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Media Law Litigation: The Effective Use of Depositions

ISBN: 978-1-57823-190-4
Author: Michael M. Conway and Miki Vucic Tesija
Page Count: 355
Published: December 2005.
Media Desc: Hardcover. Index.
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Media Law Litigation: The Effective Use of Depositions

About the Book:
This is a "how-to" book on taking and defending depositions in defamation and media cases which addresses the newest trends and issues.

One of these is the increasing incidence of non-defamation “privacy” claims being litigated to redress what has traditionally been known as defamation injuries. The authors also address the constantly evolving issues arising out of advances in technology, such as claims based on broadcasts over the Internet and use of surreptitious surveillance equipment or wiretaps in newsgathering. While these areas are new and emerging, the law and corresponding discovery under that law is often rooted in well-established constitutional standards governing defamation claims, newsgathering, free speech and freedom to prosecute or defend claims. Therefore, this book discusses both the old and the new to provide assistance to practitioners faced with the complexities in the interaction of the two.

Given the complexity of the legal issues in defamation and privacy lawsuits, and the endless factual circumstances in which such claims may arise, no single book can address the myriad variations of important issues which may arise during discovery. The central message in this work, however, is that regardless of the specific facts relating to the claim and the particular legal elements applicable to the claim, deposition testimony may be the single most critical element of case preparation. Thoughtful use of the deposition process can result in pretrial rulings in favor of the defendant, on the one hand, or the development of strong evidence of potential liability of a defendant which can lead to a realistic settlement of the claim. Deposition-taking requires thought and planning.

Media Law Depositions includes actual depositions (Forms) conducted by the author from various topical areas of media law. Media Law Depositions will generate insight and understanding of some of the problems faced when conducting depositions; aid the practitioner in formulating solutions or approaches to the problems that confront him or her; and sharpen the practitioner’s skills in gathering deposition testimony in general.

The lawyer who understands the critical legal elements of the defamation or privacy claim and outlines a deposition strategy based upon that analysis will achieve the best outcome for his or her client. This book will assist in achieving that result.

Table of Contents

Media.01 Introduction

Media.02 Necessity for Depositions

[2]-Probing Subjective Factors: Intent, Awareness of Falsity, and Mental Injury
[3]-Exploring Complex Elements of Proof: Negligence, Reputation, and Special Damages
[4]-Planning for Summary Judgment

Media.03 Special Considerations in Media Law Depositions

[1]-Preparation for Dispositive Motion, Motions in Limine and Evidentiary Objections at Trial
[2]-Pinning Down Damage Claims
[3]-Deposition as a Safety Valve for Bad Feelings

Media.04 Essential Elements of a Defamation Claim

[1]-Showing a Publication is "Of and Concerning" Plaintiff


FORM NO. 1: Publication of Defamation---Examination of Defendant

[c]-Of and Concerning Plaintiff

FORM NO. 2: Who are the Statements Referencing?---Examination of Defendant

[2]-Establishing or Negating Defamatory Content

FORM NO. 3: Establishing Defamatory Content by Reference to Extrinsic Facts Showing Exposure to Hatred, Embarrassment, Ridicule or Contempt-Examination of Plaintiff

FORM NO. 4: Negating Defamatory Content---Examination of Plaintiff

Media.05 Defenses to Defamation: Strategy of Defense Counsel

[1]-The Importance of Plaintiff's Deposition
[2]-Tactical Questions of Timing and Scope


[3]-Actual Malice Test: Plaintiff as a Public Official or Public Figure

FORM NO. 5: Defamation Action Against Newspaper Challenging Statements About a Public Figure-Examination of Newspaper Editorial Director

FORM NO. 6: Establishing Status as a Public Figure-Examination of Plaintiff

FORM NO. 7: Defamation in Newspaper Article of Sitting State Appellate Judge---Examination of Defendant

[4]-Statement as a Non-Actionable Matter of Opinion

FORM NO. 8: Sportwriter's Column About an Athlete's Performance---Examination of Plaintiff

FORM NO. 9: Opinion Statement Based Upon Knowledge of Secret Facts or the Appearance of Such Knowledge---Examination of Defendant

[5]-Truth as a Defense

FORM NO. 10: Newspaper's Defense of Substantial Truth to Plaintiff's Claim Based on Inaccurate News Story-Examination of Plaintiff

[7]-Qualified Privilege
[8]-Statute of Limitations and Lack of Personal Jurisdiction

[a]-Issues of Personal Jurisdiction Relating to Traditional Publication

FORM NO. 11: Establishing a Basis for Personal Jurisdiction in a Libel Action Against an Entertainment Tabloid-Examination of
Defendant Reporter

FORM NO. 12: Establishing a Basis for Personal Jurisdiction in a Libel Action by a Coin Collector Against a National Magazine-Examination of Vice President for Defendant Magazine

[b]-Personal Jurisdiction Based on Internet Contacts

FORM NO. 13: Establishing a Basis for Personal Jurisdiction in a Libel Action Through Internet Contacts---Examination of Defendant Publication

