Blankenship v. Fox News Network
Blankenship v. Fox News Network
2020 WL 9718873 (S.D. W. Va. 2020)
September 21, 2020

Aboulhosn, Omar J.,  United States Magistrate Judge

Possession Custody Control
Video
Cost-shifting
Failure to Produce
Proportionality
Cost Recovery
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Summary
The court granted the plaintiff's motion to compel production of ESI from FNN and MSNBC, including documents and communications from executives, producers, anchors, hosts, contributors, editors, writers, and staff involved in the production of or affiliated with the programs. The court denied the motion to compel as it relates to AT&T, noting that there was no evidence of a connection between CNN or AT&T executives and/or Board members with the GOP establishment.
Additional Decisions
DON BLANKENSHIP, Plaintiff,
v.
FOX NEWS NETWORK, LLC, ET AL., Defendants
Civil Action No. 2:19-cv-00236
United States District Court, S.D. West Virginia
Signed September 21, 2020

Counsel

Jeffrey S. Simpkins, Simpkins Law Office, Williamson, WV, Jeremy Gray, Pro Hac Vice, Lisa Marie Zepeda, Pro Hac Vice, Eric P. Early, Pro Hac Vice, Padideh Zargari, Pro Hac Vice, Peter D. Scott, Pro Hac Vice, Saam Takaloo, Pro Hac Vice, Thomas Lee, Pro Hac Vice, Zachary Austin Gidding, Pro Hac Vice, James M. Cagle, Charleston, WV, Kevin S. Sinclair, Pro Hac Vice, Early Sullivan Wright Gizer & Mcrae, Los Angeles, CA, for Plaintiff.
Christopher C. Brewer, Pro Hac Vice, Ryan McCune Donovan, Charleston, WV, Shawn Patrick Regan, Silvia Noemi Ostrower, Pro Hac Vice, Sona Rewari, Pro Hac Vice, Hunton Andrews Kurth, Washington, DC, David Parker, Pro Hac Vice, Hunton Andrews Kurth, Elbert Lin, Kevin S. Elliker, Pro Hac Vice, Hunton & Williams, Richmond, VA, Jared M. Tully, Frost Brown Todd, Jonathan Zak Ritchie, Hissam Forman Donovan Ritchie, Charleston, WV, for Defendants.
Aboulhosn, Omar J., United States Magistrate Judge

ORDER

*1 On August 19, 2020, the undersigned hosted another telephone conference concerning Plaintiff's pending Motion(s) to Compel Production of Documents to Defendants MSNBC Cable, LLC, Fox News Network, LLC, American Broadcasting Companies, Inc., WP Company LLC, Cable News Network, Inc., and National Republican Senatorial Committee (ECF Nos. 484, 486, 487, 488, 489, and 503 respectively). During the conference, counsel for Plaintiff indicated that certain matters raised in his Motions remained unresolved and would require the Court's determination. Following the conference, the undersigned entered an order outlining a briefing schedule as it pertained to certain Defendants.[1] (ECF No. 546)
Pursuant to the undersigned's order, on August 26, 2020, Plaintiff filed his Final Supplemental Memorandum of Law in Support of Motion to Compel Production of Documents to Defendant Fox News Network, LLC (hereinafter referred to as “FNN”); Defendant MSNBC Cable, LLC (hereinafter referred to as “MSNBC”); and Defendant Cable News Network, Inc. (hereinafter referred to as “CNN”) (ECF No. 551).[2] On September 8, 2020, Defendants FNN, MSNBC, and CNN filed their Responses in opposition (ECF Nos. 565,[3] 563,[4] 564,[5] respectively), and subsequently, on September 11, 2020, Plaintiff filed his Reply Memorandum of Law in Opposition to the Responses filed by FNN, MSNBC, and CNN (ECF No. 566).[6] Accordingly, the outstanding discovery issues initially raised in Plaintiff's Motions to Compel Production of Documents as they pertain to Defendants FNN, MSNBC, and CNN are fully briefed and ripe for decision.
Plaintiff's Argument for Compelled Disclosure from FNN
*2 Plaintiff states that the following proposed discovery directly relates to the subject matter of this litigation:
• documents that refer or relate to Plaintiff (Request for Production of Documents (“RPD”) #1);
• communications that refer or relate to Plaintiff (RPD #2);
• documents or communications that refer or relate to Plaintiff's criminal trial (RPD #16);
• communications that refer or relate to Plaintiff from 01 January 2018 to 31 August 2018 (i.e., course of Plaintiff's campaign) between FNN and the following individuals:
• US Senate Majority Leader Mitch McConnell and staff (RPD #21);
• US Senator Joe Manchin III and staff (RPD #22)
• US Congressional members and staff (RPD #23);
• WV Attorney General Patrick Morrisey and staff (RPD #24);
• former US Congressman Evan Jenkins and staff (RPD #25);
• President Donald Trump and staff (RPD #26);
• Donald Trump Jr. and staff (RPD #27);
• Chris Stirewalt and staff (RPD #28);
• Karl Rove and staff (RPD #29);
• Bill Stepien and staff (RPD #30); and
• communications with the National Republican Senatorial Committee (“NRSC”) from 01 January 2018 to 31 August 2018 (RPD #50).
As the parties have continued to negotiate which custodians to disclose/produce in response to Plaintiff's production requests, Plaintiff asserts that on August 4, 2020, FNN proposed to produce communications from the following sixteen (16) custodians:
1. Bradley Blakeman
2. Neil Cavuto
3. Stephanie Hamill
4. John Layfield
5. Elizabeth MacDonald
6. Andrew Napolitano
7. Dana Blanton
8. Danielle Blue
9. Joanna Chow
10. Ralph Giordano
11. Marie Harf
12. Veronica Martin
13. Pam Ritter
14. Michael Robinson
15. Chris Stirewalt
16. Gary Villapiano
However, Plaintiff states that FNN has only produced documents from ten (10) of these sixteen (16) custodians, and most problematically, FNN failed to produce documents from four (4) out of the six defamatory speakers (i.e., Blakeman, Hamill, Layfield, MacDonald). Plaintiff states that the seven (7) productions from FNN has primarily consisted of video recordings, program transcripts, political reports, and polling data. FNN has since represented that there are no other responsive documents but has not filed a supplemental written response indicating the same. Plaintiff contends that FNN's trivial production is suspect. Plaintiff complains that FNN refuses to increase the number of custodians, and Plaintiff states that he is entitled to a broader scope of discovery given the nature of his claims.
Therefore, Plaintiff moves to compel the production of any written or electronic communications that references Plaintiff, the West Virginia GOP debate (“Fox News Debate”) broadcast by FNN, and the 2018 West Virginia U.S. Senate Republican primary election (“primary”) from the following list of custodians:
• Judge Andrew P. Napolitano (Ret.) | senior judicial analyst | Fox News Channel (“FNC”)
• Any executives, producers, anchors, hosts, contributors, editors, writers, and/or staff involved in the production of the FNC program Outnumbered on 25 April 2018
• Neil Cavuto | anchor + managing editor of business news | FNC + Fox Business Network (“FBN”)
*3 • Any executives, producers, anchors, hosts, contributors, editors, writers, and/or staff involved in the production of the FBN program Cavuto: Coast to Coast on 07 May 2018
• John Layfield | business commentator | FBN
• Bradley Blakeman | political analyst | FBN
• Any executives, producers, anchors, hosts, contributors, editors, writers, and/or staff involved in the production of the FBN program The Evening Edit on 07 May 2018
• Stephanie Hamill | political contributor | FBN
• Any executives, producers, anchors, hosts, contributors, editors, writers, and/or staff involved in the production of the FBN program Making Money on 08 May 2018
• Elizabeth MacDonald | The Evening Edit host | FBN
• Any executives, producers, anchors, hosts, contributors, editors, writers, and/or staff involved in the production of the FBN program The Evening Edit on 09 May 2018.
• Bret Baier | chief political anchor | Special Report with Brett Baier anchor | Fox News Debate moderator | FNC
• Martha MacCallum | The Story with Martha MacCallum anchor | Fox News Debate moderator | FNC
• Any executives, producers, anchors, hosts, contributors, editors, writers, and/or staff involved in the production of the Fox News Debate.
• Chris Stirewalt | politics editor | FNC
• Dana Perino | The Daily Briefing with Dana Perino anchor + The Five co-host | FNC
• Tucker Carlson | Tucker Carlson Tonight host | FNC
• Sean Hannity | Hannity host | FNC
• Karl Rove | political contributor | FNC
• Peter Doocy | correspondent | FNC
• Melissa Francis | Outnumbered co-anchor | FNC
• Suzanne Scott | CEO | FNC + FBN
• Irena Briganti | Executive Vice President | Corporate Communications | FNC
• John Fiedler | Executive Vice President | Digital Products | FNC
• Danny O'Brien | Executive Vice President | Government Relations | FNC
• Jay Wallace | President and Executive Editor | FNC
• Jack Abernathy | CEO | Fox Television Studios (“FTS”)
• Sharri Berg | Executive Vice President | News Operations | FNC
• Rupert Murdoch | Chairman | Fox Corporation
• Lachlan Murdoch | Executive Chairman + CEO | Fox Corporation
• Chase Carey | Director | Fox Corporation
• Anne Dias | Director | Fox Corporation
• Roland A. Hernandez | Director | Fox Corporation
• Jacques Nasser | Director | Fox Corporation
• Paul D. Ryan | Director | Fox Corporation
• Viet D. Dinh | Chief Legal and Policy Officer | Fox Corporation
• James Murdoch | former CEO | 21st Century Fox, INC[7]
• Sir Roderick Eddington | former Director | 21st Century Fox, INC
• Delphine Arnault | former Director | 21st Century Fox, INC
• David DeVoe | former Director | 21st Century Fox, INC
• Robert Silberman | former Director | 21st Century Fox, INC
• Tidjane Thiam | former Director | 21st Century Fox, INC
• Jim Breyer | former Director | 21st Century Fox, INC
Finally, Plaintiff reserves the right to request production of the communications of any person identified in any document produced by FNN during discovery, as well as to request production of additional documents during discovery.
