After two years of litigation, days worth of time spent in a litany of hearings and deposition testimonies, and boat loads of money spent on lawyers, the trial in the $1 billion defamation suit against CNN is set to begin this Monday, January 6. A lot has happened over the last several months as arguments shifted, witnesses axed, and rulings were made by Judge Williams Scott Henry. So now’s the perfect time to look back at those developments and examine how things stand ahead of the opening arguments.
The alleged defamation stemmed from a November 11, 2021 episode of The Lead with Jake Tapper where Tapper led into the segment by painting an image of a “black market” hustler who charged “exorbitant fees” taking advantage of desperate people trying to leave Afghanistan following President Biden disastrous withdrawal:
In our world today, the U.S. government, the Biden administration says that as of last week it had assisted in the departure of at least 377 U.S. citizens and 279 lawful permanent residents of the U.S. from Afghanistan since August 31st. Still, many Afghans, Afghans who desperately want to flee Taliban rule and Afghans who say their lives are at stake, they remain behind. As CNN's Alex Marquardt has discovered, Afghans trying to get out of the country, face a black market full of promises, demands of exorbitant fees, and no guarantee of safety or success.
A NewsBusters investigation found that CNN had since deleted the segment in question from their CNN Transcripts archive page for the show, and there was no note about the missing segment.
Correspondent Alex Marquardt, who received a promotion to chief national security correspondent in the middle the legal proceedings, singled out Navy veteran and Plaintiff Zachary Young in his report. “… [A] man named Zachary Young who was one of many advertising evacuations from Afghanistan,” Marquardt said while showing a picture of Young’s face. He didn’t mention any other of the “many” he claimed were doing the same.
CNN actually tried to hide Marquardt’s promotion from a jury.
When Marquardt notified Young that CNN would be publishing a story about him, Young was only given two hours to respond. And when Young did respond, Marquardt messaged a colleague, “fucking Young just texted.”
That attitude toward Young seemed prolific inside CNN. As Young proffered in filings to a Florida appeals court, several internal CNN messages showed disparaging language used against him:
Young proffered internal communication showing, at minimum, CNN employees had little regard for him. In those messages, CNN employees called him a “shitbag” and “a-hole” and remarked they were “going to nail this Zachary Young M-fucker.” Marquardt referred to him as “fucking Young” and quipped, “it’s your funeral bucko.”
Those messages went a long way in allowing the appeals court to affirm that there was enough evidence for Young to argue to a jury that CNN acted with “actual malice, express malice, and a level of conduct outrageous enough to open the door for him to seek punitive damages.”
Contrary to Marquardt’s disparaging communications about Young to his CNN colleagues, and the framing of the report, un-redacted deposition testimony (exclusively obtained by NewsBusters via posting error by the Bay County, Florida clerk’s office) showed that his investigation didn’t turn up any evidence of criminal activity from Young (Click “expand”):
Q: Did your reporting ever discover anything illegal that was going on with regards to
the evacuation process?
A. No, it didn't.
***
Q. Did you think Mr. Young was committing a crime? Let me ask it that way.
A. I don't know. And we -- I don't know and we didn’t report that. I don't know.
Q. I'm not saying you did. I'm just asking the question. So –
A. No. As far as I knew he was -- he was charging -- sorry to interrupt. As far as I knew,
he was simply asking for large amounts of money to get Afghans out of the country.
***
Q. You found no evidence of Mr. Young committing a crime, correct?
A. No.
The panel of appeals court judges also found that “Young proffered CNN messages and emails that showed internal concern about the completeness and veracity of the reporting—the story is ‘a mess,’ ‘incomplete,’ not ‘fleshed out for digital,’ ‘the story is 80% emotion, 20% obscured fact,’ and ‘full of holes like Swiss cheese.’”
As the case proceeded through the summer and into the fall, things just got worse for CNN. They refused to turn over their journalistic conduct guidelines; Judge Henry ordered it. CNN asked the court to force Young into a mediation conference so they could offer a settlement deal; they got the meeting but the offer was rejected. CNN wanted to use Taliban Sharia law as a shield to say they were right to suggest Young was criminal since he helped women leave the country; Judge Henry shot that down too. They wanted to protect Tapper from being deposed; it was so ordered.
As the losses racked up, CNN actually ditched their legal team and hired a new one.
According to filings, CNN had retained the services of Dave Axelrod and Joe Bailey of law firm Ballard Spahr LLP out of Philadelphia, Pennsylvania to represent them. They’re with the same law firm that CNN retained to handle their appeal of the punitive damages ruling that opened them up to possibly paying damages approaching or surpassing $1 billion.
One of their earlier efforts to put CNN in a more advantageous legal position ahead of the trial was to attempt to get the court to throw out or limit Young’s expert witnesses. Among their various complaints directed against expert witness Major General James V. Young (retired) (no relation to Zachary Young), CNN essentially argued that he was too good of a witness and provided too many important facts for the jury.
Inversely, one of CNN’s expert witnesses had their economic damages testimony limited. Judge Henry determined the testimony was “too speculative” and the witness was not qualified to claim CNN’s reporting didn’t harm Young’s income.
In early December, Young scored several legal victories in a pair of orders obtained by NewsBusters. Among them were affirmations that punitive damages would still be on the table for a jury to potentially award Young, CNN’s “retraction” of the story wasn’t good enough, Young’s expert witnesses would remain as part of his case, Young did not take money from the Afghans he was helping to evacuate, and he did nothing illegal.
In mid-December and on January 2, just days before the trial was set to begin, Judge Henry affirmed that Young’s counsel from Freedman Normand Friedland LLP would be permitted to bring up CNN’s gloating about Fox News’s settlement with Dominion Voting Systems. They argued it was evidence that they knew and respected the possible threat of a defamation suit.
CNN did get some victories of their own in the run up to the trial. They managed to dodge a request for sanctions after they were accused of misleading the court on disclosing financial discovery documents. They also won on keeping certain documents and testimonies redacted.
In comments made to NewsBusters back in June, Young’s lead counsel, Vel Freedman made it clear that that there wouldn’t be a settlement before the trial began. He told NewsBusters there was “zero chance this case gets stopped before trial” and that the goal was to “take CNN to task.”
Adding: "CNN claims to be the ‘most trusted name in news,’ but their internal documents show that the only thing you can ‘trust’ CNN to do, is ignore the facts, push an agenda, and hurt innocent people. We’re looking forward to trial."
NewsBusters will be attending the trial and reporting live every day. Stay tuned.
