lNED ON 812912008

SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY

HON. JOAN A. MADDEN

PART

PRESENT:

//

Justice

INDEX NO.

MOTION DATE

-vMOTION SEQ. NO.

...

MOTION CAL. N O .

The following papers, numbered 1 to

were read on this motlon to/for

PAPERS NUMBERED

Notice of Motion/ Order to Show Cause - Affidavlts - Exhibits

..
VI
c
.

...

Answering Affidavits - Exhibits

Replying Affidavlts

Cross-Motion:

n Yes

UI

cn

4
0
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NAL DISPOSITION
Check if appropriate:

n NON-FINAL DISRIU~IJION

0 DONOTPOST

REFERENCE

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW Y O N : PAR] 1 1
--___________-------___I________________------------------------------

In the Matter ortlic Application oIDONALD J . TRUMP

Tor an Order aiilhorizing scrvice of Subpociias Ad
lestificanduni and Duces Tecum on

JNDEX NO. 103939/08

ARTHUR OCHS SULZBERGER JR., WlLLlAM

KEELER and 1,AWRENCE INGRASSIR.
pursuanl to a CoiniTiission issued in the action
entitled Donald J . Trump v. Timothy L. OBricn, Time
Wanier Rook Group, lnc., Wai-ncr Books Iiic.,
Docket No. L-545-06, pending iii the Superior Court of
New Jcrsey, Law Division, Civil Part, Caiiiden County.
X

-------------________________1111_______------------------------------

JOAN A. MADDEN, J.:

t.

Respondents Arthur Ochs Sulzberger Jr. (Sulzberger) and William Kcller (Kellcr)
move for an order pursuaiit to CPLR 3102(e), 3 103(a) and 2304 quashing certain non-party
subpoenas served on them, and for a protective order. This proceeding relates to a defamation
action pending in New Jersey entitled Donald J . Trump v. Timothy L. OBrien, Time Warncr
Book Group Inc. and Warner Rooks Inc. (Dockct No. CAM-L-545-06, Superior Court olNew
Jersey, Law Division, Camdcii County)(thc underlying action), which is based on allegcdly
false stateincnts about Donald J. Trump (Tninip) contained in a book wnttcn by Timothy L.

OBrien (OBrien), TruiripNlition: The Arl ofReing the Doii~ifd.OBrien rcsides in New Jersey
and in his day job, lic is employed as journalist for The New York Tirncs (The Times).
In January 2006, Trump commenced the undcrlying action, against OBrien and the

publislicrs of his book, Time Warner Book Group Inc. aiid Warner Books. The coiiiplaint
alleges that 0Briens book falsely states that Trumps net worth was soinc where betwccn $150

and $250 million and that Trump was not rciiiotely close to being a billioiiairc. Tlic
complaint also alleges that as a result of the false and defamatory statcments, Trump has
suffered injury to his personal and profcssional rcputation, and is cntitlcd to conipensatory and
punitive daiiiagcs at a minimum of $2.5 billion.2
In or about November 2007, Ti-uiiip iiiovcd in the underlying action for coniniissions to

take non-party out-or-state depositions of three excciitives of The Times: Sulzberger, the Chief
Executive OLikcr of the New York Times Company and publisher of Ihe Times; Keller, the
executive editor of The Timcs; and Lawrence Ingassia, the business editor of the Tiiiics and

Tnimps coniplaint also alleges that OBricn and Warncr have knowingly made
egregiously Ialse and reprchcnsible statements about Trump, his family, his personal life and liis
busiiiess dcalings, including stateiiieiits grossly inisreprcscnting Tmnips net worth, business
acumen and success. Those dcfaniatory statement have been made in a book, in a iiiajor articlc
in the New York Tiirzes containing excerpts Iroin that book, and in iiitcrvicws about the book,
both 011camera and o f f . . .
Aside h m thc two statements quoted above horn OBricns book, the additional
allegedly dcfaniatory statements speci ficd in thc complaint are oral or other written statements by
OBrien that Tnimp adds zeros here and there; he is a figure out of a fairy-tale world of his
own crcation; he doesnt have much money to invest; he is a cartoon figiire. , , hcs Baby
Huey with P.T. Bamuiii mixed in; he is not a good businessman , , , as a businessman, he is a
train wrcck,; liis net worth is definitely inflated. Forbes Magazine puts his worth at $2,7
billion, but I am almost ccrtain that is a complete work oCGctiori; Donald represents success,
big shiny buildings, shiny wives, airplanes. And to soniconc outside of N Y he represents the
apex of business. In reality he is the walking cmbodirnent of financial poiiiography. I-Tc is a
comical unrealistic version olwhat business is about; a cursory examination of Trumps
finances suggests that his claims of being a multi-billioiiairc may be greatly exaggerated.
The complaint further alleges that [dlefendants defamatory campaign, including their
knowingly h l s e statements dramatically understating his net worth, is clearly intended to damage
Trumps business, brand and reputation by, among other things, undermining the perception of
Trump as a businessman of extraordinary means and ability (which he is), deterring those in the
business coinniunity from dealing with him, and influencing the consuming public to avoid his
goods and scrviccs. . . .By falsely stating that Trump is worth at least ten tiiiies less than his
actual nct worlh, defendants maliciously and intentionally liavc uiidcrmined the publics
association olTninip with the pinnacle of siicccss in business and the luxury lifestyle, and the
financial communitys confidcnce in Trumps coiisidcrablc financial resoiirces and success.
2

