Case 5:12-cv-00836-DEP Document 113 Filed 11/24/15 Page 1 of 19

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF NEW YORK
------------------------------------

LAURIE J. FINE,

Index No. 5:12-cv-00836 (LEK) (DEP)

:
Plaintiff,

:
-against-

ESPN, Inc., a subsidiary of Walt Disney, Inc.; MARK

SCHWARZ, in his individual capacity and as an
employee of ESPN, and ARTHUR BERKO, in his
individual capacity and as an employee of ESPN,

Defendants.

ECF Case

:
:
:

------------------------------------

REPLY MEMORANDUM IN FURTHER SUPPORT OF

DEFENDANTS MOTION FOR SUMMARY JUDGMENT

LEVINE SULLIVAN KOCH & SCHULZ, LLP

Nathan E. Siegel
Thomas Curley (admitted pro hac vice)
Rachel F. Strom
Paul J. Safier (admitted pro hac vice)
1899 L Street, N.W., Suite 200
Washington, DC 20036
(202) 508-1100
Attorneys for Defendants ESPN Inc.,
Mark Schwarz and Arthur Berko

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TABLE OF CONTENTS

PRELIMINARY STATEMENT .....................................................................................................1

ARGUMENT ...................................................................................................................................1
I.

PLAINTIFFS EVER-SHIFTING STORIES REQUIRE THAT THIS CASE

END .....................................................................................................................................1

II.

MRS. FINE HAS NOT MET HER BURDEN OF DEMONSTRATING A

GENUINE DISPUTE THAT ESPNS REPORTS WERE MATERIALLY
FALSE .................................................................................................................................3
A.

The Record Reveals No Genuine Dispute That Plaintiff Had Concerns

That Bernie Fine Was Sexually Abusing Bobby Davis ...........................................3

B.

The Record Contains No Genuine Dispute That Plaintiff Had A

Sexual Relationship With Bobby Davis When He Was in High School .................6

III.

THERE IS NO CLEAR AND CONVINCING EVIDENCE OF ACTUAL

MALICE ..............................................................................................................................7

IV.

IN THE ALTERNATIVE, MRS. FINE CANNOT ESTABLISH THAT THE

DEFENDANTS WERE GROSSLY IRRESPONSIBLE ..................................................12

V.

THE ESPN REPORTS ARE PRIVILEGED BY SECTION 74 OF NEW

YORKS CIVIL RIGHTS LAW .......................................................................................16

CONCLUSION ..............................................................................................................................16

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PRELIMINARY STATEMENT
Plaintiffs Complaint alleged that ESPN aired a false story based on a doctored Tape.
After surviving a preliminary motion, Plaintiff admitted that the Tape was genuine and instead
testified to an incredible story that she and Bobby Davis were not discussing sex. Now, she has
abandoned that story as well and does not dispute that what she said on the Tape was what ESPN
understood she said. Even so, she claims that she should still survive summary judgment.
Specifically, she claims that ESPNs evidence proves that she witnessed her then 44-year
old husband fondling Davis when he was 17 years old. Plaintiff contends that sexual encounter
was lawful, and then makes the further leap that everything she was talking about on the Tape
must have related to events after that incident. But Plaintiff submits no affidavit that says that is
what she meant, presumably because it would necessarily follow that either that affidavit, or her
prior deposition testimony, must be perjury.
The absurdity of that position is almost without precedent. Even if this were not a
defamation case with unusually heavy burdens of proof required by the First Amendment, a civil
plaintiff may not defeat summary judgment by changing her story three times, essentially
admitting that her deposition was a lie, but then try to advance yet another, hypothetical
construction of her own words by pointing to the defendants evidence. The Second Circuit has
made clear that such machinations should result in judgment for the defendant, period. Even if
that were not so, Plaintiffs third effort to explain away the Tape fails on its own merit.
ARGUMENT
I.

