You may have heard that Harper Collins, the publisher of Sarah Palin’s yet unreleased new book, has obtained an injunction against the tabloid website Gawker for the unauthorized publication of some excerpts from the book.
Professor Jacobson over at Legal Insurrection (wingnut warning) has some free advice for Sarah Palin:
And they bragged when they stole a partial copy of your book, and they dared you and taunted you to do something about it, and you did.
But please don’t stop there. Your TRO is the equivalent of a routine metal detector screening. You found the box-cutter, and confiscated it. Good so far, but not enough.
You need to have your lawyers give the people at Gawker a full nude-body scan and junk fondling.
Uncover the networks, Sarah. For all of our benefit and amusement.
It’s called discovery. In a litigation your lawyers are entitled to e-mails, and all Gawker’s internal documents regarding not only this theft, but you. Because you will want to prove that their intent was to harm you and damage you, so everything they ever have written off-the-record, everyone with whom they ever have communicated about you, every strategy they have employed to take you down, now is fair game.
And your lawyers also get to take depositions under oath of the people at Gawker, and to subpoena for testimony others who may have relevant evidence as to the issue in the case. The Palingate people would be a good start.
What the good professor from Cornell Law School is talking about is “malice.” If you really want to hit the jackpot in a civil suit you want punitive (aka exemplary) damages. To get punies a plaintiff needs to prove the defendant acted with “Fraud, Malice Or Oppression.”
Malice – The intentional commission of a wrongful act, absent justification, with the intent to cause harm to others; conscious violation of the law that injures another individual; a mental state indicating a disposition in disregard of social duty and a tendency toward malfeasance.
Malice gets a public figure past the Sullivan standard too.
That gives Harper Collins and Sarah Palin the right to start digging through Gawker’s files and deposing their employees. If they uncover new causes of action, they can amend their complaint to allege new counts.
Even if Gawker wins they can end up paying boocoo simolians to their attorneys. “Nobody made any money except the attorneys” is what the legal profession calls a “happy ending.”