(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 that a reasonable jury could find that the statement injured the plaintiff in his business or reputation. See Dow Jones, 838 F.2d at 1294 ("'It is only when the court can say that the publication is not reasonably capable of any defamatory meaning and cannot reasonably be understood in any defamatory sense that it can rule as a matter, that it was not libelous.'" (quoting Levy v. American Mut. Ins. Co., 196 A.2d 475, 476 (D.C. 1964))).
The Court also rejects ITT's other theory, that the gist or "sting" of the allegedly defamatory imputation -- namely the government's allegations about the plaintiff's misconduct and its naming him as an unindicted co-conspirator, not the inaccurate statement that he was fired -- was substantially true. ITT correctly notes the general legal proposition that a defendant may attack the falsity prong of the plaintiff's prima facie case by demonstrating the substantial truth of the statement. In other words, literal truth is not required, and a "showing of the truth of the 'gist' or 'sting' of the allegedly defamatory imputation is sufficient." Vachet v. Central Newspapers, Inc., 816 F.2d 313, 316 (7th Cir. 1987); see also Tavoulareas, 817 F.2d at 788; AIDS Counseling & Testing Centers v. Group W Television, Inc., 903 F.2d 1000, 1004 (4th Cir. 1990); Guccione v. Hustler Magazine, Inc., 800 F.2d 298, 302 (2d Cir. 1986), cert. denied, 479 U.S. 1091, 94 L. Ed. 2d 158, 107 S. Ct. 1303 (1987).
However, the Court disagrees with ITT's assessment of the extent of the sting in this case. The following comparison (similar to the analysis that the Guccione and Vachet courts undertook) shows that the published statement about the plaintiff having been fired was not merely an "inoffensive detail of secondary importance." Vachet, 816 F.2d at 316. Under the circumstances of this case, one accurate way of summarizing what occurred would have been to discuss the government's allegations against the plaintiff and state that the plaintiff no longer works for ITT because his position previously had been eliminated as part of a corporate restructuring.
As the plaintiff correctly points out, under this scenario, he would have been "stung" somewhat by the government's allegations, but they would have been nothing more than allegations not substantiated in a court of law and not implicitly supported by his employer's decision to fire him. By comparison, ITT's statements about the plaintiff carried a much more powerful sting. They could reasonably be construed as implying a link between the government's charges against the plaintiff and ITT's adverse personnel action, thus placing this powerful corporation's imprimatur upon the government's unsubstantiated allegations.
This is not merely a semantic difference and is not comparable to a minor inaccuracy that is immaterial to the truth of the defamatory statement. Compare AIDS Counseling, 903 F.2d at 1004-05; Vachet, 816 F.2d at 316; Guccione, 800 F.2d at 302-03. In short, the Court simply cannot say as a matter of law that "the published statement [here, ITT's statement that it fired the plaintiff -- made in the context of the government's serious allegations against the plaintiff] could have produced no worse an effect on the mind of a reader than the truth pertinent to the allegation." Guccione, 800 F.2d at 302.
C. Globe's Summary Judgment Motion
There is substantial, but by no means complete, overlap between the defendants' two summary judgment motions. The Globe makes the same two arguments as ITT: (1) that the term "fired" is not defamatory, whether standing alone or taken in context and (2) that the article was substantially true because the government's allegations -- not the "fired" statement -- constituted the defamatory sting. For the reasons discussed above with regard to ITT's summary judgment motion, the Court again rejects those arguments.
