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February 25, 1991

DOUGAL W. S. PRINS, Plaintiff,

The opinion of the court was delivered by: RICHEY

 This is a libel and slander case in which the plaintiff alleges that he was defamed by his former employer International Telephone and Telegraph Corporation ("ITT") and by the Boston Globe ("Globe"). Reduced to its simplest terms, this lawsuit revolves around the meaning and legal effect of the word "fired." However, as the veritable avalanche of papers already filed in this case attests, when viewed in context and examined under the microscope of defamation law, that five-letter word has potentially far-reaching consequences which render the issues in this case far from simple. Moreover, the presence of two defendants with potentially overlapping but certainly not identical positions and defenses further complicates matters. Each of the defendants has filed a summary judgment motion, and the plaintiff has filed a motion for partial summary judgment as to ITT's liability. The Globe and the plaintiff also each filed a motion appealing some of Magistrate Judge Robinson's discovery rulings. In this omnibus Opinion, the Court will address these five motions in turn, denying all of the summary judgment motions and reversing some discovery rulings.

 I. Background

 In June 1987, in the meantime, ITT, ITT Gilfillan, and an ITT Gilfillan employee (Edward Vicenzi) were indicted for, inter alia, conspiring to defraud the United States by paying illegal gratuities to Air Force officials in return for proprietary information that could be used to ITT's advantage in the preparation of bids on Air Force contracts. The indictment made the plaintiff -- Vicenzi's supervisor for some, if not all, of the period in which he was engaged in illegal activity -- out to be an unindicted co-conspirator, naming him several times and alleging that he ordered the destruction of some of Vicenzi's files after a federal search warrant had been executed at Vicenzi's residence. Vicenzi eventually pled guilty to some of the charges in the Indictment, and subsequently ITT pled guilty to one count of conspiracy on October 24, 1988 in the United States District Court for the District of Massachusetts. At the hearing in which the court accepted ITT's guilty plea, the government's proffer of proof included an allegation that the plaintiff had ordered the destruction of Vicenzi's files and that the plaintiff, when asked by his superior why he done that against earlier orders, responded, "Nixon's mistake was that he didn't burn the tapes." Globe Summary Judgment Motion, Ex. C (Plea Tr. at 13).

 The next day, October 25, 1988, under the headline "ITT executives are faulted in fraud case," the Globe printed an article which reported on the guilty plea and the background, summarized parts of the government's proffer at the hearing, and stated that ITT was attempting to distance itself from wrongdoing by blaming its former employees. See id., Ex. A. Towards the end of the article, the newspaper named the plaintiff as Vicenzi's direct supervisor and quoted the "Nixon's mistake" statement attributed to him at the plea hearing. Finally, the article stated, "Both Peterson [another ITT Gilfillan employee who the article said made an incriminating statement] and Prins have since been fired, Gallagher said." Id. The author obtained most, if not all, of the information contained in the article by examining court records, attending the plea proceeding, and interviewing Jim Gallagher, an ITT spokesman, and other ITT executives after the proceeding.

 The plaintiff complains that the term "fired" -- standing alone but especially when taken in context -- was false and defamatory by implying that he had been summarily discharged for cause for improper activity when he had in fact been terminated with generous benefits for the neutral reason of a corporate restructuring. Moreover, the plaintiff presents some evidence that the article injured his reputation and prevented him from obtaining employment in his field of defense contracting or marketing.

 II. Analysis

 The Court recognizes that "summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed 'to secure the just, speedy, and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (quoting Fed. R. Civ. P. 1). However, none of the three summary judgment motions currently before the Court may be granted unless the moving party can show that there is "no genuine issue of material fact," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) (emphasis in original), though burdened by the rule that "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor," id. at 255. Moreover, "the mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant]." Id. at 252. With these principles in mind, the Court holds that it cannot grant any of the summary judgment motions and "that the better course would be to proceed to a full trial." Id. at 255.

 A. Plaintiff's Summary Judgment Motion

 The plaintiff's motion for partial summary as to ITT's alleged liability is the easiest to resolve. Relying upon evidence supplied by the Globe reporter who wrote the article (Frederic Biddle), the plaintiff contends that the following transpired in the interview between Biddle and ITT spokesman Gallagher: (1) the two men were discussing various former ITT employees who had been allegedly connected with the illegal activities giving rise to ITT's guilty plea and were no longer with ITT; (2) Gallagher stated that the plaintiff's job had been eliminated in a restructuring; and (3) then Gallagher said "yes" when Biddle specifically asked him if that meant that the plaintiff had been "fired." However, ITT vigorously disputes the plaintiff's (and Biddle's) version of what Gallagher said in that interview, pointing out that Gallagher has consistently testified, by way of deposition and affidavit, that he never stated or confirmed that the plaintiff had been fired. Thus, even assuming arguendo that ITT's statement under these circumstances that the plaintiff was fired could be sufficient to render ITT liable for defamation, the Court is faced with the most genuine issue of material fact possible -- whether ITT ever stated or confirmed that the plaintiff was "fired." Because "credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge," id., the Court must deny the plaintiff's motion for partial summary judgment and allow a jury to determine what Gallagher said to Biddle about the plaintiff.