PLAINTIFFS EVER-SHIFTING STORIES REQUIRE THAT THIS CASE END

The Second Circuit has held that in certain cases a partys inconsistent and contradictory

statements transcend credibility concerns and go to the heart of whether the party has raised
genuine issues of material fact to be decided by a jury. Rojas v. Roman Catholic Diocese of
1

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Rochester, 660 F.3d 98, 106 (2d Cir. 2011). This is such a case. Mrs. Fine has gone from
claiming the Tape was doctored, to conceding it was authentic, to swearing that she was not
discussing sex, to conceding that she was, but supposedly with a 17-year old. It could not be
more plain that upon the entire record, Plaintiff has changed key aspects of her prior version of
events, set forth in pleadings, trial testimony, and sworn discovery responses, in an attempt to
defeat [defendants] summary judgment motion. Id. at 103-04 (citation omitted).
In fact, the scenario presented here is worse than in Rojas, which focused on the fact that
the plaintiff had largely relied on her own incoherent testimony. Here, Plaintiffs approach is
even craftier. ESPNs motion pointed out that Plaintiffs sworn explanation of the Tape is so
incredible and contradictory that it cannot be credited. Remarkably, Plaintiffs response does not
dispute that. Instead, she tries to have her counsel construct yet another version of her own
words via tortured constructions of other peoples words (like Bobby Davis or Cindy Young),
while pointedly refusing to actually confirm under oath what she actually meant. Essentially,
Plaintiff is trying to manufacture a sham issue of fact to defeat summary judgment, albeit
through the back door because she does want to actually submit two sworn, but contradictory,
versions of the facts. In re Fosomax Products Liability Litig., 707 F.3d 189, 193 (2d Cir. 2013).
Rojas and In re Fosomax require that this exercise in gamesmanship end now. The facts
of this case are closer to those Chief Judge Mordue confronted in Slacks v. Gray, 2009 WL
3164782, at *1 (N.D.N.Y. Sept. 29, 2009). There, as here, the plaintiff did not rely only on his
own testimony to oppose the defendants summary judgment motion. Nonetheless, Judge
Mordue concluded that [a]lthough plaintiff disputes some of defendants evidence . . . . this is
one of the rare cases in which plaintiff's allegations throughout the record are so inconsistent that

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no reasonable factfinder could find in his favor. Id. at *1. See also Gardine v. Maxwell, 2010
WL 808995, at *5 (S.D.N.Y. Mar. 9, 2010).
That conclusion is particularly warranted in the context of this case. The First
Amendment requires that Plaintiff point to clear and convincing evidence of falsity, and that if
she succeeds, additional evidence that Defendants actually believed their reports to be false. But
Plaintiff no longer stands behind any story that she is willing to swear is the truth. It would
make a mockery of the First Amendment to conclude she could plausibly meet those burdens in
such circumstances. This case should proceed no further.
II.

MRS. FINE HAS NOT MET HER BURDEN OF DEMONSTRATING A

GENUINE DISPUTE THAT ESPNS REPORTS WERE MATERIALLY FALSE
A.

The Record Reveals No Genuine Dispute That Plaintiff Had Concerns That
Bernie Fine Was Sexually Abusing Bobby Davis

Even if the preceding standards applicable to all summary judgment motions were not
dispositive, it would make no difference. Plaintiffs newly minted theory of falsity also fails on
the merits. Plaintiff contends that the Court may construe the record to establish that Plaintiff
saw her husband groping Davis when he was either 17 or 19 years old (and her husband 44 or
46). But since a 17-year old has the legal capacity to consent to sex in New York, she asserts
that encounter was consensual. And though she does not dispute that Davis was a regular
presence in the Fines home since he was 12, she then makes the entirely speculative leap that
the window incident was the first time that she could have developed any concerns about that
relationship. There are at least three insurmountable problems with this argument.
First, the fact that she witnessed that particular incident does not mean she was not
concerned about the relationship earlier. To the contrary, there is a wealth of evidence, both on
the Tape and elsewhere that she witnessed numerous examples of suspicious conduct and often
expressed her belief that Davis and other young boys were being abused, as Plaintiff defines
3

