Ken Klukowski co-authored this piece
In the wake of Fox News reporting on the unfolding ACORN scandal, ACORN is now threatening to sue the network. Now that Fox is actually breaking news on this story by showing new videos, ACORN might just do it. Fox News should pray that ACORN does sue, because it would blow the doors off this story, possibly destroying ACORN and erupting into a political scandal in Washington.
As bizarre as it seems, ACORN is threatening to sue Fox for reporting on these incriminating videotapes. Glenn Beck broke news with a new tape on Monday, and Sean Hannity might be doing the same shortly. Evidently, ACORN is accusing Fox of coordinating with the filmmakers, arguing that somehow these reports make Fox legally liable.
ACORN’s unavoidable problem, however, is that suing Fox News would give Fox — or any other media organization — the ultimate Christmas present: a legally enforceable way to compel ACORN to give up all its secrets.
The process by which a party to a lawsuit can force the opposing party to disclose information is called discovery, which can take the form of depositions, written questions, or demands for the production of documents. Under federal rules, a defendant can get court orders for discovery for any information relevant to its defense, except for privileged information such as attorney-client discussions.
If ACORN sues, it would have to sue alleging some variation of defamation or fraud. The problem is that for either allegation, truth is an absolute defense. Nothing could be more relevant to Fox establishing its defense of truth in the lawsuit than having access to ACORN’s office memos, emails, phone records, and bank statements. All of these would have a reasonable chance of providing evidence as to whether ACORN workers had knowledge of any of the topics seen on the videotapes.
In short, it would blow the doors off ACORN’s vault of secrets. Fox would learn which organizations collaborate with ACORN, how they spend taxpayer money and what ACORN’s leaders say to each other behind closed doors. It would be a treasure trove for a media organization.
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