Sunday, January 7, 2018

Trump’s Threatening (?) Letter to Michael Wolff and Henry Holt

Just before the publication of Fire and Fury: Inside the Trump White House, a lawyer claiming to represent Donald Trump wrote a letter to Michael Wolff, the book’s author, and Henry Holt & Company, its publisher. The letter claimed—without bothering to lay out a single specific—that the book was libelous and otherwise violated Trump’s rights. The letter also demanded that Holt and Wolff preserve all documents “that refer to or relate to in any way to the Book and any/all of its contents, the Article and any/all of its contents, Mr. Trump, any/all of his family members, and/all of their businesses, and/or the Donald J. Trump for President campaign.”

An interesting legal question is whether Wolff and Holt are under any legal obligation to preserve any documents just because Trump’s lawyer has demanded that they do so. There is no uniform governing this issue. Let’s assume that the issue is determined under New York law; that the courts of New York have not yet determined applicable standards; and that they therefore would look to the law as interpreted by federal and state courts over the last fifteen years.

The generally prevailing principle, as stated by, among many cases, the Georgia Supreme Court in a 2015 case, is that a duty to preserve is “triggered not only when litigation is pending but when it is reasonably foreseeable.” The Florida Supreme Court appears to have also recognized the principle. The question is whether a reasonable person in the shoes of the potential defendant (here, the author and the publisher) would reasonably expect a person in the shoes of the potential (here, Trump) to sue. Some courts state that actual litigation must be “probable”—more likely than not.

Here, Trump has stated, through a lawyer, that the book violated Trump’s rights, but there was no actual threat to sue; there was no specification of what portions of the book were defamatory, put Trump in a false light, or evidence inducement of Steve Bannon’s alleged breach of his contractual duty of confidentiality to the Trump campaign; and the letter did not even state that a lawsuit was probable or imminent. It did say, however, that “in the near future, you should expect to hear from this office in greater detail on all of the foregoing issues.”   

Is this enough to trigger a duty to preserve documents? Probably not.

In the Georgia case, the issue is described as very fact-specific, based on, among other things, the type and extent of damages, the economics of litigation, and “the frequency with which litigation occurs in similar circumstances.” Does a letter from counsel for the supposedly aggrieved party trigger the duty? Some courts seem to have said so, but at least one court has rejected the idea that a lawyer’s letter necessarily triggers the duty of preserving the evidence, ruling, instead, that such a letter must “provide … the requisite certainty or specificity of impending litigation,” and “apprise [the potential defendant] of the scope of the claims which would be filed.”

A final relevant issue would appear to be whether a reasonable person in Wolff’s and Holt’s shoes would expect this particular individual—Trump—to go so far as to sue. There is ample public record Trump or his lawyers have regularly threatened defamation actions but have seldom, if ever, actually initiated litigation. In this instance, there is ample reason for Trump not to do so. By alleging the book falsely states that people who know him have called him stupid, moronic and idiotic, Trump would be opening himself up to detailed inquiry, under oath, of all who have interacted with him to see if they have harbored, or uttered, these or similar comments. Would Trump willingly open himself up to such exposure? More likely, it can be assumed that even Trump would listen to conservatives who have cautioned him not to sue: Bill O’Reilly says that filing an action in this instance would be “ridiculous,” a column headlined “Mr. Trump, He Crazy” in a conservative publication labeled a suit “pointless,” and Fox News anchor Tucker Carlson said it was doubtful that Trump would sue.

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