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abuse. See, e.g., Dkt. 45-12 at 7 (I knew what was going on . . . and the kids that came over
were young kids); at 15 (he [her husband] thinks hes above the law); at 32 (you did nothing
wrong and you were a child, and he took advantage of that.); Dkt. 98-17 at 11, 25-26 (Mrs.
Fines best friend testified that Plaintiff told her that [s]he felt that Bernie had been abusing
Bobby and that Plaintiff said she had suspicions that Bernie was molesting Bobby Davis.).
Law enforcement likewise construed her words to acknowledge awareness that her husband was
abusing underage boys. Dkt. 45-4-7 at 38-39; Dkt. 45-8, at 7-8, 17; Dkt. 45-13 at 2-3, 15-16.
If anything, the significance of the window incident was that it confirmed suspicions that she
already had otherwise, why peek in the window?
Plaintiff offers no evidence to support her counsels speculative theory that everything
she said on the Tape related to events after that incident. That is patently insufficient to defeat a
properly supported motion for summary judgment. If Plaintiff wants to dispute the point in time
when she developed concerns, she must come forward with affirmative, clear and convincing
evidence of when that happened. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986)
(the plaintiff must present affirmative evidence in order to defeat a properly supported motion
for summary judgment.). But Plaintiff provides no affirmative evidence not one line of
testimony or one sworn denial of any sort that the first inkling she had of anything was when
Davis was 17 (or 19). In fact, she points to no admissible evidence that Davis was not abused by
her husband. See Defendants Reply to Statement of Material Fact No. 16. As a result, Plaintiff
fails to create a genuine dispute that ESPNs report of the Tape was substantially true.
Second, Plaintiffs speculative theory is premised on falsely characterizing the record.
There is a plethora of record evidence that the window incident happened when Davis was much

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younger than a junior in high school, and certainly younger than 17.1 Plaintiff confuses the point
in time when she first told Davis about the incident with when she said it happened. Davis said
he was a junior in high school the first time that Plaintiff told him about the incident, but Mrs.
Fine told him that it happened several years earlier, when he was in middle school. See Schwarz
Decl. Ex. 1 (Dkt. 98-29) at 6; see also Defendants Response to Plaintiffs Undisputed Facts
Nos. 2 and 5 (Defendants Response). That timing is also consistent with the Tape. Davis
reminded Mrs. Fine about that one time you told me that you saw him like, when I was really
young, you know, you saw us through the basement window, to which Plaintiff replied,
Right. Dkt. 45-12 at 8. Likewise, the Fines housekeeper testified that when she asked Mrs.
Fine about the allegations that Mr. Fine had molested boys, Plaintiff did not deny them and
instead replied that she had seen Bernie with a boy in the basement. Dkt. 98-19 at 6-7. Thus,
construing the Tape in a light least favorable to her, or even reasonably, there is no genuine
dispute that Plaintiff actually witnessed her husband abusing an underage boy. Opp. at 10. 2
Third, Plaintiffs argument presumes either of two disturbing propositions. One is that
12-year old Davis in fact consented to Bernie Fines advances, and so the instant that he reached
the legal capacity to consent he was no longer being abused. The other is that when a 44-year
old man is seen groping a 17-year old, as a matter of law the teenager must have wanted it. But
the evidence here (and often in real life) is entirely to the contrary. Davis made very clear that

The record does not even establish that Davis was 17 for all of his junior year in high school; he
likely turned 17 about halfway through the school year. See Defendants Response No. 3. In
any event it is immaterial, for the reasons stated above.
2

Plaintiffs counsel also tries to suggest that the incident Davis talked about was the same one
that Cindy Young described in her testimony that happened in 1991, when Davis was 19. But
Plaintiff offers not a scintilla of proof that the two incidents are one and the same starting with
the fact that Ms. Young testified that she, not Laurie Fine, looked through the window in 1991.
See Defendants Response No. 4.
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he did not consent to sex with Bernie Fine at any point; even on the Tape, Davis described an
incident that happened well after he was 17 in which he would pull away, and then hed put me
in your bed and then, you know, pin me down. and I would try to go away . . . Dkt. 45-12 at
20. And the evidence is equally clear that Mrs. Fine understood that Davis did not consent. See
Dkt. 45-16 at 15; Schwarz Dec. Ex. 2 (Dkt. 98-30) at 30-32 (Davis recounting how Plaintiff
would tell him to be a man, step up and, you know, say something. Tell [her husband] to
stop.). In short, the record shows that Laurie Fine had concerns, and indeed was aware, that her
husband was sexually abusing Davis both before and after he reached the age of consent.
B.