 B. ITT's Summary Judgment Motion

 Although it vigorously denies that Gallagher ever said or confirmed that ITT had fired the plaintiff, ITT takes the position (entirely appropriate and not inconsistent in this posture of the case) of assuming for the purposes of its own summary judgment motion that Gallagher did use, or at least adopt, the term "fired." Then, ITT argues that, notwithstanding the use of that word, it is entitled to judgment as a matter of law because a statement that somebody has been fired, whether standing alone or in this kind of context, is not defamatory. Moreover, ITT contends that the government's allegations of misconduct -- levelled against the plaintiff in the indictment and in open court at the plea hearing and repeated in the Globe article -- were substantially true and were so serious that they, rather than the statement about his being fired, constituted the defamatory "sting" of the article.

 A plaintiff bringing a defamation action (libel or slander) must show: (1) that the defendant made a false and defamatory statement concerning the plaintiff; (2) that the defendant "published" the statement without privilege to a third party; (3) that the defendant's fault in publishing the statement amounted to at least negligence; and (4) either that the statement was actionable as a matter of law irrespective of special harm or that its publication caused the plaintiff special harm. See Restatement (Second) of Torts § 558, at 155 (1977); see also Avianca, Inc. v. Corriea, 705 F. Supp. 666, 682-83 (D.D.C. 1989) (citing Restatement). Only the first element is at issue here.

 Assuming arguendo that ITT did say or confirm that it fired the plaintiff, the Court must determine whether that statement is capable of bearing a defamatory meaning. See Tavoulareas v. Piro, 260 U.S. App. D.C. 39, 817 F.2d 762, 779 (D.C. Cir.) (en banc) ("it is the role of the court to determine whether the challenged statement is 'capable of bearing a particular meaning' and whether 'that meaning is defamatory'" (quoting Restatement (Second) of Torts § 614(i), at 311 (1977))), cert. denied, 484 U.S. 870, 98 L. Ed. 2d 151, 108 S. Ct. 200 (1987). A statement is defamatory "'if it tends to injure the plaintiff in his trade, profession or community standing, or lower him in the estimation of the community.'" Liberty Lobby, Inc. v. Dow Jones & Co., 267 U.S. App. D.C. 337, 838 F.2d 1287, 1293-94 (D.C. Cir.) (quoting Howard Univ. v. Best, 484 A.2d 958, 988 (D.C. 1984)), cert. denied, 488 U.S. 825, 102 L. Ed. 2d 51, 109 S. Ct. 75 (1988). The parties have argued back and forth over whether a statement, standing alone, that a person has been fired can be defamatory as a matter of law, with the defendants apparently getting the better of the dispute. See, e.g., Davis v. Ross, 754 F.2d 80, 84 (2d Cir. 1985) ("the mere statement of discharge from employment does not constitute libel"). On the other hand, the plaintiff has presented some evidence tending to prove that, even if the term "fired" standing alone is not defamatory to the general public, in the defense contracting or marketing industry (where the plaintiff worked for ITT and sought employment after he departed ITT) that term has a more negative connotation carrying harmful consequences.

 However, the Court need not resolve that issue to decide ITT's summary judgment motion because here the statement that the plaintiff was fired -- assuming it was made -- was definitely not standing alone. As the en banc Court of Appeals for this Circuit has counseled, a court making the determination of whether a statement is capable of bearing a defamatory meaning must "consider both the words themselves and the entire context in which the statement occurs." Tavoulareas, 817 F.2d at 779; see also McBride v. Merrell Dow & Pharmaceuticals, Inc., 255 U.S. App. D.C. 183, 800 F.2d 1208, 1213 (D.C. Cir. 1986) ("[a] publication 'must be considered as a whole' for its defamatory potential" (quoting Howard Univ., 484 A.2d at 989)). Gallagher and Biddle were engaged in a discussion that was directly related to ITT's immediately preceding guilty plea, and, drawing all justifiable inferences in the plaintiff's favor, Biddle clearly was trying to determine what had become of the various ITT employees who had been connected to Vicenzi's and ITT's illegal activity. Moreover, considering the ITT representative's statement at the plea hearing that anybody who had anything to do with the illegal activities was no longer with the company and the government's allegations against the plaintiff, it was understandable for the Globe reporter to try and dig beneath the "euphemism" (his word) to learn whether the plaintiff had been discharged for a neutral reason or for having been involved in improper activity. Thus, while it is conceivable that a jury could conclude that ITT's statement about the plaintiff being fired was not defamatory under the circumstances present in this case, the Court cannot preclude as a matter of law the possibility ...

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