Skip to comments.Palin's lawsuit against Random House may have to be settle out of court because of "Discovery" phase
Posted on 09/26/2011 9:09:51 PM PDT by Bigtigermike
Just got off on the phone with a friend in the legal field and she says that a potential lawsuit against Random House by anyone of the Palin family involved in the "trash book" will most likely be quietly settled out of court because the idiot McGinniss opened up Random House to a whole lot of trouble and gives the Palin's an upper hand and GIFT in Court because McGinniss waived attorney client privileged between him and RH by talking about it to a third party (Jesse Griffin) and thus Palin's lawyers are entitled to ALL correspondence from Random House concerning the book.
My friend say that Random House may have a lot of leftists there and may hate Sarah Palin with a passion but its pure suicide for them legally to open up their correspondences in the "discovery phase"....they may have more damning info in those correspondence that was meant only for "Random House Eye's Only".
She said Random House and Jon Meachem may do a kabuki dance in the public defending the book and its "sourcing" on these false allegation but behind the scenes they will most likely quickly call for a settlement before the case got to discovery phase or even before the case is brought forth.
Legally, The Palin family has Random House and Joe McGinniss is a terrible legal bind.
(Sarah, Will that be in 20's or 100 dollar bills?)
You wrote: “And what harm has been done anyway?”
A lib screamed, “Your mother’s a whore!” at Bristol Palin after the book came out. While this is just an example, emotional damages are still damages. Furthermore, Sarah isn’t running: can the book be blamed for that? You bet it can, since libs DO believe the lies in it, and would vote against her.
Just because most celebs don’t sue doesn’t mean that libel is harmless; most celebs don’t have the admission by the author that the allegations are baseless. This is a slam-dunk suit that will end in a large award or settlement.
The letter only mentions attorney-client privilege with respect to correspondence between the RH lawyers and the author, NOT correspondence between RH executives and the RH lawyers.
Again, I don’t believe any real A/C privilege exists between a publisher’s lawyers and an author. They represent the publisher, not the author, and are working to protect the interests of the publisher.
I surmise that the Palin lawyers mention a waiver of A/C privilege between the author and the RH lawyers simply to preclude that line of attack being used to slow down the process. I would be surprised if a judge at trial would have allowed them to assert an A/C privilege on those communications.
Of course, I’m not a lawyer, and so I don’t know all the nuances of A/C law. I guess there could be some limited privilege a person who didn’t hire a lawyer might claim if they argued they THOUGHT the lawyer was acting on their behalf — and the disclosure of the communication would preclude that argument.
But what seems clear is that this has nothing to do with the A/C privilege between the RH lawyers and the RH executives, which means that there would be no airing of THAT dirty laundry without additional work.
The question is whether the author disclosing that there was an e-mail from the RH lawyers in which they say he needs evidence would in any way open them up at some point to having to disclose limited communication of the same information to their in-house executives. I can’t imagine A/C privilege being broken in that way though.
I think the e-mails between the author and RH could be damaging enough — but I don’t think based on what we know now that there is any breach of A/C privilege within the RH company. And I don’t see how a person not employed by the company, who is in a contract with the company, could possibly effect a breach of the A/C privilege a company has with it’s own lawyers.
Maybe we aren’t really arguing the same thing.
I ain't a lawyer though, so I'm just guessin' . . .
You know who Mark Levin is? of course you do and he is a lawyer and has a law firm - he said the SAME thing on his OWN on his radio show when the news was being breaking about the potential lawsuit - that McGinniss waived all A/C privileged and that Palin lawyers can go through their files and notes ( he wasn’t even reading Palin’s Lawyers letter)
Attorney-client privilege is applicable right up to the time you tell someone else what you discussed with your attorney. After that point, it no longer exists.
What harm to her? Are you kidding? Have you seen the filth spewing up from the sewer over on Twitter? Yes that junk has been published and yes there are thousands who are not only believing it but getting perverse joy from it. Defamation law regards accusations of moral turpitude so inherently damaging you dont even need to show specific damages. The harm inflicted by these lies might never be eradicated, even with Random House and McGinniss doing a high profile, often repeated, groveling retraction. Many people dont think deeply about the negative things they hear about people, and a bad first impression can be difficult to overcome, even with the truth. Oh yes, the harm is quite real, and while a retraction and a large financial settlement are appropriate, they are only a small step in the right direction, not by any means a full redress of the scars inflicted by such lies.
I find it interesting, BTW, that you consider it mere whining to be concerned for ones reputation. Is that a standard you are willing to apply to yourself? Say you were running for mayor of your town, and the local newspaper published an anonymous letter claiming to be from one of your neighbors that made you out to be a pedophile. Now all your friends and actual neighbors ask you about it, or start telling their children to avoid you, on top of which you get creamed in an election you were on cruise control to win. Do we feel the pain yet? Is that not harm? Do you really expect any of us to take you seriously that you would not want to defend your own reputation? Or would you really just let it happen, for fear of seeming to be a whiner, even f it was destroying your family, your friendships, your job, and your ability to run for office or otherwise improve your life?
In the history of law, reputation is actually considered a component of the right to life, because destruction of reputation is really the destruction of the ability to live ones life. It is exile, a prison, a palpable loss of freedom. If you believe in the right to life, you cannot exclude from that the right to protect your life when it is threatened, either directly, or through the unjust destruction of your reputation. Defamation law is to your reputation what the second amendment is to your physical life, a right of self-protection, and Palin has as much right to use it as you and I have to keep, bear, and use firearms when necessary.
As for the quitting meme, get over it. Youre a quitter too. Yes you are. Are you still employed in the very first job you ever held? No? Were you fired or did you quit? If you quit, youre a quitter. See the problem? Quit is just a smear word. It means nothing because it explains nothing. No doubt you quit because you had good reason. Well and good. Then quitting is OK if the reason is good, right? Care to apply the same rule to Palin as you do to yourself?
Or would you accuse a field commander of quitting if he backed his men out of a firefight he knew they couldnt win, so they could come back later to reengage the same enemy on a battle field better suited to victory? Because if you still consider that quitting, then all is lost, because our own George Washington is a quitter by your standards, as he often used strategic retreat as a way to beat a numerically superior enemy. My own position is if its good enough for Washington, its good enough for Palin.
The chances of Obama being involved in this are the same as the chances that Osama was involved in 9-11. The basic technique is the same as Obama used to destroy his first Republican opponent in his Senate election. Obama's campaign illegally obtained and released sealed divorce records on his opponent. These records contained likely false allegations which his opponent allowed to stand because he wanted to get the divorce over with. If Palin does not fight this or choses not to run because of this, Obama will have won another one.
I agree that McGinness waived any A/C privilege he may have had. I disagree first with the idea he had any real privilege to begin with, and second with your post’s assertion that his action breaks the A/C privilege between RH and it’s own lawyers.
I will assume you are transmitting Mark Levin’s comments accurately — but your own recounting shows he didn’t seem to say that the RH A/C privilege was broken, just the McGinness/RH-lawyer privilege.
As I said, I don’t believe such a privilege exists, but I could be wrong about that. I was speaking of the RH/lawyer privilege that your post suggested would open them up to ridicule.
I’ve searched and found nobody who is claiming that McGinness has, or could possibly, waive the A/C privilege that exists between RH and the RH lawyers.
Do you have a source for that?
I've never litigated a waiver of attorney client privilege, but, if X emails a friend and says "I've been meeting with my lawyer about that hobo I killed last Christmas. He is very concerned that I'm going to be convicted." Then X can't use attorney-client privilege to keep that email out of court, but it does not follow that the DA can call X's lawyer as a witness when X is tried for killing the hobo, much less that the DA can call X's attorney in front of the Grand Jury, to testify about all of the other hobos X told his lawyer that he has killed.
Thanks. Love your tag line, BTW. Makes me laugh every time I read it.
Possibly the subtle difference is that the letter describes, not merely the lawyer’s concern over conviction, but direct culpability over a specific element of the cause of action, knowledge that the claims of the book were false, knowledge held by both RH and McGinniss. In your hobo hypothetical, it would be like saying you told the lawyer you did kill the hobo, and showed the lawyer the weapon. Loss of privilege would allow the prosecution to explore anything reasonably related to the exposed subject matter, would it not?
Instead of money,force the publisher,the parent company AND McGinnis to post a formal apology in every major newspaper in the country,retracting every single lie put forth as complete and contrived falsehoods intended to besmirch her and her family’s character, order the immediate removal of this book from all store shelves and reimburse the stores for their cost.Settle out of court for that,get it behind her and move on to the business of getting elected POTUS.
“...This has got to be upper six figures just for this category.”
Try 7 figures.
“Palins go forward with the suit it is probably because they are certain RH & McG cannot defend via truth.”
Legal considerations aside, (I bow to your obvious expertise) a lawsuit has political ramifications that the Palins should be, and probably are, factoring in. By addressing smears in this manner they may be innoculating themselves against future or continued use of smears as a political weapon by the opposition.
Winning a defamation suit against Mcg and RH will pre-emptively de-fang the left and their penchant for using smear tactics especially at the 11th hour. ie “October surprise.”
Note that Obama has used these types of attacks against his opposition in both his Ill. State Senator and Ill US Senator campaigns. It is a weapon he has wielded before, and, through surrogates, will undoubtably use again.
Instead of becoming a distraction, a lawsuit may allow Sarah Palin to refocus the 2012 elections back on Obama’s failures as a CIC. Questions about allegations can be difused/avoided by “Under advice of council I cannot address questions about any of the allegations in this book due to ongoing legal actions.”
Actually I can see that a lawsuit could be a huge positive for Palin. All depends upon the strength of their position.
The two basic exceptions to attorney-client privilege, where an attorney can be examined about what the client said, are (1) a proceeding where the lawyer is accused, by the client, of improper behavior, and (2) a proceeding where the client is accused of planning future criminal behavior. If you could depose a lawyer every time a client shot their mouth off about what was (allegedly) discussed with the lawyer, attorney-client privilege would all but disappear. This is no different that a client who is dumb enough to blurt out something to his attorney in hallway outside a courtroom, where other people can hear it. The other side may be able to use that particular statement,that was overheard, but they can't put the lawyer on the stand and ask about every other statement the client made to the lawyer.
Well, I for one am glad to see Sarah punch back. Like any bully/victim situation, once you punch the bully out, he won’t be a bully anymore. Sarah can take these guys out, and completely diffuse all the BS that’s been thrown her way. Every allegation can be cleared with this one knockout punch.
LOL, fresh off the farm are ya?
You mean like Jackson saying that JQA had hooked up with French prostitutes knowing it wasn't true?
Politics has always been base. The few times when people think it wasn't was when one side was controlling everything.
Not even close. I work in ministry and deal and teach about spiritual warfare often. This isn’t it, not even close and to say it is degrades the concept and view of what spiritual warfare really is.
And I doubt Sarah would think it was either, based upon her faith. She would probably be just as disgusted as I am that you don’t know the difference.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.