More than a year after the death of conservative blogger and web publisher Andrew Breitbart, a Washington federal trial judge expressed frustration on Wednesday that Breitbart's role in a defamation lawsuit remained unsettled. The judge threatened to hold lawyers in contempt unless he gets answers.
Breitbart's former counsel at Katten Muchin Rosenman bore the brunt of U.S. District Judge Richard Leon's irritation as he pushed for information about unresolved issues related to Breitbart's death—chiefly, whether he left a will and whether there was an estate that could be substituted as a party. Leon said he had an "uneasy feeling" about Katten's level of cooperation and said a law firm of its stature should "not be a party to games like this."
Whether Breitbart left a will is "a very simple question and it is hard for me to believe that he does not know the answer," Leon said, referring to Katten partner Alan Croll, who was not in court. Katten partner David Rohrbach said the firm was working on the matter and never intended to deceive the court, but Leon said that if he didn't get answers from Croll within the next month, he would consider holding him in contempt.
Breitbart, Breitbart's colleague Larry O'Connor and a third, unnamed defendant were sued for defamation in 2011 by former U.S. Department of Agriculture official Shirley Sherrod. Sherrod accused Breitbart of posting a "deceptively edited" clip of a speech she made online to falsely accuse her of racism. The clip seemed to show Sherrod, who is black, admitting to discriminating against a white farmer. After the clip was posted, Sherrod complied with a request by her superiors to resign, but received apologies from Agriculture Secretary Tom Vilsack and the White House after the full version of her remarks were released and showed that she actually had repudiated racism.
Breitbart and O'Connor denied wrongdoing. They argued the online post about Sherrod's speech was protected under the First Amendment.
The parties reached an agreement late last week about how to proceed with the unnamed defendant, known as John Doe. According to a September 6 court filing, Sherrod agreed to a protective order that would keep Doe's name secret from the public but allow her lawyers to take his deposition and gather other information.
In an affidavit filed with the court, Doe said he lived in Georgia and alerted Breitbart in 2010 to Sherrod's speech after watching it on television. Doe said he sent a copy of the speech to Breitbart and O'Connor but wasn't involved in producing the online post at issue in Sherrod's lawsuit. Doe said he feared retaliation were his identity revealed.
A lead attorney for O'Connor, Mark Bailen of Baker & Hostetler, said the parties agreed to the protective order to avoid "protracted" litigation over Doe's identity, but he believed discovery would prove Doe's role was limited and that he shouldn't be a party to the case. Leon didn't rule on the protective order, but said he likely would approve it.
Wednesday’s hearing marked the first court appearance since a decision in June by the U.S. Court of Appeals for the D.C. Circuit allowing the case to proceed. The defendants unsuccessfully moved to dismiss Sherrod's claims under a D.C. law barring strategic lawsuits against public participation, or SLAPPs. After Leon denied the motion, the defendants appealed. The D.C. Circuit affirmed Leon's decision, finding the defendants missed the deadline to file their motion.
Lead counsel for Sherrod, Thomas Clare of Kirkland & Ellis, said he was ready to move forward with discovery. Even if Breitbart died without a will, Clare said, Leon had the authority to substitute an estate.
Bailen offered a few hints about his defense strategy. He said he'd be seeking emails from the U.S. Department of Agriculture that might challenge Sherrod's claim that she was forced to resign because of Breitbart's post. Bailen said the time was "ripe" for a motion for summary judgment on whether Sherrod could meet the standard for proving Breitbart or O'Connor acted with "actual malice."
Leon scheduled another hearing for October 16, saying he wanted a response from Croll in the meantime about whether Breitbart left a will and any attorney-client relationships the firm had that might affect the case, such as with business entities Breitbart was involved in before his death. According to Rohrbach, Katten was not representing Breitbart's widow.
"It's time to move this case forward," Leon said.
Contact Zoe Tillman at firstname.lastname@example.org.