United States Court of Appeals

For the First Circuit

No. 10-2082

FELIPE VICINI LLUBERES AND JUAN VICINI LLUBERES,

Plaintiffs-Appellants,

v.

UNCOMMON PRODUCTIONS, LLC, ET AL.,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Howard, Selya and Thompson,

Circuit Judges.

Joan A. Lukey, with whom Maria G. Arlotto and Ropes & Gray,

LLP were on brief, for appellants.

Elizabeth C. Koch, with whom Thomas Curley, Levine Sullivan

Koch & Schulz, LLP, Jonathan M. Albano and Bingham McCutchen LLP

were on brief, for appellees.

November 23, 2011
HOWARD, Circuit Judge. This case raises issues of First

Amendment law. At the center of the dispute is The Price of Sugar,

a documentary film released in 2007 by film company Uncommon

Productions, LLC, and its principal William M. Haney, III. The

film depicts the treatment of Haitian laborers on sugarcane

plantations in the Dominican Republic. It refers by name to

brothers Felipe and Juan Vicini Lluberes, senior executives of a

family conglomerate that owns and operates Dominican sugar

plantations. The Vicinis contend that the film is defamatory and

sued the filmmakers in federal court. The filmmakers moved for

summary judgment, which the court granted. The Vicinis appeal the

entry of summary judgment and the denial of a motion to compel

production of discovery materials.

For the reasons that follow, we affirm in part the entry

of summary judgment but otherwise vacate the judgment, vacate the

order denying the motion to compel, and remand for further

proceedings consistent with this opinion.

I. BACKGROUND

The controversy that spawned The Price of Sugar is well

catalogued in the district court's rescript, Lluberes v. Uncommon

Prod'ns, LLC, 740 F. Supp. 2d 207 (D. Mass. 2010), and we will not

rehash it. Suffice it to say that the treatment of Haitian

laborers on Dominican sugarcane plantations and the conditions of

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company towns (or bateyes) where they live have received scrutiny

from many sectors for many years. 

In 2004, the filmmakers began shooting in the Dominican

Republic. Much of the film follows Fr. Christopher Hartley, a

Roman Catholic priest critical of the Vicinis, as he seeks to

improve conditions for his parishioners in the bateyes. Those

conditions, the film highlights, include shanty quarters,

inadequate provisions, and little if any education for children. 

At several points, Fr. Hartley and the film's narration reference

Vicini-owned bateyes and identify Felipe and Juan as bearing some

measure of responsibility for their disrepair. The film was

released publicly on March 11, 2007, at a film festival in Texas. 

It has since received limited screenings in a handful of major

cities and other venues.

Later in 2007, the Vicinis sued the filmmakers in federal

district court in Massachusetts. Invoking the court's diversity 1

jurisdiction, the Vicinis alleged that the film was defamatory and

identified fifty-three statements, although they later winnowed the

number of allegedly defamatory statements down to seven. The

filmmakers seasonably moved for summary judgment on these remaining

statements; they argued that Felipe and Juan were "public figures"

required to prove "actual malice" in accordance with New York Times

Uncommon Productions is based in Los Angeles but maintains an 1

office in Massachusetts, where Haney resides.

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Co. v. Sullivan, 376 U.S. 254 (1964), and its progeny, and that the

Vicinis could not so prove. The district court agreed and granted

summary judgment in the filmmakers' favor.

At the same time, the court denied a motion to compel

that the Vicinis had initially filed during discovery and later

renewed. The motion sought production of several categories of

documents; those at issue here include communications with a thirdparty "script annotator" that the filmmakers had withheld on

attorney-client privilege grounds. The judge did not explain his

reasoning. This appeal followed.

II. DISCUSSION

We begin with the public-figure question, then turn to

the discovery dispute and go no further.

A. Public-Figure Status

1. Defamation and the First Amendment

Before the Supreme Court's decision in New York Times,

defamation law was shaped by the states and strongly favored their

interest in protecting an individual's reputation. See Bruno &

Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 586 (1st Cir.

1980) ("Once a plaintiff put into evidence a reputation-harming

statement and proof that defendant caused it to be disseminated, he

enjoyed an irrebuttable presumption of injury and a rebuttable

presumption of falsity."); see generally Joel D. Eaton, The

American Law of Defamation Through Gertz v. Robert Welch, Inc. and

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Beyond: An Analytical Primer, 61 Va. L. Rev. 1349, 1351-57 (1975)

(surveying defamation law in the various states that existed prior

to New York Times).

