Talley v. Time Inc et al

Filing 45

ORDER denying 40 Motion to Compel. Signed by Honorable Timothy D. DeGiusti on 12/9/2016. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
JOHN THOMAS TALLEY,
Plaintiff,
vs
TIME, INC., d/b/a Sports Illustrated
Magazine, et al.,
Defendants.

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Case No. CIV-14-853-D

ORDER
Before the Court is Defendant Time, Inc.’s Motion to Compel [Doc. No. 40], filed
pursuant to Fed. R. Civ. P. 37. Plaintiff has filed a response to the Motion, which is fully
briefed.1
This diversity case involves a claim by Plaintiff John Thomas Talley that Defendant
Time, Inc. d/b/a Sports Illustrated Magazine (“SI”) and its employees or agents published a
magazine article that placed Plaintiff in a false light and invaded his privacy. The parties
agree the claim is governed by Oklahoma law and requires proof of the following elements:
1) Defendants gave publicity to a matter concerning Plaintiff that placed him before the
public in a false light; 2) the false light in which Plaintiff was placed “would be highly
offensive to a reasonable person;” and 3) Defendants “had knowledge or acted in reckless
disregard as to the falsity of the publicized matter and the false light in which the other would
be placed.” See Colbert v. World Publ’g Co., 747 P.2d 286, 290 (Okla. 1987) (internal

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No reply brief was filed within the time period authorized by LCvR7.1(i).

quotation omitted); see also Zeran v. Diamond Broad., Inc., 203 F.3d 714, 719 (10th Cir.
2000); Restatement (Second) of Torts, § 652E (1977).
The instant Motion concerns Plaintiff’s allegedly inadequate responses to SI’s
Interrogatory Nos. 2 and 3, each of which asked Plaintiff to identify “every person who you
contend is a reasonable person and was highly offended by” certain statements in the
magazine article. See Def.’s Mot. Compel, Ex. 1 [Doc. No. 40-1], pp.6-7. Plaintiff answered
by providing a list of 16 individuals – including himself, family members, and close friends –
who had strong negative reactions to the magazine article’s statements about Plaintiff. SI
contends Plaintiff’s answers are insufficient because the identified witnesses are persons who
are described as reacting negatively to the article, not necessarily the specific statements that
are alleged to be false and highly offensive. SI argues that “[t]he defendants are entitled to
discover what witnesses the plaintiff contends support his claim that reasonable people were
highly offended by the specific statements rather than by the article as a whole or even by
other non-actionable statements.” See Def.’s Mot. Compel [Doc. No. 40], p.9. SI proposes
to “depose those witnesses to determine whether and why they were highly offended by those
[specific] statements and, if so, whether such reaction was reasonable.” Id.
As the Court understands SI’s position, SI expects Plaintiff to prove his claim with
the testimony of actual, reasonable people who were highly offended by false statements in
the magazine article. SI provides no legal authority for this position. Plaintiff’s false light
invasion of privacy claim employs an objective “reasonable person” standard similar to one
used in other legal contexts. See, e.g., Grogan v. KOKH, LLC, 256 P.3d 1021, 1030 (Okla.
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Civ. App. 2011) (describing the second element as: “the false portrayal would be highly
offensive to a reasonable person such that the plaintiff would be justified in the eyes of the
community in feeling seriously offended and aggrieved by the publicity”). The Court is not
aware of any hypothetical “reasonable person” standard that considers whether witnesses in
support of a factual contention are, in fact, reasonable people. The Court finds that Plaintiff’s
identification of witnesses who will provide testimony in support of his claim is sufficient.
No further answer is required, unless circumstances arise that trigger a duty of
supplementation under Fed. R. Civ. P. 26(e).
SI’s Motion was based, in part, on a disagreement among the parties regarding the
scope of permissible discovery in this case. This disagreement was presented for resolution
by the Court upon a separate motion (Defendants’ Motion for Case Management Order),
which was decided November 17, 2016, after SI’s Motion was filed. Accordingly, the Court
finds that no award of expenses under Fed. R. Civ. P. 37(a)(5) is warranted.
IT IS THEREFORE ORDERED that Defendant Time, Inc.’s Motion to Compel [Doc.
No. 40] is DENIED.
IT IS SO ORDERED this 9th day of December, 2016.

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