera claims it has produced text messages from three (3) of its nine (9) custodians (including, Deborah Davies, Nic Dove, and Kevin Hirten) and that it unsuccessfully searched the cellular device of one other custodian—Peter Charley. See ECF No. 110-4 ¶ 5. But that still leaves five (5) other custodians unaccounted for, including key individuals like Jeremey Young (“Young”)—Al Jazeera’s lead investigative reporter—and Liam Collins (“Collins”)—Al Jazeera’s sole undercover reporter. The absence of text messages from Collins and Young is particularly disconcerting. Materials produced by Al Jazeera in discovery demonstrate that both men sent and received numerous responsive text messages (often with each other).11 These text messages, however, were not collected or produced by Al Jazeera, suggesting that Collins and Young either intentionally deleted these communications or that Al Jazeera failed to collect and produce them as it was required to do. Plaintiffs fears are reinforced by the fact that Al Jazeera has refused to meaningfully respond to basic discovery about the nature and extent of Al Jazeera’s text message preservation efforts. Specifically, in response to an interrogatory asking Al Jazeera to 11 See Screenshot of Text Messages Exchanged Between J. Young and L. Collins (Exhibit K); E-mail from L. Collins to J. Young, dated June 5, 2015 (showing texts sent by L. Collins to “Larry”) (Exhibit L); Text Messages Exchanged Between J. Young and J. Drummond (Exhibit M); E-mail from P. Charley to J. Young, dated Aug. 11, 2015 (showing texts sent by J. Young to Mark Edwards) (Exhibit N); E-mail from J. Young to K. Hirten, dated Aug. 31, 2015 (showing texts sent by J. Young to K. Hirten) (Exhibit O); see ECF No. 69-8 (e-mail showing text messages exchanged between Collins and Sly). Case 1:16-cv-00013-KBJ-RMM Document 121 Filed 06/11/18 Page 24 of 31 20 “[d]escribe the manner and timeframe in which You have retained Documents, including electronically-stored documents, that may be relevant to this Action,” Al Jazeera responded that it has “taken reasonable steps to retain all documents relevant to this action, including electronically-stored information, irrespective of timeframe.” Al Jazeera’s Responses and Objections to Plaintiffs’ First Set of Interrogatories, No. 25 (Exhibit P). Without providing more specific information about what those “reasonable steps” were, Plaintiffs are left to conclude that Young and Collins either deleted text messages in contravention of their preservation obligations or that Al Jazeera has failed to honor its discovery obligations by not collecting and producing this information. Before Plaintiffs move for an adverse inference against Al Jazeera arising from Young’s and Collins’ likely spoliation of evidence, Plaintiffs request that the Court order Al Jazeera to explain, in detail, the precise steps it took to collect and preserve text messages from all of its custodians, including Young and Collins. This is particularly appropriate given that responsive text messages are known to exist from a time period when Al Jazeera had freely and voluntarily imposed document preservation obligations upon its employees. See ECF No. 98-48 (Young telling Collins “PLEASE don’t delete anything” and that “[w]e need to preserve everything”). Yet, despite these self-imposed preservation obligations, Al Jazeera has not produced the text messages that should have been retained and that are known to exist. At the very least, Plaintiffs are entitled to a complete explanation of the steps Al Jazeera did or did not take to preserve text messages so they can evaluate what recourse to take. VIII. AL JAZEERA FAILS TO SHOW THAT ITS RESPONSES TO PLAINTIFFS’ REQUESTS FOR ADMISSIONS ARE ADEQUATE Al Jazeera refuses to answer simple, straight-forward RFAs on hyper-technical grounds. The