That balance shifted in 1964, when the Court considered

whether "the constitutional protections for speech and press limit

a State's power to award damages in a libel action brought by a

public official against critics of his official conduct." N.Y.

Times, 376 U.S. at 256. Recognizing the "profound national

commitment to the principle that debate on public issues should be

uninhibited, robust, and wide-open," id. at 270, the Court reasoned

that even falsehoods "must be protected if the freedoms of

expression are to have the breathing space that they need to

survive," id. at 271-72 (internal quotation marks and ellipsis

omitted). On that basis, the Court held that the First Amendment

"prohibits a public official from recovering damages for a

defamatory falsehood relating to his official conduct unless he

proves that the statement was made with 'actual malice' -- that is,

with knowledge that it was false or with reckless disregard of

whether it was false or not." Id. at 279-80.2

The Court soon applied the New York Times rule to

nonofficial "public figures." Curtis Publ'g Co. v. Butts, 388 U.S.

130, 154-55 (1967). Under Curtis, a defamation plaintiff was to be

Malice in this context is distinct from malice in the

2

traditional sense of ill will. See Beckley Newspapers Corp. v.

Hanks, 389 U.S. 81, 82 (1967) (per curiam).

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considered a public figure when he "commanded sufficient continuing

public interest and had sufficient access to the means of counterargument to be able to expose through discussion the falsehood and

fallacies of the defamatory statements." Id. at 155 (internal

quotation marks and citation omitted).

For a time, the New York Times rule was also extended to

private individuals. Rosenbloom v. Metromedia, Inc., 403 U.S. 29

(1971) (plurality opinion). According to the Rosenbloom plurality: 

"If a matter is a subject of public or general interest, it cannot

suddenly become less so merely because a private individual is

involved, or because in some sense the individual did not

'voluntarily' choose to become involved. The public's primary

interest is in the event[.]" Id. at 43. Rather, the linchpin

became simply "whether the utterance involved concerns an issue of

public or general concern." Id. at 44; see also id. at 43-44 ("We

honor the commitment to robust debate on public issues, which is

embodied in the First Amendment, by extending constitutional

protection to all discussion and communication involving matters of

public or general concern, without regard to whether the persons

involved are famous or anonymous.").

The plurality's approach in Rosenbloom, however, was

repudiated in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974),

which established the current framework. Gertz sought an

accommodation between the "need to avoid self-censorship by the

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news media," id. at 341, on the one hand, and the "legitimate state

interest underlying the law of libel," id., on the other. It did

so by linking "the constitutionally required showing in a

defamation action to the plaintiff's status." Pendleton v. City of

Haverhill, 156 F.3d 57, 67 (1st Cir. 1998). Under this new model,

public figures could succeed only on proof of actual malice as

defined by New York Times. Gertz, 418 U.S. at 342. As for purely

private individuals, however, the states could "define for

themselves the appropriate standard of liability" so long as

minimal constitutional safeguards were met. Id. at 346-47.3

Gertz identified two justifications for this publicfigure/private-figure dichotomy. The first, foreshadowed in

Curtis, was that "public figures usually enjoy significantly

greater access to the channels of effective communication and hence

have a more realistic opportunity to counteract false statements

than private individuals normally enjoy." Gertz, 418 U.S. at 344.

Thus, "[p]rivate individuals are . . . more vulnerable to injury,

and the state interest in protecting them is correspondingly

Under Massachusetts law, which presumably would apply in this 3

case if the Vicinis were private figures, that standard is

negligence. Stone v. Essex Cnty. Newspapers, Inc., 330 N.E.2d 161,

168 (Mass. 1975). Of course, a negligence standard "is far less

demanding, from the plaintiff's standpoint, than the 'actual

malice' standard that obtains when the plaintiff is a public

official or public figure." Mandel v. Bos. Phoenix, Inc., 456 F.3d

198, 201 (1st Cir. 2006). Thus, the status determination here, as

in all defamation cases, "has potentially profound consequences." 

Id.

