Alexis, et al. v. Kamras, et al. FILE IN THE LEAD CASE ONLY: 3:19CV00543, No. 3:2019cv00543 - Document 31 (E.D. Va. 2020)
Court Description: MEMORANDUM OPINION. It is so ORDERED. Signed by District Judge Robert E. Payne on 05/22/2020. (walk, )
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I Alexis, et al. v. Kamras, et al. FILE IN THE LEAD CASE ONLY: 3:19CV00543 Doc. 31 Case 3:19-cv-00543-REP Document 31 Filed 05/22/20 Page 1 of 18 PageID# 320 IN THE FOR THE ITED STATES DISTRICT COURT STERN DISTRICT OF VIRGINIA Richmond Division BETTY ALEXIS et al., v. Plaintiffs, Civil Action No. 3:19cv543 JASON KAMRAS, et al. , Defendants. MEMORANDUM OPINION This matter is before the Court on BH Media Group, Inc. ("BH Media")' s MOTION TO QUASH SUBPEONA DUCES TECUM TO NEWS ORGANIZATION (ECF No. 20) ("MOTION"). For the following reasons, the MOTION will be denied. BACKGROUND Betty Alexis, Stephanie Burgess, Johnson Chireda Cotman, and Troy (collectively the "Plaintiffs") each brought an action against Defendants Jason Kamras ("Kamras") and the City of Richmond d/b/a/ Richmond "Defendants"). Public Schools The operative Complaint ("FAC"). ("RPS") pleading (collectively the is the First Amended In their respective FACs, Alexis, Cotman, and Johnson assert claims for: a denial of their due process liberty interest in violation of the Fourteenth Amendment to the United Dockets.Justia.com Case 3:19-cv-00543-REP Document 31 Filed 05/22/20 Page 2 of 18 PageID# 321 States (Count Constitution I) against Kamras and PRS; and defamation (Count II) and malicious prosecution (Count III) claims Burgess's FAC asserts only two claims: against Kamras. the due process claim (Count I) against Kamras and RPS; and the defamation claim (Count II) against Kamras. Jurisdiction over Count I, a federal question, lies under 28 u.s.c. II § and Jurisdiction over the state law claims in Counts 1331. III is jurisdiction) asserted because under 28 U.S.C. they arise out § 1367 (supplemental same facts of the as the federal claim. Although there are differences are minor. for all purposes. some differences in the FACs, those Hence, all three actions were consolidated ORDER, ECF No. 16. All claims arise out of the Virginia Department of Education's ("VDOEu) investigation into Standards of Learning ("SOLu) testing irregularities at George Washington Carver Elementary School ("Carveru) in June of 2018, and the response to the investigation by RPS Superintendent Kamras, including the "widely-publicized allegations of cheating by teachers and administratorsu at Carver. FAC ~ 1, ECF No. 11. In particular, Alexis, Cotman, Carver conducted and Johnson acted as 2 SOL testing proctors in May 2018. during that SOL Case 3:19-cv-00543-REP Document 31 Filed 05/22/20 Page 3 of 18 PageID# 322 testing. 1 began Soon thereafter, on June 1, 2018, personnel from VDOE interviewing students, teachers, and administrators Carver about reported irregularities during that testing. visit garnered media Times-Dispatch unanswered attention and, published about an Richmond as article Carver a result, titled VDOE's the Richmond "Questions Elementary at School remain 'potential irregularities' in SOL testing." 2 On July 30, 2018, VDOE published the "Report on George Washington Carver Elementary School, Richmond Public Schools, 2018 Standards ("Report"), of Learning which Test identified Investigation, and summarized July 30, various 2018" testing irregularities that occurred during the Spring 2018 SOL testing sessions at Carver. employees, The Report identified ten different Carver including the Plaintiffs, and named them as providing or allowing what was described as "inappropriate assistance." ~ 16, ECF No. 11. FAC The Report also provided a summary of statements "that students had allegedly made about the recent SOL testing during their interviews with VDOE personnel." Id. ~ 18. In No. 3:19cv544, FAC ~ 10 (" [Burgess] simply protected for a Reading and Science test."); No. 3:19cv545, FAC ~ 12 ("Cotman assisted in SOL testing at Carver as a floating proctor."); No. 3:19cv600, FAC ~ 11 ("Johnson assisted in SOL testing at Carver for one day as a proctor for read-aloud tests."). 