USCA Case #12-7055

NOT YET SCHEDULED FOR ORAL ARGUMENT No. 12-7055 _____________________________ United States Court of Appeals for the District of Columbia Circuit _____________________________

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Jonathan R. Donnellan Kristina E. Findikyan Ravi V. Sitwala The Hearst Corporation 300 West 57th Street New York, New York 10019 (212) 649-2020 jdonnellan@hearst.com kfindikyan@hearst.com rsitwala@hearst.com

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DEFENDANTS/APPELLEES REPLY IN SUPPORT OF THEIR CROSS-MOTION TO STRIKE AND FOR SANCTIONS Laura R. Handman Micah J. Ratner Davis Wright Tremaine LLP 1919 Pennsylvania Avenue, N.W. Suite 800 Washington, D.C. 20006-3402 (202) 973-4200 laurahandman@dwt.com micahratner@dwt.com

Counsel for Defendants-Appellees

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JOSEPH FARAH, JEROME CORSI, WORLDNETDAILY.COM AND WND BOOKS, Plaintiffs Appellants v. ESQUIRE MAGAZINE, INC., HEARST COMMUNICATIONS, INC., AND MARK WARREN, Defendants Appellees ____________________________ On Appeal from the United States District Court for the District of Columbia Civil Action No. 11-cv-1179-RMC

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TABLE OF CONTENTS

FACTS ....................................................................................................................... 2 ARGUMENT ............................................................................................................. 3 CONCLUSION .......................................................................................................... 6 CERTIFICATE OF SERVICE

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INTRODUCTION ..................................................................................................... 1

Page TABLE OF AUTHORITIES .................................................................................... ii

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TABLE OF AUTHORITIES

FEDERAL CASES

Pumphrey v. K.W. Thompson Tool Co., 62 F.3d 1128 (9th Cir. 1995) ........................................................................... 4

Universal Oil Products Co. v. Root Refining Co., 328 U.S. 575 (1996)......................................................................................... 4 FEDERAL RULES

Fed. R. App. P. 10(e)(2) ............................................................................................. 5

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There are no authorities chiefly replied upon.

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Colbert v. Potter, 471 F.3d 158 (D.C. Cir. 2006) ..................................................................... 4, 5

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Shangold v. Walt Disney Co., 275 F. Appx 72 (2d Cir. 2008) ....................................................................... 4

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INTRODUCTION In their Reply/Opposition (Opposition) to Defendants cross-motion to strike Plaintiffs allegations of misconduct and for sanctions, Plaintiffs say not one word not one about the web traffic report or the third-party discussions which

some later date, as Plaintiffs have charged. Rather than withdraw their Motion to

and Grievances (Motion to Strike) in the face of this incontrovertible evidence,

absence of tags on the print view of the Blog Post which a reader can access from the Post with the tags and which is not what Plaintiffs included in either their Reply Brief on the merits or their Motion to Strike somehow supports their irresponsible claim of misconduct. It does not. It is Plaintiffs who refuse to

mislead the Court simply underscores the need to strike the allegation and sanction

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Plaintiffs for their purposeful misrepresentations to this Court. The adage, The thirteenth strike of the clock in the night casts doubt not only upon itself but the twelve that went before, comes to mind.

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own[] up to the falsity of their prior charges. Their decision to try to further

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they double down and attempt to further confuse the issue by claiming that the

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Strike and Motion for Referral to D.C. Bar Counsel and Committee on Admissions

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conclusively establish that the humor tag was present on May 18 and not added at

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FACTS Defendants have established the demonstrable falsity of Plaintiffs allegation that Defendants added the humor tag to the Blog Post after its publication and

update on May 18, 2011. The web traffic report and contemporaneous third-party

tag was in fact present on May 18. Plaintiffs have not offered any response to this

misconstruing Defendants observation that it was not even possible for the Blog

submitted by Plaintiffs.