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greater." Id. The second justification, which was said to be more

important, was that public figures, like public officials, "have

assumed roles of especial prominence in the affairs of society" and

"must accept certain necessary consequences" of that status. Id.

at 344-45. One such consequence is "the risk of closer public

scrutiny than might otherwise be the case." Id. at 344; see also

id. at 345 (reasoning that a private individual "has relinquished

no part of his interest in the protection of his own good name, and

consequently he has a more compelling call on the courts for

redress of injury inflicted by defamatory falsehood").

Gertz contemplated that public-figure status usually

would arise in one of two ways, each with different repercussions.

In one, "an individual may achieve such pervasive fame or notoriety

that he becomes a public figure for all purposes and in all

contexts" -- the so-called general-purpose public figure. Id. at

351. But far more commonly (and directly relevant in this case)

"an individual voluntarily injects himself or is drawn into a

particular public controversy and thereby becomes a public figure

for a limited range of issues" -- the so-called limited-purpose

public figure. Id. That "limited range of issues" is identified

"by looking to the nature and extent of an individual's

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participation in the particular controversy giving rise to the

defamation." Gertz, 418 U.S. at 352.4

Guidance since Gertz has cautioned that a controversy

must be more than a "cause célèbre," Time, Inc. v. Firestone, 424

U.S. 448, 454 (1976), or "a matter that attracts public attention,"

Wolston v. Reader's Digest Ass'n, 443 U.S. 157, 167 (1979). Rather,

it must be shown that "'persons actually were discussing some

specific question . . . [and] a reasonable person would have

expected persons beyond the immediate participants in the dispute

to feel the impact of its resolution.'" Bruno & Stillman, 633 F.2d

at 591 (quoting Waldbaum v. Fairchild Publ'ns, Inc., 627 F.2d 1287,

1297 (D.C. Cir. 1980)). Also, to avoid improper "bootstrapping" (a

concept explored further below), the controversy must predate the

alleged defamation. Gray v. St. Martin's Press, Inc., 221 F.3d

243, 251 (1st Cir. 2000); Kassel v. Gannett Co., 875 F.2d 935, 941

(1st Cir. 1989); Bruno & Stillman, 633 F.2d at 591; see also

Hutchinson v. Proxmire, 443 U.S. 111, 135 (1979) ("[T]hose charged

with defamation cannot, by their own conduct, create their own

defense by making the claimant a public figure.").

There is possibly a third category, hinted at in Gertz, but 4

it is not implicated in this case. Pendleton, 156 F.3d at 67 n.7

("The Gertz Court mentioned a third category -- a person who

becomes a public figure 'through no purposeful action of his own'

-- but commented that 'the instances of truly involuntary public

figures must be exceedingly rare.'" (quoting Gertz, 418 U.S. at

345)).

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Once a controversy is isolated, the critical question

then becomes whether the plaintiff has attempted to "influence the

resolution" of that controversy. See, e.g., Wolston, 443 U.S. at

168 (public figures engage "the attention of the public in an

attempt to influence the resolution of the issues involved" or use

a newsworthy event "as a fulcrum to create public discussion");

Firestone, 424 U.S. at 453 (public figures "thrust themselves to

the forefront of any particular controversy in order to influence

the resolution of the issues involved in it"); Pendleton, 156 F.3d

at 69 (holding that the defamation plaintiff was a public figure

because he "voluntarily injected himself" into the controversy);

Bruno & Stillman, 633 F.2d at 591 (requiring a "thrusting into the

vortex"). If so, the plaintiff is a public figure and bears the

heavy, and often insurmountable, burden of proving actual malice. 

2. Felipe and Juan

The filmmakers contend that Felipe and Juan are limitedpurpose public figures. The Vicinis vehemently dispute that label.

Although they no longer contest the existence of a public

controversy, the Vicinis argue that neither of them attempted to

influence its resolution. Their argument has three constituent

parts and spans both time and space. First, they say they did

nothing before 2003 that, standing alone, could subject them to

public-figure status. Second, any conduct after 2003 that might do

so, we are told, is shielded by the anti-bootstrapping principle. 

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The third is that, whatever their conduct in the Dominican

Republic, it cannot make them public figures in the United States.

The status question is a legal one that we review de

novo. Pendleton, 156 F.3d at 68; see Rosenblatt v. Baer, 383 U.S.

