Zimmerman v. Al Jazeera America, LLC

          MEMORANDUM OPINION

          ROBIN M. MERIWEATHER UNITED STATES MAGISTRATE JUDGE

         Plaintiffs Ryan Zimmerman and Ryan Howard (collectively “Plaintiffs”) raise defamation and invasion of privacy claims against Defendants Al Jazeera America, LLC, Al Jazeera Media Network, Al Jazeera International (USA), Inc., (collectively “Al Jazeera”), and Deborah Davies (collectively “Defendants”) based on the publication of a documentary titled “The Dark Side: Secrets of the Sports Dopers” (“The Dark Side” or “the Documentary”), which accused Plaintiffs of using performance enhancing drugs. Plaintiffs have filed an Emergency Motion to Compel the Deposition of Mostefa Souag, in which they asked the Court to (i) compel Defendants to present Dr. Mostefa Souag (“Dr. Souag”), then-Acting Director General of Al Jazeera Media Network, for a deposition on October 9 or 11, 2018 in Doha, Qatar; and (ii) issue an order imposing sanctions against Al Jazeera for the fees incurred by Plaintiffs in preparing the Emergency Motion. The District Judge presiding over this case has referred all discovery disputes to the undersigned Magistrate Judge pursuant to Local Civil Rule 72.2(a). See 9/14/2017 Order. After reviewing the parties' written submissions and the entire record herein, ^[1]the Court issued a Minute Order on October 5, 2018, which granted-in-part and denied-in-part Plaintiffs' Emergency Motion to Compel. See 10/05/2018 Minute Order. The Court concluded that Dr. Souag should be required to be deposed, for up to five hours, on a mutually agreeable date prior to October 31, 2018. See Id. This Memorandum Opinion sets forth the reasons for that ruling.

         BACKGROUND

         I. Factual History

         A. The Dark Side

         On December 27, 2015, Al Jazeera Media Network aired “The Dark Side” as a documentary episode of the Al Jazeera Investigates television program. Pl. Ryan Zimmerman's First Am. Compl. (“Zimmerman First Am. Compl.”) ¶ 37, ECF No. 9. The Documentary explores the use of performance enhancing drugs (“PEDs”) in professional sports and how professional athletes are supplied with PEDs. See generally Pl. Liam Collins Mot. to Dismiss, Ex. A, ECF No. 26-4 (Transcript of The Dark Side). Al Jazeera hired Liam Collins, a former British track and field athlete, to pose as an athlete trying to obtain PEDs to qualify for the 2016 Summer Olympics in Rio de Janeiro. Zimmerman First Am. Compl. ¶¶ 39-40. With the help of the Al Jazeera Investigation Unit in Washington, D.C., Mr. Collins set up meetings with suppliers of PEDs and then recorded their interactions with a hidden camera. Zimmerman First Am. Compl. ¶ 40. One of those suppliers, Charlie Sly (“Mr. Sly”), made allegations that Mr. Zimmerman and Mr. Howard were using Delta-2, a PED banned by Major League Baseball. Id. ¶¶ 41-46; see also Pl. Ryan Howard's First Am. Compl. ¶¶ 45-50, ECF No. 44. On video, Mr. Sly later recanted his prior statements, stating that they were “absolutely false and incorrect . . . Under no circumstances should any of those statements, communications, or recordings be aired.” Zimmerman First Am. Compl. ¶ 54. Despite Mr. Sly's recantations, Al Jazeera proceeded to air “The Dark Side” on December 27, 2015. Id.

         B. Dr. Souag's Relevant Responsibilities

         Dr. Souag serves as the Acting Director General of Al Jazeera Media Network. MTC Opp'n, Ex. 1, ECF No. 143-1, Decl. of Dr. Mostefa Souag (“Souag Decl.”) ¶¶ 2-3. His responsibilities as the head of that multinational media organization include overseeing and approving the final annual budgets of news channels, departments, and directorates. Id. ¶ 4. The Investigative Journalism Directorate (“IJ Directorate”), which developed the Documentary, is one of the specific directorates that reports to Dr. Souag. Id. ¶ 5.

