LEVINE SULLIVAN KOCH & SCHULZ, LLP Thomas B. Kelley (pro hac vice motion pending) Chad R. Bowman (admitted pro hac vice) Elizabeth Seidlin-Bernstein (No. 052882014) 1760 Market Street, Suite 1001 Philadelphia, PA 19103 Phone: (215) 988-9778 Attorneys for Defendant Gawker Media, LLC MITCHELL WILLIAMS, : SUPERIOR COURT OF NEW JERSEY : LAW DIVISION Plaintiff, : CAMDEN COUNTY v. : CIVIL ACTION DOCKET NO. CAM-L-3675-14 THE MLB NETWORK, INC., et al., Defendants. MEMORANDUM IN SUPPORT OF DEFENDANT GAWKER MEDIA, LLC’S MOTION FOR SUMMARY JUDGMENT.TABLE OF CONTENTS INTRODUCTION BACKGROUND... STANDARD OF REVIEW... ARGUMENT. I, THE LAW REQUIRES PUBLIC FIGURES LIKE WILLIAMS TO COME FORWARD WITH “CLEAR AND CONVINCING” EVIDENCE OF ACTUAL. MALICE TO PROCEED PAST SUMMARY JUDGMENT. A. The Court Correctly Found Williams To Be a Public Figure B. The Actual Malice Standard Applies to All Claims Arising from the Challenged Reports 26 C. The Actual Malice Standard Is a Subjective Standard of Fault... Il, WILLIAMS CANNOT MEET HIS BURDEN TO IDENTIFY “CLEAR AND CONVINCING” EVIDENCE OF ACTUAL MALICE, A. The Record Demonstrates that Gawker Carefully Sought To Confirm the Accuracy of the Articles at Issue ~ the Opposite of Actual Malice ....un- 30 B. On This Record, Williams Cannot Possibly Establish Actual Malice, Much Less “Clear and Convincing” Evidence of Actual Malice. 1, The Failure To Contact Williams Personally Does Not Establish Actual Malice Here, Where the Allegations Were Corroborated and Consistent with His Reputation and Where Williams’ Responses Were Included in the Articles. 2. The Use of Confidential Sources Does Not Establish Actual Malice Where Their Accounts Are Corroborating and Consistent and Supported by Photographs and Video. 3. Expert Testimony Belatedly Produced by Plaintiff Is, Procedurally Improper and Irrelevant to Actual Ma CONCLUSION... ninamancneneamnnsestaASTABLE OF AUTHORITIES Page(s) Cases Aiello v. Knoll Golf Club, 64.N.J. Super. 156 (App. Div. 1960)... Banco Popular N. Am. v. Gandi, 184 NJ. 161 (2005) nore Bender v. Adelson, 187 N.J. 411 (2006)... Berkery v. Kinney, 397 N.J. Super. 222 (App. Div. 2007) sono Brewer v. Memphis Publ’g Co., 626 F.2d 1238 (Sth Cir. 1980) Brill v. Guardian Life Ins. Co., 142 N.J. 520 (1995).. Cepeda v. Cowles Magazines & Broad, Inc., 392 F.2d 417 (9th Cir, 1968)... 26 Church of Scientology Int'l v. Behar, 238 F.3d 168 (2d Cir, 2001)........ Chuy v, Phila, Eagles Football Club, 595 F.2d 1265 (3d Cir. 1979). Contemporary Mission, Inc. v. N.Y. Times Co., 842 F.2d 612 (2d Cir, 1988)... Costello v. Ocean Cty. Observer, 136 N.J. 594 (1994) .23, 24, 29, 36 Curtis Publ’g Co. v. Butts, 388 U.S. 130, 87 S. Ct. 175, 18 L. Ed. 2d 1094 (1967) .. 28,29 DARE, Am. v, Rolling Stone Magazine, 101 F. Supp. 2d 1270 (C.D. Cal. 2000) 35 Dairy Stores, Inc. v, Sentinel Publ’g Co., 104.NJ. 125 (1986)....... ‘ 23, 31, 32 iiDeAngelis v. Hill, 180 N.J. 1 (2004). 4,23, 26, 33 Decker v. Princeton Packet, Inc., 116 N.J. 418 (1989) BT Durando v, Nutley Sun, 209 N.J. 235 (2012).. 4,24, 26, 29, 33, 35, 42 Edwards v. Nat'l Audubon Soc'y, Inc., 556 F.2d 113 (2d Cir. 1977) 135 Filippo v. Lee Publ’ns, Inc., 485 F. Supp. 2d 969 (N.D. Ind. 2007)... 4B GD. v. Kenny, 205 NJ. 275 (2011).. 3, 27 Gertz v. Robert Welch, Inc. 418 US. 323, 94 S. Ct. 2997, 41 L. Ed, 2d 789 (1974)... Gomez v. Murdoch, 193 N.J. Super. 595 (App. Div. 1984) Harte-Hanks Comme'ns v. Connaughton, 491 U.S. 657, 109 S. Ct. 2678, 105 L. Ed. 2d 562 (1989).. Hornberger v. Am. Broad. Cos., 351 N.I. Super. 577 (App. Div. 2002)... Hotchner v, Castillo-Puche, 551 F.2d 910 (2d Cir. 1977)... Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 108 S. Ct. 876, 99 L. Ed. 2d 41 (1988) Khan vy. N.Y. Times Co., TION.Y S.2d 41 (N.Y. App. Div. 2000)... Kuhnel v. CNA Ins. Cos, 322 N.J. Super. 568 (App. Div. 1999) Lawrence v. Bauer Publ’g & Printing Lid., 89 N.J. 451 (1982)...... teen eamenaauaae 25, 34, 36 Levesque v. Doocy, 560 F.3d 82 (Ist Cir. 2009). 42 iiiLoBiondo v. Schwartz, 323 NJ. Super. 391 (App. Div. 1999) ... Loeb v. New Times Comme’ns Corp., 497 F. Supp. 85 (S.D.N.Y. 1980)... Lynch v, N.J. Edue. Ass'n, 161 N.5. 152 (1999). Marchiano v. Sandman, 178 N.J. Super. 171, 176 (App. Div. 1981) 34,36 Maressa v. N.J. Monthly, 89 N.J. 176 (1982) 23, 28, 29 MeComish v, DeSoi, 42 NJ. 274 (1964)... 43 Montiel v. Ingersoll, 347 N.J. Super. 246 (Law Div. 2001)... MY. Times Co. v, Sullivan, 376 U.S. 254, 84S. Ct. 710, 11 L. Ed. 2d 686 (1964). 5, 34 O'Donnell v. Ahmed, 363 N.J. Super. 44 (Law Div. 2003). 40 OAO Alfa Bank v. Ctr. for Pub. Integrity, 387 F. Supp. 2d 20 (D.D.C. 2005).. 1,42 Petersen v. Meggitt, 407 N.J. Super. 63 (App. Div. 2009) 4,24 Pippen v. NBCUniversal Media, L. 734 F.3d 610 (7th Cir. 2013). 34 Reuber v, Food Chem. News, Inc., 925 F.2d 703 (4th Cir. 1991). Sedore v. Recorder Publ’g Co., 315 NJ. Super. 137 (App. Div. 1998 Senna v. Florimont, 196 N.J. 469 (2008)... Sisler v. Gannett Co., 104 N.J. 256 (1986) 6, 42. ivSpacecon Specialty Contractors, L 713 F.3d 1028 (10th Cir. 2013 ‘St. Amant v. Thompson, 390 U.S. 727, 88 S. Ct, 1323, 20 L. Ed. 2d 262 (1968)... State v. Hodge, 95 N.J. 369 (1984) Time, Inc. v. Johnston, 448 F.2d 378 (4th Cir. 1971)... Trump v. O'Brien, 422 N.J. Super. 540 (App. Div. 2011) 5, 37 Tucker v. Phila. Daily News, 848 A.2d 113 (Pa. 2004).. Turf Lawnmower Repair v. Bergen Record Corp., 139 'N.J. 392, 424-25 (1995)... Vassallo v. Bell, 221 N.J. Super. 347 (App. Div. 1987)... Westmoreland v. CBS, Inc., 601 F. Supp. 66 (S.D.N.Y. 1984) scone Yuhas v. Mudge, 129 N.J. Super. 207 (App. Div. 1974)... Zadigan v. Cole, 369 N.J. Super. 123 (Law Div. 2004)... Statutes New Jersey Shield Law, N.J.S.A. 2A:84A-21.... Other Authorities N.J. Model Civil Jury Charge 3.11A (Public Defamation) at 6-7 (2014) . 24, 29, 30 Rule 4:46-2 of the New JERSEY RULES OF COURT.. Rule 4:17-4(e) of the New Jersey RULES oF CouRr.... 239Rule 4:17-7 of the New JERSEY RULES OF COURT... Restatement (Second) of Torts § 52(2)(a) (1977). Robert D. Sack, Sack on Defamation § 5:5.2[D] (4th ed. 2015). viPursuant to Rule 4:46-2 of the New Jersey Rules of Court, defendant Gawker Media, LLC (“Gawker”) respectfully submits this brief in support of its motion for summary judgment, which it has filed and served contemporaneously herewith together with its Statement of Undisputed Material Facts (*SUMF”) and supporting certifications. ‘TRODUCTION Former Major League Baseball pitcher and television personality Mitch “Wild Thing” s asserts defamation and related tort claims against defendant Gawker, as well as separate claims against defendant MLB Network, Inc. (*MLBN”). Williams’ claims against Gawker arise from sports news articles published on its Deadspin website that accurately reported allegations made about his conduct at a Ripken Baseball 10-year-old tournament in ‘Aberdeen, Maryland in May 2014, and that accurately reported his denials. Early on in this case, the Court dismissed claims arising from most of the statements challenged by Williams because they were either substantially true in light of a video recording or were protected opinion. See Mar. 6, 2015 Hr’g Tr. at 61:9-13, 71:13-72:11, 77:1-11, 78:25- 79:4; Mar. 6, 2015 Order. The Court permitted claims based on three challenged statements to proceed to discovery: statements reporting witness accounts that Williams directed his pitcher to throw a “beanball” and that Williams cursed near 10-year-old baseball players and called a player aname. See Mar. 6, 2015 Hr'g Tr. at 78:25-79:4 (THE COURT: “[TJhe only things that remain in the case right now are the allegation that he — that he ordered the beaning of [] another player, that he called a referee the m’er-f'er, and that he called the child the p-word.”); see also Mar. 6, 2015 Order (same). In making that ruling, the Court properly recognized that (@) William: a public figure under First Amendment law, and (b) to prevail on his claims against Gawker he therefore must plead, and ultimately prove, constitutional “actual malice” —i.e., publishing despite a subjective awareness of probable falsity. See Feb. 5, 2015 Hr'g Tr. at 5:12-13, (THE COURT: “He is a public figure for all realistic purposes. It’s not even a close call.”); Mar. 6, 2015 Hr’g Tr. at 8:20-21 (THE COURT: noting that “the pleadings” need “factual underpinnings concerning the malice issue”). The discovery record is clear that Gawker is entitled to summary judgment on actual malice, which necessitates dismissal of all Williams’ claims. The record shows that, in reporting the two articles remaining at issue, Gawker relied on seven confidential sources, whose independent accounts corroborated each other and were confirmed in various aspects by photographs, a video recording, and public statements by Williams and another witness ~ and also were consistent with prior incidents involving Williams. Gawker’s reporter fully believed those allegations were accurate when reporting them. Indeed, as Williams himself recognized in candid moment, “Dead spin reported what they were told.” See SUMF {| 119; Certification of Elizabeth S Bernstein (“ESB Cert.”) Ex. 1 (“Williams Dep.”) at 382:11-15. ‘More than that, the discovery record has revealed additional people and facts that back up what was told to and published by Gawker. With regard to the swearing, all three umpires who have been deposed testified they heard Williams curse on the baseball field in the presence of 10- year-olds during both games at issue, SUMF $f 43, 52, 78-79; ESB Cert. Ex. 21 (“Addis Dep.”) at 22:16-24:10, 60:17-61: B Cert. . 22 (“Bolewicki Dep.”) at 41:3-15, 5 1-8; ESB Cert. Ex. 28 (“Dennison Dep.”) at 25:2-26:16, 50:11-19, and Williams acknowledges that opposing coaches contemporaneously accused him of calling an opposing player an inappropriate name, SUMF § 71; Williams Dep. at 149: 152:4. A Ripken Baseball official has testified that Williams admitted to swearing on the field. SUMF § 43; ESB Cert. Ex. 23 (“Curll Dep.”) at 75:19-76:5, 110:7-113:10. These multiple, consistent accounts are all in line with Williams’prior admitted cursing at youth sporting events, as well as his occasional false public denial. Against this, Williams offers his own self-serving word that all of these people are incorrect. He attempts to supplement that with statements from friendly coaches or spectators, but they miss the mark because these people say only that they did not hear Williams swear, and they admitted when deposed that they were not able to hear key on-field events from where they were located. With regard to the beanball, Williams has likewise admitted that accusation occurred on the field of play. SUMF 4 75; Williams Dep. at 151:25-152:19. The struck batter — the other team’s pitcher who had already hit a double that game, shut down the batters on Williams’ team, and accused Williams of calling him a name, SUMF $§ 75-76; Williams Dep. at 150:7-22, 159:2-13 — was hit by the very first live pitch thrown after Williams spoke to his catcher and the catcher then spoke to the pitcher. SUMF § 73, 75. Williams concedes that he instructed his 10- year-old pitcher to “keep the ball in” on the batter, even though the boy was pitching his fifth inning that day and had pitched a game the previous day (in which he hit a batter in the head), and despite recognizing that the opposing hitter “stands on the plate.” SUMF $9 76-77; Williams Dep. at 147:16-148:4, 159:9-11, 168:2-16. As Williams acknowledged at one point, “they’re ten years old. Pitches get away from “em,” SUMF 77; Williams Dep. at 148:3-4, In this circumstance, even crediting Williams’ denial that he specifically ordered that the batter be hit, the overwhelming evidence shows the report was substantially accurate, in large part because, through his own admissions, itis clear Williams effectively instructed the batter to be hit by ordering a tired, fallible 10-year-old to throw “inside” to a key opposing player who “stands on the plate.” See G.D. v. Kenny, 205 N.J. 275, 294 (2011) (“The law of defamation overlooks nor inaccuracies, focusing instead on ‘substantial truth.””)In short, Williams’ self-serving testimony — in the face of the wealth of people and facts saying otherwise — is a long way from proving the falsity of the few remaining statements, as he is required to do. Vassallo v. Bell, 221 N.J. Super. 