No Defamation Liability for NYU Report Summarizing Court Filing Alleging Prosecutorial Misconduct

From McCaffery v NYU School of Law, decided yesterday by Judge John Murphy (E.D. Pa.):

This is a defamation case. The challenged statements are recent, but they describe an earlier legal proceeding. The story begins in 2007, when Dontia Patterson was arrested and charged with murder in Philadelphia. His first trial, prosecuted by Assistant District Attorney Beth McCaffery, ended in a hung jury. His second jury trial, prosecuted by Assistant District Attorney Richard Sax, resulted in his conviction.

Years later, Mr. Patterson’s convictions and related charges were vacated and he got a new trial. At this point, the Philadelphia District Attorney’s Office (DAO) assessed whether to try Mr. Patterson a third time and the DAO charged its Conviction Integrity Unit (CIU) with investigating the case.

The DAO determined that Mr. Patterson was probably innocent, so it sought to drop the case against him. As part of these proceedings, Patricia Cummings—then-Chief of the CIU—drafted a motion that alleged prosecutorial misconduct, asserting that the original prosecutors hid exculpatory evidence from the defense. The motion succeeded.

Six years later, New York University and NYU School of Law—where Ms. Cummings was serving as a Research Scholar—published a report focused on prosecutorial misconduct in the Philadelphia DAO. The report included 55 case studies—one of which focused on Mr. Patterson’s case. The report’s case study on Mr. Patterson included specific allegations from the Nol Pros Motion, and it named Ms. McCaffery and Mr. Sax as the prosecutors involved. Ms. McCaffery ardently rejects, as defamatory, the allegations made against her in the Nol Pros Motion and later published in the report, and she seeks relief for defamation and related torts. {Often shortened, as in this opinion, to “nol pros[,]” “[a] nolle prosequi is a voluntary withdrawal by the prosecuting attorney of proceedings on a particular bill or information, which can at any[ ]time be retracted to permit a revival of proceedings on the original bill or information.”} …

The case largely turned on the “fair report” privilege, which protects accurate accounts of government proceedings, including of court filings (whether or not the filings being reported on contain errors). The court noted that the N.Y. and Pennsylvania fair report privileges differ:

New York’s privilege is absolute and applies despite allegations of malice or bad faith by the alleged defamer who publishes the allegedly defamatory statements from the underlying proceeding, whereas Pennsylvania’s privilege is qualified and is waived if the alleged defamer publishes the defamatory material solely for the purpose of causing harm to the person defamed (in other words, if she publishes the material in bad faith or with malice). Here, defendants would be shielded by the New York privilege if they published a fair and true report of the Patterson proceeding, with the sole purpose of publishing the material to harm the targets of the reporting (i.e., Ms. McCaffery and Mr. Sax). But under such circumstances, defendants would not be shielded by the Pennsylvania privilege. Indeed, the only situation in which the New York fair report privilege would not apply is if the underlying proceeding was brought maliciously and solely for the purpose of later defaming the plaintiff….

The court concluded that the N.Y. privilege should apply:

Second, compared to Pennsylvania, New York has a more significant relationship to the events and parties involved. The allegedly defamatory statements regarding Ms. McCaffery in the Zimroth Report originated in New York and were made by a New York-based publisher (NYU) and an individual (Ms. Cummings) who was then employed by NYU to assist with the report.

The fair report privilege shares a closer nexus with the speaker that it protects than the allegedly defamed party. And the speakers in this case were in New York when they published the allegedly defamatory statements. Because the privilege protects the speaker, the absolute nature of the New York privilege suggests that New York’s policy interest in broadly protecting the speaker outweighs Pennsylvania’s policy interest in providing more limited, qualified, speaker protections.

Further, the alleged defamation was national in scope, thus decreasing the relevance of the state of the plaintiff’s injury (Pennsylvania) to determining which substantive law to apply. Finally, applying New York’s fair report privilege to alleged defamation from New York publishers promotes certainty, predictability, and uniformity.

And under the New York privilege, the court held, the account was immune from defamation liability:

Based upon our review of these documents, we conclude that the Zimroth Report’s summary of the Patterson proceedings constitutes a “fair and true” report under Section 74. The report very closely summarized the contents of the Nol Pros Motion—in many places, it did so verbatim—and it clearly cites to this motion as a source for the summary. Given the citations and context of the Zimroth Report’s summary of the Patterson case, the ordinary reader must know that this section was reporting on Mr. Patterson’s judicial proceedings.