75, 88 (1966). We do so mindful that the inquiry is "inescapably

fact-specific," Mandel v. Bos. Phoenix, Inc., 456 F.3d 198, 204

(1st Cir. 2006), and does not always lend itself to summary

judgment, compare id. at 204-07 (vacating status determination

because "the factual record, at the summary judgment stage, was too

uncertain to warrant a legal conclusion either way about Mandel's

status"), with Pendleton, 156 F.3d at 68 (affirming status

determination because "[t]here is no conflict as to any material

fact; the issue is whether the discerned facts suffice to establish

that Pendleton acted in a way sufficient to make him a public

figure for the purpose of this defamation action").

But here, as in Pendleton, the Vicinis do not argue that

the district court based its status determination on disputed

facts, only that the undisputed facts were insufficient to make

them public figures for the reasons outlined above. We disagree

5

The Vicinis moved below to strike portions of the so-called 5

Koch Declaration -- submitted by the filmmakers and bearing on the

public-figure question -- on the grounds that the declarant lacked

personal knowledge and could not authenticate appended exhibits.

The district court denied the motion. Lluberes, 740 F. Supp. 2d at

215 n.2. On appeal, however, the Vicinis do not assign error to

that denial or otherwise explain why we should limit our

consideration of the Koch Declaration or its exhibits.

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and conclude, as did the district court, that both Felipe and Juan

are limited-purpose public figures. Because we ultimately reject

their anti-bootstrapping argument, we find it appropriate to begin 6

by examining all relevant conduct up to the film's release in March

2007.

Within that span, both Felipe and Juan came to occupy

leadership positions within the family businesses. Felipe began

working for the company in the mid-to-late 1990s as a member of the

board. He gradually became part of a small group of family members

that directed the agricultural enterprise; among other things, he

oversaw sugar exports and sought to ensure favorable trade policies

with the United States (the largest importer of Dominican sugar)

and other countries. Later he was installed as president of Grupo

Vicini, the entity that manages the family's investments and

coordinates initiatives on the bateyes. Juan joined the company in

2000 directly out of school in the United States. He, too, began

working on the agricultural side of the business and ultimately

assumed the number-two position in Grupo Vicini, under Felipe. 

7

See infra Part II.A.3. 6

Their positions alone may or may not be enough for them to 7

have assumed "the risk of closer public scrutiny" that the Gertz

Court had in mind. 418 U.S. at 344; cf. Lohrenz v. Donnelly, 350

F.3d 1272, 1274 (D.C. Cir. 2003) (holding that the plaintiff was a

public figure when she became a naval aviator during a controversy

over women serving in combat). We do not decide that question. 

But when combined with other factors discussed below, their

leadership positions and how they leveraged those positions lend

support to the conclusion that Felipe and Juan are public figures.

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Juan's role was perhaps less conspicuous, but it focused

on the bateyes from the beginning. His homecoming in 2000

coincided with Fr. Hartley's controversial benediction –- delivered

during a visit to Fr. Hartley's parish by the Dominican president

–- that was critical of the batey system and of those, including

the Vicini family, responsible for it. The strongly worded

benediction caught the attention of the media, prompting the

Vicinis to call a meeting with Fr. Hartley. As a result of that

meeting, which both Juan and Felipe attended, Juan took on the role

of humanitarian attaché to Fr. Hartley and his cause of improving

conditions on the bateyes. Over the next couple of years Juan and

Fr. Hartley met about a dozen more times, toured the bateyes

together, and regularly spoke by telephone. Juan also hired a

social worker and tasked her with identifying the most pressing

items in need of resolution.8

See, e.g., Tavoulareas v. Piro, 817 F.2d 762, 773 (D.C. Cir. 1987)

(en banc) (recognizing that the plaintiff's position as president

of an oil company was a factor in the public-figure inquiry);

Waldbaum, 627 F.2d at 1300 (recognizing that the plaintiff’s

position as president of a grocery cooperative was a factor in the

public-figure inquiry).

The relevant question is not, as the Vicinis argue, whether 8

they intended their interface with Fr. Hartley to remain private,

but whether they "volunteered for an activity out of which

publicity would foreseeably arise." 1 Rodney A. Smolla, Law of

Defamation § 2:32 (2d ed. 2011); see, e.g., McDowell v. Paiewonsky,

769 F.2d 942, 949 (3d Cir. 1985) ("[T]he voluntariness requirement

may be satisfied even though an individual does not intend to

attract attention" if he "undertakes a course of conduct that

invites attention[.]"); Rosanova v. Playboy Enters., Inc., 580 F.2d

859, 861 (5th Cir. 1978) ("Comment upon people and activities of

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For reasons that are not altogether clear, the ViciniHartley collaboration fizzled in 2003 or 2004. But rather than

