United States District Court, District of Columbia
RYAN W. ZIMMERMAN et al., Plaintiffs,
AL JAZEERA AMERICA, LLC et al., Defendants.
M. MERIWEATHER UNITED STATES MAGISTRATE JUDGE
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, 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
The Dark Side
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,
Dr. Souag's Relevant Responsibilities
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. ¶
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,  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).
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.
Relevant Procedural History
Plaintiffs' Request to Depose Dr. Souag
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,
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 ...