Tavis Smiley Stumbling in PBS Lawsuit | Hollywood Reporter
August 24, 2018 3:42pm PT by Ashley Cullins
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The ousted anchor can't force PBS to hand over internal documents dating back decades and two of his claims have been dismissed.
Tavis Smiley can't force PBS to turn over documents related to every romantic relationship a network supervisor has had with a subordinate since the early aughts, a judge has ruled.
Smiley in February sued the network after it dropped his show amid sexual misconduct allegations. PBS in March filed a countersuit that claimed Smiley violated the morals clause in his contract and sought to reclaim nearly $2 million it had paid him.
A D.C. judge on Thursday denied Smiley's request for a motion to compel PBS to hand over certain documents as part of a discovery request the network challenged as overbroad.
In its opposition, PBS argued that he was requesting documents that dated back more than a decade and weren't relevant to the contract issues at hand, including the network's sexual harassment policies since 2000 and any records of PBS managers having a relationship with a subordinate and the resulting disciplinary actions, if there were any.
Judge Anthony Epstein found PBS responded reasonably to Smiley's discovery requests.
"TSM is not entitled to conduct a fishing expedition concerning all romantic or personal relationships between superiors and subordinates within PBS or within companies with which PBS did business," writes Epstein. "However, if TSM has information that PBS tolerated behavior inside PBS or within one or more of its partners that is comparable to the behavior in which Mr. Smiley is alleged to have engaged, or if other discovery in this case shows that PBS compared Mr. Smiley’s conduct with conduct of other people with whom it did business, targeted discovery may be appropriate."
Smiley also sought information related to PBS' decision to cancel his show. He contends the sexual misconduct allegations were a smokescreen and claims the network is "racially hostile." PBS disputes the claim but argues that it had the contractual right to cancel the show for any reason, including a racially discriminatory one, and therefore documents concerning its motives are irrelevant. Epstein isn't entirely convinced.
"The Court is not inclined to decide in the abstract, and in the discovery context, whether this principle applies if PBS terminated its distribution agreement for racially discriminatory reasons," writes Epstein. "TSM does not provide any specific information supporting its allegation that PBS would not have terminated the distribution arrangement if he were not African-American, but the Court is unwilling to make an open-ended ruling that a contractual provision or the First Amendment gives media companies a license to engage in discrimination based on race."
In denying the motion, Epstein also denied Smiley's request to file a 145-page memorandum in support of his motion to compel. Epstein criticized the filing as "mind-numbing" in its repetition and full of "wholly unnecessary" details, such as where Smiley got his undergraduate degree.
Epstein denied Smiley's motions without prejudice. So there is a chance the host's attorneys could take another shot at it. However, Epstein chided the parties for not trying harder to resolve the issue on their own before seeking his intervention, so they may refrain.
In May, Smiley was dealt another blow when PBS was granted an anti-SLAPP motion to dismiss two of his claims. Epstein found that Smileys causes of action for intentional interference with contract and tortious interference with business expectancy arose from activity protected by the First Amendment and he didn't prove that he was likely to succeed on the merits of those claims.
The claims centered on the network's press statements that said "'multiple credible' allegations of sexual misconduct" by Smiley prompted the decision to stop airing the show. Epstein found that PBS's conduct is "unquestionably" protected by the First Amendment and concerns both a public figure and an issue of public interest.
"PBS made the statement at a time of extraordinary public interest in alleged sexual misconduct by men in positions of power, particularly in news and entertainment," the judge writes in a May 15 order, noting that no amount of targeted discovery would have enabled Smiley to prove PBS didn't have a reasonable basis to believe the allegations were credible. Following the decision, PBS was awarded nearly $100,000 in attorneys' fees.
