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What is the Proper Scope of ESI in a Defamation Action of a Public Figure?

Posted on November 7th, 2014

Klayman v. City Pages, et al., Case No. 5:13-cv-143-Oc-22PRL (M.D.Fla. October 22, 2014) is a defamation action brought by Larry Klayman against journalists and publications. Klayman alleged Defendants published three articles that contained defamatory statements about his child support and custody case, as well as disciplinary proceedings by the Florida Bar. Klayman conceded he is a public figure, which is important in a defamation suit. He must prove by clear and convincing evidence the statements at issue were published with actual malice. (Klayman, an attorney, filed high profile lawsuits on behalf his clients, including Arizona Sheriff Joe Arpaio, and he is friends with Representative Michelle Bachmann. He also is the head of a conservative political foundation.)

As part of the ESI and discovery requests tendered on the Defendants, Klayman sought paper and electronic data about publications owned by Defendants that were not a part of the lawsuit, information about his client Joe Arpaio and information relating to an unrelated court case. Defendants filed objections as to relevance and breadth of such requests. However, Klayman failed to provide any explanation as to why such requests would be relevant, he only claimed the papers engaged in a malicious campaign against him and his clients.

The Court noted that the actual malice inquiry focuses on whether the papers had any subjective doubts as to the truth of the publications, not whether the papers harbored ill will against Klayman or his associates. Therefore, the materials requested were not relevant to the suit. The Court also denied his request for a third-party computer expert to search the papers’ work and personal computers and cell phones. Klayman alleged the papers were withholding information, but the Court found this was mere speculation and insufficient as a basis for such an invasive search. Noting that a Plaintiff may receive a computer forensics examination where the other party was unwilling to conduct a search, for example, the papers here searched and produced relevant ESI and were not uncooperative. Therefore, the Court denied the relief requested by Klayman in his Motion to Compel and for a forensic computer analysis.

ILS – Plaintiff eDiscovery Experts

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