347, 376 (App. Div. 1987). But the Court need not reach the falsity element because the lack of actual malice presents an even clearer way to dismiss this case. See, e.g., Petersen v. Meggitt, 407 N.J. Super. 63, 76 (App. Div. 2009) (court “need not decide . . . whether the evidence on falsity was so one-sided that the media defendants were entitled to prevail as a matter of law” where summary judgment was proper under alternate ground), The actual-malice fault standard for public figures is purposely “difficult to meet,” Durando v, Nutley Sun, 209 N.J. 235, 252 (2012), in order to provide “breathing room” for all but knowing falsehoods and to preserve a “robust and unrestrained debate on matters of public interest,” Senna v. Florimont, 196 N.J. 469, 491 (2008). To survive summary judgment, a public-figure plaintiff like Williams must come forward with “clear and convincing evidence” that challenged statements were made with actual malice ~ ie., that they were fabricated, based on a wholly unverified anonymous telephone call, “so inherently improbable that only a reckless man would have put them in circulation,” or published despite obvious reasons to doubt their truth. Durando, 209 N.J. at 252-53 (citation omitted). No evidence of actual malice exists here, much less clear and convincing evidence. To the contrary, the record reflects that Gawker’s articles were carefully reported and based on numerous corroborating sources, supported by both video and photographs, and squarely in line with prior incidents involving Williams. Summary judgment has long been recognized as the preferred method for adjudicating defamation claims in this state, see, e.g., DeAngelis v. Hill, 180 N.J. 1, 12 (2004) (summary judgment “is encouraged in libel and defamation actions”), and is fully warranted on the record here.BACKGROUND The following discussion cites the SUMF submitted herewith, the Certification of Timothy Burke (“Burke Cert.”) and exhibits attached thereto, and the ESB Cert, and exhibits attached thereto, Although only three statements remain at issue, the events of the weekend are relevant to assessing the credibility of the sources. A. The Plaintiff Williams is a former professional baseball player. During his eleven-year career as a Major League Baseball pitcher, he played in over 600 games, appeared before tens of thousands of spectators and on national television, was selected as a Major League All-Star, and played in the World Series. SUMF $11. His fame has lingered long past his retirement: Even in 2013 and 2014, he “signed countless autographs” for fans who approached him at his son’s baseball tournaments, Id. 431. During his playing days, Williams earned the nickname “Wild Thing,” as he hit at least fifty-three batters while pitching in professional games. SUMF 4 2; see also Williams Dep. at 170:13-14 (“I was not noted for my control.”). ‘The hit batters were not all accidental, however. Williams testified that he hit batters on purpose three times in his career. SUMF 43; Williams Dep. at 272:1-5, 273:14-16. At the time those hits occurred, Williams did not admit they were intentional. SUMF 3; Williams Dep. at 289:15-20. In fact, Williams cultivated a reputation as a pitcher to fear when batters stepped into the batter’s box. Williams testified that “it’s helpful if the batter’s a little bit afraid.” SUMF 8; Williams Dep. at 292:10-12. He explained, “I’ve always said that if the hitter walked up to the plate worrying about something other than hitting, you've got half the battle won.” SUMF 48; Williams Dep. at 293:23-294:2; see also, e.g., SUMF 4 4-7; ESB Cert. Ex. 2 at 2 (1993 articlequoting Williams: “You pitch inside, you hit people. That's all there isto it. Do I feel bad about it? No.”); ESB Cert. Exs. 3, 4 (2013 articles quoting Williams when discussing pitcher hit by line drive: “If you don’t pitch in, this is what’s gonna happen.”). In short, part of the pitching, philosophy espoused by Williams is that “you have to pitch inside.” SUMF 5; Williams Dep. at 271: 4, And, even in the Major Leagues, “you pitch inside, you hit people.” SUMF 4 6; ESB Cert. Ex. 2. It goes without saying that in youth baseball it is even more common that “[plitches get away from ‘em” and batters get hit. SUMF 4 77; Williams Dep. at 148:3-4. Part of the reputation of Williams as “Wild Thing” was not just a lack of control when throwing a baseball, but also a lack of personal control. During his Major League Baseball career, Williams “was ejected multiple times for arguing balls and strikes.” SUMF 4 9; Williams Dep. at 276:13-14. Although he knew players were not allowed to argue balls and strikes, he sometimes did so anyway in the “[hJeat of the moment.” SUMF § 10; Williams Dep. at 285:3-7. On one occasion in 1991, when Williams was playing for the Philadelphia Phillies, he was ejected for saying about an umpire’s call, “That's the worst I’ve ever seen.” SUMF § 11; Cert, Ex. 5 at 2. Williams told the Philadelphia Daily News, “I didn’t think what I said warranted [getting kicked out]. I never directed it at him.” SUMF 11; ESB Cert. Ex. 5 at 2 Williams was once fined by his own manager for using profanity toward the opposing team. SUMF 4 15; Williams Dep. at 292:13-296:10. On another occasion during his Major League Baseball career, Williams was ejected and ultimately suspended for multiple games after being accused of instigating a brawl among the players, which he denied doing. SUMF § 13; Williams Dep. at 285:25-286:7, 290:25-291:6 Long after his MLB retirement in 1997, Wi sms continued to live up to his reputation, in both his professional and personal life. As pitching coach and manager for an independentbaseball team from 2001 to 2003, Williams was ejected on multiple occasions for arguing with umpires. SUMF fj 18-19. And, in 2008, when his daughter was ten years old, Williams drew headlines for cursing at one of her youth basketball games after he believed that she was fouled. SUMF § 25; Williams Dep. at 67:9-69:18. Although he was accused at the time of calling a female referee a “fucking whore,” Williams claims he only said that her officiating was “fucking, horrible.” SUMF § 25; Williams Dep. at 67:9-69:18. After the incident, Williams told The New York Times, “I’m an emotional guy. I say what I feel. T curse. That's my cross to bear.” SUMF 126; B Cert. Ex. 9 at 4. Williams admits being ejected from another one of his daughter’s youth basketball games after telling referees that they “stink.” SUMF § 27; Williams Dep. at 69:19-70:25. And, in February 2012, Williams wrote to the coach of his daughter’s basketball team, “I will do all I can to help keep our parents off the refs. It is not easy. Cause I hate umpires, refs all of them. But | also don’t want to see these girls that have worked so hard, get hosed by the refs because of us parents.” SUMF 4 28; ESB Cert. Ex. 10 at MLBN_0000673 (emphasis added). Sometimes, Williams admitted his instances of public swearing or temper. For example, in April 2013, while coaching his son’s baseball team for 9-year-olds, Williams apologized to parents of two players for cursing in the dugout during a game. SUMF 429; ESB Cert. Ex. 11 at MLBN_0000698, MLBN_0000705. Other times, he has tried to deny di 12 so. For example, later in 2013, Williams and his former Phillies teammate — and antagonist ~ Lenny Dykstra attended an autograph-signing event at a mall. SUME { 30. Williams refused to shake Dykstra’s hand, using a form of the word “fuck.” Jd.; Williams Dep. at 412:12-18, 413:9-10. After reports of the encounter appeared on social media, Williams tweeted in response, “I am sorry but I didn’t drop f bombs.” SUMF § 30; ESB Cert. Ex. 12 at 3; Williams Dep. at 413:11-15. Only after avideo of the encounter was posted on the Internet complete with audio of just such an “f bomb” did Williams admit that he had, in fact, used profanity. SUMF 430; Williams Dep. at 413:14- 414:22. When deposed, he explained the denial by testifying that he had forgotten swearing until the recording surfaced. SUMF § 30; Williams Dep. at 413:14-15. BOW jams’ Conduct at the Tournament From 2013 to 2014, Williams coached his son’s youth baseball team, the Jersey Wild. SUMF 432. In that capacity, he accompanied the team to the Ripken Baseball Mother's Day Tournament (the “Tourament”) in Aberdeen, Maryland on Saturday and Sunday, May 10-11, 2014. Id. $33. Williams apparently took winning the upcoming Tournament seriously enough to ask his team administrator, Laura Romond, days before to circulate an email he drafted setting out his expectation that the 10-year-old players maintain consistent focus if they wanted to remain on his team: .... We are not going to these tournaments to have pienies and play in the dir{t] We are going to learn what it takes to win. We have never been beaten. We have beat ourselves in every game we have lost. I don’t know about y'all. But I hate beating myself. Ifwe get beat, I can deal with that. But I can’t stand losing. ‘There is a big different. I want 4 games of all your focus. If you can’t do that , let me know. Cause I will find kids that can do that. . . SUMF 434; ESB Cert. Ex. 15. ‘The Wild played a total of five games over the course of the weekend, SUMF $35. On Saturday, May 10, 2014, the Wild beat the URA Indians 4-0 and lost to the Olney Pirates 4-2. Id, That earned them a spot in the eight-team playoff bracket on Sunday. Jd. In the playoffs, the Wild beat Dig In Baseball 12-7, beat the Olney Pirates 9-7 in a rematch, and lost to the SJ Titans in the championship game, 6-2. Jd. Two of those games — both of the Wild losses, on Saturday against the Olney Pirates and on Sunday against the SJ ‘Titans ~ were marred by on-field incidents involving Williams and became the subject of Deadspin’s reporting. Substantialportions of the descriptions that follow relate to aspects of Deadspin’s reports that this Court has already dismissed as substantially true. They are nevertheless detailed here because, as explained below, these facts, relayed by multiple separate sources, were ultimately corroborated by each other as well as photographs and video footage, further supporting the reporter’s belief in the veracity of what the sources said about the three challenged statements still at issue (profanity, calling the player the “p-word,” and the beanball) — even putting aside that Deadspin also reported Williams’ denials of those charges as well The May 10, 2014 Olney Pirates Game The Wild’s second game of the Tournament was a loss to the Olney Pirates (the “Olney Pirates Game”), SUMF $f 35-36. A video of the Olney Pirates Game was recorded by Ripken Baseball. SUMF §[ 37; ESB Cert. Ex. 18 (“Olney Pirates Game Video”). Both officiating umpires reported ~ and testified ~ that they heard Williams, before the game had even started, use variations of the word “fuck” multiple times during warm-ups to refer to the pitcher of the Olney Pirates throwing curveballs. SUMF 43; Addis Dep. at 22:16-24:10, 60:17-61:15; Bolewicki Dep. at 41:3-15, 52:1-8; see also Seidlin-Bernstein Cert, Ex. 24 (Addis incident report); id. Ex. 25 (Bolewicki incident report). A Ripken Baseball official testified that he asked Williams about the umpires’ allegations later in the Tournament and that Williams admitted to using such language about the Pirates pitcher. SUMF § 43; Curll Dep. at 75:19-76:5, 110:7-113:10. In this litigation, however, Williams has denied cursing, testifying that he merely said: “At ten years old no kid should be throwing freaking curveballs.” SUMF § 43; Williams Dep. at 117:4-118:8 (emphasis added). His assistant coaches do not recall the comments one way or the other. SUMF § 43; Ahart Dep. at 65:7-66:4; Yates Dep. at $5:24-57:3.During the game, the Jersey Wild players were assigned to the dugout on the first base side of the field, SUMF 38. When the Wild were batting, Williams acted as first base coach. Id. 439. One assistant