*4 Plaintiff argues that the aforementioned discovery is not only relevant to his conspiracy claim that Defendants and others conspired to interfere in the West Virginia primary election by defaming Plaintiff with false reports, but that it is also proportional to the needs of this case. In support of this argument, Plaintiff points out that the close relationships FNN's officers and/or agents enjoyed with the Republican or GOP establishment has been well documented prior to the primary. While Plaintiff was on the cusp of securing the Republican nomination for the U.S. Senate seat for West Virginia, these close relationships underscore the importance of his production requests, as they would be probative to his conspiracy claim. Given the results of the primary, following the campaign of defamation, Plaintiff's reputation has been grievously injured to the extent that his ability to earn income has been significantly impaired, if not permanently damaged. As the false reports were endorsed by FNN, and had the apparent support and blessing of the Senate Majority Leader and other high-ranking officials within the Republican party, the requested discovery is both necessary and critical to Plaintiff's case.
Plaintiff asserts that given FNN's much greater resources and being the only entity with access to this requested information, and that Plaintiff is only asking to produce the communications of the six (6) defamatory speakers (which is a small number of employees involved in the production of the broadcasts in which the defamatory statements were published), seven (7) executives, and fourteen (14) current and former directors, Plaintiff contends that the searches are narrowly tailored to an uncommon surname (“Blankenship”), the Fox News Debate, and the West Virginia Republican primary in 2018. In short, Plaintiff's outstanding production requests as they pertain to FNN are relevant, proportional to the needs of this case, and narrowly tailored to an extent that FNN should not be overly burdened by these requests.
Finally, Plaintiff requests that FNN be required to pay his reasonable expenses, including attorney's fees, that he has incurred prosecuting his discovery motions as contemplated in Rule 37(a)(5)(A) of the Federal Rules of Civil Procedure.
FNN's Response in Opposition to Plaintiff's Motion to Compel
FNN argues that Plaintiff's motion to compel an expanded number of custodians is not supported by legal principles for responsive discovery, but instead, stands on speculation about the relationships among certain FNN personnel with GOP establishment, and thereby speculating further that those individuals must have had something to do with the defamatory statements. FNN also argues that although it attempted to meet and confer with Plaintiff and requested Plaintiff to review the production made thus far in order to discern which additional custodians may have actually been involved in the events Plaintiff has alleged, Plaintiff instead filed his final supplemental memorandum. FNN contends that Plaintiff's request to this Court is essentially asking the Court to second guess FNN's responsive production by compelling the production of communications for additional custodians who have nothing to do with Plaintiff's claims.
FNN states that Plaintiff's additional custodians fall into three categories: on-air hosts of Fox News programs other than those at issue in this suit; Fox News executives and Board members; and unnamed executives, producers, anchors, hosts, contributors, editors, writers, and/or staff. FNN asserts that Plaintiff's requests not only fail to abide by Rule 26 discovery standards, none of the individuals in these categories are relevant to Plaintiff's claims in this suit. FNN states that Plaintiff does not explain how the other on-air hosts of programs are relevant to Plaintiff's defamation claims: specifically, Plaintiff does not even allege that Peter Doocy, Brett Baier, Martha MacCallum nor any of the identified on-air hosts of other programs made defamatory statements about Plaintiff. Discovery to date has provided no basis for Plaintiff's claims with respect to these additional custodians, and therefore compelled collection is unlikely to produce any statements relevant to Plaintiff's claims.
*5 With regard to FNN executives and Board members, as with Plaintiff's request to compel collection of other on-air host custodians, his request for executive and Board members is based upon speculation, and further, discovery to date has not revealed that these individuals were involved in making defamatory statements about Plaintiff. FNN asserts that Plaintiff's requests as they pertain to executives and Board members are irrelevant.
With regard to the other unnamed custodians, again, FNN argues that they are irrelevant to Plaintiff's claims, that discovery to date has not indicated their involvement related to Plaintiff's claims, and that Plaintiff provides no justification for his requests that the collections from these individuals be searched, let alone compelled.
FNN also contends that Plaintiff's expanded number of custodians is not proportional to the needs of this case in accordance with legal standards, and the additional burdensome collections are unlikely to yield any material benefit to this case. Plaintiff's requests are speculative and only tangentially related to his claims, and this Court should not permit Plaintiff to engage in a fishing expedition on such as basis. Additionally, FNN states that the burden and expense of searching and producing information from the additional custodians militates against Plaintiff's requests. FNN also suggests that the Court consider any First Amendment issues related herein, as Plaintiff's request to expand the number of custodians necessarily interferes with their own First Amendment rights to free speech and expression, and also invites potential harassment from Plaintiff. This is especially important as Plaintiff has not demonstrated how these additional custodians had anything to do with his claims.
FNN complains that while Plaintiff himself has failed to produce a single document in response to discovery requests, the Court should reign in Plaintiff's continued quest to expand the scope of discovery, lest this action not move toward a speedy and just adjudication. However, should the Court be inclined to grant Plaintiff's motion, FNN asserts that given the undue expense and burden necessarily involved to comply with Plaintiff's requests, the Court should shift the production costs to Plaintiff for the following reasons: first, Plaintiff has not shown how any of the additional custodians are relevant to his claims, and only provides speculation; despite the significant amount in controversy, this does not give Plaintiff a license to engage in fishing expeditions; despite the difference in the parties' resources, Plaintiff has abundant resources himself and can easily bear the costs of his requested production; this case is not about the sanctity of federal elections in this country, but about Plaintiff's defamation claim, thus, Plaintiff's requested production has not shown any importance to the real issue before this Court; Plaintiff has not shown that his requests are important to resolving the controversy in this case; finally, the expense of procuring Plaintiff's production requests is significant in and of itself, and this does not include the attorneys' fees involved in reviewing these materials prior to disclosure.
FNN asks the Court to deny Plaintiff's motion to compel.
Plaintiff's Reply Memorandum in Opposition to Response of FNN
Plaintiff denies the assertion made by FNN that he is engaged in a fishing expedition, and insists that expanding the number of custodians is a proper, focalized investigation into the six defamatory statements made during broadcasts featured through FNN as well as Fox Business News between April 25, 2018 and May 8, 2018. Plaintiff has alleged, and this Court has permitted to go forward, his conspiracy claim that involves not only the named Defendants herein, but also those within the highest ranks of the Republican party. Plaintiff asserts that FNN executives and/or directors were complicit by way of their noninterference, which facilitated or tacitly encouraged the publication of defamatory statements, thus furthering the conspiracy to derail Plaintiff's senatorial campaign.
*6 Plaintiff disputes FNN's identified custodians as its production to date is meager and very unlikely given the scope of the alleged conspiracy. Plaintiff asserts that FNN has not been forthright with this Court concerning its discovery responses because it not only failed to supplement its response that no other responsive documentation can be found, it also failed to provide documentation of a text message one of its employees had exchanged with Plaintiff's campaign manager; accordingly, FNN should not be entitled to determine its own custodians.
Plaintiff insists that his discovery requests are relevant given that they are narrow in scope and would show that FNN executives and/or directors had subjective knowledge of the falsity of the reports broadcast on their programs, and are thus relevant to Plaintiff's defamation claim. Further, because Plaintiff has requested punitive damages, this additional discovery is necessary to establish the organizational culpability in order to prove same. The FNN Board of Directors had established a code of business ethics, and Plaintiff contends that this is relevant to his charge of defamation, as the FNN Board and/or executives failed to uphold their own standards when it permitted the publication of several defamatory statements about Plaintiff. Plaintiff argues that while FNN does not provide any fact specific analysis to refute the relevancy of Plaintiff's proposed discovery, its own discovery responses so far have been inadequate given the nature of the Plaintiff's claims.
Plaintiff contends that his discovery requests are proportional to the needs of this case, given that his claims are underscored by the ability of higher ranking public officials to manipulate mass media to influence public elections; therefore, the public interest in fair elections is paramount. The amount in controversy is substantial, and given that Plaintiff was on the verge of winning the Republican primary just when FNN published defamatory statements about him, Plaintiff's earning capacity, which was already significant, has been permanently impaired as a proximate result of the defamation by way of the grand conspiracy to defame him. FNN is the only party that has access to the information sought by Plaintiff, and FNN has significant resources to produce it. The probative value of this information has substantial potential because it may be relevant to the factual issues that go to the heart of Plaintiff's theory of liability. Plaintiff emphasizes the well-documented close relationships between and among FNN top brass, including its Board members and high-level executives, with high-ranking Republican party members to illustrate his theory of liability. Finally, Plaintiff asserts that the likely benefit of the requested discovery outweighs the burden of production given FNN's superior access to same coupled with its rigorous defense of Plaintiff's production requests.
