Legal News

Shield Law Trumps The Donald?s Discovery Request

By Dan Slater

UPDATE: We just heard back from The Donald, who seems quite pleased with his adverse ruling. “We’re happy about the way it worked out,” he told the Law Blog. “They ruled it’s news, which is good for us. As for sources, if he has sources then his case was helped, but we’re saying he doesn’t have any sources.” When we asked The Donald whether he intends to pursue the three-year old case, he said absolutely. “I want to have a trial on it.”
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It was nearly three years ago that Donald Trump sued publisher Warner Books and reporter Timothy O’Brien, who was working for the New York Times when he wrote “TrumpNation: The Art of Being Donald.” The suit, filed in New Jersey state court, seeks $5 billion in compensatory and punitive damages from Warner and O’Brien.

What peeved The Donald so? In addition to making allegedly false statements about his family and personal life, Trump claims O’Brien, by pegging The Donald’s net worth at no more than $250 million, misrepresented his net worth. The Donald says O’Brien defamed him by reporting that “[t]hree people with direct knowledge of Donald’s finances, people who had worked closely with him for years, told me that they thought his net worth was somewhere between $150 million and $250 million,” and observing “[b]y anyone’s standards this still qualified Donald as comfortably wealthy, but none of these people thought he was remotely close to being a billionaire.”

But the case became mired in a discovery spat. The Donald sought, among other things, the identity of O’Brien’s sources regarding net worth. O’Brien refused, citing New Jersey’s “newsperson’s privilege,” which is similar, in some ways, to New York’s shield law.” The Donald moved to compel. The motion judge sided with Trump.

Today, in an opinion that should make good fodder for media law professors, the Superior Court of New Jersey Appellate Division reversed.

Here’s the (somewhat confounding) money graf from the 33-page opinion:

We view the totality of the evidence offered by O’Brien as sufficient to demonstrate the confidentiality of his sources. First of all, we note the fact that O’Brien chose not to identify them in either his Times article or in TrumpNation, thereby diminishing to an extent the weight that O’Brien’s allegedly low-ball estimates of Trump’s income would have had were his sources identified, thus permitting a detailed evaluation of the extent and accuracy of their knowledge. Second, O’Brien has attested to the fact that the sources sought confidentiality because of fear of retribution and he agreed to provide it. And third, common sense supports the sources’ desire for confidentiality since, if identified, it appears inevitable that they would be named as defendants in Trump’s defamation suit and would likely suffer additional personal and economic consequences.

Representing Trump in the matter is Marc Kasowitz of Kasowitz, Benson, Torres & Friedman. The Law Blog has a call into The Donald. We’ll update if we hear back.

Full post as published by Law Blog - WSJ.com on October 24, 2008 (boomark / email).