coach, Craig Yates, was across the field at third base, id. 40, while the other, Corey Ahart, was in the dugout near first base with the team of 10-year-old boys, id. 41 The field was set in a bow! and the Jersey Wild spectators were seated up on a hill because “the edge of the field was wet and muddy” following a rainstorm. Jd, §|43; Williams Dep. at 111:9- 14, Williams’ wife, Irene Williams was sitting behind home plate, and her view of Williams at first base was obstructed. SUMF § 42. ‘Tempers flared almost immediately. Early in the Olney Pirates Game, the field umpire warned both coaches about their “attitude.” SUMF § 44; Olney Pirates Game Video at 14:00- 1. Ina later inning, Williams ran down the first base line and argued emphatically with both umpires over an out call at home plate. SUME § 45; Olney Pirates Game Video at 32:07-35:15; Williams Dep. at 100:5-101:14, The home plate umpire gave Williams a warning that he would be ejected if he did not return to his position. SUMF 445; Addis Dep. at 40:19-41:7. Williams disputed the home plate umpire’s count of balls and strikes, leading other spectators to shout for Williams to be thrown out. SUMF 4] 46; Olney Pirates Game Video at 58:45-59:15; Williams Dep. at 115:2-116:2. Then, in the fifth inning, Williams disagreed with a sttike call by the home plate umpire and paced around the first base coach’s box, waving his arms in an apparent gesture of disgust or disbelief. SUMF § 47; jams Dep. at 102:19-21, 103:4-7. From his position just yards from the field umpire, Williams shouted to a parent of a Jersey Wild player about the need to “talk with the Ripken people about maybe finding these guys other employment.” SUMF 4.47; Williams Dep. at 102:17-103:19, 120:6-123:11, The 10field umpire then ejected Williams from the game. SUMF § 47; Bolewicki Dep. at 36:13-37:16; Olney Pirates Game video at 1:08:03-09. Immediately following the ejection, the field umpire and Williams engaged in a face-to- face confrontation by the first base coach’s box, after which Williams followed the umpire onto the field, where the confrontation continued and where an assistant coach physically separated the men. SUMF | 48; Olney Pirates Game Video at 1:08:09- :09:36; Williams Dep. at 103:19- 104:12; Bolewicki Dep. at 37:16-21. Although the video shows a heated discussion, most of the verbal exchanges between Williams and the field umpire following the ejection are not audible on the Ripken Baseball video. SUMF § 49; Olney Pirates Game Video at 1:08:03-: 09:36, It was also difficult for spectators to hear the full exchange from the hill, The team administrator for the Wild testified: “These fields are loud with parents screaming and everything else going ‘on around you. If you're not within a close proximity of somebody, it’s very difficult to understand what people are saying, even if they're screaming. You might hear somebody screaming, but you won’t understand what they’re saying all the time.” SUMF § 50; Romond Dep. at 93:17-25. Both umpires testified that Williams used profanity and physically threatened the field umpire after the ejection. SUMF § 51; Bolewicki Dep. at 37:16-38:21; Addis Dep. at 43:17- 46:5, Williams denied using any profanity during the spirited argument and testified that he did not threaten the field umpire, but instead said, “Do you honestly think I’m scared you're going to beat me up?,” to which the umpire responded, “Pick a time and place.” SUMF {{51; Williams Dep. at 104:2-12, 338:12-341:11. The bench coach, Ahart, testified that he did not hear Williams use profanity, but admitted that when the incident began he was in the dugout, and that at the end of the confrontation his back was to Williams. SUMF § 52; Ahart Dep. at 77:14-22, u170:4-171:12. The third base coach, Yates, who was across the field when the ejection occurred, similarly testified that he did not hear Williams curse and that he, too, was not close enough to hear the entire exchange between Williams and the umpire. SUMF 53; Yates Dep. at 189:10- 18, After Ripken Baseball representatives arrived, Williams spent several more minutes speaking with them along the first base line. SUMF { 54. The ejection resulted in a stoppage of play of approximately six minutes, until Williams finally left the field. Jd. 55; Olney Pirates Game Video at 1:08:03-1:13:50; Williams Dep. at 143:23-144:5. Ripken Baseball officials remained present after the game to ensure that no further confrontations occurred between. ‘Williams and the umpires. SUMF § 56; Curll Dep. at 32:6-14, 40:7-41:1. Both umpires characterized Williams’ conduct during the game as among the worst they had ever encountered in their careers. SUME 4 57; Addis Dep. at 48:12-20; Bolewicki Dep. at 64:11-65:3. Each separately submitted a written report to Ripken Baseball within days of the Tournament. SUMF 4158; Seidlin-Bemstein Cert, Ex. 24 (Addis incident report); id. Ex. 25 (Bolewicki incident report); see also Addis Dep. at 52:8-54:10; Bolewicki Dep. at 50:5-51:7. That evening of May 10, 2014, an individual using the Twitter handle @HitMeSEO tweeted, “Phillies Fan, embarrassed to watch @WildThingMLBN Mitch Williams get thrown out ofa 10 year old baseball game today @RipkenBaseball.” SUMF { 59; ESB Cert. Ex. 26 at 348. The following morning, while the Tournament was still taking place, Williams responded to @HitMeSEO with a series of tweets, quoted verbatim below: © @HitMeSEO to set the record straight. I was thrown out for laughing at a call.then the threatened to fight me.said pick a time and place. @HitMeSEO | was just as embarrassed.as I donate all my time.and I started this team so parents don’t have to pay $3,500 for their son 2 play 12© @HitMeSEO for those that think I’m making this up.it is on film.,and when he threatened me 1 of my coaches came out and put his hands on him © @HitMeSEO the ump and moved him away.the ump said you can’t touch me.what the ump didn’t know is my coach is a judge. And my coach told him © @HitMeSEO if we weren’t in Maryland you would be in handcuffs and arrested for threatening me. All I care about is the kids.the entire game © @llitMeSEO is taped by Ripken. They have it and it will show everything ive never seen an ump at so out of control especially at a 10yrold gm It started in the Ist inn, the ump yelled at the opposing coach,then yelled at me.i asked why r u yelling at me I haven't even met u yet. SUMF 4 60; ESB Cert. Ex. 26 at 343-48. Under Ripken Baseball rules, ejected coaches were ordinarily suspended for one additional game, but Williams was permitted to coach the Jersey Wild for the remainder of the Tournament. SUMF 61; Romond Dep. at 104:3-14, 105:15-25, 109:16-25; Curl Dep. at 39:9- 12, 118:16-119:5. A Ripken Baseball official explained that this was because he was initially under the impression, based on his discussions with Williams on the night of the Olney Pirates Game, that the umpire threatened Williams prior to the ejection — an impression the official later earned was incorrect. SUMF § 61; Curll Dep. at 29:11-30:3, 35:11-19, 114:16-115:12. Asa precaution, a Ripken Baseball tournament director monitored Williams” conduct at the rest of the Wild games. SUMF 162; Romond Dep. at 104:15-20, 106:1-2; Curll Dep. at 40:2-6, 49: -20. The May 11, 2014 SJ Titans Game Like the first Pirates Game, the Wild lost their final game of the Tournament, a championship match against the SJ Titans. SUME 97 35, 63. A video of the SJ Titans Game was recorded by Ripken Baseball. Jd. § 64; ESB Cert. Ex. 27 (“SI Titans Game Video"). In this game, the Jersey Wild players were assigned to the dugout on the third base side of the field, across the field from where Williams coached first base when his team was at bat. BSUMF $f 65-66. The Ripken Baseball representative monitoring the game also remained on the third base side of the field when Williams was located across the field as first base coach. Id. 167. Williams admits that, early in the game, one of the SJ Titans coaches reported to the ‘umpires that Williams had called the opposing pitcher a “pussy.” SUMF § 71; Williams Dep. at 148:11-151:2; see also Dennison Dep. at 27:16-28:21; $J Titans Game Video at 16:20-17:45. ‘The coaches and umpires conferred, and Williams denied the accusation, SUMF 71; Williams Dep. at 150:15-22. The home plate umpire testified that he could not hear whether or not Williams made such a comment from where he was located. SUMF 4 72; Dennison Dep. at 28:5. Play then resumed. Whether by virtue of the championship stakes, the earlier accusation against Williams, or some other reason, competitive fires flared. Throughout the game, Williams and the head coach of the SJ Titans, Scott Lisgar, were “jabbering” and “chirping” at each other. SUMF 68; Williams Dep. at 345:2-7; see also id. at 154:11-12, 160:11-161:3; Ahart Dep. at 100:21-102:21. Although Williams claimed not to recall many of his specific comments, he remembers telling Lisgar, “You sure strut around here like a peacock.” SUMF 4 69; Williams Dep. at 161:5-6, 345:2-14. Before the bottom of the fifth inning, as the Jersey Wild pitcher went to the mound, Williams approached his son, the catcher, and spoke with him for approximately ten seconds. SUMF § 73; SJ Titans Game Video at 1:11:25-40, The home plate umpire did not hear the conversation, and both of the Ripken Baseball officials monitoring the game were away from the field when the conversation took place. SUMF 4 74; Dennison Dep. at 46:22-47:19; Curll Dep. at 67:20-68:11, 70:16-19, 102: 103:18. Williams’ son then walked to the mound and spoke with the pitcher, SUMF 4 73; SJ Titans Game Video at 1:11:40-1:12:10, On the next pitch, the 14SJ Titans batter — who was the player Williams had previously been accused of calling a “pussy”— was hit by the ball. SUMF 475; SJ Titans Game Video at 1:12:10-1:13:20; see also Williams Dep. at 159:3-5; Ahart Dep. at 106:10-107:24. The SJ Titans coaches immediately complained to the umpire. SUMF 475; SJ Titans Game Video at 1:13:20-1:13:40; see also Williams Dep. at 151:25-152:19; Ahart Dep. at 108:3-19. One of the coaches, who was also the father of the batter, yelled that he had told the umpire his son was going to get hit. SUMF § 75; Williams Dep. at 152:11-13, 166:3-9; Curll Dep. at 139:13-140:5, 141:14-19, 142:20-14° see also SJ Titans Game Video at 1:13:20-1:13:40. Williams denied that he had directed the pitcher to hit the batter, SUMF 176. He testified that he instructed his son to tell the pitcher to throw the ball “inside” because the SJ Titans were “up 4-2” and “t]he kid can hit.” 1d; Williams Dep. at 159:2-13, 163:6-10. He claims he ordered an inside pitch even though the batter “stands on the plate,” SUMF § 76; Williams Dep. at 159:9, because his pitcher had “[fJairly decent control,” SUMF § 77; Williams Dep. at 147:20-23. The home plate umpire for this game testified that, during the animated discussion following the accusation that Williams had instructed the Jersey Wild pitcher to throw ata player, both Williams and the opposing coach used profanity and were warned to watch their Janguage around 10-year-olds. SUMF § 78; Dennison Dep. at 25:2-26:16, 50:11-19. A Ripken Baseball official also testified that Williams cursed multiple times in their own conversations and that he asked Williams to stop because a player might overhear. SUMF § 79; Curll Dep. at 75: 16, 129:1-21. C. The Reporting of the Deadspin Articles Timothy Burke, a journalist working for Gawker’s sports news website, Deadspin, received an unsolicited email through a “tips@deadspin.com” email address at 8:32 p.m. on 15May 10, 2014, the evening of the Olney Pirates Game. SUMF {f[ 80-81; Burke Cert. 17 & Ex. As! see also ESB Cert. Ex. 29 (“Burke Dep.”) at 83:10-87:8. This tipster (“SOURCE 1”) reported that Mitch Williams “[jJust got kicked out his sons little league game for threatening an ” SUMF 4 82; Burke Cert. Ex. A at GAWKER 0037. Burke asked for additional information. Jd. SOURCE | explained that “Mitch is a coach for the Jersey Wild, where his son Declan. plays ball,” and that, in a game against the Olney Pirates hosted