abandon the project, the Vicinis embraced it as their own. For

instance, Juan reached out to nongovernmental organizations in

order to combat HIV/AIDS in the bateyes. A newsletter reporting on

the initiative described the efforts of "Casa Vicini" to "develop

cooperative plans to combat HIV/AIDS, with the support of the World

Bank," and included a picture of Juan signing a "participation

agreement." Juan himself described initiatives like these in a

letter to church officials as attempts to find a "solution" to the

batey problem. And around the same time, both Juan and Felipe

began courting the U.S. embassy in Santo Domingo. Juan personally

escorted embassy officials on visits to the bateyes; one visit was

attended by the Deputy Chief of Mission, the embassy’s second-incommand. For his part, Felipe spoke with embassy officials by

telephone, including the U.S. ambassador. This outreach touched

off a relationship between the Vicinis and U.S. diplomats that

Felipe described as "ongoing." 

legitimate public concern often illuminates that which yearns for

shadow. It is no answer to the assertion that one is a public

figure to say, truthfully, that one doesn’t choose to be."). Here,

publicity was a foreseeable, if not an inevitable, consequence of

Juan's relationship with an outspoken advocate like Fr. Hartley. 

Together with Juan's other conduct described below, we have little

difficulty concluding that he attempted to influence the resolution

of the batey controversy as much as Felipe, although in a slightly

less visible way.

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Their efforts entered a new phase in 2005. After a U.S.

newspaper published an exposé critical of the batey system, the

Vicinis brought in Newlink Communications, a public-relations (PR)

firm based in the United States. Newlink’s proposal, signed by

Felipe in April 2005, provided for a massive PR campaign in the

Dominican Republic that would reach as far as the United States.

Among other things, the proposal identified the need for a

"strategic communications program" to deal with the "negative

perceptions against the company, reaching the United States media,"

"[b]lock messages" critical of the Vicinis, and "[i]mprove the

image and reputation of the company in the eyes of the public." It

spelled out country-specific strategies, focusing on the Dominican

Republic and the United States, designed to implement those general

goals. And it included media training for both Felipe and Juan, in

Spanish and English, such as mock interviews about the bateyes and

model answers emphasizing Vicini initiatives. All told, the

Newlink deal cost the Vicinis about $1.2 million.

As it was implemented, the Vicini-Newlink PR campaign

targeted several sectors within the Dominican political apparatus.

A Vicini deputy arranged a series of meetings with senior Dominican

officials, particularly those responsible for immigration and labor

policies. Those meetings culminated in a Felipe-led tour of the

bateyes that showcased Vicini initiatives to the heads of the

Dominican interior and labor departments. In the ecclesiastical

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sector, Felipe and Juan met with the Papal Nuncio –- the Vatican’s

equivalent of an ambassador –- to "get our story out" about their

batey initiatives. Felipe also attended a conference of bishops to

give a presentation on "Grupo Vicini’s social programs." And the

press was also targeted: in a single month Felipe was pictured and

quoted in three Dominican newspapers concerning the company’s

"restructuring" efforts in "human resource components." He was

quoted again the next month, this time about improvements in the

bateyes and conditions for workers generally. Then he appeared in

a documentary about the bateyes (not the film at issue here) that

was broadcast on Dominican television. In it, he described efforts

to build rural medical clinics, root out child labor, and bring

modern mechanization to sugarcane cutting. This was followed by

several "Yes to Change" events, hosted by the Vicinis to advertise

their altruism, that resulted in another string of articles

picturing and quoting Felipe.

The PR campaign also targeted international media outlets

and policymakers, particularly in the United States. Felipe

traveled to the United States to meet with the author of the

newspaper exposé referenced above. The purpose of the meeting,

which took place in Newlink's Miami offices, was for the reporter

"to hear the other side of the story." On another occasion, Felipe

sent a deputy to a PBS interview with the stated goal of attempting

"to 'flip' the story" in the family’s favor. According to Newlink

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records, the deputy "was prepared ahead of time for that interview

with a Q&A that Newlink drew up to ensure that his answers were in

keeping with the goal of maintaining the [company’s] image intact."

