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SDNY COURTHOUSE, Sept 3 – In the politically charged lawsuit of Mark Rich's parents against Fox News, on July 13 the news gathering privilege was invoked but only partially vindicated.

  U.S. District Court for the Southern District of New York Magistrate Judge Sarah Netburn held the July 13 proceeding (and another on August 4, see below). Fox's lawyers cited the privilege; Rich's parents' lawyers said it was too late for that.

On August 4, Judge Netburn held another proceeding, and Inner City Press live tweeted it, below.

By week's end, on discovery, this was filed: "Re: Rich v. Fox News Network, LLC, No. 18-cv-2223 Dear Judge Netburn: I write on behalf of Plaintiffs Joel and Mary Rich, with the consent of all parties, to set interim deadlines for the discovery schedule, as ordered by the Court following the hearing this past Tuesday, August 4, 2020.... Counsel for Mr. Butowsky has requested that Mr. Butowsky not be held to the interim deadlines for fact discovery. Plaintiffs oppose this request. Fox News and Ms. Zimmerman do not oppose this request. The positions of Plaintiffs and Mr. Butowsky are set forth below. Position of Mr. Butowsky After the August 4, 2020 hearing, Mr. Butowsky’s counsel contacted his client at the hospital to check in with his client about the scheduled surgery. Counsel received the shocking news that Mr. Butowsky had had a serious medical emergency, had stopped breathing, went into critical organ failure and clinically died. By an extraordinary stroke of good luck, Mr. Butowsky’s wife had called her husband’s phone just before the incident and was extremely concerned when her husband did not respond. Mrs. Butowsky was able to reach a nurse who checked on Mr. Butowsky and immediately contacted the reanimation team, which was able to bring Mr. Butowsky back to life. Mr. Butowsky remains in serious condition and is in pain from the repeated pressure applied to his chest to restart his heart. He is, however, lucid and is committed to doing his best to comply with his obligations. It is not clear when he will be strong enough to undergo the necessary hip replacement surgery (he has been living without a hip since his last operation) and he will need time to recover after the surgery. Given these extraordinary medical developments, it would be extremely harsh (indeed, inhuman) to hold Mr. Butowsky to interim fact deadlines when has committed to respect the overall order of the court to the extent possible and agrees to abide by the parties’ agreed upon interim expert deadlines, including that expert reports be submitted by November 13, 2020, and response reports be submitted by December 4, 2020. Position of Plaintiffs Plaintiffs are sensitive to Mr. Butowsky’s health concerns and will, of course, be mindful of those issues as discovery proceeds. However, Plaintiffs do not believe that Mr. Butowsky should be relieved whole-cloth from the reasonable interim fact discovery deadlines that all other parties have agreed to. First, Mr. Butowsky’s health issues have been longstanding. Nevertheless, in addition to other activities, he has filed as a plaintiff and pursued at least six cases since April 2018, including some that overlap substantially with this litigation. Indeed, Mr. Butowsky even hired lawyers to sue Plaintiffs’ counsel (including associates), in a Texas case that was ultimately dismissed. In another case Mr. Butowsky hired counsel to handle, Mr. Butowsky opposed a request by other parties to extend discovery deadlines, stating in relevant part that “[d]elay prejudices victims – evidence is lost, memories fade, costs increase.” (Butowsky v. Folkenflik, et al., No. 18-cv-442, E.D. Tex., D.I. 41, at 2.) Second, Mr. Butowsky’s statement concerning prejudice is a real concern here. Just to give one example, Mr. Butowsky’s counsel recently informed Plaintiffs that Mr. Butowsky’s phone “crashed in or about September 2019.” Plaintiffs are concerned that relieved of the reasonable fact discovery deadlines that Plaintiffs, Fox, and Ms. Zimmerman have agreed to, further evidentiary prejudice may ensue. Moreover, because Mr. Butowsky’s evidence and testimony are critical to this case, relieving him of the interim deadlines will prejudice Plaintiffs’ preparation of their expert reports. Third, there is no reason for Mr. Butowsky to be relieved of these reasonable interim deadlines. In this very lawsuit, Butowsky has produced documents to Fox, and he has agreed to Plaintiffs’ search terms and represented that he is in the process of preparing a production of documents to Plaintiffs, many of which have already been searched for and produced in connection with his many other related litigations. And as Plaintiffs have learned during discovery, after this lawsuit was filed, Fox and Butowsky agreed to a settlement agreement requiring Butowsky’s cooperation with Fox. Again, Plaintiffs are mindful of Mr. Butowsky’s health and, if there arises a particular issue, Plaintiffs will of course reasonably accommodate him. But in Plaintiffs’ view, there is no reason why Mr. Butowsky should not comply with the reasonable deadlines set forth herein."