by Ripken Baseball, Williams ‘was “arguing balls and strikes and was upset about a play at the plate where his team was called out,” and while coaching first base in the top of the fifth inning “yelled to another parent that he would have the umpire fired.” SUMF 4 83; Burke Cert. Ex. A at GAWKER 0037. The umpi “confronted him and Mitch went off,” among other things threatening the umpire, “call{ing] him a motherfucker in front of 10 year olds,” and having to be restrained, according to SOURCE 1. Id, The men were face to face, and “[t]he umpire rightfully kicked him out.” Jd. The source explained that Williams “refused to leave the field until he spoke to management,” and that “there should be multiple videos of the incident, but I do not have one.” Id. He wrote that he “was only there to watch this game after another game I had watched eat ier” and had no connection to either team. Jd. at GAWKER 0038. Burke found a tweet from a spectator about the ejection, and the next morning saw the series of responses from Williams, in which he claimed that he was “thrown out for laughing at a call” and that the umpire was sufficiently angry at Williams that he threatened to fight him ~ and blamed the umpire for being “out of control.” SUMF 4 84, 86; Burke Cert. ] 10-11. Burke also Gawker produced all of the source communications in discovery, redacted only to shield source identity pursuant to New Jersey Shield Law, N.J.S.A. 2A:84A-21. Burke treated this source, and others he contacted about the story, as confidential sources — although Burke knew their identities. Burke Cert. 8. Williams has not challenged that invocation of the Shield Law. 16tried to find the video of the Olney Pirates Game, but it was unavailable online at that time. SUMF 4 85, 86; Burke Cert. § 12. Intrigued, he condueted online research and found reports ~ including in Deadspin — of the 2008 incident in which Williams admitted to cursing at his daughter's 10-year-old basketball game. SUMF 4 88; Burke Cert. {] 13. He then began trying to find other witnesses who might corroborate the account of SOURCE 1. ‘Two officials at Ripken Baseball did not respond to Burke. SUMF 4 89; Burke Cert. 4114. Burke was more successful, though, in finding parent witnesses. He identified a potential witness based on online searches, and sent an email to that person, a parent from the Olney Pirates. SUMF {| 90; Burke Cert. 4] 14 & Ex. C. This person (“SOURCE 2”) responded by email and confirmed that Williams “went nuts” following the ejection, “got in the umpires face like it ‘was the major leagues,” and caused a lengthy delay by refusing to leave the field immediately. SUMF 491; Burke Cert, Ex. C. Burke then copied SOURCE 2's dest tion into an email to SOURCE 1, asking: “Does that sound like what you observed?” SUMF 4 92; Burke Cert. Ex. A at GAWKER 0039. SOURCE 1 responded: “That account is completely accurate.” Id. In addition, SOURCE 1 added that “Mitch’s account about having to be separated from the umpire by another coach is accurate, Complete disaster.” Ia. Burke then tracked down a third source (“SOURCE 3”), whom he also identified online. SUMF 493; Burke Cert. § 16; see also Burke Cert. Ex. D. The individual responded from a different email account, confirming the ejection of Williams and explaining that, although “I did not hear him curse,” the “players who were in the vicinity reported to me that they did” hear Williams curse. SUMF $94; Burke Cert. Ex, E. Ina follow-up communication, SOURCE 3 explained that “Williams was confrontational all game,” but that Ripken Baseball did not immediately ban him because “they weren't sure if the umpire instigated it .. . based on 7Williams account.” SUMF $95; Burke Cert. Ex. F. SOURCE 3 provided two photographs of the face-to-face argument: SUMF $196; Burke Cert. § 17. Approximately 24 hours after receiving the tip, Burke prepared his news report (the “May 11, 2014 Deadspin Article”), SUMF § 99; Burke Cert. 4 19. He based the report on the descriptions of the on-field conduct and the ejection from SOURCE 1, SOURCE 2, and SOURCE 3, as well as the photographs of a visibly intense argument between an unidentified umpire and Williams, and tweets from @HitMeSEO and from Williams. SUMF § 99; Burke Cert. $19. Five of Williams’ tweets were included in full in the article, reflecting his version of events, including that the umpire yelled at both the opposing coach and him, that the umpire threatened him, that the umpire was out of control, that the umpire should have been arrested, and that his primary concer was about the kids. Burke Cert. Ex. G (May 11, 2014 Deadspin Article). The article also noted that Williams “has a bit of a history playing this role,” hyperlinking to a Deadspin account of the widely reported 2008 incident in which Williams admitted to cursing at a referee during his then 10-year-old daughter's basketball game. Id. 18(linking to 2008 article); see also http://deadspin.com/mitch-williams-ejected-from-childs- baseball-game-for-ar-1574736005. Shortly after publication of the Sunday, May 11,2014 Deadspin Article, Deadspin received an unsolicited email offering additional detail. SUMF § 104; Burke Cert. 421 & Ex. K. The potential source asked whether his identity would be protected, and Burke assured him that it would: “We've kept all our other sources on this anonymous, so you can trust we will do the same for you.” SUMF 4 104; Burke Cert, Ex. K. However, this individual never provided additional information, Burke Cert. $21. The next morning, Burke received a Facebook message from another individual (“SOURCE 4”), who wrote: “What an unbelievable douchebag Mr. Williams acted like all weekend! !! Hef"Js an embarrassment[.]” SUMF § 105; Burke Cert. 24 & Ex. L. At 9:50 a.m. ‘on May 13, 2014, SOURCE 4 emailed Burke a lengthy description of both the Olney Pirates Game, which the source had watched as a “neutral observer,” and the SJ Titans Game, which the source attended to support a player on the SJ Titans. SUMF 4 106; Burke Cert. $25 & Ex. M. SOURCE 4 corroborated that at the Olney Pirates Game Williams “curs[ed] the ump,” SUMF 107; Burke Cert. Ex. M at GAWKER 0051, and provided new information about the SJ Titans Game. SOURCE 4 said that Williams “was at one point heard to say by a couple of our coaches and a couple of our players DON’T ACT LIKE A LITTLE P***#.” SUMF § 108; Burke Cert. Ex. Mat GAWKER 0051, The source noted that, “I PERSONALLY DIDN’T HEAR THAT though I don’t know why our coaches or kids would make it up.” SUMF § 108; Burke Cert. Ex. Mat GAWKER 0051. The email also described an incident in which it appeared that an SJ Titans player was “thrown at”: Later in the game , and obviously this cant be proven, but when our pitcher came to bat , our coaches had said something to the home plate umpire warning him 19thinking that our kid was going to be thrown at. Well, don’t u know it...first pitch to our pitcher HITS HIM!!!... SUMF § 108; Burke Cert. Ex.M at GAWKER 0051. SOURCE 4 suggested contacting an additional witness and provided some information about doing so. SUMF 108; Burke Cert Ex. M at GAWKER 0051. Burke followed up on the lead and exchanged Facebook messages with an adult associated with the SJ Titans team (“SOURCE 6”), asking what that source observed. SUMF 111; Burke Cert. 27 & Ex. 0, SOURCE 6 responded: He walked by our catcher and after the Ist inning he said that pitcher is a pussy. A couple other of our kids heard him and one kid ask his parents on the way home why he would call our pitcher named and ask what it meant, He also called his pitcher and catcher to the side before the bottom of the Sth inning and told his pitcher to hit him with the first pitch. ... I heard him and {the] pitcher heard him... After the game one of our asst. coaches called Mitch out on it and he said I told my pitcher to [throw] inside. So he did call it. SUMF $111; Burke Cert. Ex. O at GAWKER 0060-61. SOURCE 6 explained that he had in the past similarly witnessed Williams “screaming at the umpires all weekend,” and provided contact information for an additional witness associated with the SJ Titans (“SOURCE 7”). SUMF 4111; Burke Cert. Ex. O at GAWKER 0062-63. Burke then exchanged email with SOURCE 7, setting up an evening telephone interview on May 15, 2014. SUMF 4112; Burke Cert. 28 & Ex. P, During the telephone call, SOURCE 7 corroborated aspects of the accounts provided by SOURCE 4 and SOURCE 6, including that the SJ Titans catcher said that Williams called the $J Titans pitcher a “pussy” and their belief that the SI Titans player was hit deliberately. SUMF 4112; Burke Cert. §28. Amidst these communications, another source contacted Burke unsolicited (SOURCE 5”), SUMF 109; Burke Cert. 426 & Ex. N. SOURCE 5 thanked Deadspin for publishing the May 11, 2014 Deadspin Article and described numerous other experiences at 20youth athletics in New Jersey involving misbehavior and/or profanity by Williams — behavior that continued unchecked by virtue of his celebrity and ability to intimidate crities. SUMF ‘J 109; Burke Cert. Ex.N. The individual did not attend the Tournament, so could not verify accounts of the games. However, SOURCE 5 described similar conduct by Williams at other youth sporting events in New Jersey and was thereby corroborating a pattern of behavior of the exact kind alleged by other sources, SUMF $f 109-10; Burke Cert, Ex. N. SOURCE 5 seemed terrified of Williams and demanded not to be identified, SUMF § 110; Burke Cert. Ex. N. (“It wouldn't be hard for the [Williams] family to figure out the connections and I certainly don’t want my kids to be adversely affected. In addition to communicating with these sources, Burke located the video recording of the SJ Titans Game online and watched it. SUMF 113; Burke Cert. §29. Although the video did not capture sound from the field, it appeared to corroborate the accounts provided to Deadspin, SUMF $113; Burke Cert. 29. Specifically, the video showed a meeting behind home plate that appeared to correspond to the Titans’ coach’s complaint to the umpires that Williams had referred to an opposing player as a “pussy.” SUMF § 113; Burke Cert. 29. It also showed the hit batter incident. The video showed Mr. Williams speaking to his catcher, the catcher then walking to the mound to speak with the pitcher, the next batter being hit by the very first piteh thrown to him, and the Titans coaches immediately complaining to the umpire. SUMF 41113; Burke Cert. $29. Based on the descriptions of the on-field conduct from SOURCE 4, SOURCE 6, and SOURCE 7 as well as the game video and the reputation of Williams, Burke prepared a follow- ‘up news report that was published at 2:15 p.m. on May 16, 2014 (the “May 16, 2014 Deadspin Article”). SUMF § 11 Burke Cert. Ex. Q; see also http://deadspin.com/witnesses-mitch- 21williams-called-child-a-pussy-order-1577451834. The article embedded two video clips from the SJ Titans game, so that readers could watch those incidents for themselves. The article introduced the first clip: The film at the top of this post shows an interaction between Williams and some SI Titans players. Multiple witnesses report that interaction consisted of Williams calling the SI Titans pitcher “a pussy.” Children on the team heard this, and one asked his parent on the ride home what it meant, The comment sparked a meeting behind home plate between SI Titans coaches, umpires, Williams, and a handler (one witness called him a “babysitter”) assigned by Ripken Baseball to keep Williams in line after Saturday’ ejection. Even in this interaction, you can see Williams being aggressive and argumentative. SUMF 4 115; Burke Cert. Ex. Q. The second embedded video elip showed the hit batter, and ‘was accompanied by an explanation: Here’s video of an incident that happened in the fifth inning, when the SJ Titans cher came to bat in the leadoff position. Watch as Williams says something to his catcher, after which the catcher goes out to the mound to say something to his pitcher. SJ Titans coaches and players overheard this interaction, and report that Williams ordered his pitcher to intentionally hit the SJ Titans batter with the first pitch. One witness told us it was in an attempt to knock the $J Titans pitcher out of the game. Sure enough, the first pitch hits the SJ Titans player square in the ribs. (The home plate umpire, who had been made aware of the upcoming beanball, warned both benches.) One SJ Titans assistant coach confronted Williams about the pitch after the game, and reported that Williams stated, “I told him to throw it inside.” SUMF 4115; Burke Cert. Ex. Q. The May 16, 2016 Deadspin Article thus accurately included the various sources” statements as well as Williams’ response to the beanball accusation, which ‘he made on May 11, 2014 and maintains in this litigation: “I told him to throw it inside.”” Id. ‘ANDARD OF REVIEW. ‘Motions for summary judgment are properly granted when the record demonstrates “that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law.” R. 4:46-2(c). In deciding a summary judgment motion, 22the court is “required to engage in [an] evaluation, analysis or sifting of evidential materials... in light of the burden of persuasion that applies if the matter goes to trial.” Brill v. Guardian Life Ins, Co., 142 J. 520, 540 (1995) (emphasis added); see also R. 4:46-2(c) (“An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, ‘would require submission of the issue to the trier of fact.”), In New Jersey, “summary judgment has been held to be a particularly apt vehicle for disposing of defamation suits, and the Supreme Court has urged trial courts not to hesitate to employ summary judgment to expedite such litigation whenever appropriate.” Sedore v. Recorder Publ'g Co., 315 N.J. Super. 