And in late 2006, Felipe, accompanied by several Newlink team

members, led a U.S. congressional delegation on a tour of Vicini

bateyes. During the tour a "fact sheet" was distributed that

described Vicini initiatives in detail. CNN covered the delegation

and interviewed Felipe; clips of that interview aired on Anderson

Cooper 360E and were rebroadcast multiple times over the next two

months on CNN and its affiliates. Felipe testified that his goal

during these events was "to try to get our story out, to get our

side out."

Shortly before the release of The Price of Sugar (the end

of our continuum), Felipe and Juan hosted an industry luncheon in

the Dominican Republic. One purpose of the luncheon was to reveal

more Vicini initiatives on the bateyes. During the luncheon,

journalists from several Dominican newspapers were permitted to

attend and ask questions. The resulting articles highlighted the

batey initiatives discussed during the event and, as before,

pictured and quoted Felipe and Juan.

All together, this conduct shows beyond hope of

legitimate contradiction that Felipe and Juan are limited purpose

public figures. Both leveraged their positions and contacts to

influence a favorable outcome in the batey controversy. Both

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enjoyed access to the press and exploited it by orchestrating a PR

blitz to garner public support and mute their critics. In doing 9

so, both assumed roles of prominence for this limited purpose and

the risk of closer public scrutiny that came with it. 

 3. Bootstrapping and the Privilege of Reply

The Vicinis try to avoid this conclusion by asserting

that most of the above conduct is shielded by the bootstrapping

taboo. The argument is as follows. All of their "public

activities" occurred after and in response to an article in a

Spanish newspaper, El Mundo, published in January 2003. The

article included purportedly defamatory statements by Fr. Hartley,

See Bruno & Stillman, 633 F.2d at 591-92 (suggesting that a

9

"concentrated 'advertizing blitz'" would constitute a "thrusting

into the vortex" (quoting Steaks Unlimited, Inc. v. Deaner, 623

F.2d 264, 274 (3d Cir. 1980))); see also Tavoulareas, 817 F.2d at

773-74 (holding that a defamation plaintiff was a public figure in

part because he and his company "played substantial roles in

spearheading a public counterattack on the movement for reform of

[their] industry"); Patrick v. Cleveland Scene Publ'g, 582 F. Supp.

2d 939, 951 (N.D. Ohio 2008) (ruling that a defamation plaintiff

was a public figure in part because he "retained a public relations

firm to represent his interests in the controversy"), aff'd, 360 F.

App'x 592 (6th Cir. 2009); Carr v. Forbes, Inc., 121 F. Supp. 2d

485, 492 (D.S.C. 2000) (ruling that a defamation plaintiff was a

public figure in part because "his group paid a lobbyist/public

relations firm over $1 million"), aff'd, 259 F.3d 273 (4th Cir.

2001); FoodScience Corp. v. McGraw-Hill, Inc., 592 F. Supp. 362,

363, 365-66 (D. Vt. 1984) (ruling that a defamation plaintiff was

a public figure in part because the company hired a "public

relations representative" in order "to influence and counter the

adverse impact of the unfavorable publicity that attended the FDA

investigation and subsequent litigation"); Astra USA, Inc. v.

Bildman, 914 N.E.2d 36, 58 & n.45 (Mass. 2009) (holding that a

defamation plaintiff was a public figure in part because he

assembled a "public relations team" in order "to influence

information disseminated" to news sources).

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the "original defamer," that were repeated in the film four years

later. Because the Vicinis would not have entered the public arena

but for the El Mundo article, the filmmakers cannot invoke the

Vicinis' status as a defense to the same defamation in the film.

The argument is creative, but this case does not fit the

bootstrapping mold. Bootstrapping in this context occurs when the

defendant relies on his own defamatory publication to manufacture

a public controversy involving the plaintiff, and thus "by [his]

own conduct, create[s his] own defense by making the claimant a

public figure." Hutchinson, 443 U.S. at 135. That is the logic

behind the requirement that public-figure status -- whether

acquired for all purposes and in all contexts or derived from a

particular controversy -- predate the alleged defamation. See,

e.g., Gray, 221 F.3d at 251; Kassel, 875 F.2d at 941; Bruno &

Stillman, 633 F.2d at 591; see generally Smolla, Law of Defamation

§ 2:25 (recognizing "the media's potential for 'bootstrapping'

itself into the protection of the actual malice standard by

pointing to its own coverage of the plaintiff as evidence that the

plaintiff is a public figure," and that in response "a number of

courts have emphasized that the public controversy must 'preexist'

the speech giving rise to the defamation suit").

