Civil proceedings that follow criminal actions can produce fiddly privilege situations. When a failed candidate in West Virginia’s 2018 Republic primary obtained a Venue Opinion Study to help transfer a criminal action to a different locale, Fox News—in a later civil action—sought “any and all” communications underlying the study–and more. The court rejected this discovery attempt, holding that Fox News’s requests went beyond subject-matter waiver and improperly invaded the candidate’s privilege. Let’s examine this pigs-get-fat-hogs-get-slaughtered ruling. Blankenship v. Fox News Network, LLC, 2020 WL 7225765 (S.D. W. Va. Dec. 8, 2020).
The Court of Public Opinion
The DOJ indicted Don Blankenship, a so-called coal baron and the long-time leader of Massey Energy, on felony and misdemeanor charges following the tragic 2010 coal-mine explosion that killed 29 miners. Sensing the locals would not judge him fairly, Blankenship retained Decisionquest, a jury-research and trial-consulting firm.
As explained by Decisionquest’s COO, (declaration available here), the firm provided jury-research services, including polls and surveys, designed to ascertain the public’s opinion of Blankenship. The firm’s investigation led to the creation and later production of a “Venue Opinion Study,” which you may read here.
The study, I’m sure, was valuable in the criminal action, but also offered fertile discovery in the future defamation case involving Blankenship’s reputation.
News Stories and a Sue-Everybody Defamation Action
A jury acquitted Blankenship of all felony counts but convicted him on one misdemeanor charge, for which he spent a year of incarceration. In 2018, Blankenship sought the Republican nomination for one of West Virginia’s Senate seats. And, Blankenship alleges, the conservative and liberal establishment lined up against him—and overstepped in doing so.
After losing the primary, Blankenship sued a plethora of news organizations and their camera-ready personalities for “weaponized defamation.” The defendants included CNN, MSNBC, Breitbart News, and Fox News, among others. CNN commentators said that he was a “convicted felon.” Fox News’s Andrew Napolitano said on-air that Blankenship had been convicted of felonies. Judge Napolitano later admitted this “inadvertence,” as you can see in this video.
Blankenship’s defamation lawsuit claimed these public comments damaged his reputation. And in an effort to show that Blankenship’s reputation was already damaged, Fox News sent a subpoena to Decisionquest seeking information and communications underlying its Venue Opinion Survey.
The subpoena, available here, sought “all” Decisionquest communications regarding Blankenship’s reputation or campaign and “all” communications, including internal memoranda, related to the jury-research polls and surveys.
Motion to Quash, FRE 502, and a Ruling
Blankenship moved to quash Fox News’s subpoena to Decisionquest arguing that it sought information and communications between him, his attorneys, and Decisionquest pertaining to the criminal trial. Fox News countered that Blankenship waived these protections because he filed the Venue Opinion Survey in the criminal action.
The court acknowledged that disclosure of the report waived the protections over the report and its underlying data—even if undisclosed—under FRE 502 and the subject-matter waiver doctrine. But the subpoena, the court found, went well beyond even the broad subject-matter waiver doctrine.
Fox News sought communications regarding Blankenship’s strategies on jury selection in the criminal trial. Each of its six requests contained the unlimited “all” modifier, meaning that Fox News failed to differentiate “between Decisionquest’s services concerning public opinion” of Blankenship “with services concerning jury selection.” In fact, Fox News saw the need to define the word “all”:
“All” and “any” shall be construed as encompassing all and any.
The unlimited, broad requests “concern clearly privileged communications and documents” that Blankenship had not waived—communications unrelated to the venue opinion. The court granted the motion to quash the entire subpoena, stating
In short, [Fox News’s] requests are very broad and endeavor to violate the attorney-client privilege and/or work-product doctrine between [Blankenship] and Decisionquest.