For those of you into true-crime documentaries, have you ever wondered how producers get criminals and accused criminals to talk on the record? In rare instances, some subjects of a documentary will agree to talk because they want to tell what they think is their exculpatory story. (Case in point: Robert Durst. If you have HBO On Demand, then there is a fair chance you may have binge-watched The Jinx: The Life and Deaths of Robert Durst earlier this year. If you have not, then you need to stop reading this blog and go watch it now.) More often, however, the producer will agree to conceal the identity or identifying characteristics of interviewees. All of us have seen those blurred face and altered voices before. What happens, though, when a producer breaks such a confidentiality agreement? Doe v. Gangland, a Ninth Circuit case from 2013, is one of the few cases to address the pre-interview deals that are struck, and the legal fallout that occurs when the deal is broken.
Doe v. Gangland is a 2013 anti-SLAPP case in which the producer of a History Channel documentary called “Gangland” revealed the identity of a former prison gang-member who agreed to be interviewed, allegedly, on the sole condition that his identity not be revealed. Gangland Prods., 730 F.3d 946, 948 (9th Cir. 2013). A SLAPP suit, which stands for “strategic lawsuit against public participation,” is a lawsuit filed by a plaintiff who (typically) does not expect to win; rather, the suit is designed to stifle free speech, coerce settlement, or both by subjecting a defendant to cost-prohibitive legal defense expenses. Many states, including California, have enacted anti-SLAPP statutes designed to remove quickly bogus cases from court through early motions to dismiss. Doe v. Gangland is notable because Gangland Productions brought such an anti-SLAPP motion under California law, asserting that the case was a SLAPP because plaintiff signed a release permitting his identity to be revealed; however, defendant failed to get the case kicked out of court because the Ninth Circuit found that plaintiff had a “probability of prevailing” on several of his claims, including public disclosure of a private fact and intentional infliction of emotional distress (“IIED”).
So, if the defendant had a release in hand, then why was the lawsuit not a SLAPP? Doe claimed that, “before filming his interview, and after he had been told his identity would be concealed, he was asked to sign a document.” Id. Doe further claimed that he told a Gangland representative that he was dyslexic and illiterate; the representative repeatedly insisted that the document was “just a receipt” for his $300 payment. Id. According to Doe, the document at issue contained a release. Id. The Ninth Circuit, therefore, found that, “[a]t this stage in the proceedings, Plaintiff has made a sufficient showing of fraud in the execution of the release, which, if true, would render the release void.” Gangland Prods., 730 F.3d at 958. Several claims, including the IIED claim, were permitted to proceed.
Two years later, Doe v. Gangland is still good law, and true-crime documentaries are still going strong. Perhaps documentary producers learned their lesson, and have gotten more careful in handling their release papers. Regardless, Doe v. Gangland shows that while there are virtues to anti-SLAPP legislation, anti-SLAPP statutes cannot be used to try to dismiss meritorious claims. Parties wishing to invoke anti-SLAPP legislation must be careful to assess whether a plaintiff has truly filed a “strategic lawsuit against public participation.”