Court should order Al Jazeera to provide full and complete responses to these RFAs. Case 1:16-cv-00013-KBJ-RMM Document 121 Filed 06/11/18 Page 25 of 31 21 First, Al Jazeera has refused to adequately respond to RFA Nos. 2–4, 8–11, 13–18, 22, and 28. See Mot. at 29–31. Al Jazeera does not dispute that these RFAs seek relevant information that could narrow the issues for trial. Nor does Al Jazeera dispute that these RFAs seek admissions pertaining to the most basic, fundamental, and non-controversial issues in this case. See Al Jazeera’s Responses and Objections to Plaintiffs’ First Requests for Admissions (Exhibit Q); see also Mot. at 29–31. Instead, Al Jazeera offers convoluted, indirect responses that refer Plaintiffs to other documents and, in many instances, are simply not responsive to the RFA. For example, RFA No. 22 asks Al Jazeera to “[a]dmit that in the Documentary, Davies referred to Sly as a ‘chemical mastermind’ and ‘someone who’s taken drugs to a new level.’” Ex. Q at 11. In response, Al Jazeera simply “refer[s] the Court to the Documentary for its contents” and “admit[s] the Documentary contains statements made by Davies and others that speak for themselves.” Id. Al Jazeera’s “admission” to RFA No. 22 (like many of its other “admissions”) is no admission at all, and Fed. R. Civ. P. 36 prohibits such evasive responses. See Mot. at 30–31. The Court should, therefore, order Al Jazeera to properly respond to RFA Nos. 2–4, 8–11, 13–18, 22, and 28.12 Second, Al Jazeera refuse to respond to RFA No. 19, which asks it to admit that “if a Major League Baseball player is accused of doping, it can have a negative impact on that 12 Recognizing that Fed. R. Civ. P. 36 does not permit Al Jazeera’s conduct, Al Jazeera makes no attempt to distinguish the on-point authorities cited in Plaintiffs’ opening brief that hold that a party cannot simply refer to the contents of other documents in lieu of responding to an otherwise non-objectionable RFA. Instead, Al Jazeera cites Harris v. Koenig, 271 F.R.D. 356, 374 (D.D.C. 2010), which only stands for the non-controversial position that Fed. R. Civ. P. 36 “permits a party to qualify its answer.” Plaintiffs do not dispute that a responding party can qualify its RFA responses, but that is not what Al Jazeera has done here. Far from qualifying its answers, Al Jazeera instead either refers Plaintiffs to the contents of other documents entirely, or in connection therewith offers vague non-responsive “admissions” to factual statements for which Plaintiffs have not sought an admission. See Ex. Q. Either way, these types of responses are not permitted under Fed. R. Civ. P. 36. Case 1:16-cv-00013-KBJ-RMM Document 121 Filed 06/11/18 Page 26 of 31 22 player’s reputation.” Mot. at 31. Al Jazeera refuses to respond because it claims the definition of “Defendants” is too broad insofar as it includes corporate entities. Opp. at 31. Al Jazeera’s objection rings hollow. For one, RFA No. 19 does not even use or include the term “Defendants.” Al Jazeera cannot, therefore, read into the RFA a term that is not there in order to avoid having to respond to it. Moreover, as Harris makes clear, Rule 36 “permits a party to qualify its answer” to a RFA. Harris, 271 F.R.D. at 374. Thus, to the extent the three (3) corporate defendants are incapable of forming an opinion about this RFA, those defendants should so state. Defendant Davies, however, should have no trouble forming an opinion as to this RFA. In fact, Davies already appears to have formed such an opinion on this very topic, having previously stated that when conducting an investigation into sports doping “the stakes are high for pro athletes whose careers might be at stake” if they are falsely accused of doping. See E-mail from A. Elrashidi to Al Jazeera Employees, dated Jan. 4, 2016 at AJ-HZ_0033519 (Exhibit