1 ECF No. 11-1. The Richmond Times-Dispatch article can also be located at https://www.richmond.com/news/local/questions-remainunanswered-about-richmond-s-carver-elementary-school-potential/ article_8dcd2390-4bf4-5e5e-8319-c9058f28da73.html). 2 3 Case 3:19-cv-00543-REP Document 31 Filed 05/22/20 Page 4 of 18 PageID# 323 addition, the Report accused Alexis "of trying to get parents to refuse to have their children re-tested by having them sign opt Id. out forms for their children." c_rr Finally, 19. the Report "said that various anonymous sources had reported that a small group of staff members, often referred to as the 'inner circle,' received benefits privileges Carver." Id. c_rr and from the then-principal of 20. In response to VDOE's investigation and the Report, Kamras and the Richmond School Board allegedly launched a "media campaign designed to lessen the public blow from the VDOC's report and the cheating implications that flowed from it." Quash 1, ECF No. 22. Pls.' Opp to Mot. to Plaintiffs allege that, as part of the media campaign, Kamras and the Richmond School Board published allegedly false public statements about Plaintiffs, accusing" them of cheating at Carver. No. 3:19cv545, FAC c_j[ No. 31; No. 3:19cv600, FAC "publicly and falsely 3:19cv544, c_j[ FAC c_j[ 29; 32. On the day that VDOE issued its Report, Kamras met with local reporters and read "a prepared statement about the Report in which he essentially vouched in full for the Report." 11. FAC c_rr 21, ECF No. Kamras also published a statement on the RPS's website largely echoing the statement that he had made to local reporters. Additionally, on August 1, 2018, Kamras held a public meeting at Carver and, beforehand, gave a press conference at the school. that press conference, he allegedly said: 4 In Case 3:19-cv-00543-REP Document 31 Filed 05/22/20 Page 5 of 18 PageID# 324 I want to reiterate that what happened at Carver is unconscionable. The adults who orchestrated this systemic cheating violated a sacred trust with our students and our families. Moreover, pending State approval, I can confirm that none of these individuals will hold a teaching or administrative license in the Commonwealth. Id. ~ 24. On August resignations 6, of 2018, the the School Board "voted to approve the former Carver principal teachers - including Alexis and Cotman]." Quash 3, ECF No. 22. and Pls.' five of Opp to Mot. its to On the same day, Kamras gave an interview to Justin Mattingly ("Mattingly"), a reporter at the Richmond TimesDispatch. Id. at 4. That interview allegedly included information about the Plaintiffs, Carver and VDOE's Report. Id. at 3-4. The Richmond-Times Dispatch published an article about the August 6, 2018 School Board meeting, which included statements that Kamras allegedly made Specifically, during his interview with Mattingly. Id. the article attributed the following statement to Kamras: "'The actions were a betrayal of trust, so they can't work for RPS.' " 3 ECF No. 11-3 (attaching a copy of Mattingly' s Richmond-Times Dispatch Article entitled "Carver principal and 5 others resign from Richmond Public Schools after cheating investigation," located at https://www.richmond.com/news/local/carver-principaland-5-others-resign-from-richmond-public-schools-after-testcheating-investigation/article f7ee4f6e-61d2-56f8-a0193465f21017c8.html). 3 5 Case 3:19-cv-00543-REP Document 31 Filed 05/22/20 Page 6 of 18 PageID# 325 The FACs were filed on November 12, 2019. In their respective FACs, Plaintiffs state that they did not provide any inappropriate assistance to any of the students at Carver. Alexis and Burgess also allege that, as a result of the "public blame" put upon them by the Defendants, they have suffered various injuries, including the loss of occupational opportunities. In addition, all Plaintiffs allege to have suffered from emotional distress and reputational harm as a result of the Defendants' actions. During the period allowed for pretrial discovery, Plaintiffs served a subpoena duces on tecum the Richmond Times-Dispatch seeking published and unpublished materials about the news stories that addressed or referred to Carver. have ECF No. 21-1. resolved some of BH Media's objections to the The parties Plaintiffs' subpoena. And, by agreement, other objections have been placed