137, 163 (App. Div. 1998); see also, e.g., DeAngelis, 180 N.J. at 12 (summary judgment “is encouraged in libel and defamation actions”); Dairy Stores, Inc. v, Sentinel Publ’g Co., 104 N.1. 125, 157 (1986) (summary judgment is “particularly well- suited for the determination of libel actions”); Maressa v, N.J. Monthly, 89 N.J. 176, 196 (1982) (“Our courts should resolve free speech litigation more expeditiously whenever possible. The perpetuation of meritless actions, with their attendant costs, chills the exercise of press freedom. To avoid this, trial courts should not hesitate to use summary judgment procedures where appropriate to bring such actions to a speedy end.”) Here, the plaintiff is a put figure who must show actual malice by clear and convincing evidence. See infra, Argument Section ILA. As the New Jersey Supreme Court has explained, a public-figure plaintiff must produce substantial evidence to survive a motion for summary judgment. Although courts construe the evidence in the light most favorable to the non- moving party in a summary judgment motion, the “clear and convincing” standard in [a] defamation action adds an additional weight to the plaintiffs” usual “preponderance of the evidence” burden. Costello v. Ocean Cty, Observer, 136 N.J. 594, 615 (1994). 23Clear and convineing evidence means that the proof “should produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established” by the plaintiff. Aiello v. Knoll Golf Club, 64 N.J. Super. 156, 162 (App. Div. 1960); see also N.J. Model Civil Jury Charge 3.11A (Public Defamation) at 7 (2014), available at http://www,judiciary.state.nj.us/civil/charges/3.11A.pdf. A plaintiff's evidence must be “so clear, direct and weighty and convincing as to enable the factfinder to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.” State v. Hodge, 95 N.J. 369, 376 (1984) (alteration, citation and internal quotation marks omitted). Applying this standard, New Jersey courts routinely grant defense motions for summary judgment in public figure or public interest defamation actions. See, e.g., Costello, 136 N.J. at 619 (remanding for entry of summary judgment for media defendants); Durando, 209 N.J. at 257 (affirming grant of summary judgment to media defendants); Petersen, 407 N.5. Super. at 78 (same); Berkery v. Kinney, 397 NJ. Super. 222, 230-31 (App. Div. 2007) (same), certif. denied, 194 N.J. 445 (2008). ARGUMENT I. THE LAW REQUIRES PUBLIC FIGURES LIKE WILLIAMS TO COME, FORWARD WITH “CLEAR AND CONVINCING” EVIDENCE OF ACTUAL MALICE TO PROCEED PAST SUMMARY JUDGMENT A. The Court Correctly Found Williams To Be a Public Figure To protect the vitality and freedom of public commentary, the law differentiates truly private figures, who are entitled greater protection from reputational harm, from public figures ~ .e., those individuals “who, by reason of the notoriety of their achievements or the vigor and success with which they seek the public’s attention,” assume a place on the public stage and. thereby both “run the risk of closer public scrutiny” and achieve “access to the channels of effective communication” to correct alleged falsehoods published about them. Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 344, 94 S, Ct. 2997, 41 L. Ed. 2d 789 (1974). Accordingly, for 24celebrities or those who otherwise qualify as public figures to prevail on tort claims arising from allegedly false publications, they must plead, and ultimately prove, by clear and convincing evidence, “actual malice” ~ a term of art requiring proof that a challenged statement was made ““with knowledge that it was false or with reckless disregard of whether it was false or not.’” Gomez v, Murdoch, 193 N.J. Super. 595, 597 (App. Div. 1984) (quoting N.¥. Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84S. Ct. 710, 11 L. Ed. 2d 686 (1964)). A plaintiff's pul figure status is a question of law for the Court. Lawrence v. Bauer Publ’g & Printing Ltd., 89 NJ. 451, 462 (1982) (“[T]he public figure question is one involving a limited constitutional privilege and is therefore a matter of law for the trial court to decide.”), cert. denied, 459 US. 999, 103 S. Ct. 358, 74 L. Ed. 2d 395 (1982). This Court has already ruled that Williams is a public figure. See Feb. 5,2015 Hr'g Tr. at 5:12-13 (“He is a public figure for all realistic purposes. It’s not even a close call.”). Although Williams has previously attempted to argue that he is a private figure, see P1.’s Br. in Opp’n to Def. MLBN’s Mot. to Dismiss at 60-67 (filed Dec. 10, 2014); Pl.’s Br. in Opp’n to Def. Gawker’s Mot. to Dismiss at 15 n.4 (filed Feb. 20, 2015), there can be no serious dispute that the Court’s ruling was correct. Williams played Major League Baseball for more than a decade, pitching in over 600 games including the World Series. SUMF 41. After his playing career came to a close, Williams launched a new career as a sports broadcaster, and at the time of the Deadspin articles at issue, he had been an analyst on MLBN for over four years. Id. {f/21-24. As recently as early 2014, when he went to youth baseball tournaments like the one that gave rise to this lawsuit, he would sign “countless autographs” for fans who approached him. Id. 31. Numerous courts have found retired professional athletes to be public figures. See, e.g., Time, Inc. v. Johnston, 448 F.2d 378, 380 (4th Cir. 1971) (former professional basketball playera public figure); Chuy v. Phila, Eagles Football Club, 595 F.2d 1265, 1280-82 (3d Cir. 1979) (former professional football player a public figure); Cepeda v. Cowles Magazines & Broad., Inc., 392 F.2d 417, 419 (9th Cir. 1968) (former professional baseball player a pul figure), cert. denied, 393 US. 840, 89 S. Ct. 117, 21 L. Ed, 2d 110 (1968). Public figure status is particularly appropriate where, as here, the plaintiff's career as an athlete “made his name well-known, enough to open business opportunities for him for the rest of his life.” Brewer v. Memphis Publ'g Co, 626 F.2d 1238, 1248-49, 1257-58 (Sth Cir. 1980) (former professional football player a public figure), cert. denied, 452. U.S. 962, 101 S. Ct. 3112, 69 L. Ed. 2d 973 (1981). ‘Thus, to survive summary judgment, Williams must demonstrate clear and convincing evidence of actual malice? B. The Actual Malice Standard Applies to All Claims Arising from the Challenged Reports ‘The New Jersey Supreme Court has made clear that “the actual-malice standard applies to all speech-based torts involving matters of public concern.” Durando, 209 N.J. at 250 (emphasis added); see also DeAngelis, 180 N.J. at 19-20 (applying actual malice standard to claims for false light and intentional infliction of emotional distress); LoBiondo v. Schwartz, 323 NJ. Super. 391, 417 (App. Div. 1999) (“if an intentional tort count — [here], malicious interference ~ is predicated upon the same conduct on which the defamation count is predicated, the defamation cause completely comprehends the malicious interference cause” and must be dismissed “if the alleged defamation is not actionable”), certif: denied, 162 N.J. 488 (1999). 2 As Gawker noted in its motion to dismiss the complaint, even if Williams were not a public figure, he would be required to prove actual malice by clear and convincing evidence because the Deadspin articles at issue reported on a matter of public concern, namely, conduct at youth sports events, See Br. in Supp. of Def. Gawker’s Mot. to Dismiss at 27-29 (filed Jan. 8, 2015); Sisler v. Gannett Co., 104 N.J. 256, 279 (1986). 26The U.S, Supreme Court also has held that the First Amendment requires that any cause of action seeking damages for reputational injury sustained as a result of a publication, no matter how the claim may be denominated by a plaintifi’'s complaint, be subject to all of the defenses ‘that govern actions for defamation. See Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 51-57, 108 S. Ct. 876, 879-883, 99 L. Ed. 2d 41 (1988) (applying constitutional limits of defamation actions to claim for intentional infliction of emotional distress). ‘Thus, courts may not permit plaintiffs, through creative pleading, to invoke other torts as a vehicle to “end-run around First Amendment strictures.” Hornberger v. Am. Broad. Cos,, 351 N.J. Super. 577, 628-31 (App. Div. 2002) (citation and internal quotation marks omitted) (applying actual malice standard to false light claim); see also Kenny, 205 N.J. at 307 (claims that are “closely linked” to defamation claims cannot proceed where defamation claims are barred); Decker v. Princeton Packet, Inc., II6N.J. 418, 432 (1989) (“If the levels of culpability were not at least as stringent,” plaintiffs ‘would improperly use negligence-standard torts “to overcome defenses to defamation actions.”). Because all of Plaintiff's claims against Gawker — three claims actually labeled as defamation (“intentional defamation,” “defamation per se,” and “negligent defamation”) as well, as claims for “false light” and “negligent misrepresentation” — arise from the same published reports, and seek to recover for alleged harms flowing therefrom, the actual malice standard, as, well as other applicable defamation defenses, apply to all five claims. Indeed, in opposing Gawker’s motion to dismiss, Williams effectively conceded that his negligence-based claims fail as a matter of law because the actual malice standard applies. See Pl.’s Opp’n to Def. Gawker’s Mot. to Dismiss at 15 n.4 (recognizing Court’s prior ruling that Williams is a public figure); id. at 14-28 (failing to argue that Williams should be permitted to proceed with his negligent 27defamation and negligent misrepresentation claims)? All of Plaintiff's claims fail because, as set, forth below, Williams cannot establish that Gawker acted with the requisite actual malice C. The Actual Malice Standard Is a Subjective Standard of Fault Although Williams has urged that he can demonstrate actual malice by pointing to “highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers,”” PI.’s Br. in Opp’n to Def. Gawk« Mot. for Reconsideration at 3 (filed Apr. 30, 2015) (quoting Maressa, 89 N.J. at 199, in turn quoting Curtis Publ’g Co. v, Butts, 388 U.S. 130, 155, 87S. Ct. 175, 1991, 18 L. Ed. 2d 1094 (1967) (plurality opinion)), this is simply incorrect. Even putting aside that there ‘was no such extreme departure here, the objective standard Williams advocates is not the law, as the U.S. Supreme Court clarified more than 25 years ago: The language . .. discussing professional standards is taken from Justice Harlan’s plurality opinion in Curtis Publishing Co. v. Butts... In place of the actual malice standard, Justice Harlan suggested that a public figure need » As Gawker argued in its motion to dismiss, although Williams’ negligent misrepresentation claim clearly fails for this reason, itis infirm for common law reasons as well. Br. in Supp. of Def. Gawker’s Mot. to Dismiss at 30 n.23. ‘The cause of action requires the existence of a duty of care to the plaintiff and ~ except in limited circumstances not applicable here— the plaintiff's actual and justifiable reliance on an incorrect statement to his detriment. Banco Popular N. Am. v. Gandi, 184 N.J. 161, 182 (2005); Restatement (Second) of Torts (“Restatement”) § 552(2)(a) (1977). Neither is present here. First, Plaintiff does not contend that Gawker assumed a duty of care to him, and New Jersey law plainly establishes that a news organization's only duty in publishing statements about both public figures and about matters of public concern is to refrain from publishing a false statement with actual malice. See Yuhas v. Mudge, 129 N.J. Super. 