R). The Court should, therefore, order Al Jazeera to respond to RFA No. 19. Al Jazeera takes the same unproductive approach with respect to RFA Nos. 21 and 39. RFA No. 21 asks Al Jazeera to admit “that [Al Jazeera America] ceased its operations on or around April 30, 2016.” Mot. at 32–33. Al Jazeera denied this RFA because “Al Jazeera America” is defined to include “current and former subsidiaries, parents, successors, predecessors, affiliates, joint ventures, associated organizations, directors, officers, employees, agents, consultants, staff members or other representatives thereof” and, therefore, its “current and former subsidiaries, parents, [and] successors did not cease their operations by April 30, 2016.” Opp. at 31. Al Jazeera is grasping. As an initial matter, Plaintiffs used the defined term “Al Jazeera America” in several other RFAs, including RFA Nos. 17, 18, and 40. For those responses, Al Jazeera had no trouble understanding what was meant or intended by the use of Case 1:16-cv-00013-KBJ-RMM Document 121 Filed 06/11/18 Page 27 of 31 23 “Al Jazeera America.” See Ex. Q; Al Jazeera’s Responses and Objections to Plaintiffs’ Second Request for Admissions (Exhibit S). It is entirely unclear why, all of the sudden, Al Jazeera has trouble understanding what was meant and intended by this word when used in RFA No. 21. See Pfizer, Inc. v. Amgen Fremont Inc., C.A. No. 10667-VCL (Del. Ch. July 6, 2015) (Transcript) (“You guys don’t get to say things like, ‘Oh, we don’t understand this word,’ or ‘Oh, this word is vague.’ I read the requests. Even I, knowing nothing more than what’s in your pleadings, having read the supporting agreements and read your briefs, understood what they were talking about. It is not credible and does not score you points with me to pretend that you have lost the ability to speak the English language.”). Beyond that, Al Jazeera acknowledges in its opposition that “April 30 was the last broadcast date” for Al Jazeera America. Opp. at 31. Still, it continues to deny RFA No. 21 because Al Jazeera “continued to wind-up its operations well past April 30, 2016.” Id. Al Jazeera’s outright denial of this RFA, however, is inconsistent with its obligations under Fed. R. Civ. P. 36, which requires it to qualify its responses to a RFA where necessary. See Fed. R. Civ. P. 36(a)(4). Such is the case here, particularly in light of Al Jazeera’s hyper-technical and unproductive reading of the RFA. See AmeriPride Servs., Inc. v. Valley Indus. Servs., Inc., 2011 WL 1321873, at *5 (E.D. Cal. Apr. 1, 2011) (“courts do not permit denials based on an overly- technical reading of the request.”). The same is true for Al Jazeera’s weak denial of RFA No. 39, which asks it to “[a]dmit that You considered it a network imperative to broadcast the Documentary in 2015.” Mot. at 32– 33. Here again, Al Jazeera claims its denial of RFA No. 39 was appropriate because the definition of the term “You” led Al Jazeera to conclude that the “only logical interpretation of RFA No. 39 is that it seeks an admission on behalf of individual Defendant Davies and the Case 1:16-cv-00013-KBJ-RMM Document 121 Filed 06/11/18 Page 28 of 31 24 several corporate defendants—including their employees and staff—that there was a ‘network imperative’ to broadcast the Documentary in 2015.” Based on that strained reading, Al Jazeera denied RFA No. 39—notwithstanding the fact that Phil Rees, the Acting Director of Al Jazeera’s Investigative Unit, has already acknowledged that it was, in fact, a “network imperative” for Al Jazeera to broadcast the Documentary in 2015. See Mot. at 33 (citing ECF No. 98-13).13 Al Jazeera’s inability to comprehend the word “You” is again at odds with the fact that it had no trouble understanding what was meant by this term in connection with its responses to RFA Nos. 1, 2, 4, 5, 6, 8, 9 