One argument raised in the Globe's summary judgment motion that ITT did not make is a variation of the truth defense: regardless of the plaintiff's and ITT's euphemisms, the plaintiff was essentially terminated for cause. To support this argument, the Globe relies upon: (1) statements made by ITT's representative at the plea hearing to the effect that those employees who engaged in the illegal activity did so in direct contravention of corporate policies and that any employee involved in the illegal activity was no longer with ITT; (2) ITT's answers to interrogatories that the plaintiff violated ITT policies by ordering the destruction of Vicenzi's documents, making the "Nixon's mistake" statement, and approving Vicenzi's expense records; and (3) testimony by an ITT executive that the plaintiff would have been terminated for cause once ITT was indicted if his position had not been fortuitously eliminated one month earlier. However, the Globe overlooks the plaintiff's evidence -- which is more than a "scintilla" and must be construed in his favor -- tending to prove that he was terminated for a neutral reason. In short, although this argument may prove successful when presented to a jury, the evidence on the issue of whether the plaintiff was essentially fired for cause presents a genuine issue of material fact.
Finally, the Globe's summary judgment motion differs from ITT's in that the Globe clings to the life preserver of the "fair report privilege," a common law conditional privilege available to anybody who publishes a fair and accurate report of an official governmental proceeding. See Dameron v. Washington Magazine, Inc., 250 U.S. App. D.C. 346, 779 F.2d 736, 739 (D.C. Cir. 1985) (citing Phillips v. Evening Star Newspaper Co., 424 A.2d 78, 88-90 (D.C. 1980), cert. denied, 451 U.S. 989, 68 L. Ed. 2d 848, 101 S. Ct. 2327 (1981)), cert. denied, 476 U.S. 1141, 106 S. Ct. 2247, 90 L. Ed. 2d 693 (1986); see also Restatement (Second) of Torts § 611, at 297 (1977). As the Dameron court explained:
The intended beneficiary of the privilege is the public, not the press. The privilege is not simply a convenient means for shielding the media from tort liability. Rather, the privilege springs from the recognition that in a democratic society, the public has both the right and the need to know what is being done and said in government -- even if some of that is defamatory."
Dameron, 779 F.2d at 739 (emphasis added). Consequently, the fair report privilege does not protect the publisher of a report if it is so garbled or fragmentary that it leads to a false imputation about the plaintiff or is otherwise unfair or inaccurate. Id. Moreover, this privilege applies only if the report properly attributes the allegedly defamatory statement to the official government record or proceeding. Id.; see also Phillips, 424 A.2d at 89; Bufalino v. Associated Press, 692 F.2d 266, 271 & n. 4 (2d Cir. 1982), cert. denied, 462 U.S. 1111, 77 L. Ed. 2d 1340, 103 S. Ct. 2463 (1983).
Under the weight of these principles, the Globe's fair report privilege argument sinks like a stone. Those parts of the Globe article that fairly and accurately summarize the court proceeding at which ITT pled guilty and the government's statements made during its proffer of evidence would be privileged. However, on its face, the article reveals that the allegedly defamatory statement at issue here -- "Both Peterson and Prins have since been fired, Gallagher said" -- falls outside of the scope of the fair report privilege. See Gertz v. Robert Welch, Inc., 680 F.2d 527, 537 (7th Cir. 1982) (statements in an article that were "fair and accurate republications of statements made in the government documents were covered by the privilege"; however, "the remaining defamatory statements in the article . . . could be the basis of liability"), cert. denied, 459 U.S. 1226, 75 L. Ed. 2d 467, 103 S. Ct. 1233 (1983). Instead of summarizing a statement made in a official government record or proceeding, this "fired" statement is attributed to the ITT spokesman whom the Globe reporter interviewed after ITT's guilty plea in open court. Although the statement may be attributed to the correct source and may be an accurate summary of what the ITT spokesman said, as the attribution itself demonstrates, it is not a summary of an official government proceeding or document and therefore is not protected by the fair report privilege.