207, 209-10 (App. Div. 1974) (declining to “impose the suggested broad legal duty upon publishers of nationally circulated magazines, newspapers and other publications”). Second, Plaintiff does not allege that he relied on the Deadspin articles to his detriment, or indicate any circumstance under which such an allegation would be plausible. Kuhnel v. CNA Ins, Cos, 322.N.J. Super. 568, 581 (App. Div. 1999) (affirming dismissal of negligent misrepresentation claim where plaintiff did not justifiably rely on contested statement), certif, denied, 163 N.J. 12 (2000), and cert. denied, 531 US. 819, 121 § Ct. 61, 148 L. Ed 2d 27 (2000); see also Restatement § 552 emt. h (“It is not enough that the maker merely knows of the ever-present possibility of repetition to anyone, and the possibility of action in reliance upon it, ‘on the part of anyone to whom it may be repeated.”) 28only make “a showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers.” This proposed standard, however, was emphatically rejected by a majority of the Court in favor of the stricter New York Times actual malice rule. Harte-Hanks Comme’ns v. Connaughton, 491 U.S. 657, 665-66, 109 S. Ct. 2678, 2685, 105 L. Ed. 2d 562 (1989) (citations omitted) (emphasis added). Thus, “[tJoday, there is no question that public figure libel cases are controlled by the New York Times standard and not by the professional standards rule. Id.; see also infra, Argument Section I1.B.4. In other words, “[t}he actual-malice standard is subjective,” and the inquiry tums solely on the defendant's state of mind. Costello, 136 N.J. at 615; see also Durando, 209 N.J. at 252 (To act with reckless disregard of the truth, a defendant must actually doubt the veracity of the article.”) (alteration and internal quotation marks omitted). Indeed, the New Jersey Model Civil Jury Charge makes this clear: The fifth element plaintiff must prove by a preponderance [sic]° of the evidence is that, when the statement was communicated to at least one other person by [defendant], [defendant] knew that the statement was false or acted in reckless disregard of whether it was true or false. ‘This means that [defendant] must have actually knowa that the defamatory statement regarding [plaintiff] was false when he/she communicated it, or that [defendant] communicated the defamatory statement with a high degree of awareness that it was probably false, or that [defendant] truly had serious doubts as to the truth of the defamatory statement when he/she communicated it. “ The passage from Butts was cited in Maressa only in passing and was not in any way a part of the Court’s holding, which addressed the absolute protection, under the New Jersey reporter's shield law, from discovery granted to journalistic work product in the context of a defamation action. See Maressa, 89 N.J. at 199. In any event, Maressa was decided seven years before the Supreme Court’s ruling in Connaughton. In the years since, the New Jersey Supreme Court has repeatedly made clear that “the actual-malice test will shield careless acts of publication that would be considered irresponsible by common journalistic standards Durando, 209 N.J, at 252. * The reference to the “preponderance” of the evidence here was a textual error, as Section 3 of the model instruction makes clear that the “clear and convincing” burden applies to this and other elements. 29N.J. Model Civil Jury Charge 3.11A (Publi Defamation) at 6-7 (2014), available at http:/Awww judiciary. state.nj.us/civil/charges/3.11A.pdf. I, WILLIAMS CANNOT MEET HIS BURDEN TO IDENTIFY “CLEAR AND CONVINCING” EVIDENCE OF ACTUAL MALICE, A. The Record Demonstrates that Gawker Carefully Sought To Confirm the Accuracy of the Articles at Issue — the Opposite of Actual Malice Gawker’s reporter Burke initiated coverage of the incidents at issue after he received an unsolicited tip from SOURCE 1 about Williams’ behavior at the May 10, 2014 Olney Pirates Game. SUMF §¥ 81-83. Prior to publishing anything, Burke took common-sense journalistic steps to verify the information until he was comfortable that it was correct. He searched online, finding a social media description of the incident on Twitter — and a lengthy response the following morning from Williams, confirming an ejection and heated argument. SUMF {f 84, 86; Burke Cert. {ff 10-11. Burke tried to watch the video. SUMF {f[ 85, 8 ; Burke Cert. 12. He conducted online research, among other things discovering that Williams had apparently admitted similarly swearing at a youth sporting event several years before. SUMF § 88; Burke Cert, at { 13. Burke contacted Ripken Baseball, although he did not get a response. SUMF 4 89; Burke Cert. 414. Burke tracked down and contacted two additional potential witnesses to the game, One of them, SOURCE 2, offered a description similar to that of SOURCE 1. SUMF 491; Burke Cert. § 14. Burke then sent a copy of SOURCE 2’s description to SOURCE 1, asking, “Does that sound like what you observed?” — to which the first source responded: “That account is completely accurate.” SUMF 92; Burke Cert, 15. A separate individual identified and contacted by Burke, SOURCE 3, also corroborated the accounts, noting that multiple players reported swearing by Williams, SUMF $9 93-94; Burke Cert. 16. In addition, SOURCE 3 30provided Burke with two very telling photographs of the face-to-face argument between Williams and an unnamed umpire. SUMF 96; Burke Cert. 416. Based on all of this ~ the neutral tipster SOURCE 1, as well as the independently contacted SOURCE 2 and SOURCE 3, the public tweets, a known history of prior similar conduct by Williams, and the photographs — Burke prepared the May 11, 2014 Deadspin Article. SUMF $99; Burke Cert. 19. The piece included a series of public tweets by Williams providing his version of events. Burke Cert. Ex. G (May 11, 2014 Deadspin Article). This type of reporting, demonstrating a diligent attempt to verify the accuracy of allegations and including both sides of a story, is the opposite of actual malice. See, e.g., Dairy Stores, Inc., 104N.J. at 157-58 (holding that reporter’s effort to confirm allegation “does not bespeak a reckless disregard for the truth” and affirming grant of summary judgment to publisher). Indeed, months of discovery has confirmed that nothing was fabricated by Gawker; Burke accurately recounted the events of the game and the allegations by participants. See supra at 9-13. ‘The May 16, 2014 Deadspin Article was reported in a similarly careful, responsible manner. SOURCE 4 contacted Deadspin to report an inappropriate reference by Williams to an opposing player as well as an allegation that Williams ordered a batter to be hit by a pitch. SUMF $f 105-08; Burke Cert. §] 24-25. This source led to another, SOURCE 6, with whom. Burke followed up in an attempt to confirm the information. SUMF {| 111; Burke Cert. 27. SOURCE 6's account matched that of SOURCE 4, and included the response of Williams that he had instructed the pitcher to throw inside ~ which discovery has confirmed was an accurate reflection of Williams’ position. Still, Burke kept reporting. SOURCE 6 provided contact information for another witness, SOURCE 7, whom Burke spoke with by telephone and who confirmed the accounts of SOURCE 4 and SOURCE 6. SUMF 112; Burke Cert. 428. Burke 31also exchanged emails with another source (SOURCE 5) who provided consistent accounts of similar conduct by Williams at other youth sporting events. SUMF §¥ 109-10; Burke Cert. § 26. F ally, Burke was able to obtain game video online, reviewed it, and found that it was consistent with what he had been told. SUMF 4 112; Burke Cert. | 29. Based on these three eyewitnesses (SOURCE 4, SOURCE 6, and SOURCE 7), the generally corroborating SOURCE 5, and a review of the game video, Burke published the May 16, 2014 Deadspin Article. SUMF § 114; Burke Cert. { 30; see also Burke Cert. Ex. Q (May 16, 2014 Deadspin Article). ‘The published report included the response by Williams to the beanball allegation (“I told him to throw it inside.””) as well as clips of the two incidents, albeit without audible voices, so that readers could watch the events themselves. Burke Cert. Ex. Q. Again, this type of reporting, demonstrating a diligent attempt to verify the accuracy of allegations, is the opposite of actual malice. Dairy Stores, Inc., 104.N.J. at 157-58. And, as with the earlier report, discovery has confirmed that the May 16, 2014 Deadspin Article accurately recounted allegations made by various participants during the game in question. See supra at 13-15. In short, the full record demonstrates that Burke took meaningful steps to confirm the allegations made about Williams with multiple sources and to measure them against prior incidents involving Williams and against photographs and video of the incidents in question. There no evidence that the sources were fabricated by Gawker or that its reporter did not subjectively believe what he was reporting — to the contrary, the evidence shows that the allegations of the Deadspin articles were based on substantial corroboration from multiple sources. Those sources were properly viewed as reliable by Deadspin’s reporter because they corroborated one another and because significant portions of their accounts were corroborated by photographs and video footage. As Williams admitted, “Dead spin reported what they were 32told.” SUMF ¥ 119; Williams Dep. at 382:11-15. And, because the testimony is undisputed that Burke believed his reports to be accurate, SUMF 497, 118; Burke Cert. $f 8, 18-19, 30-32; Burke Dep. at 241:3-242:14, Gawker is e! led to summary judgment. DeAngelis, 180 NJ. at, 19; see also Durando, 209 N.J. at 257 (plaintiff's actual malice case “can only go forward only if, reviewing the entirety of record in the light most favorable to them, [a journalist's claims to have believed accuracy of story at time of publication] are unworthy of belief”). B. On This Record, Williams Cannot Possibly Establish Actual Malice, Much Less “Clear and Convincing” Evidence of Actual Malice Faced with the careful reporting done by Burke, which resulted in published articles that accurately recounted both the allegations made against Williams by umpires, coaches, and spectators as well as the response by Williams, plaintiff has strained for theories to suggest fault by Gawker. All are insufficient as a matter of law or unsupported by the record — or both. 1. The Failure To Contact Williams Personally Does Not Establish Actual Malice Here, Where the Allegations Were Corroborated and Consistent with His Reputation and Where Williams’ Responses Were Included in the Arti Williams has placed great emphasis on the fact that, although the May 11, 2014 Deadspin Article included his lengthy series of public tweets about the Olney Pirates Game and the May 16, 2014 Deadspin Article included Williams’ denial of ordering a beanball, Burke never contacted him