Additionally, the most damaging allegations against Ms. McCaffery are found in the Nol Pros Motion itself, some of which the Zimroth Report directly quotes: that she, as well as Mr. Sax, committed “egregious … prosecutorial misconduct” by “hiding evidence” and “violating the law” with respect to the government’s Brady obligations in their prosecution of “a man who is probably innocent and whose case is so lacking in integrity.” Such summaries or restatements of the Nol Pros Motion’s allegations against Ms. McCaffery and Mr. Sax “are the type of statements that fall within [S]ection 74’s privilege[.]”

As for the information included in the Zimroth Report’s discussion of the Patterson proceedings that did not facially derive from the Nol Pros Motion—which describes the background of the shooting, the two jury trials, the post-conviction proceedings, and the nol pros proceedings—that information is derived fairly from the sources cited in the report. There really is no white space here: the sources cited by the report say what the report says. And the publication was not required to “report the plaintiff’s side of the controversy” or include specific information from the underlying proceedings so long as the publication was “substantially accurate[.]”

To recapitulate, the information about the Patterson proceedings contained in the Zimroth Report is substantially accurate vis-à-vis the documents it cites as its sources, and that is what matters for purposes of the fair report privilege. That Ms. McCaffery disagrees with, and finds scandalous, the allegations in the Nol Pros Motion, and those reported on in the various media articles, cannot change the result. Her disagreement, even accepted as true, “does not affect whether the statement is a fair and true report of the allegations it paraphrases.”

And the court concluded that the privilege wasn’t defeated by the so-called “Williams exception” in N.Y. law:

Williams concluded that the same person could not “maliciously institute a judicial proceeding alleging false and defamatory charges” and subsequently “circulate a press release or other communication based thereon” yet escape liability under the fair report privilege…. [But] the Williams exception is narrow—and for good reason, given New York’s strong policy interests in promoting expression, which the absolute privilege protects. To invoke this privilege, Ms. McCaffery would have to plausibly allege that the nol pros proceeding regarding Mr. Patterson was “to maliciously institute a judicial proceeding alleging false and defamatory charges” against Ms. McCaffery and then “circulate a press release or other communication based thereon.”

Ms. McCaffery does not make a plausible claim that the nol pros proceeding was brought solely for the purpose of defaming Ms. McCaffery. We need look no further than her amended complaint, which alleges various other purposes for the nol pros proceedings, such that the face of her complaint defeats any allegation that those proceedings had the sole purpose of defaming her. See DI 26 at ¶¶ 52-53, 65, 67, 209 (alleging that the motion presented “a convenient opportunity for a high-profile first exoneration” during “[DA] Krasner’s first term”; a chance to reverse a conviction and publicly disparage Richard Sax, who was DA Krasner’s “longtime nemesis”; an opportunity “to defame and ruin Beth McCaffery and Richard Sax”; and a vehicle for creating “a public record defaming the prosecutors who handled the case.”). According to Ms. McCaffery’s own pleadings, the nol pros proceedings and motion had multiple purposes. It follows that it plausibly could not have the sole purpose of defaming Ms. McCaffery.

Additional considerations undermine any reliance on the Williams exception. For one, the nol pros proceeding was brought by the DAO—not Ms. Cummings, NYU, or NYU Law—distinguishing this case from Williams. And unlike Williams, the allegations suggest no overarching plan to initiate a sham proceeding for the purpose of later defaming the target of that proceeding through publication of the proceeding. The Zimroth Report was published six years after the nol pros proceedings occurred, and at the time of those proceedings, Ms. Cummings was in no way affiliated with NYU or NYU Law.

It would require more than a reasonable inference to understand how proceedings brought six years prior to a university-sponsored report—when that university had no connection to the proceedings at the time they occurred—could be brought solely for the purpose of defaming an individual or individuals involved in those proceedings. No one disputes that NYU and NYU Law had nothing to do with the nol pros proceedings, rendering Williams clearly, and entirely, inapplicable to them—and Ms. McCaffery has provided no persuasive argument to the contrary.

Alexandra Perloff-Giles, Geoffrey S Brounell, Jeremy A. Chase, and Raphael Holoszyc-Pimentel (Davis Wright Tremaine LLP) represent the NYU defendants, and Jason A. Levine, John S. Summers, and Nicholas Jordan Bellos (Hangley Aronchick Segal & Pudlin) represent Cummings.