Defs. Mot. at 3.

inaccuracy of that statement, Plaintiffs have now submitted the print view of the Blog Post, which can be accessed by viewing the full Post (with tags), and then clicking on a print icon link on that same web page that allows readers to print the

politics/jerome-corsi-birther-book-5765410 (last visited Apr. 8, 2013). This is a

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standard

feature

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Post without any of the surrounding content. See http://www.esquire.com/blogs/

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media webpages 2

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and

Post and Update to be displayed or printed as the stand-alone webpages now As purported evidence of the

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blogs,

conclusive evidence. Instead, Plaintiffs try to play a game of gotcha by willfully

Worldnetdaily.com.

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Critically, the print-view page is not what the Plaintiffs presented to the

Court in their merits Reply Brief and Motion to Strike. That submission is a cropped version of the standard view that Plaintiffs falsely represented to be the

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including

discussions Defendants submitted (Nizza Decl. 4, 5 & Exs. 1-3) show that the

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Plaintiff

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entire page. And it is that cropped page that Defendants explained could not be

therefore not evidence of Plaintiffs (false) claim that Defendants changed the

not only have Plaintiffs failed to substantiate their false and reckless accusation

also attempted to further mislead the Court with the new, irrelevant exhibit

ARGUMENT

Plaintiffs reaffirm in their Opposition their claim that they were in possession of the screen captures they included in their merits Reply Brief even before they instituted this lawsuit and concede that they made a deliberate choice

This alone establishes waiver of their argument. As explained in Defendants

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opening brief on this motion, Plaintiffs failure to raise the tag issue before the district court and this Court constitutes a waiver. To justify their decision to wait

Exhibit 27 submitted by Defendants with their moving Declaration below is obtained when the print function on the web browser is clicked (e.g., clicking on file and then print), producing the Blog Post as it appears on the web page with the tags, the Politics Blog masthead, surrounding advertising and other content elements. Findikyan Decl. 27, Ex. 27 (JA255). 3

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not to offer it below. Opp. at 2; Affidavit of Joseph Farah, March 26, 2013, 7.

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attached to their opposition affidavit.

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that Defendants surreptitiously added the humor tag to the Blog Post, but they have

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webpage from that format to add the humor tag to defend this case. Accordingly,

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tagless print view of the challenged Blog Post is still available today, and is

displayed or printed as presented by Plaintiffs.1 Indeed, as Plaintiffs concede, the

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until reply on appeal to offer the screen captures they claim to have had all along, Plaintiffs argue that they were so confident in prevailing on the motions below that they chose not [to] dwell on the issue even though clearly raised by

Defendants and supported by an exhibit submitted with their moving papers not

This strategic decision is the epitome of a waiver. Far from being a situation

Pumphrey v. K.W. Thompson Tool Co., 62 F.3d 1128, 1132 (9th Cir. 1995), cited

baseless) since the very day the Blog Post was published.2 The other case cited by Plaintiffs, Shangold v. Walt Disney Co., 275 F. Appx 72, 73 (2d Cir. 2008) (unpublished), is on point. There, as here, the plaintiffs . . . made no showing that the [evidence] was mistakenly left out of the record on appeal and the court

accepting the reverse side of a document already in the record to ensure the

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complete version was before the court in Colbert v. Potter, 471 F.3d 158, 166

It is also notable that Pumphrey was an appeal of a new-trial grant, where the fraud on the court was litigated in the district court, not a case as here where a party is offering new evidence on appeal it chose not to offer to the district court. To be clear, Defendants are not suggesting that courts are powerless to address judgments obtained by fraud, e.g., Universal Oil Products Co. v. Root Refining Co., 328 U.S. 575 (1996) (bribery of the judge) (cited by Plaintiffs, Opposition at 3) but here, there is no plausible basis to find fraud on the part of Defendants; it is Plaintiffs who are attempting to mislead the Court. 4

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therefore [did] not consider[] it in reaching [its] decision. Id. Similarly, in

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by Plaintiffs, here Plaintiffs claim to have known about the issue (however

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where a party fraudulently concealed evidence from its adversary, such as in

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figuring on what Plaintiffs label as the judges bias and prejudice. Opp. at 2.