The Record Contains No Genuine Dispute That Plaintiff Had A Sexual

Relationship With Bobby Davis When He Was in High School

The same contradictory relationship to the facts pervades Plaintiffs Opposition to this
allegedly defamatory statement as well. Plaintiff argues that nobody corroborates Bobby
Davis allegation he had sex with Laurie Fine. Opp. at 16. But the Tape corroborates that
allegation with Mrs. Fines own words, Dkt. 98-28 9, and the Syracuse police also construed
the Tape the same way. Dkt. 45-4-7, at 39. It is not Defendants burden to further corroborate
this allegation; rather, it is Plaintiffs burden to point to admissible evidence from which a jury
could find, clearly and convincingly, that it is false.
There is none. First, Plaintiff cites the testimony of several witnesses, but none of them
claimed to have any personal knowledge as to whether that allegation is true or false. Dotson v.
City of Syracuse, 2009 WL 2176127, at *13 (N.D.N.Y. July 21, 2009). Next, Plaintiff sets up a
straw man argument, claiming that a few words that Mrs. Fine spoke on the Tape (when I was
with you) is ESPNs only piece of corroborating evidence for this libelous statement. Opp. at
17. Plaintiff then cites to her deposition testimony that she was not referring to sex with Davis

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when she spoke those words. Id. at 18, citing Fisher Decl., Ex. 1 at 94-95. But that testimony
creates no genuine dispute of fact, for several reasons.
First, Plaintiff asserts that for purpose of this motion this Court may construe the Tape in
the light least favorable to her except not in this one instance. She likewise does not dispute
that her deposition testimony about the Tape is so absurd that it may not be credited except
now. But she cannot have it both ways, and so her testimony should be disregarded altogether.
But even if the single page of testimony she cites were credited here, it would make no
difference because there are other portions of the Tape that also corroborate Davis account of
their sexual relationship, see Dkt. 98-28 9. Plaintiff points to no evidence to dispute them.
And even the brief testimony she cites does not deny that she had sex with Davis; it merely
asserts those few words on the Tape did not refer to that. Nor does she provide any evidence
disputing Langs account that she had sex with him, or any other facts ESPN submitted, all of
which support that she had sex with Davis and was discussing that on the Tape. Since there is no
genuine dispute as to the material falsity of any of the allegedly defamatory statements,
Defendants motion should be granted.
III.

THERE IS NO CLEAR AND CONVINCING EVIDENCE OF ACTUAL MALICE

Mrs. Fine, a public figure, likewise cannot meet her burden of providing evidence, which

a jury could find to be clear and convincing, that ESPN acted with actual malice.3

Mrs. Fine cannot escape summary judgment by pointing to outdated case law that summary
judgment is not favored when actual malice is at issue. Opp. at 19. The Second Circuit has held
that even though actual malice is subjective standard that a defamation plaintiff must establish
with convincing clarity, courts should apply the same principles applicable to normal summary
judgment motions are applicable to such motions when made in a public figure libel action.
Yiamouyiannis v. Consumers Union, 619 F.2d 932, 939 (2d Cir. 1980). Moreover, the Supreme
Court subsequently held that the clear and convincing standard applies at the summary
judgment stage, and thus it is more difficult for a public figure to defeat a summary judgment
motion in a defamation case, as compared to most civil litigants. Anderson, 477 U.S. at 257.
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First, Mrs. Fine has conceded, not only in remark[s] in her deposition, Opp. at 20, but
more importantly in sworn interrogatory responses, that ESPN believed that the news reports at
issue were true. Dkt. 98-4 at 220:7-10, 350:21-25; Dkt. 98-21. Mrs. Fine calls this belief
deluded (Opp. at 20), but that is irrelevant. As stated in the Opening Memo., a defendants
actual belief in the truth of a report is all that matters. Harte-Hanks Commcns, Inc. v.
Connaughton, 491 U.S. 657,666 (1989). Thus, for example, even where reporters report that an
obviously satirical Onion-like article was, in fact, real, that is not actual malice. Levesque v.
Doocy, 560 F.3d 82, 91-93, n.11 (1st Cir. 2009). Plaintiffs entire argument concerning actual
malice is yet another effort to contradict her own testimony and interrogatory answers in order to
defeat a motion for summary judgment. That she may not do. Consol. Edison Co. of New York,
Inc. v. Lexington Ins. Co., 2015 WL 4611206, at *8 (S.D.N.Y. July 30, 2015).
Even if those sworn admissions are ignored, Plaintiffs effort to change her story for the
third time in this case requires summary judgment on the element of actual malice as well.
Plaintiff does not dispute ESPNs understanding of her own words, and indeed affirmatively
asserts that the Court should construe the Tape in the light least favorable to her. At most,
Plaintiff speculates (erroneously) that ESPN misunderstood Davis age at the time of the
basement window incident. But Plaintiff acknowledges that Schwarz was not aware of New
Yorks legal age of consent, Opp. at 12, and her contention that Defendants should have
look[ed] at the statutes is an assertion of negligence, not actual malice. Masson v. New Yorker
Magazine, Inc., 501 U.S. 496, 510 (1991) (Mere negligence does not suffice.); Biro v. Conde
Nast, 963 F. Supp. 2d 255, 283 (S.D.N.Y. 2013) (should have known . . is consistent with a

