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CONDIT v. DUNNE

December 8, 2004.

GARY CONDIT, Plaintiff,
v.
DOMINICK DUNNE, Defendant.



The opinion of the court was delivered by: PETER LEISURE, District Judge

OPINION AND ORDER

Defendant, Dominick Dunne, brings this motion pursuant to Federal Rule of Civil Procedure ("FRCP") 37(a) to compel plaintiff, Gary Condit, to provide deposition testimony regarding Condit's 1) sexual relationship with Chandra Levy, Joleen Argentini McKay and Anne Marie Smith ("sexual relationships"); 2) real property interests, financial, and employment information ("financial information"), and; 3) belief regarding which specific portions of the statements alleged to be defamatory in plaintiff's complaint actually constitute a criminal accusation. Plaintiff opposes disclosure claiming the information is irrelevant and protected by plaintiff's right to privacy under the United States, California, and New York Constitutions. Plaintiff cross-moves for an order of protection pursuant to FRCP 26(c)(4) barring defendant from inquiring into these areas during discovery.

  FACTUAL BACKGROUND

  Plaintiff, former United States Congressman for the 18th District of California, Gary Condit, brings this defamation action alleging defendant, writer Dominick Dunne, made slanderous statements criminally implicating Condit in the disappearance and death of former Bureau of Prisons employee, Chandra Levy. This Court has jurisdiction pursuant to 28 U.S.C. § 1332, as complete diversity of citizenship between the parties exists and the amount in controversy exceeds seventy-five thousand dollars ($75,000).

  Plaintiff alleges slander per se arising from: 1) Defendant's statements on the December 20, 2001 broadcast of the Laura Ingraham Show, wherein defendant allegedly criminally implicated Condit in the disappearance and death of Ms. Levy (Plaintiff's First Amended Complaint ("Am. Compl.") ¶¶ 20-24); 2) Subsequent reporting of the aforementioned statements in articles in major national newspapers, tabloids, and internet websites (Am. Compl. ¶ 27); 3) Defendant's repetition of such statements at Wendy Stark's December 30, 2001, Los Angeles, California dinner party attended by many prominent guests (Am. Compl. ¶¶ 28-29); 4) Defendant's repetition of allegations that Condit was involved in a motorcycle gang, causing Levy's disappearance, and that Dunne was working with authorities on the matter during a January 2002 interview with Entertainment Tonight Online staff writer, Paula Cohn, published online on January 18, 2002 (Am. Compl. ¶ 30); 5) Defendant's repetition of the statements made on the Laura Ingraham Show at Casey Ribicoff's New York City dinner party on January 24, 2002, attended by many prominent guests (Am. Compl. ¶ 31-32); 6) Defendant's statements made on the February 13, 2002 national and international broadcast of CNN's Larry King Live, realleging Condit's involvement with motorcycle gangs and realleging the statements made on the Laura Ingraham Show (Am. Compl. ¶ 33); and 7) Defendant's statements to The Boston Herald and USA Today after police found Ms. Levy's remains, stating that the discovery did not exonerate Condit.

  Plaintiff alleges the above statements constituted slander per se because they charge Condit with serious crimes involving moral turpitude. Further, plaintiff alleges that Dunne's statements directly and proximately led the public to believe Condit was guilty of criminal involvement in the disappearance and death of Ms. Levy, and caused Condit's reputation to suffer accordingly. Condit alleges he suffered stress, emotional distress and mental pain and suffering, adverse physical consequences, public hatred, contempt and ridicule, all as a direct and proximate result of Dunne's statements. Finally, plaintiff pleads special damages as he has suffered permanent impairment to his ability to obtain gainful employment from third parties. Plaintiff seeks one million dollars ($1,000,000) in compensatory damages, ten million dollars ($10,000,000) in punitive damages, plus costs and attorneys' fees. The statements at issue are excerpted in this Court's Opinion and Order issued on April 27, 2004, denying in part and granting in part defendant's motion to dismiss, familiarity with which is assumed. Condit v. Dunne, 317 F. Supp. 2d 344 (S.D.N.Y. 2004). However, for the sake of clarity, the facts relevant to the instant motion are restated by the Court below.

  A. Ms. Levy's Disappearance

  On or about May 1, 2001, Ms. Levy, a 24-year old employee of the United States Bureau of Prisons, disappeared from her downtown Washington, D.C. apartment. (Am. Compl. ¶ 13.) On May 10, 2001, plaintiff publicly acknowledged that he and Ms. Levy were friends. (Am. Compl. ¶ 15.) As law enforcement investigated Ms. Levy's disappearance, a media frenzy ensued which focused in no small part on speculation about the relationship between plaintiff and Ms. Levy. (Am. Compl. ¶¶ 16-17.)

  B. Defendant's Statements During the Pending Investigation

  Defendant, a resident of New York, is a special correspondent for Vanity Fair magazine, an author, and a television commentator. (Am. Compl. ¶¶ 5-7.) With the disappearance of Ms. Levy still under investigation, defendant spoke publicly on five occasions about plaintiff's possible criminal involvement in Ms. Levy's disappearance. (Am. Compl. ¶¶ 18-20, 28-33.)