OBriens supcrvisor. Although The Times published an exccrpt from OBriens book iti the
Sunday busiiicss scction on October 23, 2005 , it is not iiamcd as a defendant in tlic underlying
action. Flowcver, i n the context of the instant proceeding to quash the subpoenas, The Times
asserts that it was not involved in the writing, cditiiiz or researching o l t h c book

In support o l the iiiotioii to dcpose Sulzberger, Keller and Ingrassia, Trump submitted an
attorneys certification that their testimony was absolutely indispensablc to establish actual
malice by OBrien, and is reasonably likcly to lead to the discovely of admissible eviciencc.
Speci tically, Trump argued that discovery was necessary from Sulzberger, Keller arid Tngrassia to
deteiininc what conversations they had about 0
Briens alleged efforts to inappropiiately
influence The Times to acccpt first serial rights to thc book, and to determine tlic efforts made
by The Times to ensurc compliance with intenial standards concerning thc use of confidential
sources. As to Sulzbcrgcr alone, Trump assei-ted that he needed to be questioned about: 1) his
September 6, 2005 e-mail correspondence with OBrien, when OBricn wrote that portioiis of h e
book would make Trump go ballistic; 2) about his 2005 lunch meeting with Trump and

0 Brien, when they discussed the real estate busincss; and 3) any other conversations Sulzberger
may havc had with OBrien aftcr that lunch meeting. Trunip also argued that Keller needed to be

questioned about the details of any conversations he had with OBrien about Trumps lawsuit,
rind that both Kcllcr and Ingrassia need to bc qucstioned about OBricns alleged contcmplated
departure from The Times and his traiisfcr to the Sunday busincss section in May 2006.

On Deccinbcr 7, 2007, the Hon. Michael .I.Kassel orNew Jcrsey Superior Court granted

3Most of tlie attorneys cedi fication focuses on reasoiis for deposing Ingrassia, who is
OBriens direct supervisor at The Times. Ingrassia not a party to this motion and presumably
has no objection, at lcast at this time, to thc subpoena served 011 him.

Trumps niotioii on the record. In considering the motion, Judge Kasscl reasoned that as a
public figure, Tiunip must cstablisli actual malice and that in a classic [defimatioii] case, there
is very little direct evidence of reckless indiffei-ence, its all circumstantial. While

acknowledging that Sul7bcrgcr, Kcllcr aiid Ingrassia occupy sonie pr-ominent positions with
The Times, Judge Kassel found that the information sought was not privileged or confidential,
there was no real prejudice to defendants, there was a good faith basis for making such
request, and the depositions were not a wild fishing cxpcdition or an atteinpl to harass or
intimidate the deponents or Ihe limes. Addressing possiblc objcctioiis by the deponents or The
Times, Judge Kassel rulcd that as non-parties, their objections would have to be raised in New
York after the subpoenas were scrvcd, and that he was only looking at wlicther or not the
defendants are prejudiced. Judge Kassal concludcd that [tlhe bottom line is this, aiid I cant
give a bctter reason, other than the fact that iny sense that its not a wild goose chase.

. , . Im

going to pennit the depositions, at least from New Jerseys end.

On March 19, 2008, Trump filed an ex parte application in the Supreriie Court oftlic
County olNcw York, fbr an order piirsuant to CPLR 3201(e) authorizing New York service of
subpoenas ad testificaiiduni and duces tecum on Sulzberger, Keller and Tngrassia. On that same
day, the Hon. William J. Davis issued an cx parte order granling the application, and directing
Sul~bcrgcr,Keller and higrassia to appear for depositions, and to produce the dcnianded
documents. Sulzbcrgcr and Keller4 are now iiioviiig to quash the subpoenas, arguing that they
impose an unreasonable burdcii on senior executives o f a non-party who have no direct

knowledge of the facts in the dispute, and that the tangential information sought from these

4As noted above, higassia is not participating in the motion to quash.

witnesses is not legitimatcly iiccdcd in the New Jersey action.