Empirically, because the actual malice burden is so high, courts routinely grant summary
judgment to defamation defendants on this issue. See Dkt. 98-1 at 31.
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negligence standard[not] actual malice (citations omitted)). Summary judgment is thus

required on this element.
Otherwise, Plaintiff devotes sixteen pages of her Opposition to advance supposed
theories of actual malice that contradict both (1) her sworn admissions that Defendants believed
in the truth of their reporting and (2) her own words on the Tape that she no longer disputes.
This too she may not do. Essentially all of her arguments claim that ESPN seriously doubted the
credibility of Davis, Lang, and/or the Tape. But on the Tape Plaintiff acknowledges that Davis
account of abuse is credible, and indeed she also expressed her belief that her husband abused
Mike Lang. Dkt. 45-12 at 7-8. Her entire line of argument must be disregarded for that reason
alone. In any event, even in the Twilight Zone-like reality in which her arguments proceed,
Plaintiff points to no potentially clear and convincing evidence of actual malice.
First, Plaintiff points to supposed admissions by ESPNs President John Skipper, based
on a newspaper article that is obviously inadmissible hearsay.4 Opp. at 21. But even if admitted
Mr. Skippers supposed opinion about Davis in 2003, at a point in time when according to the
same article Mr. Skipper was not aware of the Tape, is hardly evidence of his or anyone elses
state of mind on November 27, 2011 when the Tape story was published. See also Defendants
Response No. 9. Next, Plaintiff points to an e-mail from Vince Doria in which he describes the
Tape as original material that points to Fines guilt which hardly substantiates any serious
doubts about ESPNs reports. See also id. No. 10. Next, Plaintiff points to an e-mail drafted by
Berko in 2003, in which Berko lays out in six pages of detail why he had full and complete
confidence that Bobby Davis story was true. See also id. No. 12. Plaintiff then resorts to
4

See, e.g., Rivera v. Incorp. Village of Farmingdale, 29 F. Supp. 3d 121, 131 (E.D.N.Y. 2013)
(excluding articles containing alleged party statements in absence of testimony from author of
articles, or witnesses to whom statements were attributed, indicating that the statements were
made); Jacobson v. Deutsche Bank, A.G., 206 F. Supp. 2d 590, 595 (S.D.N.Y. 2002) (same).
9

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semantic games, pointing to two e-mails in which Schwarz obviously uses the word
unbelievable! to express amazement, and asserts those were literal assertions of actual
disbelief. Fischer Decl. Ex. 1, p. 31. The First Amendment is not so easily undermined.
Levesque, 560 F.3d at 92; See also Defendants Response No. 14.
Next, Plaintiff proceeds with a far more disturbing line of argument. Mrs. Fine claims
that ESPN had obvious reasons to doubt Mike Lang because he had previously denied being
abused, had accepted gifts from Mr. Fine and had an on-going, complicated relationship with
him. But the record indisputably shows that ESPN vetted those issues with multiple experts, and
learned that Langs behavior was typical of males who were abused by other males when they
were adolescents. Mrs. Fine asks this Court to adopt a theory of malice that would make it
impossible for the media to break stories about sexual abuse when the victims behave exactly as
one would expect a victim of sexual abuse to act and would arm their public figure abusers (or
their spouses) with even more credible threats of lawsuits to silence their victims. Luckily, this
is not the law. Moreover, Plaintiff does not dispute that by November 27, Schwarz learned that
Syracuse law enforcement was finding Lang (and Davis) to be credible. That hardly presents
obvious reasons to doubt there veracity. In fact, it was Laurie Fine not Davis or Lang, the
Syracuse Police Department found to be deceit[ful]. Dkt. 45-4 at 10.
Next, Plaintiff makes the extraordinary argument that ESPN had actual malice because it
supposedly misrepresented the professional qualifications and conclusions of an independent
audio analyst whose opinion that it was Laurie Fines voice on the Tape meant squat. Opp.
at 27-28. Plaintiffs nit-picking of Mr. Kikels qualifications is baseless, but since she concedes
that it was her voice, Plaintiffs theory is that ESPN recklessly disregarded the truth by reporting
the truth. See also Defendants Response Nos. 30-32. That is not actual malice.

