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Locke Liddell & Sapp partners believe — and few would disagree — that their client Scott O’Grady’s story is compelling and heroic. And O’Grady’s lawyers expect that heroism to help them win their case in a trial scheduled to start in federal court in Texarkana, Texas, today. In 1995, O’Grady, then a captain in the U.S. Air Force, was enforcing a no-fly zone over Bosnia when a Serbian surface-to-air missile hit his F-16 fighter jet. The F-16 exploded into a ball of flames. O’Grady ejected at 25,000 feet, floating perilously in his parachute for 25 minutes before landing in Serbian territory. He then spent six days hiding from his would-be Serbian captors. O’Grady staved off hunger by eating grass and dehydration by squeezing water from his soggy socks until he finally made radio contact with a U.S. fighter jet. NATO and U.S. forces then flew in to rescue O’Grady. As the lead story on the nightly network newscasts, O’Grady became a national hero, dining at the White House. Since then, O’Grady has shifted to the inactive reserves, moved to Plano, Texas, begun studying the Bible at the Dallas Theological Seminary, and established a career as a motivational speaker. He commands as much as $15,000 per speaking engagement. He also has co-authored a children’s book and an adult nonfiction book detailing his dramatic survival. Altogether, Locke Liddell lawyers say, he has earned some $3 million over the past five years in speaking fees and publishing royalties. “Those six days for Scott changed his life,” says Peter Flynn, a partner in Dallas’ Locke Liddell & Sapp. But they also inspired and served as a rough plot outline for the big-screen movie “Behind Enemy Lines,” starring Owen Wilson and Gene Hackman, released in November 2001 by 20th Century Fox Film Corp. Two days before its theatrical release, the movie was promoted on the Discovery Channel. While the cable television network broadcast a British Broadcasting Co. documentary about O’Grady, the Discovery Channel aired commercials for the movie and new material about the making of the movie. Today, Locke Liddell’s Flynn, along with his partners George Bowles and Roy Hardin, will go to trial in federal court in Texarkana in a suit pitting O’Grady against the movie company and the Discovery Channel. Texarkana solo G. William Lavender serves as local counsel. In his amended complaint in Scott O’Grady v. 20th Century Fox Film Corp. and Discovery Communications Inc. — filed in the Eastern District of Texas before U.S. District Judge David Folsom — the former fighter jet pilot alleges, among other causes of action, that the media companies violated the Lanham Act, which bars false representations, advertising and endorsement. In his May 2003 amended complaint, O’Grady alleges that 20th Century Fox and the Discovery Channel misled and caused confusion about his endorsement of “Behind Enemy Lines” with their Nov. 28, 2001, broadcast of the BBC documentary. Although the program had aired previously on the Discovery Channel, the cable network gave it a new title after its initial broadcast — “Behind Enemy Lines: The Scott O’ Grady Story.” O’Grady did not endorse the movie, he alleges, and the broadcast made it appear as if he did. In their responses, 20th Century Fox and the Discovery Channel deny the allegations. In motions for summary judgment, the two companies succeeded on Dec. 19, 2003, in convincing U.S. Magistrate Judge Caroline M. Craven to dismiss O’Grady’s cause of action alleging that the movie itself invaded his privacy and constituted false advertising. The media companies persuaded Craven that Texas law does not protect a person’s life story from being used as the basis of a fictional story. But they did not succeed in persuading Craven to dismiss O’Grady’s claims as they relate to the Nov. 28, 2001, broadcast of the documentary on the Discovery Channel, which are expected to be central to the trial. For its defense, Fox tapped Jackson Walker partner Chip Babcock, who has gained national exposure representing Oprah Winfrey. He also represents Dallas television station KDFW, a Fox-affiliated station. Babcock will be assisted at trial by his partner Nancy Wells Hamilton, associate Cedric Scott and local counsel George L. McWilliams, a partner in Patton Haltom Roberts McWilliams & Greer in Texarkana. For its defense, the Discovery Channel hired Davis Wright & Treman partner Laura Handman of Washington, D.C., who shares trial responsibilities with Los Angeles partner Gary Botswick. Botswick gained national exposure representing America’s most famous houseguest Kato Kaelin in a civil suit. Serving as the Discovery Channel’s local counsel is Victor Hlavinka, a partner in Texarkana’s Atchley Russell Waldrop & Hlavinka. VARIATIONS ON A THEME Earlier this month, the two sides, both of which are using jury consultants, picked a jury panel of six men and four women. The plaintiffs and defense lawyers expect the trial to last at least two weeks and they anticipate some drama in the suit that pits a national hero’s interests against principles of artistic license. The central theme at trial is whether 20th Century Fox should have advertised its fictional work on the Discovery Channel in conjunction with the airing of a documentary about O’Grady, whose experience inspired the movie. The Nov. 28, 2001, Discovery Channel broadcast included not only the previously recorded and broadcast BBC interview with O’ Grady, but also a “sneak peek” and “behind the scenes look” at the movie starring Wilson and an introductory narration that provided a “detailed look at the fact and fiction of true survival.” The defendants argue that O’Grady doesn’t have a false advertising claim based on the Discovery Channel broadcast. In its motion to dismiss, 20th Century Fox argued that O’Grady already has conceded in a deposition that the movie company never used his likeness or name in advertising the movie and that he had previously contractually consented with the BBC for the use of his name in the documentary, a term the Discovery Channel inherited when it bought rights to use the documentary from the British television producers. Moreover, Discovery Channel lawyer Handman says O’Grady failed to show any “explicitly misleading statements,” as required to constitute a violation of the Lanham Act. In a deposition, Robert Alan Anderson, a Discovery Channel employee who will testify at trial, said he wrote the introductory broadcast material. Anderson said he drew comparisons between the movie and Scott O’Grady’s story and “wanted to make clear that there was no confusion” between the movie and the documentary. But the Locke Liddell partners, who represent O’Grady on a contingent-fee basis, do not buy that contention. “I took that deposition. I know what he said,” says Locke Liddell’s Flynn, “If you see that program, you can make up your own mind. I just don’t believe it.” Both sides agree, however, that the character Wilson played in the movie contrasted sharply in personality with the real-life O’Grady. Wilson’s character, O’Grady notes in his complaint, was a hotshot, wanted to get out of the service, used profanity and defied commanders. The real-life O’ Grady did or felt none of the above. The movie and O’Grady’s real-life story also differ dramatically in terms of the plot line as it relates to what happened between the downing of the jet and the rescue. In reality, O’Grady notes in his complaint, he spent six days hiding, talking to no one, hungry and without water. In the movie, Wilson encounters much more action. He meets up with Bosnians, battles with the enemy, and faces resistance on the part of allied forces when it comes time for his rescue. The movie studio “needed a real American hero to make a movie that was not Scott O’Grady’s story,” Flynn says. Babcock, 20th Century Fox’s lawyer, says, “This case is not about the movie. It is about one broadcasted program on the Discovery Channel.” Says Handman: “Discovery has high-quality factual programming. It does not telecast any fictional programming.” Babcock says he can’t figure out what amount of damages O’Grady will seek, since he didn’t specify a number in his complaint. Locke Liddell’s Flynn says they will ask for a disgorgement of profits from the movie. Bowles confirms that the Discovery Channel has argued that if O’Grady prevails, he only will have the right to $70,000 — the amount the channel received from the movie’s advertisers, after production and other costs. But Bowles disagrees. “I think in this case the broader significance is the First Amendment principles, not the damages,” says Bonnie Bogin, a senior vice president and litigation specialist for 20th Century Fox.

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