D. Globe's Motion for Reconsideration
In a July 27, 1990 Memorandum Order Magistrate Judge Robinson denied the Globe's Motion to Strike Plaintiff's Supplemental Answer to the Globe's Interrogatory No. 2. In this interrogatory, the Globe asked the plaintiff to set forth each statement in the article that he alleges was false. The plaintiff's initial response was that the "fired" statement was false. Long after discovery had closed and shortly after the Globe had filed its summary judgment motion in which it argued, inter alia, that the plaintiff had conceded the truth of those parts of the article setting forth the government's allegations against the plaintiff, the plaintiff amended his response to Interrogatory No. 2. Contending that he had reasonably interpreted the interrogatory to ask about which statements were actionable rather than false, the plaintiff supplemented his response to allege that five additional statements or implications, though not actionable, were false: (1) the statement that the plaintiff had Vicenzi's files destroyed; (2) the statement that the plaintiff had Vicenzi's files destroyed against orders; (3) the statement that the plaintiff made the "Nixon's mistake" statement; (4) the implication that the plaintiff was fired for wrongdoing; and (5) the implication that the plaintiff was Vicenzi's supervisor during the time when he engaged in illegal activity. The Globe complained that this supplemental answer should be stricken because it added new claims to the plaintiff's complaint; was not "seasonable" within the meaning of Fed. R. Civ. P. 26(e); and prejudiced the Globe in that the new allegations arose after the completion of discovery.
Although the Magistrate Judge considered and rejected each of these arguments, the Globe has filed a motion for reconsideration with the Court. See 28 U.S.C. § 636(b)(1)(A); Local Rule 503(b). Except with regard to one relatively minor point, the Court agrees with the Magistrate Judge's ruling and will deny the Globe's motion for reconsideration in large part.
First, the Magistrate Judge correctly rejected the Globe's argument that, by supplementing his answer to Interrogatory No. 2, the plaintiff is adding new claims to his Complaint. If the Globe expected this litigation to focus only on the one sentence about the plaintiff being fired without considering the rest of the 21-paragraph article, then it had an unreasonably cramped understanding of what courts and juries must examine in defamation cases. Regardless of the plaintiff's interrogatory answers, the context of an article that contains an allegedly defamatory statement is clearly relevant. See Tavoulareas, 817 F.2d at 779; McBride, 800 F.2d at 1213; Howard Univ., 484 A.2d at 989. Thus, by suing the Globe for defamation for publishing the "fired" statement, the plaintiff necessarily placed the context of the entire article in issue. Moreover, the Globe's protestations of surprise are disingenuous at best because the substance of most of the supplemental answers already had been alleged in the Complaint. See Complaint paras. 13-18, 22-24, 32, 37. In short, the Court agrees with the Magistrate Judge and with the plaintiff that his supplemental answers to Interrogatory No. 2 do not add new claims.
Second, the Court cannot hold that the Magistrate Judge made a ruling that was clearly erroneous or contrary to law when she concluded that the plaintiff's amendment of his interrogatory response was "seasonable" within the meaning of Fed. R. Civ. P. 26(e)(2) ("A party is under a duty seasonably to amend a prior response [to a discovery request] if the party obtains information upon the basis of which . . . the party knows the response was incorrect when made . . ."). The plaintiff's explanation for his omission -- misinterpreting "false" statements to mean "actionable" statements -- is plausible,
and the record contains no indication of bad faith on the part of the plaintiff. Furthermore, the plaintiff did not delay once he discovered his earlier misunderstanding, filing his supplementary answers to the interrogatory on March 2, 1990, no more than one week after the Globe filed its summary judgment motion.
Finally, although the Court agrees with the Magistrate Judge's ruling that the plaintiff's supplementary responses do not prejudice the Globe, it holds that preventing the Globe from conducting further discovery would be unfairly prejudicial. The clearly erroneous aspect of the Magistrate Judge's "prejudice" analysis arises in the following sentence:
Most important, the Globe will not be required to conduct additional discovery concerning the statements, because ITT has already agreed to produce any documents concerning plaintiff's alleged wrongful conduct which it may decide to use at trial, and to make available for deposition any witness who may testify with respect to such documents, at least 30 days prior to trial.