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JACOBSON v. DEUTSCHE BANK

June 14, 2002

PAUL JACOBSON, PLAINTIFF,
V.
DEUTSCHE BANK, A.G., SUZAN J. MITCHELL, EXECUTRIX OF THE ESTATE OF EDSON MITCHELL, AND ROLF BREUER, DEFENDANTS.



The opinion of the court was delivered by: Buchwald, District Judge.

MEMORANDUM AND ORDER

Plaintiff Paul Jacobson, a former employee of Deutsche Bank, A.G. ("DBAG"), brings this action for defamation against Rolf Breuer, CEO of DBAG, Edson Mitchell,*fn1 his former supervisor, and DBAG itself.*fn2 Defendants moved for summary judgment, arguing that Mr. Jacobson is unable to prove the most fundamental element of his case — that Mr. Breuer actually uttered the allegedly defamatory statements at issue. Because we find that the Federal Rules of Evidence mandate exclusion of the single piece of evidence offered by plaintiff to satisfy his burden on this element, we grant defendants' motion and dismiss this suit with prejudice.

BACKGROUND

Deutsche Bank, a German corporation, is one of the world's leading financial services providers, with nearly a hundred thousand employees and millions of customers. See http://www.db.com. From early 1996 to late 1997, Mr. Jacobson was a Managing Director and Co-Head of the North American Fixed Income Division of Deutsche Morgan Grenfell, Inc. ("DMG"), a subsidiary of DBAG. On or about November 30, 1997, however, Mr. Jacobson resigned from DMG.*fn3

Several months later, on or about March 3, 1998, Mr. Breuer presented a speech to the Frankfurt Law Society in Frankfurt, Germany, on the subject of the then-impending introduction of the Euro. Following the speech, Mr. Breuer was approached by members of the press, including Wolfgang Reuter, a reporter for Bloomberg News Service ("Bloomberg"),*fn4 at which point Mr. Reuter and Mr. Breuer conversed briefly in the German language (the "March 3 interview"). The only other person known to be present for this exchange was Dierk Hartwig, DBAG's chief press spokesman.

The following day, at 12:48 p.m. Eastern Time, Bloomberg issued a news report ("Article One") that attributes certain quotations to Mr. Breuer ostensibly based on the March 3 interview. Compl. Ex. A. Article One states, in pertinent part:

. . . Deutsche Bank is cutting costs in its North American investment banking business, Breuer said.
"We are dismissing people who haven't performed," Breuer said, "there are losers in the bank and we are getting rid of them."
Breuer admitted that the bank had a "very bad fourth quarter in bonds trading out of New York, and as a result we've dismissed Paul Jacobson." Jacobson was the head of the North American fixed-income sales business.*fn5

Id. The gravamen of Mr. Jacobson's Complaint is that Mr. Breuer's statements, as quoted in Article One, defamed him by, inter alia, falsely blaming him for bond trading losses,*fn6 falsely stating that he was "dismissed" from DBAG,*fn7 and implying that he is a "loser." Pl.'s Opp. at 13-14. Mr. Breuer, however, flatly denies making these statements and, indeed, denies ever uttering Mr. Jacobson's name during the March 3 interview. Def.'s Responses no. 32; Transcript of September 24, 1999, Deposition of Rolf E. Breuer ("Breuer Dep.") at 59:4-12; 110:23-25. Mr. Hartwig likewise denies that Mr. Breuer made the allegedly defamatory statements at issue. Transcript of February 21, 2002, Deposition of Dierk Hartwig ("Hartwig Dep.") at 9:21-25.

Accordingly, Mr. Jacobson has attempted to procure the testimony of the only other person known to have been present at the March 3 interview: Mr. Reuter himself. At this Court's request, Mr. Reuter was deposed by a German judge on October 20, 2000, in Germany. See Letter of Request for International Judicial Assistance Pursuant to the Hague Convention of 18 March 1970 on the Taking of Evidence in Civil or Commercial Matters*fn8 dated June 5, 2000; Transcript of October 20, 2000, Deposition of Wolfgang Johannes Reuter ("Reuter Oct. Dep."); Letter from James A. Batson dated November 1, 2000. While Mr. Reuter answered a few background questions, he invoked the journalist's privilege*fn9 in refusing to answer any questions about the March 3 interview.*fn10

Recognizing the import of Mr. Reuter's testimony, Mr. Jacobson promptly challenged this assertion of privilege in the Frankfurt District Court. See Letter from James A. Batson dated December 20, 2000. On May 18, 2001, the Frankfurt District Court issued an order upholding Mr. Reuter's assertion of privilege. See Letter from James A. Batson dated June 14, 2001. Mr. Jacobson unsuccessfully appealed the District Court's decision, and no further appeals are permitted. See Letter from James A. Batson dated December 14, 2001.

DISCUSSION

Defendants move for summary judgment pursuant to Fed.R.Civ.P. 56(c) on the ground that Mr. Jacobson has not proffered any competent evidence that Mr. Breuer actually uttered the allegedly defamatory statements at issue, an element of a prima facie case for defamation. As defendants are clearly correct on this point, we grant summary judgment*fn11 in their favor.*fn12 Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ("Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial."); see also Anderson v. Liberty ...


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