in abeyance. At issue here is the demand that BH Media produce "a recording of an interview by the Newspaper on August 6, 2018, of Defendant Jason Kamras, Superintendent, Richmond Public Schools." Memo. in Supp. Mot. to Quash 5, ECF No. 21. DISCUSSION I. Legal Standard Under Fed. R. Civ. P. 45 (d) (3) (A), a court must quash or modify a subpoena that "subjects a person to undue burden" or that 6 Case 3:19-cv-00543-REP Document 31 Filed 05/22/20 Page 7 of 18 PageID# 326 "requires disclosure of privileged or other protected matter, if no exception or waiver applies." The First gatherers, Amendment including affords certain protections journalists and news to news organizations. e.g., Stickels v. General Rental Co., 750 F. Supp. 729, 731 (E.D. Va. Within these protections, news reporters enjoy "some 1990). constitutional sources]." protection of the confidentiality of Pell v. Procunier, 417 U.S. 817, 834 (1974). [their The First Amendment's protection extends to unpublished materials obtained in the course information. of newsgathering, including non-confidential Stickels, 750 F. Supp. at 732. However, the First Amendment's protections to the press are not absolute. As the Supreme Court of the United States explained in Branzburg v. Hayes, 408 U.S. 665: Nothing before us indicates that a large number or percentage of all confidential news sources falls into either category and would in any way be deterred by our holding that the Constitution does not, as it never has, exempt the newsman from performing the citizen's normal duty of appearing and furnishing information relevant to the grand jury's task. Id. at 691. journalist 316cv255, In civil proceedings, "the First Amendment affords a a qualified privilege." 2016 WL 6518659, privilege requires obtaining the a at *3 court information at Gilbertson (E.D. to Va. balance issue 7 with Sept. a v. 22, Jones, 2016). No. This party's interest in society's interest in Case 3:19-cv-00543-REP Document 31 Filed 05/22/20 Page 8 of 18 PageID# 327 ensuring the free flow of information through the press. LaRouche v. Nat'l Broad. Co., 780 F.2d 1134, 1139 (4th Cir. 1986). The Fourth Circuit has adopted a three-part test to guide the balancing process, (2) relevant, looking to: whether the " ( 1) whether the information is information can be obtained by alternative means, and (3) whether there is a compelling interest in the information.u LaRouche, 780 F.2d at 1139 (citation In addition, a court must consider that "[a] reporter omitted). holds a heightened interest in maintaining the confidences of her sources, but even revealing non-confidential materials burdens the press.u F. Gilbertson, 2016 WL 6518659, at *3 (citing Stickels, 750 Supp. reporter's at 7 32) . "Despite interest this diminished confidentiality and vexation.u Id. burden, in courts the consider absence of the both (citing United States v. King, 194 F.R.D. 569, 582, 585 (E.D. Va. 2000)). The Plaintiffs' confidentiality of the subpoena does reporter's source not implicate because Kamras, is revealed in the published article. the the source, Here, as discussed later, there is also no real burden placed on BH Media because BH Media need only produce a copy of the recorded interview. And, BH Media does not claim vexation. The Plaintiffs assert that, under LaRouche, the recording is relevant to their liberty interest and defamation claims I and II). Pls.' Opp to Mot. to Quash 6, ECF No. 22. 8 (Counts Application Case 3:19-cv-00543-REP Document 31 Filed 05/22/20 Page 9 of 18 PageID# 328 of the LaRouche test is made, the claims asserted not in a vacuum, but in context of Therefore, in the particular case. it is necessary to outline the elements of both Counts I and II. A. The Liberty Interest Claim The Plaintiffs' due process claims (Count I) arise from the two rights protected by the Fourteenth Amendment: "(l) the liberty to engage in any of the common occupations of life; and (2) the right to due process where a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him.u Sciolino v. City of Newport News, 480 F.3d 642, 646 (4th Cir. 2007) interest (quotations and citations omitted). claim under the Due Process Clause, allege that "the charges against him: reputation; To state a liberty