Plaintiff's Argument for Compelled Disclosure from MSNBC
With regard to MSNBC, Plaintiff states that although the parties agreed that MSNBC would begin a rolling production in response to Plaintiff's discovery requests, Plaintiff had to wait until August 7, 2020 before MSNBC produced any documents, which consisted mostly of email communications. Plaintiff was able to review MSNBC's production quickly, revealing that the production was not at all a burden to MSNBC. At this time, Plaintiff moves to compel MSNBC to produce the following:
• documents that refer or relate to Plaintiff (RPD #1);
• communications that refer or relate to Plaintiff (RPD #2);
*7 • documents or communications that refer or relate to Plaintiff's criminal trial (RPD #16);
• communications that refer or relate to Plaintiff from 01 January 2018 to 31 August 2018 (i.e., Plaintiff's campaign) between MSNBC and the following individuals:
• Senate Majority Leader Mitch McConnell and staff (RPD #21);
• Senator Joe Manchin III and staff (RPD #22);
• US Congressional members and staff (RPD #23);
• WV Attorney General Patrick Morrisey and staff (RPD #24);
• former US Congressman Evan Jenkins and staff (RPD #25);
• President Donald Trump and staff (RPD #26);
• Donald Trump Jr. and staff (RPD #27);
• Chris Stirewalt and staff (RPD #28);
• Karl Rove and staff (RPD #29);
• Bill Stepien and staff (RPD #30); and
• communications with the NRSC that refer or relate to Plaintiff from 01 January 2018 to 31 August 2018 (RPD #46).
Plaintiff states that MSNBC has refused to increase the number of custodians, and that Plaintiff is entitled to a broader scope of discovery given the nature and circumstances of his defamation, false light, and conspiracy claims. Plaintiff also moves to compel the production of any written or electronic communications that references Plaintiff from the following list of custodians:
• Stephen B. Burke | CEO | NBCUniversal;
• Phil Griffin | President | MSNBC + NBC News;
• Krishan Bhatia | Executive Vice President | NBCUniversal;
• Stacy Brady | Executive Vice President | NBCUniversal;
• Tony Cardinale | Executive Vice President | NBCUniversal;
• Cesar Conde | Chairman | NBCUniversal News Group; and
• Mark Lazarus | Chairman | NBCUniversal Broadcasting, Cable, Sports and News.
• Brian L. Roberts | Chairman + CEO | Comcast Corporation;
• Kenneth J. Bacon | Director | Comcast Corporation;
• Madeline S. Bell | Director | Comcast Corporation;
• Naomi M. Bergman | Director | Comcast Corporation;
• Edward D. Breen | Lead Independent Director | Comcast Corporation;
• Gerald L. Hassell | Director | Comcast Corporation;
• Jeffrey A. Honickman | Director | Comcast Corporation;
• Maritza G. Montiel | Director | Comcast Corporation;
• Asuka Nakahara | Director | Comcast Corporation;
• David C. Novak | Director | Comcast Corporation;
• Any executives, producers, anchors, hosts, contributors, editors, writers, and/or staff involved in the production of or affiliated with the MSNBC program All In with Chris Hayes, including, but not limited, to the following individuals:
• Gregg Cockrell;
• Brendan O'Melia;
• Tina Cone;
• Joshua Chaffee;
• Brian Montopoli;
• Denis Horgan;
• Carey Fox;
• Alexandra Vitali;
• Diane Shamis;
• Morgan Radford;
• Caroline Ulwick;
• Rachel Simon;
• MSNBC digital producers;
• cable web team;
• social community staff;
• Sheara Braun;
• Jason Cumming;
• Hasani Gittens;
• Sam Go;
• Mary Lockhart;
• digital video desk staff;
• Louis Ortiz;
• Kristen Osborne;
• Marian Porges;
• Christopher Scholl; and
• Seamus O'Toole.
Plaintiff again reserves the right to request production of the communications of any person identified in any document produced by MSNBC during discovery, and to the right to request production of additional documents during discovery. Plaintiff suggests that the appropriate time frame for the proposed discovery should be from 2011 to the present date. In support of his argument for compelled production, Plaintiff directs the Court's attention to the Compendium of Confidential Materials produced during discovery which includes emails indicating Chris Hayes and other individuals involved with or affiliated with the MSNBC program All In with Chris Hayes. The emails suggest an animosity or disdain that MSNBC agents had towards Plaintiff during its coverage of the West Virginia primary and Plaintiff's senatorial campaign; in addition, Plaintiff points out that Chris Hayes has been employed with MSNBC at the time of the explosion at Upper Big Branch Mine in 2010, suggesting that he may have developed negative feelings towards Plaintiff since then.
*8 Finally, Plaintiff requests that MSNBC be required to pay his reasonable expenses, including attorney's fees, that he has incurred prosecuting his discovery motions as contemplated in Rule 37(a)(5)(A) of the Federal Rules of Civil Procedure.
MSNBC's Response in Opposition to Plaintiff's Motion to Compel
MSNBC points out that Plaintiff's claims against it concern three statements published during its show, All In With Chris Hayes: a statement made by Chris Hayes on April 23, 2018; a statement made by Joy Reid on May 5, 2018; and a statement made by Chris Hayes on May 8, 2018.
Following Plaintiff's filing of his initial motion to compel, the parties were able to resolve the issues raised therein, and had narrowed the issues related to certain named custodians with a certain time frame for MSNBC to search. However, after the parties were able to reach an agreement on these matters, Plaintiff submitted a supplemental briefing to the Court that included a request to search additional custodians that bore no resemblance to the parties' original agreement. In preparation for the final meet and confer as ordered by this Court, Plaintiff submitted additional custodians that not only did not include NBCUniversal executives, but also did not explain the basis for the production requests. MSNBC advised Plaintiff that it already produced responsive materials, but agreed to search additional custodians given their affiliation with All In With Chris Hayes. However, to date, MSNBC has found no additional responsive information to produce.
When Plaintiff filed his Final Supplemental Memorandum on August 26, 2020, he included the names of executives from NBCUniversal and its parent company Comcast Corporation, without any explanation as to how these never-before discussed custodians relate to Plaintiff's claims in this case. For the first time, Plaintiff expanded the search time frame back to 2011, opposed to the prior agreed upon dates. MSNBC contends that Plaintiff's revised requests concern individuals who have no relevant information concerning the claims in this case, and are not proportional to the needs in this case. Plaintiff fails to explain how executives with NBCUniversal or Comcast Corporation, none of whom appear in any of the emails Plaintiff references in support of his argument for additional custodians, have any relation in this action. An email that Plaintiff contends is “sarcastic” by referring to him as an “old friend” neither justifies a search of additional custodians, nor indicates malice, as defined by law. Further, MSNBC argues that this particular email was from 2016, and produced within the previous agreed upon time frame that MSNBC had searched in response to Plaintiff's requests; regardless, this documentation fails to show any justification for an additional search of additional custodians dating back to 2011.
MSNBC characterizes Plaintiff's ever-evolving discovery requests as an unreasonable fishing expedition, and are a reflection of Plaintiff's conduct during this discovery phase; Plaintiff has demonstrated that his current requests are not proportional to the needs in this case. Plaintiff's ever-changing demands impose a burden and expense upon MSNBC that far outweighs any likely benefit therefrom, and it is clear by Plaintiff's conduct that he has no intention of cooperating in this discovery.
*9 MSNBC asserts it has no custody or control over the collection of communications from NBCUniversal or Comcast executives, thus it cannot be properly compelled to produce these. MSNBC disputes Plaintiff's claim for costs and expenses incurred in filing his motion to compel, and instead submits that MSNBC be awarded its own costs and expenses in defending the motion because not only were its objections to Plaintiff's requests appropriate and justified, but also it was not until Plaintiff filed his final supplemental brief did MSNBC first learn of the new list of additional custodians that were never discussed during the parties' prior meet and confer. Plaintiff's ever-changing discovery demands, causing MSNBC to make concessions to same, and then having Plaintiff renege on those agreements to make renewed unreasonable discovery requests that are simply irrelevant and not proportional to the needs of this case, are not proper grounds justifying an award for Plaintiff's costs and expenses.
MSNBC asks this Court to deny Plaintiff's motion and award its own costs and fees instead.
Plaintiff's Reply Memorandum in Opposition to Response of MSNBC
Plaintiff denies that he has constantly changed his demands in this discovery or that he is engaged in a fishing expedition, but insists that his requests are relevant to his claims, particularly where he has a high burden in proving actual malice as it relates to his defamation claim. Plaintiff asserts that MSNBC's limited disclosure of custodians to date indicates bad faith in an attempt to shield itself from disclosing devasting evidence, and that Plaintiff's requests to expand the number of custodians are proper given that those names were revealed in the disclosures produced to date. Further, the disclosures show that the communications were exchanged among many more individuals than proffered by MSNBC.
Plaintiff states that the proposed discovery is not unduly burdensome, as it is limited in scope as they pertain to two defamatory speakers, Chris Hayes and Joy Reid, and those individuals affiliated with their programs during which the defamatory statements were made, plus seventeen current and former directors. Plaintiff also asserts that MSNBC can obtain and produce discovery despite its contention it has no control over same – MSNBC does not contest the existence of the responsive discovery, only that it has no control over it. Plaintiff points out that NBCUniversal, the parent company of MSNBC, was a named Defendant in this case, but was dismissed for insufficient service of process. However, NBCUniversal is a now defendant in a companion case pending before this Court, therefore, MSNBC has a practical ability to obtain and produce responsive discovery from employees of NBCUniversal in this case.
Plaintiff states that he should be awarded his costs incurred in prosecuting this motion to compel, as there is a presumption that the responding party to a discovery request bears the costs of same. Further, MSNBC has not demonstrated good cause for having costs shifted to Plaintiff, and should this Court grant Plaintiff's motion to compel, those costs would be borne by MSNBC pursuant to the Federal Rules of Civil Procedure, particularly because MSNBC has not shown that it was substantially justified in refusing Plaintiff's discovery requests.
Plaintiff's Argument for Compelled Disclosure from CNN
With regard to CNN, Plaintiff states that it has only produced four video files of broadcasts since July 23, 2020, and although it offered to search for responsive documents from nine custodians for which it has custody and control, it refuses to expand the number of custodians, and will only search for responsive documents limited the statements broadcast on CNN Newsroom, S.E. Cupp Unfiltered, and CNN Tonight.
*10 Plaintiff again asserts that he is entitled to a broader scope of discovery given the nature and circumstances of his claims, and now moves to compel production of the following proposed discovery:
• documents that refer or relate to Plaintiff (RPD #1);
• communications that Refer or Relate to Plaintiff (RPD #2);
• documents or communications that refer or relate to Plaintiff's criminal trial (RPD #16);
• communications that refer or relate to Plaintiff from 01 January 2018 to 31 August 2018” (i.e., Plaintiff's campaign) between CNN and the following individuals:
• Senate Majority Leader Mitch McConnell and staff (RPD #21);
• Senator Joe Manchin III and staff (RPD # 22);
• US Congressional members and staff (RPD #23);
• WV Attorney General Patrick Morrisey and staff (RPD #24);
• former US Congressman Evan Jenkins and staff (RPD #25);
• President Donald Trump and staff (RPD #26);
• Donald Trump Jr. and staff (RPD #27);
• Chris Stirewalt and staff (RPD #28);
• Karl Rove and staff (RPD #29);
• Bill Stepien and staff (RPD #30);
• communications with the NRSC from 01 January 2018 to 31 August 2018 (RPD # 46).
• communications with Kevin McLaughlin from 01 January 2018 to 31 August 2018 (RPD #47).
• communications with 35th PAC between from 01 January 2018 to 31 August 2018 (RPD #48).
Plaintiff further moves to compel production of any written or electronic communications that references Plaintiff from the following list of custodians:
• Any executives, producers, anchors, hosts, contributors, editors, writers, and/or staff involved in the production of or affiliated with the CNN program CNN Newsroom.
• Any executives, producers, anchors, hosts, contributors, editors, writers, and/or staff involved in the production of or affiliated with the CNN program SE Cupp Unfiltered.
• Any executives, producers, anchors, hosts, contributors, editors, writers, and/or staff involved in the production of or affiliated with the CNN program CNN Tonight.
• Steve Brusk | CNN supervising politics reporter | See Compendium, Exhibit 6;
• Jim Acosta | CNN White House correspondent | See Compendium, Exhibit 6;
• Chris Cillizza | CNN editor-at-large, | opined that Plaintiff was “the worst candidate in America” | See Compendium, Exhibit 7;
• Nicholas Rizzuto | S.E. Cupp Unfiltered producer | See Compendium, Exhibit 8;
• Audrey Irvine | senior director of newsgathering | cryptically opined that Plaintiff's candidacy “won't bode well” | See Compendium, Exhibit 9;
• Donald Judd | CNN political news unit | responsible for keeping numerous CNN teams informed of Plaintiff's campaign | See Compendium, Exhibit 10;
• Aaron Pellish | CNN news associate | assisted in keeping several CNN teams informed about the primary through internal political notes | See Compendium, Exhibit 11;
• Karl DeVries | CNN breaking news editor | kept the entire CNN team informed on Plaintiff's campaign activities with updates | See Compendium, Exhibit 12;
• Jeff Zucker | President | CNN;
• Michael Bass | EVP of Programming | CNN;
• Richard Davis | EVP of News Standards and Practices | CNN;
• Robin Garfield | EVP of Research and Scheduling | CNN;
• Ken Jautz | EVP | HLN;
• Andrew Morse | EVP and Chief Digital Officer | CNN Worldwide;
• John Stankey | Chief Executive Office | AT&T;
*11 • Randall Stephenson | Executive Chairman | AT&T;
• Matthew K. Rose | Director | AT&T;
• Samuel A. Di Piazza Jr. | Director | AT&T;
• Richard W. Fisher | Director | AT&T;
• Scott T. Ford | Director | AT&T;
• Glenn H. Hutchins | Director | AT&T;
• William E. Kennard | Director | AT&T;
• Debra L. Lee | Director | AT&T;
• Stephen J. Luczo | Director | AT&T;
• Michael B. McCallister | Director | AT&T;
• Beth E. Mooney | Director | AT&T;
• Cynthia B. Taylor | Director | AT&T; and
• Geoffrey Y. Yang| Director | AT&T.
Plaintiff again reserves the right to request production of the communications of any person identified in any document produced by CNN during discovery, and to request production of additional documents during discovery. Finally, Plaintiff requests that CNN be required to pay his reasonable expenses, including attorney's fees, that he has incurred prosecuting his discovery motions as contemplated in Rule 37(a)(5)(A) of the Federal Rules of Civil Procedure.
CNN's Response in Opposition to Plaintiff's Motion to Compel
CNN states that Plaintiff's claims against it concern four passing references that he was convicted of a felony during live television programs, with two statements made by guests on CNN, and the other two statements made by the host of another CNN program:
On April 29, 2018, GOP political strategist Kevin McLaughlin appeared as a guest on the CNN Newsroom program to discuss the West Virginia primary. Dana Bash, CNN anchor and chief political correspondent, introduced the topic, accurately noting that Blankenship “served a year in prison” after the mine explosion and pointing out that Blankenship “reminds us it was just a misdemeanor.” In the course of the live discussion that followed, McLaughlin referred once to Blankenship as a “convicted felon.”
On May 7, another guest, CNN contributor Joe Lockhart, appeared on the CNN Tonight program, anchored by Don Lemon. During a live discussion, Lockhart commented on President Trump's tweet regarding Blankenship and referenced him as a “convicted felon” once in the course of that commentary.
Finally, on the May 2 and May 8 episodes of SE Cupp Unfiltered, then telecast on CNN's network HLN, host Sarah Elizabeth Cupp discussed Blankenship's candidacy with her guests. In each episode, Cupp also once referred in passing to Blankenship as a “felon.”
(ECF No. 564 at 3-4)
CNN argues that it has already produced approximately 1800 documents responsive to Plaintiff's production requests from custodians related to the four references made during CNN programming, however, Plaintiff now asks for additional custodians who not only have no connection to those four passing references made during CNN programing, but also have no relation to the allegations raised in Plaintiff's complaint. Plaintiff's new demands are unduly burdensome. CNN states that the parties had resolved all the issues raised in Plaintiff's original motion to compel, and had been able to work through their disputes via supplemental production, and the consistent issue of contention between CNN and Plaintiff concerns the custodian list.
*12 CNN disputes Plaintiff's contention that it refused to expand the number of custodians to search, asserting that it has, including those custodians connected to the unscripted live utterances on television by guests despite the fact that CNN's investigation into same showed that no CNN employees were involved in making those statements. CNN continues its search for responsive documents.
CNN complains that Plaintiff's most recent request for additional custodians falls well outside the scope of reasonable discovery and is overly broad, particularly where he asks for “any” executives, producers, anchors, etc. involved in the production or affiliated with the three programs on which the four utterances were made regardless of their involvement in the segments at issue or with the actual words specifically at issue. CNN also states that the additional requested custodians, Steve Brusk, Jim Acosta, Chris Cillizza, Audrey Irvine, Donald Judd, Aaron Pellish, Karl De Vries, Dan Merica, and Brian Stelter, were not even part of the show teams at issue in this case. CNN also contends that with regard to Plaintiff's latest demand, which include communications from six senior CNN executives (including President Jeff Zucker), two AT&T senior executives (CEO John Stankey and Executive Chairman Randall Stephenson), and the other twelve members of the AT&T Board of Directors, are not likely to possess any additional information relevant to the claims or defenses in the case. Instead of providing any justification for this expanded number of custodians, Plaintiff summarily asserts he is “entitled” to this, because of the nature of his claims. CNN argues this fails under the pertinent legal standards governing discovery. Additionally, because this case also concerns debate over a candidate for public office, First Amendment rights are implicated.
Despite already having searched and produced responsive documentation and continuing to search relevant personnel custodians that go well beyond the scope of discovery, CNN interprets Plaintiff's most recent requests to expand the list of custodians as a challenge to the custodians CNN identified in its earlier production, and categorizes same as another attempt by Plaintiff to move the goalposts in this discovery.
CNN asks the Court to deny Plaintiff's motion, however, alternatively, should the Court order further production, CNN asks that Plaintiff bear the costs for same given the undue burden that would cause for no benefit in this action.
Plaintiff's Reply Memorandum in Opposition to Response of CNN
Plaintiff states that his requested communications from CNN show personnel are not speculative, but are relevant to his claim insofar as they would show that the defamatory speakers on CNN programs and the employees involved in those broadcasts knew the statements were false and what animus the speakers and other employees involved in the publications had toward Plaintiff to cause them to recklessly or intentionally broadcast the false statements. Plaintiff disputes CNN's contention that production would be unduly burdensome – CNN has sole control over these communications, and further, Plaintiff's requests concern ESI and can easily be recovered and produced with little effort. Plaintiff argues that CNN should be compelled to search additional journalists' files because this information would show who at CNN knew of Plaintiff's misdemeanor conviction, but instead continued to report it as a felony conviction. Also, given that Jim Acosta had reported on the White House's views on Plaintiff's candidacy and the West Virginia primary, this information is relevant to Plaintiff's claims of collusion between GOP establishment and CNN and the other named Defendants. Further, Plaintiff points out that Brian Stelter had authored a book detailing the relationship between the GOP and Fox News, which is relevant to Plaintiff's claims of conspiracy between these two, thus, it is highly likely Brian Stelter has discoverable information.
*13 Plaintiff emphasizes that CNN is not being tasked with a burdensome request, and that it can easily produce information responsive to Plaintiff's requests. Plaintiff also states that where there are disputes concerning the number of custodians of responsive discovery, a court can indeed expand the number, particularly in a case, such as this one, there is good cause the additional custodians have direct knowledge of important aspects of the case. Plaintiff asserts that he should be entitled to explore which CNN employees knew of his misdemeanor conviction in order to show actual malice in the publication of the defamatory statements.
Finally, regarding Plaintiff's request to expand the custodians to include CNN executives and Board members, Plaintiff reminds the Court that he has alleged a conspiracy involving high-ranking GOP members who instigated a campaign to prevent Plaintiff from securing the West Virginia Republican nomination for U.S. Senate. Brian Stelter reported a story that the White House, through the Attorney General, had directly influenced Fox programming by influencing high-ranking Fox Board member Rupert Murdoch. Therefore, Plaintiff is entitled to explore whether such influence was exercised with CNN's own executives and Board members, and, given that false statements were published about Plaintiff being convicted of a felony despite the fact that CNN had previously broadcast the truth, long before the West Virginia primary.
Relevant Law
Pursuant to Rule 26(b)(2)(C) of the Federal Rules of Civil Procedure, a court is required, on motion or on its own, to limit the frequency and extent of discovery, when:
(1) the discovery sought is unreasonably cumulative or duplicative;
(2) the discovery can be obtained from some other source that is more convenient, less burdensome, or less expensive;
(3) the party seeking the discovery has already had ample opportunity to collect the requested information by discovery in the action; or
(4) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.
Under Rule 26, “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case ....” Fed. R. Civ. P. 26(b)(1). Thus, “[r]elevance is ... the foundation for any request for production, regardless of the individual to whom a request is made.” Cook v. Howard, 484 Fed. App'x. 802, 812 (4th Cir. 2012). This Rule “cautions that all permissible discovery must be measured against the yardstick of proportionality.” Lynn v. Monarch Recovery Management, Inc., 285 F.R.D. 350, 355 (D. Md. 2012) (quoting Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 523 (D. Md. 2010)). To ensure that discovery is sufficient, yet reasonable, district courts have “substantial latitude to fashion protective orders.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984). “[I]t remains true that ‘relevancy in discovery is broader than relevancy for purposes of admissibility at trial.’ ” In re: American Medical Systems, Inc. Pelvic Repair Systems Product Liability Litigation, Nos. 2:14-cv-11870, 2:14-cv-28142, 2016 WL 4411506, at *2 (S.D. W.Va. Aug. 17, 2016) (Eifert, M.J.) (quoting Amick v. Ohio Power Co., No. 2:13-cv-6593, 2013 WL 6670238, at *1 (S.D. W. Va. Dec. 18, 2013)).
“[C]ourts have long held that ... the burden of persuasion remains at all times with the objecting party.” See Wagner v. St. Paul Fire and Marine Ins. Co., 238 F.R.D. 418, 424-425. (N.D.W. Va. 2006). Therefore, the burden of proof is on the defendants to show that the proposed discovery should not be allowed. See Finley v. Trent, 955 F. Supp. 642, 648 (4th Cir. 1997). See also Desrosiers v. MAG Indus. Automation Sys., LLC, 675 F. Supp. 2d 598, 601 (D. Md. 2009) (“The burden is on the party resisting discovery to explain specifically why its objections, including those based on irrelevance, are proper given the broad and liberal construction of federal discovery rules.”).
*14 Rule 37 of the Federal Rules of Civil Procedure governs the Court's authority for issuing the appropriate sanctions:
If the motion to compel is granted – or if the disclosure or requested discovery is provided after the motion was filed – the court must, after giving the parties an opportunity to be heard, require the party whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorneys' fees. But the court must not order this payment if:
(i) The movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action;
(ii) The opposing party's nondisclosure, response, or objection was substantially justified; or
(iii) Other circumstances make an award of expenses unjust.
Fed.R.Civ.P. 37(a)(5)(A).
Discussion
Regarding Plaintiff's Motion to Compel FNN
As an initial matter, the undersigned notes that FNN does not dispute or address Plaintiff's contention that despite FNN's proposal to produce responsive information from 16 custodians, FNN only produced from 10. Accordingly, to that extent, Plaintiff's motion to compel information from the 16 custodians is GRANTED.
With respect to the bulleted list of production requests and identified custodians as they pertain to FNN, and pursuant to the pertinent law governing discovery, the undersigned FINDS Plaintiff's requests are not overly burdensome, irrelevant or disproportional to the needs of this case. For instance, Plaintiff's requests are quite specific as they identify the custodian, or those affiliated with that custodian and/or the particular program during which the defamatory statements were made. Plaintiff's requests are also specific insofar as they provide the exact date on which the identified programs aired when the defamatory statements were made. Even though FNN is being asked to search for written or electronic documentation from numerous individuals and/or staff or affiliates associated thereto, the request is specifically tailored to the following criteria: the surname “Blankenship”; the West Virginia GOP debate; and the 2018 West Virginia Republican primary election.
Although FNN resists Plaintiff's proposed expansion of the list of custodians for being speculative, FNN overlooks the fact that this Court, as pointed out repeatedly by Plaintiff, has permitted Plaintiff's conspiracy claim to go forward, thus allowing discovery as it relates to that claim. Furthermore, Plaintiff has articulated specific grounds concerning the conspiracy claim in the First Amended Complaint (See ECF No. 14) as well as in his Final Supplemental Memorandum (ECF No. 551 at 14-15) in which he has alleged that a high-ranking Republican official, Senator McConnell, and others implemented a clandestine campaign to smear Plaintiff to prevent him from winning the Republican primary in West Virginia. Despite the fact that FNN employees Peter Doocy, Brett Baier, Martha MacCallum are not alleged to have made defamatory statements, with even Mr. Doocy having accurately reported Plaintiff's conviction, it does beg the question as to how FNN permitted others to make false statements about Plaintiff during its broadcasts when FNN was aware they were false, but also failed to make any immediate corrections during those broadcasts. The parties recognize that this Court noted that Plaintiff is tasked with proving malice, where the defamatory speakers subjectively “entertained serious doubts as to the truth of his publication and yet published with such doubts” (ECF No. 398 at 24). The parties also recognize that Plaintiff has repeatedly alleged that Senator McConnell, along with Defendant NRSC, embarked on a scheme to interfere in the West Virginia primary by using establishment media, including FNN, to smear Plaintiff and thereby stop him from winning the Republican primary. Plaintiff has repeatedly alleged that this would necessarily involve communications between and among all these individuals and entities to make that scheme happen, including FNN “employees, agents, executives and/or directors and vice versa.” (See ECF No. 551 at 14) Accordingly, given the nature of Plaintiff's claims, Plaintiff should be able to obtain the collections of communications among these FNN custodians, including those who did not utter defamatory statements, in order to determine how and why the defamation was allowed to happen.
*15 Thus, Plaintiff should be permitted to obtain the necessary discovery to demonstrate how a large organization, which is obviously composed of many individuals, has shown any actual malice towards Plaintiff when it broadcast clearly false statements about Plaintiff's conviction during a critical primary election when other members within that organization were well aware of the truth.
Regarding FNN executives and Board members, there is no dispute between the parties as to their identities and there is no dispute that there is ample documentation from other sources of the intertwining relationships between FNN executives and Board members with high-ranking Republican officials, including Senator McConnell and President Trump. (ECF No. 551 at 20-23) Again, given that FNN was aware of Plaintiff's misdemeanor conviction, and what that conviction actually entailed, it is significant that FNN broadcast false statements concerning that conviction. Given that Plaintiff has a higher burden of proof to demonstrate actual malice by FNN, Plaintiff is entitled to explore these communications, as the relevance of these particular custodians and any written or electronic communications they may have is clear when considering Plaintiff's claims.
As to whether Plaintiff's document production requests are proportional, the undersigned need not belabor this point, as stated supra, Plaintiff's requests are specific, narrow in both scope and time, and concern issues that are actually at stake in this litigation – in short, they are not just “tangentially” related as argued by FNN (ECF No. 565 at 8; citing Flynn v. Square One Distr., Inc., 2016 WL 2997673 at *4 (M.D. Fla. May 25, 2016)). Indeed, these discovery requests provide the impetus behind Plaintiff's claim that this lawsuit is about “weaponized defamation” employed to derail his senatorial campaign. Plaintiff has demonstrated sufficient factual support for his allegations that a conspiracy to defame him occurred among high-ranking Republican officials and FNN employees, from its staff members to its executives and Board members, that allows for discovery to explore the depths of the alleged conspiracy.
Finally, as to FNN's characterization that Plaintiff's production requests are akin to a fishing expedition, the undersigned FINDS that in this particular instance, that is not the case. “Discovery is a fishing expedition when it goes beyond the pleadings' allegations to attempt finding additional violations or claims. [internal citations omitted].”[8] As stated supra, Plaintiff has specifically and repeatedly plead that a clandestine campaign to prevent his bid for the West Virginia U.S. Senate Republican nominee involved numerous Republican Party leaders and operatives who used FNN to perpetuate this campaign to derail his candidacy via a conspiracy to defame Plaintiff in order to influence voters. Plaintiff has specifically and repeatedly plead that FNN executives and Board members and/or other FNN employees and staff, were involved in this campaign, illustrated by documented accounts from several sources that the Republican Party and FNN had a very close relationship. In short, Plaintiff has sufficiently demonstrated that the requested discovery could shed light on the alleged campaign to defame him, therefore, Plaintiff's production requests as they relate to FNN cannot be properly described as a “fishing expedition.”
*16 Pursuant to Rule 26 of the Federal Rules of Civil Procedure, supra, which governs this Court's ability to limit the extent of discovery, the undersigned FINDS that FNN has not shown that Plaintiff's proposed discovery requests are duplicative or cumulative, that Plaintiff can obtain this information from any other source, that Plaintiff has had ample opportunity to obtain the requested information[9], that the burden or expense to FNN is outweighed by the benefit of the proposed discovery[10], or that given the importance of the issues at stake in this case, that the importance of the proposed discovery will not be helpful in resolving the issues.
To the extent that FNN suggests this Court consider the First Amendment implications created by Plaintiff's proposed discovery (ECF No. 565 at 11-12), the undersigned does not take such considerations lightly. However, with respect to Defendant NRSC, there was no allegation that Defendant NRSC itself actually published defamatory statements – it is alleged to have participated in a conspiracy to defame Plaintiff. Additionally, the undersigned had the opportunity of in camera review of the withheld materials that provided the basis for the undersigned's decision denying Plaintiff's motion to compel the production of those materials. It goes without saying that defamation in and of itself, is not privileged speech under the First Amendment, and as noted by FNN, there is no dispute that false statements concerning Plaintiff's conviction were actually broadcast by FNN. Further, while FNN may contend that compelled disclosure may “chill” the freedoms of speech and association rights where private communications can be subject to legal scrutiny, even FNN concedes that “such risks may be tolerable when persons are shown to have been personally involved in events giving rise to claims[.]” (Id.) In this case, Plaintiff has shown that certain individuals have been personally involved in the events giving rise to his claims. (See ECF No. 551 at 1-5, i.e. “Summary of Facts”)
With regard to FNN's argument that Plaintiff himself should bear the costs of the additional production requests, the undersigned declines to shift the costs. For starters, the undersigned is troubled by FNN's contention that not only has Plaintiff not met and conferred during discovery, but also failed to review the production already disclosed by FNN in order to identify additional custodians. (See ECF No. 565 at 3) The undersigned is not unmindful that FNN has consistently complained that Plaintiff's discovery demands have changed over the period since his initial motion to compel was filed, however, it is not lost on the undersigned that Plaintiff explicitly stated that he was “informed” that a motion to compel was “necessary” to obtain documentation responsive to his production requests. (See ECF No. 486 at 10, ¶ 27) Filing a motion to compel before attempting in good faith to obtain the discovery through a meet and confer session may result in a forfeiture of the right to receive reasonable expenses under Rule 37(a)(5)(A). See Frontier–Kemper Constructors, Inc. v. Elk Run Coal Co., Inc., 246 F.R.D. 522, 526 (S.D.W. Va. 2007) (“[T]he sanction for failing to meet and confer is the denial of a request for expenses incurred in making a motion, including attorney's fees.”)
*17 In that vein, the undersigned is not impressed that at this stage in this litigation and over the course of several telephone conferences to assist the parties in resolving their discovery disputes, that FNN only “reiterated its offer to consider collecting from additional custodians” provided Plaintiff identify from the investigation and/or discovery produced thus far those who actually participated in the events surrounding the statements upon which Plaintiff's claims are based (See ECF No. 565 at 3) (italics added). It is also troubling that FNN has now only “substantially completed production of” records from the actual persons involved in the statements (Id. at 5, fn2). The undersigned is also equally unimpressed with FNN's assertion that should “future discovery over the next 9 months[11] shows additional custodians were actually involved in the events surrounding the statements upon which Plaintiff's claims are predicated, it may be appropriate to consider additional targeted collections.” (Id. at 12) (italics added) In short, based on FNN's own conduct, the undersigned has no reason to believe that FNN would have engaged in any meaningful discovery unless Plaintiff filed his motion to compel.[12] It is apparent that FNN is continuously dragging its feet in responding to Plaintiff's production requests and appears intent on continuing to do so as this litigation proceeds. To that extent, FNN's desire that this matter “move forward ... towards a ‘just’ and ‘speedy’ adjudication” (Id.) by curtailing Plaintiff's discovery requests is senseless; Plaintiff has already demonstrated that he is handicapped in obtaining responsive production that has ostensibly been agreed upon by the parties.
Nevertheless, after considering the dynamics of this particular action, and that the scope of discovery has necessarily evolved over the course of litigation, the undersigned declines to issue sanctions against FNN, having determined that pursuant to Rule 37(a)(5)(A)(ii) and (iii) of the Federal Rules of Civil Procedure, FNN's nondisclosure and/or objection to Plaintiff's discovery demands as proposed in his Final Supplemental Memorandum, was substantially justified and that an award of Plaintiff's attorneys' fees and costs incurred in this discovery matter would be unjust under the circumstances.
Accordingly, Plaintiff's Motion(s) to Compel as it relates to FNN (ECF Nos. 486, 536) are GRANTED for the reasons stated herein, and DENIED to the extent that Plaintiff requests his fees and costs awarded incurred during the prosecution thereof; FNN's objections to Plaintiff's Motion(s) are OVERRULED and Cross-Motion for a Protective Order to Shift Production Costs (ECF No. 565) is DENIED.
Regarding Plaintiff's Motion to Compel MSNBC
With respect to Plaintiff's bulleted list of production requests and identified custodians as they pertain to MSNBC, infra, and pursuant to the pertinent law governing discovery, Plaintiff's requests are not overly burdensome, irrelevant or disproportional to the needs of this case, therefore, to the extent that MSNBC has not yet produced documentation as it relates to the following, Plaintiff's motion to compel is GRANTED as to:
• documents that refer or relate to Plaintiff (RPD #1);
• communications that refer or relate to Plaintiff (RPD #2);
• documents or communications that refer or relate to Plaintiff's criminal trial (RPD #16);
• communications that refer or relate to Plaintiff from 01 January 2018 to 31 August 2018 (i.e., Plaintiff's campaign) between MSNBC and the following individuals:
• Senate Majority Leader Mitch McConnell and staff (RPD #21);
• Senator Joe Manchin III and staff (RPD #22);
• US Congressional members and staff (RPD #23);
• WV Attorney General Patrick Morrisey and staff (RPD #24);
• former US Congressman Evan Jenkins and staff (RPD #25);
• President Donald Trump and staff (RPD #26);
• Donald Trump Jr. and staff (RPD #27);
• Chris Stirewalt and staff (RPD #28);
• Karl Rove and staff (RPD #29);
• Bill Stepien and staff (RPD #30); and
• communications with the NRSC that refer or relate to Plaintiff from 01 January 2018 to 31 August 2018 (RPD #46).
*18 It is further provided, that the aforementioned production requests shall be limited to the relevant time frame agreed upon between the parties, to-wit: the Court DENIES Plaintiff's requests for production that extends back to the year 2011, as there has been no showing that the search for responsive discovery beyond January 1, 2018 (or when Plaintiff announced his candidacy as a Republican for the U.S. Senator of West Virginia) is in any way relevant to Plaintiff's claims in this case.
With regard to the following bulleted list of proposed custodians, the undersigned agrees with MSNBC that there is no demonstration as to how these custodians are relevant to the matters in this action, as none of these individuals appear in the email chains disclosed in discovery:
• Stephen B. Burke | CEO | NBCUniversal;
• Phil Griffin | President | MSNBC + NBC News;
• Krishan Bhatia | Executive Vice President | NBCUniversal;
• Stacy Brady | Executive Vice President | NBCUniversal;
• Tony Cardinale | Executive Vice President | NBCUniversal;
• Cesar Conde | Chairman | NBCUniversal News Group; and
• Mark Lazarus | Chairman | NBCUniversal Broadcasting, Cable, Sports and News.
• Brian L. Roberts | Chairman + CEO | Comcast Corporation;
• Kenneth J. Bacon | Director | Comcast Corporation;
• Madeline S. Bell | Director | Comcast Corporation;
• Naomi M. Bergman | Director | Comcast Corporation;
• Edward D. Breen | Lead Independent Director | Comcast Corporation;
• Gerald L. Hassell | Director | Comcast Corporation;
• Jeffrey A. Honickman | Director | Comcast Corporation;
• Maritza G. Montiel | Director | Comcast Corporation;
• Asuka Nakahara | Director | Comcast Corporation;
• David C. Novak | Director | Comcast Corporation
It is noted that Comcast Corporation is not a party in this action or in any other companion case before this Court, although NBCUniversal, LLC and CNBC, LLC are named defendants in a companion case.[13] The undersigned appreciates Plaintiff's argument that MSNBC has the “practical ability” to obtain the communications from these proposed custodians (ECF No. 566 at 22-23), however, the fact remains that there has been no demonstration whatsoever that these individuals had anything to do with the events surrounding Plaintiff's claims. MSNBC has emphatically denied any control, custody or possession of any communications related to NBCUniversal and Comcast executives/custodians, therefore, should Plaintiff decide to continue his quest to obtain such communications from these particular custodians, at least from those employed by NBCUniversal, Plaintiff can file the appropriate pleadings in the companion case before this Court, where NBCUniversal is an actual party Defendant.
Accordingly, to the extent Plaintiff moves to compel the production of documentation as it relates to these executives and/or board members of NBCUniversal and Comcast Corporation, the motion is DENIED.
