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Funk v. Scripps Media, Inc.

Court of Appeals of Tennessee, Nashville

November 30, 2017

GLENN R. FUNK
v.
SCRIPPS MEDIA, INC., ET AL.

          Session September 6, 2017

         Appeal from the Circuit Court for Davidson County No. 16C-333 William B. Acree, Judge

         A public figure filed a defamation lawsuit against an investigative reporter and a television station based on two news stories that were aired in February 2016. The defendants filed a motion to dismiss, claiming that their reports were constitutionally protected speech, were privileged as a fair and accurate report of pleadings and documents filed in two other lawsuits, and did not contain false or defamatory statements. The plaintiff served interrogatories and requests for documents on the defendants in an effort to discover the defendants' investigative files. The defendants objected on the grounds of relevance and the Tennessee fair report privilege. The plaintiff filed a motion to compel, arguing that he needed the discovery to respond to the defendants' motion to dismiss by uncovering evidence of actual malice. The trial court agreed and granted the motion to compel. The defendants filed an interlocutory appeal of the trial court's decision granting the motion to compel. They argue that (1) actual malice is not an element of the fair report privilege and (2) the trial court erred in granting the plaintiff's motion to compel. We agree with the defendants' position on both issues and reverse the trial court's judgment.

         Tenn. R. App. P. 3 Appeal as of Right and Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court Reversed and Remanded

          Ronald George Harris, Jon D. Ross, and William J. Harbison, II, Nashville, Tennessee, for the appellants, Scripps Media, Inc. and Phil Williams.

          James Douglas Kay, John B. Enkema, and Michael Anthony Johnson, Nashville, Tennessee, for the appellee, Glenn Richard Funk.

          Andy D. Bennett, J., delivered the opinion of the Court, in which Richard H. Dinkins and W. Neal McBrayer, JJ., joined.

          OPINION

          ANDY D. BENNETT, JUDGE.

         I. Factual and Procedural Background

         Glenn R. Funk is the District Attorney General for Davidson County, Tennessee. Scripps Media, Inc. ("Scripps") owns and operates the television station NewsChannel 5, WTVF in Nashville, and Phil Williams is the station's chief investigative news reporter. NewsChannel 5 broadcast news stories on February 3 and 4, 2016, which are at the center of this case. The news stories reported on allegations the real estate developer David Chase made against several individuals in a civil lawsuit filed in Williamson County and against other individuals and a governmental entity in a federal lawsuit filed in the Middle District of Tennessee. Mr. Funk filed a complaint against Scripps Media, Inc. and Phil Williams (together, "the Defendants") after the first news story aired, and he filed an amended complaint following the second news story to include allegations related to the second story. According to Mr. Funk, the news stories alleged that he extorted money from a criminal defendant, solicited a bribe, and blackmailed a criminal defendant into dismissing a civil lawsuit. When Mr. Funk filed his amended complaint, he served a set of interrogatories, requests for documents, and requests for admission upon each defendant.

         The Defendants filed a motion to dismiss the complaint pursuant to Tenn. R. Civ. P. 12.02(6). They claimed the first news story was privileged as a fair and accurate report of allegations made in another lawsuit and did not contain false or defamatory statements about Mr. Funk and that the second news story did not contain any false or defamatory statements about Mr. Funk. The Defendants also moved for a protective order to stay discovery until the trial court ruled on their motion to dismiss. They argued that their motion, if successful, would dispose of all of Mr. Funk's claims against them and that the discovery was not relevant or necessary to resolve the issues raised in their motion to dismiss. Mr. Funk objected to the Defendants' motion to stay discovery, arguing that he needed the discovery to uncover evidence of the Defendants' actual malice. Mr. Funk contended that he could defeat the Defendants' fair report privilege claim with proof that they broadcast their news stories with actual malice. The trial court denied the Defendants' motion for a protective order, but it limited the discovery to facts relating to the two news stories at issue in the complaint.

         Scripps and Mr. Williams responded to Mr. Funk's discovery requests, but they objected to providing information they claimed was privileged pursuant to the Tennessee Shield Law, codified at Tenn. Code Ann. § 24-1-208; the First Amendment to the United States Constitution; and Article I, § 19 of the Tennessee Constitution. Mr. Funk then filed a motion to compel. The trial court held a hearing on Mr. Funk's motion to compel on January 13, 2017, and it filed its order granting the motion on February 13, 2017. The trial court ordered the Defendants to answer Interrogatories 7 and 8 and to produce documents they obtained or relied on in their investigation of the two news stories.[1] The trial court issued its ruling from the bench, which was incorporated by reference into its order. The court explained its decision as follows:

It is not questioned in this case that General Funk is a public official and . . . actual malice is required. Actual malice is defined by the case law, is that -- the fault of actual knowledge that the facts were false or reported with reckless disregard of their truth or falsity.
The plaintiff's claims are based upon defamation -- defamation or implication in a false light. The elements of the false light claim -- the false light, in which the other was placed would be highly offensive to a reasonable person. Second, the actor had the knowledge or acted in reckless disregard as to the falsity of the matter and the false light in which the other would be placed. Thus the actual malice standard applies. The defamation implication may be proved if - may prove defamation if words suggested are found to have a defamatory meaning.
. . . .
The Court finds that the defendants have raised a defense based upon the source. I base that upon the pleadings that have been filed in this case along with the argument of counsel. Thus, the Court finds that, under the Tennessee Shield Law, the defendants have no protection from revealing the source of information. I do not think that that ends the inquiry.
As I stated a moment ago, defamation -- actual malice must be proved under any of the theories that were relied upon by the plaintiff, which is also a factor in the fair report privilege relied upon by the defendant.
. . . .
[T]he investigation is highly relevant in this Court's opinion to the issue of malice. And I don't think that it's sufficient for the defendants simply to say "Trust us. We have given you ...

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