 Now on September 3, this: "SARAH NETBURN, United States Magistrate Judge:  The Court approves the interim discovery deadlines set forth by the parties’ August 7, 2020 Letter as to all parties except defendant Ed Butowsky. A conference to discuss the status of discovery as to Butowsky, including interim discovery deadlines as well as the issues raised by Plaintiffs’ September 1, 2020 Letter, is scheduled for Friday, September 11."

From August 4: Judge Netburn begins by noting a "request for letters rogatory to seek the deposition of Julian Assange."

Judge Netburn: You say you have a liability expert, to testify about the practices of Fox News?  Richs' lawyers: They call what they do "garden variety news gathering." We want to focus on outrageousness. We have an expert on journalistic standards.

 Joseph Terry for Fox: We'd have an expert on that as well.  Eden Quainton for Butowsky: We'd have an expert to say the leak was from a DNC insider - and that a story to that effect is not outrageous, but founded in fact. Judge Netburn: So, a hack expert.

Judge Netburn: What about we extend fact discovery to the end of the year, but keep expert discovery to that limit as well? Arun Subramanian for Joel and Mary Rich: We've be fine with that, subject to speaking with our brain trust (laughs).

 Judge Netburn: A personal favor, if I can have a three minute recess. Our wind storm is acting up and I just have to deal with one thing. "No problem."

[With Judge Netburn off the line, both / all sides' lawyers confer and agree they are missing much of what she says. One says, I tried wi-fi but I still couldn't hear her.]

Judge Netburn comes back on: "I muted but I could hear you.... I'll do my best."

Eden Quainton for Ed Butowsky: Our defense will be accuracy... So we'll need for confer with many. And there are medical issues.

Judge Netburn: I hope those improve. But I think five months should be enough. Discovery closes January 31. 

Judge Netburn: On Julian Assange, I understand that the Plaintiffs questioning the relevant, but don't object. So I'll sign that order. Anything more?

 Butowsky's lawyer: We'd ask you to rule on the motion to dismiss, one way or the other. Adjourned.  

Back on July 13 Judge Netburn asked, Why not just turn over the 600 documents at issue? Ultimately she gave Fox two days to make two filings.  Inner City Press live tweeted it:

Fox' lawyer Meeks says she's prepared to give a hit log about a set of documents, not the documents themselves. 

Judge Netburn: We're talking about fewer than 700 documents that contain key players in this case. I have a hard time believe these are not relevant... These 700 documents contain hits on Butowsky and Wheeler - how are they not relevant? 

Meeks: Wheeler was a consultant, Bukowsky was a guest. Many of the hits are about news that has nothing to do with this case, or the DNC leaks. 

Judge Netburn: But isn't there one document - it's confidential so I won't speak about it here - that is in fact related to this case?  Meeks: Yes, the one about Seth Rich and Wikileaks, we produced in redacted form. The rest was about other news reports. 

Judge Netburn: But haven't the plaintiffs said they need to rebut Fox's argument that it was not working with Butowsky on a day to day basis? 

Meeks: We're producing the documents about Ms. Zimmerman, so plaintiffs have enough information...  These documents are protecting by the news gathering privilege. This is a significant question under New York law. The standard is, according to the 2d Circuit, the documents have to be critical and necessary to their claim. They'd have to show this information is not available from any other source. They will be able to take Mr Butowsky's deposition.   Meeks' colleague Joseph Terry: We could put in a letter about the non Seth Rich documents we withheld. 

Judge Netburn: Let me ask Ms. Barron [plaintiffs' lawyer]... 

Barron: If Fox stipulates that it regularly worked with Mr. Bukowsky on politically motivated stories maybe we don't need the documents. Meeks: But they are not alleging negligent supervision. The complaint here alleges that Joel and Mary Rich "becam[e] collateral damage in a political war to which they were innocent bystanders."

 Judge Netburn: Could you respond to Fox's claim of privilege? Barron: No

Judge Netburn: I am going to direct that the defendants produce a full privilege log, and a letter on privilege, by Wednesday. If I think I need to see documents in camera I'll request that.  Barron: Nothing further from plaintiffs. Judge: We're adjourned.  

The case is Rich et al v. Fox News Network LLC et al, 18-cv-2223 (Daniels / Netburn)

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