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Plaintiff then claims that ESPN disregarded advice provided by one of the three sex
abuse experts it consulted, Kenneth Lanning which in and of itself concedes that all the advice
provided by Dr. Robert Shoop and Mark Serrano supported ESPNs story. Even if Plaintiffs
claims about Lanning were correct (which they are not), it is well-settled that a reporters choices
about what information to use from multiple sources is not evidence of actual malice.
Westmoreland v. CBS Inc., 596 F. Supp. 1170, 1173 (S.D.N.Y. 1984). In any event, Plaintiffs
claims about the import of Lannings opinion are baseless. See Defendants Response Nos. 7-8.
Plaintiff next points to criticism of Schwarz for having Zach Tomaselli contact Davis.
Schwarz was certainly criticized for that, but as it relates to his state of mind it demonstrates the
absence of malice. After investigating Tomasellis allegations, and talking to Davis about them,
Schwarz had sufficient questions about their veracity that he elected not to break a story about
them. Dkt. 98-5 at 257:16-59:11, 278:3-83:9, 304:14-08:6. As a result, Tomaselli was never
mentioned in ESPNs reports until other media reported that there was an official law
enforcement investigation into his allegations. Id. Schwarzs instincts about Tomaselli proved
to be correct, and so if anything the episode demonstrates that Schwarz carefully considered
which allegations he believed were credible, and he only reported those.5 Along the same lines,
Plaintiff criticizes Schwarz for supposedly pushing Davis by emailing him three times in eight
years, largely to discuss the holidays and their families. Opp. at 31. That is hardly evidence that
Schwarz disbelieved Davis. See also Defendants Response No. 34.
Next, Plaintiff claims that ESPN instigated the law enforcement investigation of Bernie
Fine in order to later be able to claim the fair report privilege. Opp. at 33. There is not a shred
of evidence to support that theory; Danielle Roach independently told the police in 2011 about

Tomasellis allegations about Bernie Fine are also not at issue in this case.
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Davis allegations, just as she had done in 2002. See Defendants Response Nos. 36-37. And
the notion that state and federal authorities conducted a months-long investigation in order to
prop up ESPNs fair report privilege is patently absurd. For purposes of actual malice, the only
relevant point is that the investigation independently confirmed the veracity of ESPNs reporting,
and Schwarz learned that prior to reporting the stories at issue here.
Finally, Plaintiff complains that ESPN did not make additional efforts to try to obtain
comment from Laurie Fine, because it might have confirmed that the window incident
happened when Davis was an adult. Opp. at 35. As a legal matter, it is well-settled that it is not
actual malice to air a story without attempting to talk to its subject. Loeb v. New Times
Commcns Corp, 497 F. Supp. 85, 92-93 (S.D.N.Y. 1980); Khan v. New York Times Co., Inc.,
710 N.Y.S.2d 41, 45 (1st Dept 2000). Here ESPN did try, and in addition it already had a 45minute tape of her. In any event, the crux of Mrs. Fines criticism is that ESPN has no reason to
think that Harris Beach would be a conduit to Mrs. Fine. Opp. at 35. But she does not dispute
that ESPN had a very good reason to think that, i.e. that when it reached out Harris Beach told it
to expect a response. See also Defendants Reply to Statement No. 54. Moreover, her criticism
is this regard is perhaps the ultimate irony, since in her own lawsuit Plaintiff has declined to
confirm anything about the window incident, or anything else concerning the Tape.
IV.

IN THE ALTERNATIVE, MRS. FINE CANNOT ESTABLISH THAT THE

DEFENDANTS WERE GROSSLY IRRESPONSIBLE
Even if this Court determines that Mrs. Fine is a private figure, she has not brought

forward sufficient evidence to support a finding of gross irresponsibility either. As with actual
malice, Plaintiffs admission that ESPN correctly construed the Tape vitiates any contention that
it could have been grossly irresponsible in doing so. In any event:

ESPN made reasonable attempts to contact her (see above). Polish Am.
Immigration Relief Comm. v. Relax, 596 N.Y.S.2d 756, 757, 189 A.D.2d 370, 372
12

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(1st Dept 1993); see also Gaeta v. New York News, Inc., 62 N.Y.2d 340 (1984)
(no gross irresponsibility although reporter never attempted to contact plaintiff).