CPLR 3 102(e) providcs that when a court in another state issues a mandatc or
commission requiring testimony by a New York witncss, thc witness may be compelled to
appear and tcstify in the same manner and by tlic smic process as may be employed Ibr- tlic

purpose of taking tcstiniony in actions peiidiiig in thc statc. CPLR 31 02(e). TJncier section
3 1 c)2(c), a New York court can ordcr thc testimony of a witness or compel thc production o l
documents in aid 01 an action pending outside the statc. Tlic purposc of CPLR 3102(c) is to
niake available the mcclianisni of New York courts to sccurc disclosure from persons subjcct to
New York jurisdiction lor use in an action in any other jurisdiction. See Kirkland & Ellis v.

Chadboiirne & Parkc LLP, 176 Misc2d 73, 76-77 (Sup Ct, NY Co 1998); 7 8 McKiniieys $3102,

Coinmcntary C3 1 02:9 at 500-500. It is appropriate for the Sister Statc court which has thc
iinderlyiiig case, and is therelbre

iii

a better position to determiile the appropriate scope of

disclosure, to make the thrcshold determination as to whether to permit the discovery. Tlic New
York courts rolc is iiccessarily more limited. Mattcr of Welch, I83 Misc2d 890, 891 (Sup Ct,
NY Co 2000).
If the court in another state pennits the discovery, the New York courts inquiry with
respect to objections raised bypcrsons required lo testily pursuant to CPLR 3102(e) is limited to

detennining ( 1 ) whether the witnesscs fundamental rights are presewcd; (2) whether the scope
of inquiry falls within the issues of thc pciiding out-of-state action; and (3) whether the

cxaniination is fair. Mattcr of hvliffe & Cos, 166 AD2d 223, 224 (1 Dept 1 WO), Iv app

(hi

76

NY2d 714 (1 990) (citing Mattcr of Brandes v. Harris, 78 AD2d 638, 639 [2ndDcpt 1 S S O ] ) . The
courts will not prejudge the matcriality or the competency oftlic cvidence in a cause pending in

another jurisdiction and will afford the widest possible latitudc in the conduct of such
cxaniiiiations.

Id (quoting Mattcr of Robcrts, 21 4 AD 271, 275 [ I

Dcpt 19251).

Notwithstanding the h c g o i n g , New York courts retain discretionary authority undcr

CPLTi 3 103(a) to issue a protective order or to quash a subpoena issued pursuant to CPLR
3 102(e), due to over breadth or to prevent unnecessary harassment, see Matter ornicr, 297 AD2d
577 (1 Dept 2002), Law Office orPaul A. Lange v. Roman Catholic Diocese oiDallas, 345

AD2d 1 18, 1 19 (1 Dept 1997), due to an independent deteiinination lhat the material sought is
not critical or necessary, see Brown & Williamson lobacco Corp. v. Wigand, 228 AD2d 187 (1 I

Dept 1996), app withdrawn 90 NY2d 901 (1997), or duc to thc inclusion of material protected by
the attoimey-clicnt piivilcge, set Roiiibadicr Claiital TIIC. v. Scliociicold Sporn Laitman & Lomelti

p.C.,46 AD3d 323 ( I Dcpt 2007), Kirkland bz Ellis v. Cliadbourne & Parke, supra. These cases
require this court to exercise its discretion and review the subpocnas undcr the standards
enumerated abovc, rather than simply rubber stamping the determination of the New Jcrscy
court. See id at 77.
The New Jersey court agreed with Trump in iuling that tlic tcstimony of Sulzberger and
Keller is relevant to the issue oractual malicc. To sustain a claim for defimation under both

Ncw Jersey and New York law, Trump, as a public figurc, is rcquired to prove that OBriens
statements are falsc and that OBricn published such statements with actual malicc, that is with
knowledge that they wcrc falsc, or with reckless disregard of whether they wcrc falsc. Scc New
York Times Co. v. Sullivan, 376 US 254,279 (1964); Lynch v. New Jersey Education Assn,