         On December 15, 2015, the Director of the IJ Directorate wrote to Dr. Souag, “We are naming major American athletes in association with alleged drug use by using undercover footage. So, of all projects, you really do need to feel comfortable with this one.” MTC Souag Dep., Ex. 1 at 2-3, ^[2] ECF No. 136-3 (Email from C. Swisher to M. Souag, dated Dec. 15, 2015) (hereinafter “12/15 Swisher-Souag Email”). Dr. Souag recalls that, consistent with his standard practice, he watched the documentary before its broadcast. Souag Decl. ¶¶ 10-11. Dr. Souag commented in a contemporaneous email, “[i]t seems to be a good one. I do not see any problem with it, editorially speaking. If you feel comfortable with the legal advice given by our legal team, then I think it would be ok to go ahead with it on the time you have chosen.” MTC Souag Dep., Ex. 2 at 2, ECF No. 136-4 (Email from M. Souag dated Dec. 21, 2015).

         Dr. Souag also authored a foreword in a document titled, “Editorial Standards Aljazeera Media Network” (“Editorial Standards”), which sets forth “guidelines . . . meant to guarantee accuracy and impartiality.” MTC Souag Dep., Ex. 11 at 4-5, ECF No. 136-23 (“Ed. Standards”). The Editorial Standards describe the use of hidden cameras, microphones, and wiretapping as an “issue . . . fraught with ethical and legal problems.” Id. at 11.

         II. Relevant Procedural History

         A. Plaintiffs' Request to Depose Dr. Souag

         On July 16, 2018, Plaintiffs sent a Notice of Deposition to Defendants via email, scheduling the deposition of Dr. Souag in Washington, D.C. on August 6, 2018. See MTC Souag Dep., Ex. 4, ECF No. 136-6 (Email from S. Lerner to Defs., attaching Notice of Dep. dated July 16, 2018). Defendants' counsel responded that Dr. Souag would not attend the deposition because: (1) he was a high-ranking executive who did not have knowledge superior to that of lower-ranking employees; (2) there were less intrusive means to obtain information from Dr. Souag; and (3) if a deposition did occur, it should occur in Doha, Qatar. See id., Ex. 5, ECF No. 136-7 (Ltr. from T. Toweill to Pls. dated July 27, 2018). In response, Plaintiffs' counsel offered to proceed with Dr. Souag's deposition in Doha, Qatar on either August 6 or August 10, 2018 and attached a subpoena for Dr. Souag's deposition. See MTC Opp'n, Ex. Q at 2-3, ECF No. 143-20 (Email from S. Lerner to T. Toweill dated July 27, 2018). Defendants' counsel responded via email that Dr. Souag would not appear for a deposition on any date, citing service of process issues and the rationale provided in their July 27 letter. See MTC Opp'n, Ex. R at 2, ECF 143-21 (Email from T. Towell to S. Lerner dated Aug. 1, 2018). Plaintiffs' counsel responded by sending a letter and subpoena scheduling Dr. Souag's deposition for August 29, 2018 in Doha, Qatar. See MTC Souag Dep., Ex. 6 at 2, ECF No. 136-8 (Ltr. from S. Lerner to T. Toweill dated Aug. 7, 2018). On the same day, Plaintiffs' counsel wrote a separate letter stating that seeking a protective order or moving to quash would be the appropriate means to defy a subpoena. See id., Ex. 7, ECF No. 136-9 (Second Ltr. from S. Lerner to T. Toweill dated Aug. 7, 2018). Again, Defendants' counsel asserted that Dr. Souag lacked relevant knowledge and raised issues regarding service of process, stating that Plaintiffs “simply emailed each subpoena to Defendants' counsel of record” and, as such, did not comport with the Federal Rules of Civil Procedure which require personal service of deposition subpoenas. Id., Ex. 8 at 3-4, ECF No. 136-10 (Ltr. from T. Toweill to Pls. dated Aug. 9, 2018).

         Between August 14 and September 24, 2018, the parties exchanged several emails regarding deposition scheduling, including further discussions of the proposed deposition of Dr. Souag. See generally id., Ex. 9, ECF No.136-11 (Email Chain between Pls. and Defs. dated Sept. 25, 2018) (hereinafter “9/25 Email Chain”). On August 25, 2018, Plaintiffs' counsel requested a “tentative date for Dr. Souag, in the event that the parties amicably resolve their disputes.” Id. at 10 (Email dated Aug. 25, 2018). Defendants' counsel ultimately declined to provide a ...