September 13, 2010

Newspaper ordered to disclose the source of alleged inaccurate information it published to the individual suing for alleged defamation

Newspaper ordered to disclose the source of alleged inaccurate information it published to the individual suing for alleged defamation
Matter of Pakter v New York City Dept .of Educ., 2010 NY Slip Op 32451(U, August 20, 2010, Supreme Court, New York County, Judge Cynthia S. Kern [Not selected for publication in the Official Reports]

David Pakter, a school teacher employed by the New York City Department of Education [DOE], was charged with misconduct and removed from his classroom teaching duties and assigned to one of the DOE’S reassignment centers, also known as the “rubber rooms.’’

On March 21, 2010, the New York Post published an article titled “Bored of Ed. in Rubber Rooms.” A sidebar to this article featuring “notable rubber room residents” included Pakter and stated that he was charged with sexual misconduct. Pakter, however, had not been charged with sexual misconduct and the Post subsequently ran a retraction.

Pakter, believing himself to have been defamed and intending to bring a lawsuit against the person or persons who provided the Post with the inaccurate information, asked the Post and DOE to identify the source of the incorrect statement.

When his request was denied, Pakter filed a petition in Supreme Court seeking a court order to compel the disclosure the name or names of the person or persons involved with providing the information and any documentation that he had been charged with sexual misconduct. He also asked for a court order compelling the Post and DOE to preserve all “notes, emails, and electronically stored information” concerning the event.

Judge Kern ruled that Pakter was entitled to “pre-action disclosure of information” as to the identity of the source or sources who provided the Post with the statement as he had made a “strong showing that a cause of action exists” for a cause of action for defamation alleging a false statement, published without privilege or authorization to a third party.

Further, said the court, such pre-action discovery is permitted in cases, such as here, where an individual having a valid claim for defamation needs "to identify the unnamed source or sources who provided defamatory information to a newspaper in order to bring an action against them."

The Post was ordered to answer interrogatories limited to the issue of the name(s) of the source or sources who provided the Post with the statement that Pakter had been charged with sexual misconduct "as reported in the article and sidebar to the article entitled 'Bored of Ed. in Rubber Rooms'" and, in addition, both the Post and DOE were directed “to preserve any documents, reporter’s notes, emails, and electronically stored information related to the statement at issue.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/pdfs/2010/2010_32451.pdf

N.B. Now pending before the Court of Appeals is Geraci v Probst [see 61 AD3d 717]. This case concerns whether the original publisher of a libelous letter could be held responsible for its subsequent publication in a newspaper. The Appellate Division's decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2009/2009_02971.htm
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