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(D.C. Cir. 2006), this Court was careful to emphasize that this is not a situation in which a party that failed to offer evidence is relieved from the consequences of its

offer this evidence would, in fact, relieve[] [them] from the consequences of

print-view exhibit offered by Plaintiffs for the first time in opposition to this

evidence creates a fact issue justifying reversal should be rejected out of hand as it

As to the substance of Plaintiffs misconduct allegation, their Opposition does not even attempt to address the incontrovertible evidence set forth by Defendants that conclusively refutes Plaintiffs claim that Defendants added the humor tag to the Blog Post sometime after the Blog Post and Update were posted

Post on May 18, Plaintiffs now point to the print view of the Blog Post, which any

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reader who visits the full Post (with the tags) can then access. But, as Plaintiffs themselves concede (Opposition at 2), the print view was not supplanted by the full

In Colbert, the party offering the evidence made a motion pursuant to Fed. R. App. P. 10(e)(2). Plaintiffs did not, but instead pasted into their merits Reply Brief and attached to their Motion to Strike the screen captures which they claim to have had since May 18, 2011, but did not offer below or in their opening brief on appeal. 5

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on May 18. Instead, as supposed evidence that the tags were not part of the Blog

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would thwart the entire premise of the waiver rule.

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motion.

Plaintiffs contention that their untimely submission of misleading

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[their] neglect.3 Id. Obviously, the waiver is even more acute with respect to the

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neglect. Id. But, that is precisely the situation here allowing Plaintiffs to now

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Post the print view is still available today and, therefore, has no bearing on the question whether the humor tag on the Blog Post was added after May 18. The

present on May 18.4

misleading evidence and false allegations of misconduct should be rejected and

CONCLUSION

Defendants respectfully request that the Court deny Plaintiffs Motion to Strike and Motion for Referral to D.C. Bar Counsel and Committee on Admissions and Grievances, strike from Plaintiffs merits Reply Brief (at 2-6) all images of and references to the purported screen captures of the Blog Post and Update, and all

Defendants, and order any other relief that the Court deems warranted, including

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termination of this appeal.

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Dated: April 8, 2013

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references to alleged misconduct by Defendants, award fees and costs to

While it is certainly true that the print view does not have the tags, Esquire does not publish the print view as a separate story, but instead, like any print-view page, it is a technological function made available so that readers of the full posting can print it without also printing all of the surrounding content on the page. 6

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For the reasons discussed above and in Defendants opening brief,

Respectfully Submitted,

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Plaintiffs and their counsel should be sanctioned.

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Plaintiffs untimely effort to manufacture a fact issue through the use of

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only evidence on that issue definitively shows that it was not added later, but was

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/s/ Jonathan R. Donnellan

-and-

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Laura R. Handman Micah J. Ratner Davis Wright Tremaine LLP 1919 Pennsylvania Avenue, N.W., Suite 800 Washington, D.C. 20006-3402 (202) 973-4200 laurahandman@dwt.com micahratner@dwt.com Counsel for Defendants-Appellees Hearst Communications, Inc. and Mark Warren

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By:

Jonathan R. Donnellan Kristina E. Findikyan Ravi V. Sitwala The Hearst Corporation 300 West 57th Street New York, New York 10019 (212) 649-2020 jdonnellan@hearst.com kfindikyan@hearst.com rsitwala@hearst.com

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CERTIFICATE OF SERVICE I hereby certify under Fed. R. App. P. 25(d), that on this 8th day of April, 2013, I electronically filed the foregoing Reply of Defendants/Appellees in Support of Cross-Motion to Strike and for Sanctions with the Court using the

will be served by the appellate CM/ECF system.

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/s/ Jonathan R. Donnellan Jonathan R. Donnellan

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CM/ECF system. All participants in the case are registered CM/ECF users and

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