10, 11, 23, 24, 27, 29, 30, 31, and 33. See Exs. Q, S. The Court should not tolerate Al Jazeera’s gamesmanship and should order Al Jazeera to admit RFA No. 39. See Kendrick v. Sullivan, 1992 WL 119125, at *6 (D.D.C. May 15, 1992) (response to RFA must be admitted where no basis for denial).14 CONCLUSION For these reasons, Plaintiffs respectfully request that the Court grant their Motion in full. Date: June 1, 2018 13 Curiously, Al Jazeera tries to minimize Rees’ power and authority in its opposition, describing him as a “single employee—not empowered to speak for the network.” Opp. at 32– 33. But as mentioned, Rees is the Acting Director of Investigative Unit, who reports directly to the Director General of Al Jazeera. See Rees Decl. ¶ 6. In fact, Rees is the same individual who Al Jazeera elected to provide a sworn declaration in connection with its opposition and upon which Al Jazeera relies extensively. See Opp. at 16, 17, 21, 24, 25. Thus, given Rees’ prominent role within Al Jazeera’s corporate structure, Al Jazeera’s flat denial of RFA No. 39 is particularly farfetched. As the Rees Declaration makes clear, he is “empowered to speak for the network.” Id. at 32. 14 Al Jazeera cites three (3) inapposite cases to support its position that its hyper- technical responses to Plaintiffs’ RFAs are appropriate. See Opp. at 31–32 (citing In re Greenwood Air Crash, 161 F.R.D. 387 (S.D. Ind. 1995), ODS Techs., L.P. v. Magna Entm’t Corp., 2008 WL 11343031, at *2 (C.D. Cal. July 31, 2008), Patmont Motor Werks, Inc. v. CSK Auto Inc., 2006 WL 2591042, at *3 (D. Nev. Sept. 8, 2006)). But none of these cases cited by Al Jazeera involve RFAs; rather, they involve responses to interrogatories and requests for production, which implicate entirely different rules of the Federal Rules of Civil Procedure and serve a distinctly different purpose than do RFAs, which are designed “to narrow the scope of issues to be litigated and to thereby expedite the litigation process.” Harris, 271 F.R.D. at 37. Case 1:16-cv-00013-KBJ-RMM Document 121 Filed 06/11/18 Page 29 of 31 25 /s/ William A. Burck William A. Burck (#979677) Scott E. Lerner (#1024964) Quinn Emanuel Urquhart & Sullivan, LLP 1300 I Street NW, Suite 900 Washington, DC 20005 Telephone: (202) 538-8000 Fax: (202) 538-8100 williamburck@quinnemanuel.com scottlerner@quinnemanuel.com Robert L. Raskopf (admitted pro hac vice) Kevin S. Reed (admitted pro hac vice) Ellyde R. Thompson (admitted pro hac vice) Quinn Emanuel Urquhart & Sullivan, LLP 51 Madison Avenue, 22nd Floor New York, NY 10010 Telephone: (212) 849-7000 Fax: (202) 849-7100 robert.raskopf@quinnemanuel.com kevinreed@quinnemanuel.com ellydethompson@quinnemanuel.com Counsel for Plaintiff Ryan W. Zimmerman /s/ Andrew D. Herman Andrew D. Herman (#462334) Miller & Chevalier Chartered 900 16th Street NW Washington, DC 20006 Telephone: (202) 626-5869 Fax: (202) 626-5801 aherman@milchev.com Counsel for Plaintiff Ryan J. Howard Case 1:16-cv-00013-KBJ-RMM Document 121 Filed 06/11/18 Page 30 of 31 Certificate of Service I hereby certify that a sealed copy of Plaintiffs Ryan W. Zimmerman’s and Ryan J. Howard’s Reply Memorandum of Law in Support of Their Motion to Compel and accompanying exhibits were served upon the following counsel for Defendants Al Jazeera Media Network, Al Jazeera International (USA) LLC (formerly known as Al Jazeera International (USA), Inc.), Al Jazeera America, LLC, and Deborah Davies on June 1, 2018 to the following e-mail addresses: Andrew Deutsch—andrew.deutsch@dlapiper.com Rachel Stevens—rachel.stevens@dlapiper.com Charles Scheeler—charles.scheeler@dlapiper.com Michael Hynes—Michael.Hynes@dlapiper.com Teale Toweill—Teale.Toweill@dlapiper.com Ellen Dew—Ellem.Dew@dlapiper.com /s/ Scott E. Lerner Scott E. Lerner Case 1:16-cv-00013-KBJ-RMM Document 121 Filed 06/11/18 Page 31 of 31