The New York Post reports that Sarah Palin plans to subpoena nearly two dozen New York Times reporters, editors, and other workers in her defamation lawsuit against the newspaper. John wrote about Palin’s suit here and here.
News of the scope of Palin’s planned discovery surfaced in a motion by the Times arguing that the case should be dismissed. The paper’s lawyers complain that Palin’s legal team has served notice that she plans to subpoena “twenty-three non-party current and former Times reporters, editors and other employees — most of whom had nothing to do with the editorial at issue.”
That’s a lot of discovery. However, the Times is arguing that Palin’s case fails because she has no evidence of malice. In that context, it might be the case that Palin’s effort to find evidence that would reveal hostility towards her by the paper justifies the broad discovery she seeks. That discovery also includes a request that the Times produce “every internal communication it has [made] about her since 2011.”
Palin’s lawyers used the same approach to discovery when they represented Hulk Hogan in a suit against Gawker. As CNN puts it:
[The lawyers] showed the Florida jury which heard that case internal messages and emails from Gawker staffers as part of an effort to make the now-shuttered website look amoral and mean-spirited. It worked. The jury awarded Hogan $140.1 million in damages, a staggering judgment that contributed to Gawker’s eventual bankruptcy.
Might internal messages and emails make the New York Times look “amoral and mean-spirited”? Why even ask? Would they make the Times look that way to a New York jury in a suit brought by Sarah Palin? That’s the more pertinent question.
I should emphasize, however, that Palin need not show amorality or mean-spirit in order to prove malice in this context. She can meet the malice standard by proving that the Times published the editorial attacking her with reckless disregard for whether it was true.