Defamation Lawsuit and the First Appeal
Notwithstanding the corrections, the plaintiff filed the defamation lawsuit in the U.S. District Court for the Southern District of New York. Pursuant to Federal Rule of Civil Procedure 12(b)(6), the defendants moved to dismiss. In considering the motion, the district court held an evidentiary hearing—with the defendant editor as the sole witness—to assess whether the the “actual malice” element of defamation was sufficiently pled. Relying on the testimony of the editor, the district court granted the motion to dismiss. On appeal, the Second Circuit reversed and remanded the case, in part, because the lower court improperly considered the editor’s testimony in concluding that the plaintiff could not prove actual malice.
Upon remand, a trial ensued. Following the close of evidence but before deliberations began, the defendants moved for judgment pursuant to Federal Rule of Civil Procedure 50(a) arguing that the plaintiff could not prove defamatory or actual malice as a matter of law. Outside the presence of the jurors and while they were deliberating, the court ruled in the defendants’ favor after concluding that no reasonable jury could find actual malice by clear and convincing evidence. The district judge indicated the court would dismiss the case only after the jury returned an independent verdict.
Jury Prejudice Discovered and a Second Appeal
Subsequently, the jury ruled in favor of the defendants. After trial, the court’s law clerk interviewed the jurors and learned that several jurors received push notifications on their smartphones while they were deliberating that revealed the court had just ruled in the defendants’ favor on their motion. The plaintiff appealed the dismissal claiming there was sufficient evidence of actual malice and the jury verdict was prejudiced by the push notifications.
On appeal, the Second Circuit cited New York Times v. Sullivan and reasoned that “actual malice is a required element of a defamation claim when the plaintiff is a public figure.” Quoting Sullivan, the court observed that actual malice requires that any statement was made “with knowledge that” such statement was false “or with reckless disregard of whether it was false or not.” The appellate court concluded there was sufficient evidence presented at trial that would allow a reasonable jury to find actual malice. Further, the court held that a new trial was needed because some jurors had received the push notifications. The court explained that because a judge has a position of special influence over a jury, knowledge that the judge had already ruled for one party on the same claims the jury was deciding would almost certainly taint that jury.
Section Leaders Offer Advice for Practitioners
“Push notifications, messaging applications, and recording software are just a few examples of ways jurors can consume or create content that could create a mistrial or otherwise interfere with the efficient resolution of cases,” observes Allegra Lawrence-Hardy, Atlanta, GA, Co-Chair of the Section’s Minority Trial Lawyer Committee. One way to resolve the challenge of technology in jury trials “is to seek strong and specific sequestration orders to require jurors to limit smartphone use, including by disabling applications and push notifications,” she adds.
Other Section leaders agree. “The pitfalls of the proliferation of technology are going to be hard to avoid. To the extent attorneys can play a role, I believe we can work with judges to educate about the potential risks and then make sure juries are properly instructed about the risks of bias,” says Junaid Odubeko, Nashville, TN, Co-Chair of the Section’s Privacy & Data Security Litigation Committee. Ensuring jurors cellphones are turned off—“a sort of digital sequestration”—may be one way to mitigate risks associated with push notifications, offers Emily W. Black, Austin, TX, also Co-Chair of the Privacy & Data Security Litigation Committee.