a plaintiff must (1) placed a stigma on his (2) were made public by the employer; (3) were made in conjunction with his termination or demotion; and (4) were false.u Id. The Plaintiffs liberty interest claims are based, upon the allegedly false statements Plaintiffs that caused "a stigma to 46, ECF No. statements cheating, 11. Specifically, Kamras [their] about reputation.u Plaintiffs Kamras made to reporters made in part, allege "about Carver, the FAC <][ that the the Report, and his plans for terminating the plaintiffs,u (Pls.' Opp. to Mot. to Quash 5, ECF No. 22), form the basis of Plaintiffs' liberty interest claims. FAC <][ 9 4 6, ECF No. 11 ( "Kamras also Case 3:19-cv-00543-REP Document 31 Filed 05/22/20 Page 10 of 18 PageID# 329 expressly endorsed the many false statements made about Alexis in the Report when he repeatedly embraced the Report in public . . . and touted the seeming veracity of the students' comments contained therein."). Therefore, it is appropriate to examine the statement that Kamras made to Mattingly to determine whether it plausibly can be said to have "placed a stigma on [Plaintiffs'] reputation." Sciolino, 480 F.3d at 646 (quotations and citations omitted). B. Defamation In Virginia, a defamation claim requires (1) publication (2) of an actionable statement (3) with the requisite intent. Jafari v. Old Dominion Transit Mgmt. Co., 462 F. App'x 385, 390 (4th Cir. 2012); Jordan v. Kollman, 269 Va. 569, 575 (2005). Publication occurs when the communication of the statement is made to a third party. See Echtenkamp v. Loudon Cnty. Pub. Schs., 263 F. Supp. 2d 1043, 1061 (E.D. Va. 2003). To qualify as actionable, a statement must be both false and defamatory. 993 F.2d 1087, 1092 (4th Cir. Chapin v. Knight-Ridder, Inc., 1993). A defamatory statement is one that "tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." See, e.g., id. at 1092. Whether a statement is actionable defamation is a threshold issue to be determined by the court as a matter of law. Johnson, 230 Va. 112, 119 (1985). Chaves v. The potentially defamatory statement must be construed as a whole and viewed in the context 10 Case 3:19-cv-00543-REP Document 31 Filed 05/22/20 Page 11 of 18 PageID# 330 the statement was circumstances. Va. 40, Va. 277, (1960); made, surrounding See Hyland v. Raytheon Technical Servs. 47 (2009); 297-98 considering the Richmond Newspapers, (1987); Zayre of Va., Alexandria Gazette Corp. v. and Co., 277 Inc. v. Lipscomb, 234 Inc. v. Gowdy, West, facts 198 Va. 207 Va. 47 154 (1956). Further, the statement must "be considered in light of the plain and ordinary meaning of the words used in context as the community would naturally understand them." 523 (4th Cir. 1999). Wells v. Liddy, 186 F.3d 505, Virginia courts consider the statement within its context at the time of publication. Bouffault, 290 Va. 83, 93-96 (2015). See, e.g., Schaecher v. The allegedly defamatory statement must be viewed "in the context of all of the statements that he made to" Mattingly. Gilbertson, 2016 WL 6518659, at *5. Against this background, it is appropriate to balance the parties' interests according to the LaRouche test. C. LaRouche Factors 1. Relevance of the Recording BH Media argues that the Plaintiffs' claims are based on Kamras' "public comments" so that any unpublished statement made by Kamras during the interview "is neither relevant nor material to the Plaintiff's claims." No. 21. Memo. in Supp. Mot. to Quash 6, ECF The Plaintiffs respond that the Newspaper has information pertinent to the litigation that is not protected by the First Amendment, stating that: 11 Case 3:19-cv-00543-REP Document 31 Filed 05/22/20 Page 12 of 18 PageID# 331 Kamras is the lone individual defendant in this case and his words, by and large, form the basis for the plaintiffs' defamation and liberty interest claims. What he was saying - to reporters no less - about Carver, the Report, cheating, and/ or his plans for terminating the plaintiffs or accepting their resignations is critical to the allegations in this case. Not only does the recording contain potential evidence of even more defamatory statements, it provides a contemporaneous look into the mindset of Kamras at the very time the events in this