161 NJ 152, 165 (1999); Sweeney v. Prisoners Lcgal Services, 84 NY2d 786, 793 (1995). To
satisfy the actual malice standard, plaintiff must establish by clear and convincing evidence, that

defendant published the statemcrit with knowlcdgc that it was false or with rcckless disregard of
whether it was false. DeAmelis v. 11111, 180 NJ 1 , 13 (2004) (quoting Ncw York Times Co. v.
Sullivan, supra). To dcinonstratc rccklcss disregard, plaintiff must show that the statements

were publishcd with a high dcgrcc of awareness of their probable falsity. Id (quoting Gar-r-isori
v. Louisiana, 379 US 64, 74 [ 19641). I n other words, [tlhere must be sufficient evidence to
permit the conclusion that the defendant in fact cntcrtaiiicd scrious doubts as to the truth of the
publication. Iiiblishing with such doubts shows reckless disregard for truth or filsity and
demonstrates actual malice. St. Aniant v. Thompson, 390 US 727, 73 1 (1968); accord
DeAncelis v. Hill, supra at 13. A publishers hostility or ill will is not dispositive ofinalicc.
at 14. Although [slpite, hostility, liatrcd, or thc delibcratc intent to h a m demonstrate
possible motivcs for making a statement, only evidence denionstrating that the publication was
made with kiiowlcdgc of its falsity or a reckless disregard lor its truth will establish the actiral
malice rcquirement.

M (quoting Lynch v. New Jcrscy Education Assn, supra at 166-167).

Here, a close exarninalioii of Tiimps discovery request reveals that to a large extent the
scope of the inquiry does not bcar on the issue of actual malice raised in tlic underlying
defamation action, a ~ i dthat much of the inforination is essentially sought lor thc collatcral
purpose oliiiipcaching OBrien. See Matter or Avliffc & Cos, supra at 297. For examplc,
Trump seeks to qucstiori Sulzberger and Keller about OBricns alleged efforts to

inappropriately influence The Timcs to acquire first serial rights to the book, which Trump
asserts is neccssary as to OBriens credibility.

Til

scekiiig to question Sulzberger and Keller

about the Times efforts to ensure compliance with intcmal standards concerning the USC of
confideiitial sources, Trump likcwisc asserts that such information is necessary to assess

OBriens veracity. Moreover, even if OBrien representcd that he observed the same
professional methods and tools in writing tlie book as he would in writing an article for lhe
r

1.

1mes, since OBrieri did not write the book in his capacity as a reporter for The Times, The

Times could not liavc an iritcrcst in iniposing its own standards on OBricii

iii

his capacity as the

author of-the book.

As to Kellcr alone, thc information Tnimp sccks about OBriens allcgcd contcmplated
dcparturc from thc Times and his transfer to the Sunday business section in May 2006, bears

no relationship to tlie issue of actual malice. Notably, the Ncw Jersey court previously ruled that
OBricns personnel file and other documents relating to his employnient at The Times are iiot
rclcvant to the underlying action.5 Based on OBriens deposition testimony, Trump also sccks
to question Keller about the details o r any conversations he had with OBricn about Trumps
lawsuit. Specifically, at the deposition, OBrien was asked i l h e had ever spoken to Mr. Keller
about the lawsuit, and OBricn responded that he had one brief conversation with Keller about
the lawsuit shortly after it was filed, but OBrien could not recall the details. Kellers single
isolated conversation about Trumps lawsuit which took placc aftcr publication of OBriens
book, is at best, peripherally related to the issue of actual nialice as d e h c d abovc. I n view of the
foregoing, none of the inquiry addressed to Keller falls within the issue olactual malice, and the
subpoena servcd on him is quashed.

u.

The balance o r t1w testimony sought from Sulzberger alone is directed at liis e-mail

5 0 n April 12, 2007, the Hon. Irvin J . Snydcr, Superior Court of New Jersey, issued a
decision on thc rccord, quashing without prejudice, Trumps subpoena [or production of
documents by The Times, which requested, inter a h , OBrieiis personncl filc and other
employment related documents.

coirespondencc with OBrien on Scpternber 6, 2005, when OBrien wrote that parts of the book
would make Trump go ballistic, and Sulzbcrgers lunch meeting with 0Biien and Trump in

2005, prior to thc publication of the hook, whcn they discusscd the real estate business. Since
Sulzbergcr has pcrsonal and dircct knowledge of the dctails of these events, which arguably may
have sonic significance bearing on the issue of actual malice, Sulzbergcrs deposition shall be
limited to the subject matter o r the c-mails and the lunch nicetirig.
Accordingly, it is hereby
ORDERED that the motion to quash the subpoena served on William Keller is granted

and thc subpocna is quashed; and it is fiirther

OKDERED that the motion to quash the subpoena scrved on Arthur Oclis Sulzbcrger, Jr.,
is granted to the extent that thc subject matter of his deposition shall be limited to his Seplembcr
6, 2005 c-mail correspondence with Timothy L. OBrien, and lo his 2005 lunch meeting with
Timothy L. OBricn and Donald .I.Tnlrnp.
DATED: August

,2008

ENTER: