Seven months after the death of high-profile blogger and web publisher Andrew Breitbart, lawyers argued in Washington federal court today about how a defamation lawsuit against Breitbart should proceed while an appeal in the case is pending. The judge didn't issue a ruling, but did express his displeasure that no one had provided the court with information on the status of Breitbart's estate to date.
Former U.S. Department of Agriculture official Shirley Sherrod sued Breitbart, his colleague Larry O'Connor and an anonymous John Doe after Breitbart published video clips of Sherrod, who is black, speaking about her work. The video was accompanied by text accusing her of admitting to discriminating against a white farmer in her remarks. Sherrod claimed the clips were "deceptively edited" and, taken together with the accompanying text, defamatory.
The defendants moved to dismiss the case under the District of Columbia's law against strategic lawsuits aimed at public participation, known as an anti-SLAPP law, but it was denied by U.S. District Judge Richard Leon. The as-yet-untested issue of whether the city's anti-SLAPP law can apply in federal court, among others, is pending before the U.S. Court of Appeals for the D.C. Circuit, but Sherrod's lawyers filed a motion asking Leon to allow discovery to proceed in the meantime.
A lead counsel for Sherrod, Kirkland & Ellis partner Beth Williams, argued today that discovery should move ahead in several areas, including on the status of Breitbart's estate, the identity of the anonymous source named as the third defendant, and the pursuit of testimony from witnesses, including the farmer who Sherrod talked about in the video. Those issues aren't before the D.C. Circuit, Williams said, so there's no reason Leon shouldn't have the jurisdiction to order discovery.
"It's another attempt to drag this out," Williams said, referring to the defendants' opposition to discovery.
But Baker & Hostetler partner Mark Bailen, a lead attorney for O'Connor, said that the viability of the anti-SLAPP motion has everything to do with the issues Sherrod wants to explore in discovery, so Leon didn't have jurisdiction to issue such an order. Assuming the parties did move ahead with litigation over the identity of the John Doe defendant, for instance, Bailen said it would ultimately raise the question of whether Sherrod had a viable claim for defamation -- "the very issue the D.C. Circuit is addressing," Bailen said.
Leon did not issue a decision from the bench, but did say that he was "disappointed" that no one had filed a report on the status of Breitbart's estate so far. He said it seemed as though counsel were trying to "hide the ball" from the court, adding that, "the court doesn't appreciate hide the ball."
Breitbart's former counsel, Glen Donath of Katten Muchin Rosenman, told Leon that he didn't have any new information on where things stood with Breitbart's estate. Leon told Donath he wanted a report by the end of the month, and that if he couldn't get a response Leon would consider issuing an order.
The D.C. Circuit hasn't scheduled oral arguments in the case, but did set up a briefing schedule that runs through November. Leon said today that it would likely be another year before the appeals court, which he noted "has a rhythm all its own," issued an opinion in the case.