case were taking place. Pls.' Opp. to Mot. to Quash 5, ECF No. 22. Evidence is considered relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evience; action." and (b) the fact is of consequence in determining the Fed. R. Evid. 401. Thus, evidence that tends to make an element of the Plaintiffs' claim more likely than not is relevant under LaRouche. What Kamras said to Mattingly during the interview is certainly proof of Kamras' state of mind, an element that lies at the core of the defamation claims. liability and damage issues of Plaintiffs' Additionally, as Plaintiffs assert, and given Kamaras' highly critical statement published in the Richmond-Times Dispatch article and elsewhere, 4 it is plausible to believe that Kamras published other defamatory statements to Mattingly during ECF No. 11-3. Specifically, the article attributed the following statement to Kamras: "'The actions were a betrayal of trust, so they can't work for RPS.'" 4 12 Case 3:19-cv-00543-REP Document 31 Filed 05/22/20 Page 13 of 18 PageID# 332 the course of his interview. And, of course, publication is an element of the Plaintiffs' defamation claim. In addition, in support of their liberty interest claim, Plaintiffs state that false statements at issue were made public to, among others, local television stations, local newspapers, and those (e.g., parents, citizens, and students) who attended the August 1, 2018 meeting. FAC Cl[ 47, ECF No. 11 (emphasis added). Therefore, publication is also relevant to the Plaintiffs' claim. Kamras' evidence of liberty interest Accordingly, evidence of the statements that were made in interview with Mattingly "plays an important role" in litigation over claims of the type asserted in Counts I and II. On the record, the Plaintiffs have satisfied the relevance facet of the LaRouche test. 2. Availability of the Information From Other Sources First, BH Media argues that, to the extent any statement made during the Newspaper's recording is relevant, "the statement is accurately reflected in the news article published on August 7, 2018, a copy of which has been produced to Plaintiff." Supp. Mot. to Quash 6, ECF No. 21. Memo. in However, there is nothing in the record that shows that to be the case or from which the Court could reach such a conclusion. 13 Case 3:19-cv-00543-REP Document 31 Filed 05/22/20 Page 14 of 18 PageID# 333 Next, BH Media argues that the Plaintiff must "attempt to obtain information equivalent to the contents of the Newspaper's August 6 interview" from alternative sources, and that "Plaintiff cannot make this showing Superintendent Kamras' from doing so." [they not taken and nothing precludes [them] because deposition, have] Memo. in Supp. Mot. to Quash 6, ECF No. 21. making this argument, BH Media cites to several cases. Pls.' Memo. in Opp. Broad. Co., 3, ECF No. 24 780 F.2d 1134, 1139 In Reply to ("See, e.g., LaRouche v. Nat'l (4th Cir. 1986) (district court properly denied motion to compel newsgathering materials where the requesting party "did not exhaust all his nonparty depositions before making the motion, and he failed to demonstrate to the court unsuccessful, independent attempts to gain the requested information."); cf. Tripp v. Dep't of Def., 284 F. Supp. 2d 50, 61 (D.D.C. 2003) choosing instead deposition exhausted ("Plaintiff . It all to is has engaged directly therefore reasonable regarding [the reporter's] seek clear alternative sources, in minimal [the that discovery, reporter's] plaintiff sources of has not information and cannot, at this stage in the litigation, overcome [the reporter's] assertion of 'reporter's privilege.'") . as, not Based on these cases, BH Media phrases the issue "whether Kamras can provide the recording itself, but whether [Kamras] can testify to the equivalent of the recording by describing what he discussed in the interview that captured on the 14 Case 3:19-cv-00543-REP Document 31 Filed 05/22/20 Page 15 of 18 PageID# 334 record." Id. at 4. But, even if Kamras could testify as to his recollection of the interview, that would not be equivalent to the recording of the interview itself. "Al though the defendant's As the Gilbertson court stated, memory could provide an alternative source for the material, his