  1. The Laura Ingraham Show

  On December 20, 2001, defendant appeared on The Laura Ingraham Show, a nationally syndicated radio talk show. Plaintiff includes a transcript of the entire interview in his complaint. (Am. Compl. ¶ 20.) The Court attached a transcript of the interview on The Laura Ingraham Show as an appendix to its April 27, 2004 Opinion and Order. See Condit, 317 F. Supp. 2d at App. The fully documented interview speaks for itself. Id. In short, the radio host, Laura Ingraham, introduces defendant at the outset, noting that defendant is from Vanity Fair magazine, that defendant has followed the Chandra Levy case, and that defendant has interesting stories to tell related to that case. Defendant then describes a series of alleged events related to plaintiff and Ms. Levy, in interview style, with Ingraham interjecting intermittently.

  Defendant states that he received a call from a person from Salinas, California, who describes himself as a "horse whisperer" or animal behaviorist. Defendant then repeats the substance of the conversation between himself and the horse whisperer. The horse whisperer told defendant that he travels in the Middle East, and that he had met an Arab man at a party who claimed to know how Ms. Levy disappeared. Defendant states that the horse whisperer described the Arab man as a "procurer," who provided the sexual services of young foreign women in the Middle East and at the "Middle Eastern Embassy" in Washington. Defendant then states the following:
But according to what the procurer told the horse whisperer who told me, is that Gary Condit was often a guest at some of the Middle Eastern embassies in Washington where all these ladies were, and that he had let it be known that he was in a relationship with a woman that was over, but she was a clinger. He couldn't get rid of her. And he had made promises to her that he couldn't keep and apparently she knew things about him and threatened to go public. And at one point he said this woman is driving me crazy, or words to that effect. And I wrote all this down at the time. And what the horse whisperer said the procurer said is by saying that, he created the environment that led to her disappearance and she shortly thereafter vanished. And as the horse whisperer said, as he lives in the Middle East a great deal of the time, it's very easy for them to make people disappear. He said that she was put in a limousine, and this procurer claims that he saw her being put on a plane, one of these big commercial-sized private planes that the Arabs have, rich princes, and those people. . . . And he said, let me put it this way. She wasn't walking. (Am. Compl. ¶ 20 at 10.). . . .
[Ingraham:] And what does [the procurer] think happened to her after that?
[Dunne:] What he said he thought happened to her is that she was dropped at sea. [Ingraham:] In the Atlantic? Over the Atlantic?
[Dunne:] Yes.
(Am. Compl. ¶ 20 at 14.) Defendant then states that "I heard all these details, okay? I mean I can't vouch for any of this." (Am. Compl. ¶ 20 at 12.) Defendant agrees with Ingraham's description of the horse whisperer as a "respectable individual" (Am. Compl. ¶ 20 at 12.), but notes twice that the horse whisperer changed his story. (Am. Compl. ¶ 20 at 8, 16.)

  During the next portion of the interview, defendant describes his subsequent contact with the Federal Bureau of Investigation ("FBI"), and his effort to meet the procurer, which was fruitless. Defendant states that at the time of the interview he did not know the status of any FBI investigation into the story told to him by the horse whisperer. For the remainder of the interview defendant and Ingraham engage in speculation about the story. For example, Ingraham asks defendant, "does this surprise you at all, I mean, if indeed some version of this is the truth?" Defendant does not directly answer Ingraham's question, which is embedded in a lengthier statement by Ingraham. (Am. Compl. ¶ 20 at 18.) Also for example, defendant later states, "And, you know, if it is indeed true that [Condit] is a welcomed guest at the Middle Eastern embassies, I mean what is a guy on the House Intelligence Committee doing at those embassies?" (Am. Compl. ¶ 20 at 20.) Defendant and Ingraham agree that the horse whisperer's story makes "beautiful sense." (Am. Compl. ¶ 20 at 18-19.)

  2. The Dinner Parties

  After appearing on The Laura Ingraham Show, defendant repeated the statements he had made on the show at two dinner parties, one in California and one in New York. (Am. Compl. ¶¶ 28-29, 31-32.) The complaint does not describe any particular statements defendant made at these parties.

  3. Entertainment Tonight Online

  In January 2002, Paulette Cohn of Entertainment Tonight Online ("ET Online") interviewed defendant. (Am. Compl. ¶ 30.) On January 18, 2002, Cohn's internet column included the following:
"Gary Condit rides with the Hell's Angels as a motorcyclist," Dunne revealed. "He rides with a Haitian motorcycle group in Washington, and I went on "Larry King" and said that I thought that the reason she left was that she'd gotten on the back of a motorcycle — somebody doing a favor for him — and had been taken away."
The crime writer said that he the [sic] received "a call from a man in Hamburg, Germany, who had just come from the Middle East and had a video of me on "Larry King." He says, `[You're wrong,] that's not how it happened' — and [that] he knew how it happened!" With the investigation still pending, Dunne could not reveal any more information, but noted that he's working with authorities in Washington, D.C.
(Am. Compl. ¶ 30.)

  4. Larry King Live

  On February 13, 2002, defendant appeared on the television show Larry King Live for the second time. He had previously appeared on the show and theorized that Ms. Levy had "gone off on the motorcycle of one of Condit's motorcycle friends." (Am. Compl. ¶ 33.) During the February 13 interview on Larry King Live, defendant repeated an abbreviated version of the horse whisperer/procurer story that he described on The Laura Ingraham Show in ...


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