individually. This emphasis is misplaced. Because actual malice is a subjective standard focused on a defendant’s awareness of falsity, the law does not require a reporter to conduct any investigation unless the disputed statement was patently unbelievable on its face. As the Supreme Court underscored in Connaughton, 491 U.S. at 666, 109 S. Ct. at 2685, 105 L. Ed. 2d 562, the actual malice issue is not whether a publisher “could have” investigated further, but whether the publisher had a 33subjective awareness of the statement’s probable falsity at the time of publication. See supra Argument Section I.C. Indeed, the defendant in the very U.S. Supreme Court decision establishing the actual malice test did no investigation whatsoever, and even had contrary information in its own archives. Sullivan, 376 U.S. at 287-88, 84 S. Ct. 710, 729-30, 11 L. Ed. 2d 686; see also St. Amant v. Thompson, 390 U.S. 727, 731, 88 S. Ct. 1323, 1326, 20 L. Ed. 2d 262 (1968) (no actual malice where defendant relied solely on allegations by union member without investigating — including without contacting the plaintiff — because reckless disregard for truth “is not measured by whether a reasonably prudent man would have published, or would. have investigated before publishing”). This federal constitutional standard, of course, is also the law in New Jersey. In Lawrence, a newspaper published that plaintiff were being investigated for forgery, based on a telephone call from one source and without checking with the plaintiffs, an allegation that, it ‘tumed out, was false, 89 N.J. at 455-56, Although the Court observed that “defendants published a careless and perhaps irresponsible account of the information received,” this was not sufficient to establish that “defendants knew that the defamatory publications were false, or that they actually doubted their accuracy.” Id. at 468. Likewise, in Marchiano v. Sandman, the Appellate Division concluded as a matter of law that the defendant did not act with actual malice when he accused the plaintiff of lying to a grand jury, even though the defendant had not read the available transcript of the actual grand jury testimony or contacted the plaintiff, because “failure to investigate does not in itself establish bad faith or recklessness.” 178 N.J. Super. 171, 176 (App. Div. 1981), certif. denied, 87 N.J. 391 (1981). Nor does Burke's knowledge of Williams” © In light of this standard, courts around the country have likewise held that a failure to contact a story’s subject fails to establish fault, See, e.g., Pippen v. NBCUniversal Media, LLC, 734 F.3d 610, 614 (7th Cir, 2013) (no actual malice even though defendants failed to employ 34denials show actual malice, both because he included them in the Deadspin Articles and because “denials are so commonplace in the world of polemical charge and countercharge that, in themselves, they hardly alert the conscientious reporter to the likelihood of error.” Edwards v. Nat'l Audubon Soc'y, Inc., 856 F.2d 113, 121 2d Cir. 1977), cert. denied, 434 U.S. 1002, 98 S. Ct. 647, 54 L. Ed. 2d 498 (1977); see also Contemporary Mission, Inc. v. N.Y. Times Co., 842 F.2d 612, 624 (2d Cir. 1988) (denials prior to publication “insufficient to establish actual malice”), cert. denied sub nom. O'Reilly v, N.¥. Times Co., 488 U.S. 856, 109 8. Ct. 145, 102 L. Ed, 2d 117 (1988); Trump v. O’Brien, 422.N.J. Super. $40, 554 (App. Div. 2011) (“publication ofa statement in the face of denial, however vehement, does not constitute actual malice”). Indeed, even a complete failure to investigate does not give rise to an inference of actual malice unless the allegations are “‘so inherently improbable that only a reckless man would have put them in circulation.” Durando, 209 N.1J. at 252-53 (citation omitted). Given the well- publicized prior conduct of Williams, which included not only cursing at another youth sporting event but also falsely denying cursing in other circumstances and advocating aggressive “inside” pitching, supra at 5-8, there was nothing “so inherently improbable” about Williams cursing at a “the tried-and-true journalistic practice of asking a story’s subject”), cert. denied, 134 S. Ct. 2829, 189 L. Ed. 2d 787 (2014); D.A.R.E. Am. v. Rolling Stone Magazine, 101 F. Supp. 24 1270, 1284 n.3 (C.D. Cal. 2000) (“Plaintifis’ suggestion that Defendants’ failure to contact [plaintiffs] before publishing [the] article evidences actual malice is... legally misguided. Defendants were not required to contact the subjects of the article before publication.”), aff'd, 270 F.3d 793 (9th Cir. 2001); Loeb v. New Times Comme’ns Corp., 497 F. Supp. 85, 93 (S.D.N.Y. 1980) (“[Flailure to verify statements with the plaintiff and reliance upon some biased sources, in themselves, do not amount to reckless disregard of the truth”); Khan v. N.Y. Times Co., 710 N.Y.S.2d 41, 45 (N.Y. App. Div. 2000) ("{T he evidence that [the reporter] did not contact plaintiff with respect to the second article, even after plaintiff corrected her first mistake and allegedly obtained from her a promise that she would verify information with him in the future,” ‘was insufficient to establish actual malice); Tucker v. Phila, Daily News, 848 A.2d 113, 133 (Pa. 2004) (“[T)he fact that the newspapers did not interview [plaintiff] does not mean that they knew that the statement of [the source] was false, nor does it create the inference that [newspapers] had ‘obvious reasons to doubt the veracity’ of his statements ....”) (citation omitted). 35youth baseball game or ordering a beanball - and then denying it ~ that Burke must have known that multiple, corroborating sources were all lying. Indeed, everything Burke reported was, in fact, reported by the participants of the games to the Ripken Baseball organization. See supra at 9-15, Burke had no reason to doubt the consistent reports that he was receiving, significant, aspects of which were supported by photographs and video. The fact that he took significant steps to confirm the information, supra at 15-22, is to his credit ~ but not constitutionally required. New Jersey courts have declined to find a genuine issue of actual malice even in cases where, unlike here, there is proof of conduct bordering on journalistic incompetence. See, ¢.g., Costello, 136 N.J. at 619-20 (summary judgment appropriate where evidence merely “demonstrates a confused understanding of a court file” on the part of inexperienced reporter who erroneously reported that sexual misconduct complaint was pending against plaintiff; “slipshod journalism” is not actual malice); Lawrence, 89 N.J. at 467-68 (defendants? mistaken assumption that plaintiff was being investigated for forgery and perjury was based upon a “misconception{]” and a “careless and perhaps irresponsible account” of information received from a source, but defendants did not act with actual malice in reporting it because they “honestly believed that the concededly misleading statements {they published] were true”); Marchiano, 178 NJ. Super. 171, 176 (defendant did not act with reckless disregard for the truth when he accused plaintiff of lying toa grand jury, even though defendant had not read the available transcript of plaintiff's grand jury testimony; “failure to investigate does not in itself establish bad faith or recklessness”). There was no actual malice in this case, and all the claims against Gawker should accordingly be dismissed. 362. The Use of Confidential Sources Does Not Establish Actual Malice Where Their Accounts Are Corroborating and Consistent and Supported by Photographs and Video Burke knew the identity of all seven of his confidential sources, and had initiated contact with several of them, SUMF € 117; Burke Cert. 4¥ 7, 14, 16, 27, 28. He checked their accounts against each other. See, e.g, Burke Cert. $9 15, 1627-28. And, substantial portions of their accounts were backed by photographs, video, a history of prior similar conduct by Williams, and tweets from Williams himself confirming the ejection and heated argument. In short, the fact that the sources were confidential — ie., were not named in the articles ~ in no way suggests malice. Because, as discussed in the preceding section, even a complete failure to investigate generally does not give rise to an inference of actual malice, courts have held that reliance on confidential sources only raises an inference of actual malice where there is a “reasonable means” of verifying information and the reporter’s refusal to do so “approaches the level of publishing a knowing, calculated falsehood.” Trump, 422 N.J. Super. at 551. This is not a case where Burke received a single anonymous tip, and then refused to watch available game video, ook at photographs, or contact additional first-hand witnesses. Rather, he solicited and reviewed this information, which appeared consistent with the accounts of numerous witnesses, and also believed that he had Williams’ version of events, which he then included in his reports. Burke Cert, §§112, 16, 29. In the end, nothing in the challenged reports was known to Burke to be “fabricate[d]” or “wholly unbelievable.” See Lynch v. N.J, Educ. Ass'n, 161 N.J. 152, 165 (1999). Indeed, as Williams himself conceded, “Dead spin reported what they were told.” Williams Dep. at 382:11-15. Nor does the fact that some of the witnesses who became sources for Gawker attended the 10-year-old baseball games as parents or coaches of an opposing team make theit accounts 37inherently unreliable where, as here, their stories were consistent with one another, with neutral observers, and with photographs, video, and prior incidents. Indeed, courts have recognized that even reliance on an openly hostile source does not demonstrate actual malice where there are other, corroborating sources. Church of Scientology Int'l v. Behar, 238 F.3d 168, 175 (2d Cir. 2001), cert. denied sub nom. Church of Scientology Int'l v. Time Warner, Inc., 534 U.S. 814, 122 Ct, 40, 151 L. Ed. 2d 13 (2001); see also Hotchner v, Castillo-Puche, 551 F.2d 910,914 (2d Cir. 1977) (knowledge of a soures ll will does not show knowledge of falsity), cert. denied sub nom. Hotchner v. Doubleday & Co., 434 U.S. 834, 98 S. Ct. 120, 54 L. Ed. 2d 95 (1977). As one federal appellate court put it, “[s]elf-interest . .. motivates many news sources; if dealing with such persons were to constitute evidence of actual malice on the part of a reporter, much newsgathering would be severely chilled.” Reuber v. Food Chem. News, Inc., 925 F.2d 703, 715 (4th Cir, 1991), cert, denied, 501 U.S. 1212, 111 S. Ct. 2814, 115 L. Ed. 2d 986 (1991); see also, €.8., Spacecon Specialty Contractors, LLC v, Bensinger, 713 F.3d 1028, 1045 (10th Cir. 2013) (even where a publisher knew its source “was involved in a dispute with [plaintiff] and may have been biased,” that does not mean that the publisher had “obvious reasons to doubt [source's] veracity or the accuracy of his report”). Thus, even if “bias” can be imputed to some spectators simply by virtue of their having been on the opposite (and winning) side of a 10-year-old baseball game at a tournament, their separate accounts each corroborated one another, and were corroborated by available recordings. There was no reason for Burke to believe that all of these sources were misleading him. Burke believed at the time, and continues to believe, that the reports were accurate, and Williams is unable to come forward with even a scintilla of evidence that would show that Burke ‘was actually aware that his story was probably false yet published anyway. Accordingly, there is 38no triable issue of actual malice, and, therefore, Gawker respectfully requests the entry of summary judgment in its favor. 