On November 6, 2017, Al Jazeera America LLC moved that it does not need to provide documents in response to the MLB players’ motion to compel the company to give information an undercover reporter gathered in 2015. The move is the latest in the libel case filed by MLB players Ryan Zimmerman and Ryan Howard in January 2016 that alleged Al Jazeera America recklessly published the 2015 documentary “The Dark Side” and an accompanying article, and damaged their reputations.
The documentary revealed the use of performance-enhancing drugs in sports, which led to several sports leagues conducting investigations, including the MLB. Specifically, the documentary portrayed pharmacist Charles Sly claiming Zimmerman and Howard, amongst others, had ordered shipments of performance-enhancing drugs. Sly recanted his claim since the documentary was released, and both men were cleared by the MLB of doping allegations in August. Zimmerman claimed Al Jazeera America knew Sly backtracked on his accusation before the documentary was distributed, but aired the documentary anyway. Then in March, the District Judge found a reasonable viewer could think Howard and Zimmerman took performance-enhancing drugs, despite Al Jazeera America underscoring that the statements were made by Sly, not Al Jazeera America. However, the Judge dismissed the players’ claims against the accompanying news article because the statements did not rise to the same level as the statements in the documentary.
Zimmerman and Howard previously moved to compel Al Jazeera America to turn over documents and custodial files from the undercover investigator, Liam Collins, who worked on the documentary. Collins was dismissed from the suit because the Judge held the complaint did not allege facts that a reasonable jury could find Collins published a false and defamatory statement. Al Jazeera America in response argued the communications requested — text messages and chats on social media platforms and an email account – are not in the company’s control because Collins was a freelancer hired as an independent contractor, not an employee. As an independent contractor, Al Jazeera America claimed it has limited rights that do not include the right to collect and search documents in Collins’ personal accounts. Instead, Al Jazeera America recommended requesting the documents from Collins directly. By lacking custody of Collins’ email accounts and cellphone, Al Jazeera America alleged it has no legal rights to the information within and cannot be forced to compel Collins.
However, the Al Jazeera entities stated they asked Collins, who is located in the U.K., to authorize his counsel in Washington D.C. to accept service and respond to any subpoenas. Additionally, in Collins’ nondisclosure agreement with Al Jazeera America the confidentiality clause does not prohibit him from complying with subpoenas. The agreement also contains a copyright clause that gives Al Jazeera America exclusive rights to the work of its investigation, but not unrestricted access to personal records. Al Jazeera America also offered to comply by producing records sought by the players that are already in its possession.