As to the remaining bulleted list of proposed custodians that appear to be executives, producers, anchors, hosts, contributors, editors, writers, and/or staff involved in the production of or affiliated with the MSNBC program All In with Chris Hayes, Plaintiff has identified as the following:
• Gregg Cockrell;
• Brendan O'Melia;
• Tina Cone;
• Joshua Chaffee;
• Brian Montopoli;
• Denis Horgan;
• Carey Fox;
• Alexandra Vitali;
• Diane Shamis;
• Morgan Radford;
• Caroline Ulwick;
• Rachel Simon;
• MSNBC digital producers;
*19 • cable web team;
• social community staff;
• Sheara Braun;
• Jason Cumming;
• Hasani Gittens;
• Sam Go;
• Mary Lockhart;
• digital video desk staff;
• Louis Ortiz;
• Kristen Osborne;
• Marian Porges;
• Christopher Scholl; and
• Seamus O'Toole.
As to these proposed custodians, the undersigned notes that these names appear in the email chains provided during discovery and specified in Exhibits 2-5 of Plaintiff's Compendium of Confidential Exhibits. Clearly, Plaintiff has demonstrated that these email chains are relevant to the claims he has alleged in this action, however, Plaintiff has not demonstrated that MSNBC should be compelled to produce documentation that predates Plaintiff's announcement to run for U.S. Senate. There is also no reason that production for all these custodians should extend back to 2011: regardless of the fact that MSNBC employee Chris Hayes became a contributor in 2010, during the same year of the Upper Big Branch Mine explosion, this is totally irrelevant to Plaintiff's claims in this case.
Accordingly, to the extent that MSNBC agreed to produce certain communications with respect to custodians Diane Shamis, Sheara Braun, Seamus O'Toole, Carey Fox, and even Greg Cockrell (who MSNBC represents left in 2016) that extend back to 2015 (ECF No. 563 at 5-6), which the Court acknowledges is long before Plaintiff announced his run for U.S. Senate, Plaintiff's motion to compel is GRANTED.[14] Additionally, to the extent that MSNBC has agreed and has already produced “all communications from 2018” from the proposed custodians, namely Brendan O'Melia, Tina Cone, Brian Montopoli, and Denis Horgan, Plaintiff's motion to compel is GRANTED. (Id. at 5) With regard to the remaining aforementioned custodians, MSNBC does not unequivocally object to same, but represents that Plaintiff and MSNBC had agreed to limit MSNBC's search for communications during 2018 from those custodians identified in MSNBC's Exhibits 6-7 (See ECF No. 563-1 at 19-28). Indeed, MSNBC represents that these are “Agreed Custodians” (See ECF No. 563 at 5). Accordingly, Plaintiff's motion to compel to the extent that MSNBC has not yet produced responsive communications concerning these remaining custodians (or “Agreed Custodians”) during 2018 is GRANTED.
Having considered the arguments of Plaintiff and MSNBC, and further noting that the scope of discovery has also evolved over the course of this litigation, the undersigned declines to issue sanctions against MSNBC, having determined that pursuant to Rule 37(a)(5)(A)(ii) and (iii) of the Federal Rules of Civil Procedure, not only has MSNBC has represented that it has complied with some of Plaintiff's discovery requests, it has demonstrated substantial justification for the objections to certain discovery demands Plaintiff has proposed in his Final Supplemental Memorandum. Therefore, an award of Plaintiff's attorneys' fees and costs incurred in this discovery matter would be unjust under the circumstances. To the extent that MSNBC requests its own fees and costs be awarded in defending Plaintiff's motion, the undersigned likewise declines to issue sanctions against Plaintiff, as the particular nature of this civil action as well as the ongoing negotiations that the parties had apparently been able to achieve throughout discovery renders such a sanction unjust under the circumstances.
*20 Accordingly, Plaintiff's Motion to Compel as it relates to MSNBC (ECF No. 484) is GRANTED IN PART and DENIED IN PART for the reasons stated herein.
Regarding Plaintiff's Motion to Compel CNN
As an initial matter, to the extent that CNN, like FNN has, suggests this Court consider the First Amendment implications created by Plaintiff's proposed discovery (ECF No. 564 at 10), the undersigned refers to the same reasoning as discussed supra: in this case, Plaintiff has specifically alleged that CNN published defamatory statements about him, whereas Plaintiff alleged Defendant NRSC was involved in the conspiracy to defame Plaintiff, but did not itself publish defamatory statements. Again, because defamatory speech is not protected speech, and the allegations regarding CNN concern defamatory speech, the implications of the First Amendment do not apply to the specific issues raised in this action as they relate to CNN.
With respect to Plaintiff's bulleted list of production requests and identified custodians as they pertain to CNN, infra, and pursuant to the pertinent law governing discovery, Plaintiff's requests are not overly burdensome, irrelevant or disproportional to the needs of this case, as they are quite narrowly tailored in both scope and time, therefore, to the extent that CNN has not yet produced documentation as it relates to the following, Plaintiff's motion to compel is GRANTED:
• communications that refer or relate to Plaintiff from 01 January 2018 to 31 August 2018” (i.e., Plaintiff's campaign) between CNN and the following individuals:
• Senate Majority Leader Mitch McConnell and staff (RPD #21);
• Senator Joe Manchin III and staff (RPD # 22);
• US Congressional members and staff (RPD #23);
• WV Attorney General Patrick Morrisey and staff (RPD #24);
• former US Congressman Evan Jenkins and staff (RPD #25);
• President Donald Trump and staff (RPD #26);
• Donald Trump Jr. and staff (RPD #27);
• Chris Stirewalt and staff (RPD #28);
• Karl Rove and staff (RPD #29);
• Bill Stepien and staff (RPD #30);
• communications with 35th PAC between from 01 January 2018 to 31 August 2018 (RPD #48).
• communications with the NRSC from 01 January 2018 to 31 August 2018 (RPD # 46).
With regard to Plaintiff's motion to compel “communications with Kevin McLaughlin from 01 January 2018 to 31 August 2018 (RPD #47)”, the undersigned notes that CNN represents that it does not have any documents in its possession, custody or control for this custodian, therefore, Plaintiff had agreed to not seek this individual as a custodian. (See ECF No. 564 at 6, fn2) Indeed, Plaintiff appears to have conceded this point in his Final Supplemental Memorandum (See ECF No. 551 at 29)[15] Further, Plaintiff does not address this in his Reply. Accordingly, Plaintiff's motion to compel as it pertains to Kevin McLaughlin is DENIED as CNN cannot be compelled to produce documents over which it exercises no custody or control. See Fed.R.Civ.P. 34(a).
*21 With regard to Plaintiff's motion to compel production of documentation as it pertains to Nicholas Rizzuto, the undersigned notes that the parties appear to have reached a resolution as to this custodian: Plaintiff represents that CNN indicated that it would perform a search, and that Plaintiff would withdraw this name from the proposed custodian list if he receives compliant production that indicates that a search was performed.[16] (See ECF No. 551 at 31, fn64) Based on this representation, Plaintiff's motion to compel as it relates to Nicholas Rizzuto is GRANTED.[17]
With regard to Plaintiff's motion to compel written and electronic communications that refer to him from: “[a]ny executives, producers, anchors, hosts, contributors, editors, writers, and/or staff involved in the production of or affiliated with the CNN program CNN Newsroom”; “[a]ny executives, producers, anchors, hosts, contributors, editors, writers, and/or staff involved in the production of or affiliated with the CNN program SE Cupp Unfiltered”; and “[a]ny executives, producers, anchors, hosts, contributors, editors, writers, and/or staff involved in the production of or affiliated with the CNN program CNN Tonight” (ECF No. 551 at 31), the undersigned FINDS that this production request on its face is overbroad, in addition to being irrelevant to Plaintiff's claims. Plaintiff does not limit these particular production requests to the broadcast dates on which defamatory statements were made, let alone which segments he seeks from these three shows. As pointed out by CNN, Plaintiff's requests do not identify which personnel were involved in these shows or even whether they had anything to do with the defamatory statements that form the basis of Plaintiff's claims. CNN has represented to this Court that it has performed a reasonable investigation into which custodians could have responsive documentation and that it continues to search (ECF No. 564 at 10-11), therefore, the undersigned FINDS that compelled production in this instance is unwarranted.[18] In short, Plaintiff has not demonstrated that these particular requests are proportional to the needs in this case. Moreover, Plaintiff's argument that CNN is not unduly burdened because he is requested a search and production of ESI that “is a matter of a few keystrokes” (ECF No. 566 at 27) ignores the twin problems of irrelevancy and disproportionality concerning these particular requests.
With regard to the nine additional custodians proposed by Plaintiff, namely, Steve Brusk, Jim Acosta, Chris Cillizza, Audrey Irvine, Donald Judd, Aaron Pellish, Karl De Vries, Dan Merica, and Brian Stelter, it is noteworthy that CNN represents that these individuals were not even part of the show teams at issue in this case. The undersigned recognizes however, that these names appeared in emails or drafts of news reports that were disclosed to Plaintiff as provided in Exhibits 6-12 of his Compendium of Confidential Exhibits. The undersigned would also agree with CNN's description of these Exhibits that nearly all of these proposed custodians appear to have circulated reports on Plaintiff within CNN on mass distribution email lists[19] that have nothing to do with Plaintiff's allegations as they relate to CNN in this civil action. Indeed, several entries appear to be summaries of reporting by other news organizations unrelated to the discovery issues before the undersigned. Significantly, CNN represents to the Court that where those emails received by its custodians contained responsive information, CNN has produced same to Plaintiff. (ECF No. 564 at 13) To that extent, the undersigned agrees with CNN's position that just because “other CNN journalists may have sent widely circulated emails is not a basis to now independently search the files of those journalists with no connection to the television segments at issue—let alone the statements at issue.” (Id.)