3. Expert Testimony Belatedly Produced by Plaintiff Is Procedurally Improper and Irrelevant to Actual Malice To the extent that Williams may seek to rely upon expert testimony in an effort to establish actual malice, he should be foreclosed from doing so both because (a) an expert report served on defendants after 5 p.m. on the very last day of discovery, April 18, 2016 ~ and just 11 days before the deadline to file motions for summary judgment — is clearly untimely under the rules for the reasons described below, and (b) the proffered expert testimony on journalistic standards is not probative in any event in a public defamation case governed by the actual malice standard of fault, which is a subjective standard. Simply put, an expert testifying about whether Burke’s journalism complied with some objective standard of good journalism (essentially an objective negligence standard, arguing that Burke should have done it differently) is not probative of whether he published with actual malice, i, that he had an actual subjective awareness of probable falsity but published anyway. First, Plaintiff's expert reports are untimely and should properly be disregarded for this reason alone. In accordance with Rule 4:17-4(e), MLBN and Gawker each served interrogatories on Williams many months ago seeking disclosure of experts. ESB Cert. Ex. 33 (MLBN Interrog. No. 17, served Dec. 19, 2014); id. Ex. 34 (Resp. to MLBN Interrog. No. 17, served May 6, 2015); id. Ex. 35 (Gawker Interrog. No. 36, served Aug. 3, 2015); id. Ex. 36 (Resp. to Gawker Interrog. No. 36, served Oct. 9, 2015). Under Rule 4:17-7, Williams was required to serve any amended answers to these interrogatories “not later than 20 days prior to the end of the discovery period,” which — in light of the April 18, 2016 discovery deadline ~ was March 29, 2016, See Mar. 4, 2016 Order Extending the Discovery End Date. Amended 39responses after March 29 required a certification “that the information requiring the amendment ‘was not reasonably available or discoverable by the exercise of due diligence prior to the discovery end date.” R. 4:17-7; see also Bender v. Adelson, 187 N.J. 411, 429 (2006) (“A precise explanation that details the cause of delay and what actions were taken during the elapsed time is a necessary part of proving due diligence as required by Rule 4:17. Williams never identified any experts in hi jerrogatory responses, and never amended them, He simply served two expert reports on the evening of the very last day of discovery. See ESB Cert. Ex. 37 (Apr. 18, 2016 email from R. Munshi to defense counsel without attachments). One of these reports is from a purported expert in journalism standards, who opines that Deadspin “violated basic journalism guidelines in its reporting and writing” the articles at issue. This is precisely the type of sandbagging prohibited by the rules. Rule 4:17-7 provides that in the absence of a certification of due diligence, a “late amendment” to an interrogatory response “shall be -garded by the court and adverse parties” (emphasis added). When the late amendment seeks to disclose an expert witness for the first time, the proper course is to bar the amendment and preclude the witness from testifying at trial. See, e.g., Bender, 187 N.J. at 428- 31 (upholding trial court ruling barring late amendment of interrogatory response and precluding expert testimony where “defendants offerfed] no substantively adequate explanation for their delay in proffering the three expert names and reports”); Zadigan v. Cole, 369 N.J. Super. 123, 132-34 (Law Div. 2004) (barring late amendment of interrogatory response and precluding testimony of expert witness at trial); O'Donnell v. Ahmed, 363 N.J. Super. 44, 50-52 (Law Div. 2003) (same); Montiel v. Ingersoll, 347 N.J. Super. 246, 250-55 (Law Div. 2001) (same).” This is in keeping with the purpose of the “Best Practices” rule amendments, which first took effect in September 2000 and were “an attempt to deal with the problems previously presented as a result of litigants’ failure to complete discovery in a timely fashion, the resulting 40To permit Williams to rely on experts disclosed on the last day of discovery, shortly before the summary judgment deadline, without a certification of due diligence or any explanation whatsoever for the delay, and without any meaningful opportunity for defendants to take discovery of those experts, would undercut the Rules. See Montiel, 347 N.J. Super. at 255 (noting that tolerating untimely discovery after adoption of Best Practices “would make the provisions of R. 4:17-7 virtually meaningless, at least as that rule is applied to the identification of witnesses”), Moreover, given that discovery may be extended only upon a showing of “exceptional circumstances” now that a trial date has been set, R. 4:24-1, allowing such an amendment would prejudice Gawker. Accordingly, the Court should disregard the belatedly served expert reports as untimely pursuant to Rule 4:17-7 for purposes of summary judgment. Second, even were the Court inclined to permit such gamesmanship by Plaintiff's counsel and therefore to consider the belatedly (and improperly) produced report of Professor Joel Kaplan on whatever merits it may have, the substance of his report is irrelevant to evaluating evidence of a defendant's state of mind for purposes of actual malice. Indeed, Kaplan once provided just such a report in a public figure defamation case in federal court, and the court disregarded it in adjudicating a summary judgment motion. QAO Alfa Bank v. Ctr. for Pub. Integrity, 387 F. Supp. 2d 20, 55-56 (D.D.C. 2005) (because actual malice standard applied, “plaintiffs cannot survive summary judgment on the shoulders of their journalism expert’s opinion that defendants ‘violated journalism ethics’ and that the article does not ‘hold{] up to normal standards of investigative reporting”) (quoting Kaplan’s report). The court found that “reliance on expert opinion as to the defendant's departure from journalistic ethics and the delays and the problems presented in scheduling cases for arbitration and/or trial on a meaningful basis.” Montiel, 347 N.J. Super. at 253; see also Bender, 187 N.J. at 429 (“raison d'etre of [Best Practices] amendments is to render trial dates meaningful”) (citation and internal quotation marks omitted). 41‘standards of investigation’ is unhelpful . . . in light of the settled law closing the door on such evidence for the actual malice inquiry.” Id. at 56.* ‘New Jersey law is squarely in line with the treatment of Kaplan’s report in 040 Alfa Bank. In those cases where “litigation focuses on issues beyond the experience and comprehension of the average person .. . expert testimony regarding journalistic practices may properly inform a jury, even when the burden of proof is actual malice,” Sisler v. Gannett Co., 104 N.J. 256, 278 (1986), but no weight should be given to opinions profiered about alleged deviations from professional standards in typical actual malice cases that require no arcane specialized knowledge to grasp the issue. See Durando, 209 N.J. at 252 (“the actual-malice test will shield careless acts of publication that would be considered imesponsible by common journalistic standards” ). In Turf Lawnmower Repair v. Bergen Record Corp., for example, the ‘New Jersey Supreme Court accepted, for purposes of summary judgment, a plaintiff's journalism expert's characterizations that a challenged story omitted relevant facts, was “inaccurate and unfair,” violated journalistic standards, and relied on biased sources, among other criticisms. 139 J. 392, 424-25 (1995), cert. denied, 516 U.S 1066, 116 S. Ct. 752, 133 L. Ed. 700 (1996). Nevertheless, because none of these expert views, alone or in concert, proved that the defendants “ever doubted” the accuracy of their reports, the court affirmed summary judgment for the publisher. Jd. at 426. Courts regularly reach that result. See, e.g., Levesque v. Doocy, 560 F.3d 82, 90 (Ist Cir. 2009) (because the actual malice standard is “wholly subjective,” it is not measured by “an industry's professional standards”); Reuber, 925 F.2d at 711-12 (rejecting actual malice * Much of Kaplan’ report speculates regarding Burke's subjective thoughts, e.g., declaring Burke to be a “reporter who purposefully chooses not to contact the other side for fear that if he does his story will fall apart.” Comments of that ilk are both outside of Kaplan's expertise and lack any evidentiary support. 42instruction that informed jury that “a failure to follow accepted standards of journalistic practice can be considered in determining whether the element of reckless indifference is present”); Filippo v. Lee Publ’ns, Inc., 485 F. Supp. 24 969, 976 ( .D. Ind. 2007) (“[T}he measure of actual malice is not whether reporter violated a professional ethics policy.”); Westmoreland v. CBS, Inc., 601 F. Supp. 66, 69 (S.D.N.Y. 1984) (“[T]he fact that what was done violated a [journalistic] rule has no tendency to prove knowing ... falsity.”). One of the nation’s leading defamation experts, Judge Sack of the U.S. Court of Appeals for the Second Cireuit, has observed in his seminal treatise that “expert” evidence on actual malice, “typically presented vehemently by a journalism professor apparently paid by the decibel,” continues to be proffered by plaintiffs, and occasionally even allowed by courts, despite the U.S. Supreme Cour’s clear rejection of a professional-standards rule in Connaughton, 491U.S. at 661, 109 S. Ct. at 2682, 105 L. Ed. 2d 562: Inasmuch as the “actual malice” test is entirely subjective, the use of journalism experts in “actual malice” cases is puzzling. As one court concluded: “[E]xpert opinion testimony is generally not helpful when determining actual malice against a subjective standard.” 1 Robert D, Sack, Sack on Defamation § 5:5.2[D] (4th ed. 2015). Because the expert report upon which Williams apparently seeks to rest his theories of actual malice simply opines that Deadspin “violated basic journalism guidelines in its reporting and writing,”® such testimony is not probative of the issue before the Court and therefore * Apart from the irrelevance of such testimony to the actual malice determination in the first place, any expert seeking to testify about a standard of care must establish that the proffered standard is generally accepted or binding within an industry. See McComish v. DeSoi, 42 NJ. 274, 282 (1964) (“[T]he law permits the methods, practices or rules experienced men generally accept and follow to be shown as an aid to the jury in comparing the conduct of the alleged tortfeasor with the required norm of reasonable prudence.”). Although Kaplan cites “guidelines” by The New York Times and the Radio Television Digital News Association (“RTDNA”), neither purports to be binding on journalists or ever to represent standard practice. The policy of The New York Times is by its own terms specific to that publication, while RTDNA guidelines 43properly disregarded, Turf Lawnmower Repair, 139 N.1. 436 —even had Williams timely identified Kaplan as an expert rather than profifering him for the first time without any explanation or certification of good cause at 5:11 p.m. on the final day of discovery. Because Williams’ flawed allegations, individually and collectively, cannot show by clear and convineing evidence that Burke (and therefore Gawker) knew the statements at issue to be false, or had serious doubts about their truth, Gawker is entitled as a matter of constitutional aw to summary judgment in its favor. disclaim any binding effect. See RTDNA Code of Ethics, available at http://www.rtdna.org/content/rtdna_code_of_ethies (“The RTDNA Code of Ethics does not dictate what journalists should do in every ethical predicament; rather it offers resources to help journalists make better ethical decisions — on and off the job — for themselves and for the communities they serve.”). 44CONCLUSION For the foregoing reasons, Gawker respectfully requests that the Court grant its motion for summary judgment in its entirety and dismiss all remaining claims against Gawker with prejudice. Dated: April 29, 2016 Respectfully submitted, LEVINE SULLIVAN KOCH & SCHULZ, LLP sy Dalal Gili. ornate | ‘Thorfias B, Kelley (pro hac vice motion pending) Chad R. Bowman (admitted pro hac vice) Elizabeth Seidlin-Bernstein (No. 052882014) 1760 Market Street, Suite 1001 Philadelphia, PA 19103 Phone: (215) 988-9778 Attorneys for Defendant Gawker Media, LLC 45