testimony will surely face reliability and credibility attacks at trial." Gilbertson, 2016 WL 6518659, at *5. And, it is beyond dispute that the Richmond-Times Dispatch "is the sole entity in possession of contemporaneous statements made by Kamras thereto," about (Pls.' Carver, Opp to Mot. the Report, to Quash 6, and issues ECF No. 22), interview cannot be obtained from any other source. related and the See Federico v. Lincoln Military Housing, LLC, No. 2:12-cv-80, 2014 WL 3962823, at *5 (E.D. Va. Aug. 13, 2014) (stating that "some of the information sought is such that it may only be obtained through" the newspaper) . possession of Because the Richmond-Times Dispatch is in sole the recording, this factor weights in favor of disclosing the recording to the Plaintiffs. 3. Compelling Interest in the Information Sought Lastly, LaRouche requires that the court determine whether the party seeking the information has a compelling interest in the information sought. The test for whether there is a compelling interest in disclosing a piece of evidence turns on whether the evidence "could play a role in the outcome in the proceedings." 15 Case 3:19-cv-00543-REP Document 31 Filed 05/22/20 Page 16 of 18 PageID# 335 Frederico v. Lincoln Military Hous., LLC, (E.D. Va. Aug. 13, 2014). 2014 WL 3962823, at *6 The Plaintiffs argue that the recording presents "critical evidence about the in-the-moment thoughts and statements Kamras' 22. that Kamras was making to Pls.' state of mind. Opp to Mot. And, that is no doubt true. can provide proof of Kamras' the public" which invoke to Quash 6-7, ECF No. More importantly, the recording state of mind and the reasoning for the quoted part of the interview. On this record, the Plaintiffs have shown a compelling interest in the information sought. D. Burden of Producing the Recording on the Newspaper In addition to the LaRouche factors, the Court must consider the burden producing the information places on the Richmond-Times The Dispatch. Plaintiffs administrative in nature. 22. BH Media, on the argue that the burden is merely Pls.' Opp to Mot. to Quash 7, ECF No. other hand, argues that this is an oversimplification that "ignores the broader rationale underlying the qualified privilege," (Reply to Pls.' Memo. in Opp. 7, ECF No. 24), and that requiring BH Media to produce the recording "would change the function of a newspaper from that of a publisher to that of a testifier." Mackay v. Driscoll, 3 Med. L. Rptr. 2585, 2583 (Sup. Ct. N.Y. 1978). While the organizations response to to every Court produce acknowledges copious subpoena would 16 that amounts be requiring of media information "potentially in stifling," Case 3:19-cv-00543-REP Document 31 Filed 05/22/20 Page 17 of 18 PageID# 336 producing the single recording at issue can hardly be said to be a burdensome task. one recording. amount to a Nor has BH Media shown a burden in producing And, BH Media's policy argument would, if adopted, blanket rule that would be inconsistent with the correct application of LaRouche. Finally, Mattingly and BH Media have a significantly diminished interest in the recording at issue because there is no need to protect Kamras as a confidential source and the subpoena "does not harass the reporter or enlist her as an investigative arm of the litigant. what Kamras said. Rather, the subpoena seeks the entirety of In other words, the capture the 'outtakes of the interview, subpoena also seeks to . Without any evidence of confidentiality of vexation, the Court finds that the interest in disclosure outweighs the Reporter's interest." Gilbertson, 2016 WL 6518659, at *5 (citing King, 194 F.R.D. at 585). In sum, the burden recording is minimal. placed on BH Media in producing the Therefore, this factor weighs in favor of producing the recording at issue. 17 Case 3:19-cv-00543-REP Document 31 Filed 05/22/20 Page 18 of 18 PageID# 337 CONCLUSION For the foregoing reasons, and having balanced all the applicable factors, BH Media's MOTION TO QUASH SUBPEONA DUCES TECUM TO NEWS ORGANIZATION (ECF No. 20) will be denied. It is so ORDERED. /s/ Robert E. Payne Senior United States District Judge Richmond, Virginia Date: M a y ~ 2020 18
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