*22 As noted supra, the fact that CNN has represented to this Court that it has performed a reasonable investigation into which custodians could have responsive documentation and still continues to search for responsive documentation, the undersigned is hard-repressed to find that compelled production in this instance is warranted. Nevertheless, as CNN has demonstrated that these additional eight journalists/custodians were not involved in the segments alleged to have defamed Plaintiff, and therefore irrelevant to the claims in this action, Plaintiff's motion to compel as to these custodians is DENIED.
With respect to Plaintiff's contention that he should be permitted to seek communications from custodians in excess of what CNN had previously offered, the Court is persuaded by the holding in In re EpiPen (Epinephrine Injection, USP) Mktg., Sales Practices & Antitrust Litig., 2018 WL 1440923, at *2 (D. Kan. Mar. 15, 2018). As pointed out by Plaintiff, the court ordered Mylan to designate additional ESI custodians. (ECF No. 566 at 28) Significantly, the court also recognized that, in similar cases involving custodian disputes, there was good cause to increase the number of designated custodians because they had some direct knowledge about important aspects of the case. Id. This holding is congruent with Plaintiff's argument that Brian Stetler's book concerning the close relationship between co-Defendant FNN and high-ranking members of the Republican Party, including the White House, “dovetail” with his conspiracy allegations. (Id.) Accordingly, to the extent that CNN has possession, custody, or control over communications involving Brian Stetler, Plaintiff's motion is GRANTED.[20]
With regard to the following bulleted list of proposed custodians, the undersigned agrees with CNN that there is no demonstration as to how these custodians are relevant to the matters in this action, and the undersigned notes that none of these individuals appear in the email chains or elsewhere in the discovery provided by Plaintiff's Compendium of Confidential Exhibits:
• Jeff Zucker | President | CNN;
• Michael Bass | EVP of Programming | CNN;
• Richard Davis | EVP of News Standards and Practices | CNN;
• Robin Garfield | EVP of Research and Scheduling | CNN;
• Ken Jautz | EVP | HLN;
• Andrew Morse | EVP and Chief Digital Officer | CNN Worldwide;
• John Stankey | Chief Executive Office | AT&T;
• Randall Stephenson | Executive Chairman | AT&T;
• Matthew K. Rose | Director | AT&T;
• Samuel A. Di Piazza Jr. | Director | AT&T;
• Richard W. Fisher | Director | AT&T;
• Scott T. Ford | Director | AT&T;
• Glenn H. Hutchins | Director | AT&T;
• William E. Kennard | Director | AT&T;
• Debra L. Lee | Director | AT&T;
• Stephen J. Luczo | Director | AT&T;
• Michael B. McCallister | Director | AT&T;
• Beth E. Mooney | Director | AT&T;
• Cynthia B. Taylor | Director | AT&T; and
• Geoffrey Y. Yang| Director | AT&T.
The undersigned further notes that AT&T is not a party in this action or in any other companion case before this Court. There has been no demonstration whatsoever that any of these individuals had anything to do with the events surrounding Plaintiff's claims. Despite Plaintiff's professed entitlement to be able to “probe” as to whether the type of influence on the establishment media by White House or other Republican officials occurred at CNN as it had with FNN, there has simply been no indication or evidence that had occurred. To that extent, Plaintiff's production requests would indeed be deemed a “fishing expedition” under the definition typically afforded to such discovery measures, supra, as Plaintiff fails to allege any connection between CNN or AT&T executives and/or Board members with the GOP establishment. Thus, to the extent Plaintiff moves to compel the production of documentation as it relates to these executives and/or Board members of CNN and AT&T, the motion to compel is DENIED.
*23 Having considered the arguments of Plaintiff and CNN, and further noting that the scope of discovery has also evolved over the course of this litigation, the undersigned declines to issue sanctions against CNN, having determined that pursuant to Rule 37(a)(5)(A)(ii) and (iii) of the Federal Rules of Civil Procedure, not only has CNN represented that it has complied with some, if not most of Plaintiff's discovery requests, and has gone beyond their agreed upon scope of searching custodians, CNN has demonstrated substantial justification for the objections to certain discovery demands Plaintiff has proposed in his Final Supplemental Memorandum. Therefore, an award of Plaintiff's attorneys' fees and costs incurred in this discovery matter would be unjust under the circumstances. To the extent that CNN requests its own fees and costs be awarded in defending Plaintiff's motion, the undersigned likewise declines to issue sanctions against Plaintiff, as the particular nature of this civil action as well as the ongoing negotiations that the parties had apparently been able to achieve throughout discovery renders such a sanction unjust under the circumstances.
Accordingly, Plaintiff's Motion to Compel as it relates to CNN (ECF No. 489) is GRANTED IN PART and DENIED IN PART for the reasons stated herein.
In accordance with Rule 72(a) of the Federal Rules of Civil Procedure, the ruling set forth above on this non-dispositive Motion may be contested by filing within 14 days objections to this Order with District Judge John T. Copenhaver, Jr. If objections are filed, the District Court will consider the objections and modify or set aside any portion of the Order found clearly to be erroneous or contrary to law.

Footnotes

The parties indicated that since Plaintiff filed his original Motion(s) to Compel Production of Documents, the scope of discovery and the issues related thereto had changed over the course of this litigation, therefore, the undersigned instructed that the briefing shall only address any outstanding issues that remained between the parties and that, for the sake of simplicity, the Court's decision on those outstanding issues would be based upon the pleadings filed pursuant to that briefing schedule. (ECF No. 546 at 2)
Per the Court's instruction, Plaintiff submitted a Supporting Compendium of Confidential Exhibits via email to the undersigned and counsel of record.
FNN filed two exhibits in support of its Response, the Declaration of Shawn Patrick Regan (ECF No. 565-1) and the Declaration of Jennifer Schettler (ECF No. 565-2).
MSNBC filed seven exhibits in support of its Response which consist of email communications between the parties (ECF No. 563-1).
CNN filed eight exhibits in support of its Response, consisting of letters and emails exchanged between counsel for the parties and to this Court, including Plaintiff's discovery requests and pleadings concerning same that had been filed in this action (ECF Nos. 564-1 through 564-8).
Plaintiff also filed two exhibits in support, his “Addendum #1” and “Addendum #2” as well as a screenshot of a text message Plaintiff's campaign manager exchanged with an FNN employee concerning the “manslaughter” remarks made by Judge Napolitano (ECF Nos. 566-1, 566-2).
Plaintiff has stated that 21st Century Fox, Inc. was the legal predecessor of Fox Corporation. See https://www.forbes.com/sites/maddieberg/2019/03/20/what-the-disney-fox-deal-means-for-rupert-murdochs-fortune/#20165732312e. (ECF No. 551 at 12, fn25)
See https://www.americanbar.org/groups/litigation/committees/pretrial-practice-discovery/practice/2018/the-lure-of-the-siren-cry-fishing-expedition/
Again, as mentioned earlier herein, Plaintiff is still waiting on responsive documentation concerning the 16 agreed upon custodians.
With respect to the resources available to either Plaintiff or to FNN, and given the amount in controversy, the costs and other burdens described by FNN as detailed in the Declaration of Jennifer Schettler (ECF No. 565-2) are far from substantial.
Judge Copenhaver's Scheduling Order provides that the deadline for discovery requests is February 16, 2021, with discovery to close altogether by May 3, 2021 (ECF No. 444). Thus, FNN's “9 months” timeline would go beyond the deadlines provided by this Court.
Despite FNN's assertion that Plaintiff himself has not reciprocated discovery production in this action (ECF No. 565 at 12), the Court notes that FNN has not filed its own motion to compel regarding same. In any event, should FNN harbor misgivings about Plaintiff's participation in discovery, FNN should feel free to file the appropriate motion.
See Blankenship v. NBCUniversal LLC, et al, civil action number 2:20-cv-278.
MSNBC represents that it has not found responsive documents to date, however, the undersigned notes that MSNBC is charged with supplementing its discovery envisioned by Rule 26(e) of the Federal Rules of Civil Procedure when and if responsive materials do become available as it continues its search for same. Therefore, the undersigned has “granted” these requests even though they may be moot as already answered. The purpose in doing so is to ensure that the parties aware that the Court finds these requests relevant and proportional and to ensure that the parties are aware of the obligation to supplement as indicated.
To the extent that Plaintiff moves to compel the production of documents as it relates to other additional custodians, namely: Alex Isenstadt; Erin Gloria Ryan; Dave Smith; and Andrew Levy (ECF No. 551 at 29), the motion is DENIED. Again, Plaintiff appears to accept CNN's representation that it has no documents related to these custodians that would be in its possession, custody or control.
Moreover, CNN represents that it agreed to search the files of Nicholas Rizzuto in order to avoid the necessity of motion practice. (ECF No. 564 at 6)
As the undersigned explained in fn10, supra, the undersigned has “granted” this particular request and other requests as related to CNN even though they may be moot as already answered. Again, the purpose of doing so is to remind the parties of the ongoing obligation to supplement as indicated.
CNN represents that is has already “reasonably identified custodians from the three shows most likely to possess responsive information relating to the segments and statements at issue.” (See ECF No. 564 at 10)
The undersigned notes that several of these “mass distribution email lists” included: CNN Washington Editorial Note; CNN Political Plus; CNN Morning Buzz; DC Seven; CNN Politics.com; and CNN New Day Staff.
The undersigned notes that Plaintiff asserts that CNN indicated that it has custody and control over Brian Stetler's documents (ECF No. 551 at 29) and CNN does not address this representation in its response. Nevertheless, the undersigned also acknowledges CNN's representation that Brian Stetler was a guest on the May 8 broadcast when SE Cupp once referred to Plaintiff as a “felon” and further acknowledges that CNN indicates that it has no responsive documentation related concerning Mr. Stetler and CNN staff (ECF No. 564 at 15).