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Wednesday, December 19, 2007
Using a Libel Lawsuit to Test the Mitchell Report's Credibility

Here’s a thought. Many of us here have written that a libel suit against George Mitchell, his firm, and his “informants” would have little chance of success because the players are all public figures. If the maligned players want to clear their name, it makes sense for someone to file a law suit just for the purpose of being able to cross-examine Kirk Radomski and Brian McNamee, which I would think would be ‘easy pickins.’ He could then release the deposition transcript to the media or to Sports Law Blog and we could all judge the credibility of these charges.


A nice theory, but I wonder if it could get that far - Mitchell would likely file an early motion for summary judgment with a 50 page declaration about his research to defeat actual malice, while the witnesses lawyers would move for protective orders to bar third party discovery (which is usually considered burdensome) until the motion was determined.

In California the case would never get past an anti-SLAPP motion.

BUT, perhaps suing the witnesses themselves for defamation would have the same effect, and would not be so easily disposed of on summary judgment, nor would the discovery be third party any more.

Anonymous Michael Risch -- 12/19/2007 3:08 PM  

I agree with Michael as to how the process will play out, but I disagree with the limits on discovery.

Assume Mitchell (actually, I understand MLB has indemnified Mitchell, so it may be MLB as the defendant) moves for summary judgment on the issue of actual malice and assume further the court limits discovery only to that issue. The player/plaintiff still would be entitled to discovery as to what Radomski or McNamee have to say about selling steroids. At the very least, it entitles the player to obtain complete transcripts, notes, and recordings of the Mitchell interviews. But I think it could entitle the player to depose Radomski or McNamee--get both to testify as to what they told Mitchell in the earlier interviews in order to identify any discrepancies that might suggest Mitchell should have known that their stories were false.

The bigger problem for any plaintiff would be the inevitable protective order that would make all discovery confidential.

And for anyone considering attending FIU College of Law beginning in Fall 2008: 1/3 of you just got a preview of your Civ Pro final.

Blogger Howard Wasserman -- 12/19/2007 4:13 PM  

I agree with Howard's points here, but I think Mitchell/DLA stays as a named direct defendant.

Does anyone know exactly what the scope of this indemnification for Mitchell/DLA is? I assume this would just be an indemnification agreement for any defamation action by a 3rd party named in the report, and as such, I believe that a lawsuit would be allowed to proceed against Mitchell/DLA with any settlement or judgment funds coming from MLB or its carrier pursuant to the aforementioned indemnification agreement.

I would name Mitchell/DLA and MLB if filing a defamation action on behalf of a named player in the report.

Blogger Tim Epstein -- 12/19/2007 4:54 PM  

Under the rules of professional responsibility and civil procedure, this would be a risky proposal. Attorneys can't file lawsuits for sport. It seems to me that if you file a case with the sole intent to terminate it after taking a deposition, you're acting in bad faith.

I'd like to raise another angle that I haven't heard mentioned anywhere else. McNamee's deal with the U.S. Attorney for Northern California was contingent upon him not lying. The Mitchell Report (at page 167) goes so far as to say that "if, however, he should be untruthful in any statements made pursuant to that agreement, he may be charged with criminal violations, including making false statements, which is a felony."

That said, the Federal Prosecutor should call Clemens to the stand and have him testify under oath regarding his claim that the McNamee gave false info. If Clemens is to be believed, the feds' deal with McNamee should fall and he should be charged criminally.

Blogger Nick H -- 12/19/2007 9:34 PM  

McNamee and Radomski may or may not be "easy pickings" in a deposition.

But whoever sues them had better not be "easy pickings" in the same envorons because the putative plaintiffs here would also be deposed.

I'm not certain that too many of the potential plaintiffs - as identified in the Mitchell Report - would want the full transcript of their deposition/cross-examination published in Sports Law Blog or anywhere.

For the record, I don't think McNamee and Radomski are the folks that Diogenes spent all that time looking for. Nor do I think that everyone named in the MItchell report is as pure as the driven snow.

Anonymous The Sports Curmudgeon -- 12/19/2007 11:32 PM  

I posted a few comments on the fallout of the Mitchell report on the FIU Law Blog:

Instead of filing a lawsuit, strap up the players that are attempting to clear their "good name" in the Court of Public Opinion to a lie detector on SportsCenter. That would be a great segment.

HGH can be used to heal injuries but once or twice? That, to me, sounds like "I didn't inhale" and "I did not have sexual relations with that woman."

We forgave one of the best Presidents in our era for the actual act and the lies, but these ballplayers are just adding insult to injury. These players have already tarnished the game enough.

The players likely used HGH for personal, selfish and/or financial reasons and now they are clearing their conscious so they can feel better about themselves. Just my two cents.

Professor Wasserman, we look forward to having you back on campus.

Blogger Adam W -- 12/20/2007 11:42 AM  

In response to Howard's comment, maybe I'm missing something, but I don't see how they could get discovery of DLA's notes from its interviews with Radomski and McNamee. From my experience with internal investigations, there would be no recording or transcripts (for exactly these reasons) and only handwritten or typed attorney notes and a memorandum report of the interview. These are clearly work product.

Anonymous Anonymous -- 12/20/2007 12:04 PM  

It would depend on what exactly there was and what they did during each interview--whether it was on the record, etc. This was a unique internal investigation, so Mitchell might have done things differently. Certainly, a plaintiff could ask for any of this and force Mitchell to assert the work-product privilege.

And if there are no notes, etc. that are discoverable, it definitely opens the door for the plaintiffs to depose the players.

Blogger Howard Wasserman -- 12/20/2007 2:11 PM  

Plaintiff(s) could get past a demurrer by pleading actual malice but the case would likely be tossed on summary judgment with no evidence of malice by Mitchell. What then? There will have been huge costs and opening oneself up to being deposed under oath. That's the $60M reason why no one would file a lawsuit for libel here.

Blogger qtlaw24 -- 12/20/2007 6:42 PM  

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