Schwarz certainly considered whether Mrs. Fine was concerned that Davis was a
victim of child abuse, and there is a wealth of evidence to support his conclusion
that she was concerned about that.

There is no evidence that ESPN stoked the Police Department, only that the
Police, like the rest of the world, may have decided to take action when Danielle
Roach told them ESPN was working on a story.

Schwarz did not have continual contacts with Davis, see Defendants Response
No. 34, and in any event this could not be pertinent to anything because it is
undisputed that Davis and Lang reached out to Schwarz in November 2011, not
the other way around Id. at 35. Schwarzs last contact with Davis had been seven
months earlier. Id. at 34.

Schwarzs introducing Davis to Tomaselli may have been inappropriate, but it has
nothing to do with ESPNs reporting about Plaintiff and it did not contribute to
any false reporting about anybody quite to the contrary. But gross
irresponsibility is only concerned with actions that allegedly contributed to false
reporting about the plaintiff. Nelson v. Globe Intl Inc., 626 F. Supp. 969, 976
(S.D.N.Y. 1986) (the plaintiff may only recover if GLOBE was grossly
irresponsible in publishing the statement concerning her).

She claims that ESPN ignored its own sexual abuse experts, when in fact they
closely followed the experts advice. Supra 11. More to the point, the very fact
ESPN consulted multiple experts defeats the claim of gross irresponsibility.
Weber v. Multimedia Entmt, Inc., 2000 WL 526726, at *8 (S.D.N.Y. May 2,
2000); Visentin v. Haldane Cent. Sch. Dist., 782 N.Y.S.2d 517, 521, 4 Misc.3d
918, 923 (Sup. Ct. Putnam Cty. 2004).

Plaintiffs complaints about the qualifications of the audio expert whose

opinion she concedes was correct need no further response.

Plaintiffs final argument advances yet another troubling proposition. Mrs. Fine claims
that ESPN lowered the bar by not following its own internal guidelines about when it should
report a story containing allegations of criminal activity. Opp. at 36. Essentially, Plaintiff asks
this Court to hold what is grossly inconsistent with the standards of information gathering and
dissemination ordinarily followed by responsible parties for a news organization to ever break
an original story that exposes potential criminal activity. Id. at 37 (citation omitted). If that were

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so, then much of this countrys most celebrated investigative journalism would have to grind to a
halt. Fortunately, that is not the law.
As an initial matter, there is no conceivable dispute that the Editorial Board discussion to
which Plaintiff refers was about the decision to break the Bernie Fine story on November 17.
See also Defendants Reply to Statement No. 69. No one voiced any concerns about ESPNs
reporting about Plaintiff, Doria Decl. at 30; Stiegman Decl. at 10, and counsels bare
assertion that all of ESPN witnesses are not credible does not create a fact dispute on that point.
Island Software & Computer Serv., Inc. v. Microsoft Corp., 413 F.3d 257, 261 (2d Cir. 2005)
(Broad, conclusory attacks on the credibility of a witness will not, by themselves, present
questions of material fact.); McCullough v. Wyandanch Union Free Sch. Dist., 187 F.3d 272,
280 (2d Cir. 1999) (non-moving party cannot defeat summary judgment . . . merely by
impugning [a witnesss] honesty).
As for the initial story about her husband, the Guideline to which Plaintiff refers only
contemplated reporting on criminal activity in very narrow circumstances, where the focus of the
report had a criminal past or where authorities openly stated that criminal charges will soon be
filed. The problem with that Guideline as it was written at the point as Doria pointed out at the
Editorial Board meeting and in his Declaration (Doria Decl. at 28) was that it presumed that
another news outlet had already reported the story. The Guideline did not address circumstances
where ESPN reported about alleged criminal activity before any other news outlet did, because
ESPN had uncovered credible information by its own investigative efforts. As Doria points out
in his declaration, a construction of the guidelines that did not account for reporting on criminal
activity based on ESPNs own reporting:
would have prevented ESPN from reporting a story like one that led to Sara
Ganim winning a Pulitzer Prize at the Harrisburg Patriot-News, by being the first
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to expose the investigation into Jerry Sandusky long before any criminal charges
were filed. That would be a standard that I do not believe any responsible news
organization would or should follow. As the person who was ultimately
responsible for the Guidelines I concluded that was not a standard they required
for the circumstances presented by the Fine matter.
Doria Decl. 28. Indeed, if Mrs. Fines view of journalistic standards were to prevail here,
countless Pulitzer Prizes awarded for exceptional reporting that uncovered criminal activity
before any criminal charges had been filed, or even contemplated, would have to be returned. In
fact, just this week the movie Spotlight is opening, which portrays the Boston Globes prizewinning reporting that exposed a cover-up of sexual abuse by a former priest. The whole point
of that story was that the Church had covered up likely criminal activity, but according to
Plaintiff the newspaper should have just alerted police to the story and was grossly irresponsible
for reporting it.6 Plaintiff points to no evidence of any journalistic standard ordinarily followed
by responsible parties that proscribes such an anti-social result.
To avoid such an absurd outcome, ESPNs Editorial Board agreed that the Guidelines had
overlooked this scenario and therefore should be updated, which they were. Doria Decl. at
28-29; Stiegman Decl. at 9. They now make it clear that it is appropriate to report on criminal
activities, even if formal charges have not been filed, [i]f we have independent reporting from
one or more credible sources that justifies making the story public. Doria. Dec. 29, Ex. 3.
At bottom, for the reasons set forth in the Opening Memo., it is not grossly irresponsible
to assign veteran journalists to report on sexual abuse, have them work and re-work a story,