Media.06 Challenging Defenses to Defamation

[1]-Manner of Article Research, Writing and Editing


FORM NO. 14: Defamation Action Against Publishing Company and Author-Examination of Defendant Author

FORM NO. 15: Libel Action Against Newspaper for Printing False Information About a Public Official---Examination of Defendant's Newspaper Reporter

[b]- Preparing the Reporter for Deposition
[c]-Exploring the Relevant Practices and Standards of Journalism

[2]-Confidential Sources

[a]- Law on Disclosure of Confidential Sources
[b]-How Discovery Affects Disclosure Determination
[c]- Role of Defendant's Deposition

FORM NO. 16: Building the Case for Disclosure of a Confidential Source's Identity---Examination of Reporter

FORM NO. 17: Libel Action Against Newspaper for Printing False Information About a Private Citizen---Examination of Defendant's City Editor

[d]-Limits on Scope of Plaintiff's Examination
[e]-Whether Confidential Source Privilege Should Be Asserted

[3]-Determining Whether the Limits of Qualified Privilege Have Been Exceeded

[a]-Scope of Publication

FORM NO. 18: Establishing Whether a Defamatory Statement Was Protected by a Qualified Privilege: The Malicious Letter---Examination of Defendant Author

[b]-Purpose of Publication: Neutral Reportage

[4]-Government Official as Defendant

Media.07 Plaintiff as "Fair Game"

[2]-Role of Plaintiff's Character and Reputation: Requiring Proof of "Actual Injury"

[b]-Need to Show Pre-Existing Reputation
[c]-Need to Show Injury to Reputation, Personal Humiliation or Mental Anguish

FORM NO. 19: Establishing Community's Rejection of Defamatory Meaning-Examination of Plaintiff Public Official

[3]-Special Damages by Direct Proof or Circumstantial Evidence

[b]-Proximate Cause
[c]-Establishing Basis for Punitive Damages and Attorney's Fees

[4]-Plaintiff's Deposition

[a]-Preparing Plaintiff
[b]-Scope of Permissible Examination
[c]-Protective Order: Limiting Damage From Further Publication

Media.08 Claims Against News Organization for Publishing Wiretapped Communications

FORM NO. 20: Establishing Means of Reporter Obtaining Intercepted Communications-Examination
of Reporter

Media.09 Privacy Issues in Media Law Litigation

[2]-Constitutional and Other Restrictions on Privacy-Related Torts
[3]-False Light Invasion of Privacy

FORM NO. 21: Establishing "Publicity" as Opposed to Mere "Publication" For Statements Made in Board of Directors and Officers Meeting---Examination of Director Defendant

[4]-Wrongful Disclosure of Private Information

FORM NO. 22: Establishing the "Privacy" of the Fact Publicized; Newspaper's Report on Botched Botox Procedures-Examination of Plaintiff Botox Recipient

[5]-Intrusion into Solitude or Private Affairs

FORM NO. 23: Establishing the Degree of Intrusion; Dressing Room Surveillance Camera---Examination of Defendant Intruder

[6]-Appropriation of Name or Likeness for Some Advantage

FORM NO. 24: Determining Whether Defendant Benefited From Appropriation---Examination of Defendant

Author Detail

About the Authors:
Michael M. Conway is a Partner at Foley & Lardner LLP. He is the leader of the Chicago office's Litigation Department, leader of the firm's Media Law Group, and a member of the firm's General Commercial Litigation and Appellate Practices and Entertainment & Media Industry Team.

Mr. Conway is a fellow of the American College of Trial Lawyers and is listed in Chambers USA: America's Leading Lawyers for Business and The Best Lawyers of America. For more than 30 years, he has focused his practice on media, commercial, corporate and federal tax litigation with more than 170 reported decisions in the federal and state court systems. Mr. Conway has been principal trial attorney in a wide variety of civil matters. Recently the Seventh Circuit Court of Appeals affirmed summary judgment on behalf of The New York Times, New York Daily News and Boston Globe which Mr. Conway represented in a $125 million defamation lawsuit brought by Global Relief Foundation, an Islamic charity. The court of appeals ruled that the newspapers' articles, reporting on governmental investigations of Global for ties to terrorists, were substantially true. Global Relief Foundation, Inc. v. The New York Times, et al., 390 F.3d 973 (7th Cir. 2004). He has won libel cases for the Chicago Tribune, ABC, Kankakee Journal, Muhammad Ali, news magazines and other news organizations. In 2004, he obtained the dismissal of a suit based upon an Illinois newspaper's publication of the names on a state police list of sex offenders on the basis that an Illinois statute conferred absolute immunity against claims based upon the republication of such lists. The two appellate opinions in Desnick Eye Center v. ABC – both argued on appeal by Mr. Conway – provide important protections for news organizations from liability for claims related both to news gathering and news content. Desnick Eye Services v. ABC, 233 F.3d 514 (7th Cir. 2000) and 44 F.3d 1345 (7th Cir. 2005).

Miki Tesija is a Partner in Foley's General Commercial Litigation Practice Group and the Entertainment & Media Industry Team. Her practice includes a wide range of litigation, including federal and state securities, media law, real estate, contracts, accounting practices, director and officer liability, and other business disputes.

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