See also http://www.pulitzer.org/bycat/Investigative-Reporting (2010 Pulitzer Prize to the

Philadelphia Daily News, For their resourceful reporting that exposed a rogue police narcotics
squad, resulting in an FBI probe and the review of hundreds of criminal cases tainted by the
scandal.; 1992 Pulitzer Prize to Dallas Morning News, For reporting that charged Texas police
with extensive misconduct and abuses of power.; 1985 Pulitzer Prize to St. Petersburg (Fl.)
Times, For their thorough reporting on Pasco County Sheriff John Short, which revealed his
department's corruption and led to his removal from office by voters.).
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consult with experts, editors, and management at ESPN and rely on sources that law enforcement
have deemed reliable, credible and truthful. Mrs. Fine is unable to meet her burden of providing
evidence from which a jury could find that ESPN acted in a grossly irresponsible manner here.
V.

THE ESPN REPORTS ARE PRIVILEGED BY SECTION 74 OF NEW YORKS

CIVIL RIGHTS LAW
Finally, Mrs. Fine concedes that reporting on the Tape is subject to a fair report

privilege, and only argues that ESPNs reporting is not protected because it did not fairly
and accurately portray the contents of the Tape.
In advancing this argument, Mrs. Fine asserts, based entirely on her counsels
speculation, that the only reasonable interpretation of the Tape is that Mrs. Fine was first
aware of her husbands inappropriate relationship with Davis when Davis was 19. As
previously discussed, that theory fails for multiple reasons. Moreover, the U.S. Secret
Service, the Syracuse Police Department, the District Attorney, Bray, Schwarz, Berko and
Doria all came to a different conclusion that a fair interpretation of the Tape is that Mrs.
Fine knew about Mr. Fines abuse of Davis when Davis was a child. Based on a simple
review of the Tape, there can be no doubt that ESPNs report was fair and true.
CONCLUSION
Defendants respectfully request that their motion for summary judgment be granted.
Dated: November 24, 2015

LEVINE SULLIVAN KOCH & SCHULZ, LLP

By:

/s/ Nathan E. Siegel

Nathan E. Siegel
Nathan E. Siegel
Thomas Curley (pro hac vice)
Rachel F. Strom
Paul J. Safier (pro hac vice)
1899 L Street, N.W., Suite 200
Washington, DC 20036
(202) 508-1100)
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Case 5:12-cv-00836-DEP Document 113 Filed 11/24/15 Page 19 of 19

CERTIFICATE OF SERVICE
I, Nathan E. Siegel, hereby certify that on this 24th day of November, I caused to be
served via ECF a true and correct copy of the foregoing Reply , and all supporting papers, upon
counsel of record as follows:
Lawrence H. Fisher, Esq.
Kevin W. Tucker, Esq.
COHEN & WILLWERTH, P.C.
One Oxford Centre
301 Grant St., Suite 4300
Pittsburgh, PA 15219
Tel: (412) 894-8741
Fax: (412) 255-3701
Counsel for Plaintiff

/s/ Nathan E. Siegel

Nathan E. Siegel

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