Here, however, the El Mundo article did not create the

batey controversy. It is undisputed, at least on appeal, that the

controversy began much earlier and was in full swing before Fr.

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Hartley arrived in the Dominican Republic and well before the El

Mundo article was published in 2003. Like the Vicinis themselves,

Fr. Hartley was a voice in that controversy; he was not its

creator. So even if the El Mundo article served as a "blueprint"

for the film -- a claim that we think the Vicinis exaggerate --

10

no bootstrapping occurred from which the filmmakers could have

benefitted in this lawsuit.

What the Vicinis argue, at bottom, is that their conduct

fell under a so-called privilege of reply. The concept has its

roots not in the First Amendment but in the common law that

governed defamation suits prior to New York Times. Writ large, it

allowed a defamed person to respond to the extent reasonably

necessary to defend himself, even to the point of defaming his

accuser. Under their theory, as we understand it, the Vicinis 11

Our review of the El Mundo article reveals that it shares 10

little in common with the film besides one or perhaps two of the

allegedly defamatory statements that the Vicinis still press in

this case.

Restatement (Second) of Torts § 594 cmt. k (1977) ("A 11

conditional privilege exists . . . when the person making the

publication reasonably believes that his interest in his own

reputation has been unlawfully invaded by another person and that

the defamatory matter that he publishes about the other is

reasonably necessary to defend himself. The privilege here is

analogous to that of self-defense against battery, assault or false

imprisonment . . . . Thus the defendant may publish in an

appropriate manner anything that he reasonably believes to be

necessary to defend his own reputation against the defamation of

another, including the statement that his accuser is an unmitigated

liar."); see also Smolla, Law of Defamation § 8:47 ("There is a

conditional common law privilege to make statements for the

protection of the speaker's own legitimate interests. . . . The

-20-
could publicly defend themselves against defamatory statements in

the El Mundo article without sacrificing their private-figure

status, as long as their response was measured and reasonable.

Although not in so many words, the Vicinis ask us to graft the

common-law privilege of reply onto the constitutional public-figure

analysis.

To our knowledge only one court of appeals has explicitly

taken such a step. See Foretich v. Capital Cities/ABC, Inc., 37

F.3d 1541 (4th Cir. 1994). In Foretich, grandparents, accused by

their daughter-in-law of molesting their infant granddaughter, made

limited "public comments and appearances" to rebut her accusations.

Id. at 1557-58 (granting requests for interviews, attending three

press conferences, and appearing on two television shows). The

court acknowledged that some of those rebuttals "were probably

intended (at least in part) to influence the outcome of the custody

dispute." Id. at 1563. Nevertheless, invoking the common-law

privilege of reply, the court held that the grandparents' "primary

privilege is roughly analogous to the common law privilege of

self-defense in response to physical attack, or the privilege of

self-help to defend property. As is the case with those

privileges, the conditional privilege to defend legitimate

self-interest is usually regarded as forfeited if the speaker

publishes more than is reasonably required to defend his or her

interest, or if the speaker publishes beyond the circle of persons

to whom the self-defensive action is relevant."); accord Borley v.

Allison, 63 N.E. 260, 261 (Mass. 1902) ("One attacked by a slander

or libel has a right to defend himself, but he has no right to turn

his defense into a slanderous or libelous attack, unless it clearly

appears that such attack was necessary for his justification.").

-21-
motive was to defend their own good names against [her] accusations

and that their public statements can most fairly be characterized

as measured defensive replies to her attacks, rather than as

efforts to thrust themselves to the forefront of a public

controversy in order to influence its outcome." Id.

We agree with Foretich in this limited sense: an

individual should not risk being branded with an unfavorable status

determination merely because he defends himself publicly against

accusations, especially those of a heinous character. Pendleton,

156 F.3d at 68; see Firestone, 424 U.S. at 455 n.3; accord Clyburn

v. News World Commc'ns, Inc., 903 F.2d 29, 32 (D.C. Cir. 1990)

("[W]e have doubts about placing much weight on purely defensive,

truthful statements made when an individual finds himself at the

center of a public controversy but before any libel occurs; it is

not clear why someone dragged into a controversy should be able to

speak publicly only at the expense of foregoing a private person's

protection from defamation.").12

We are reluctant to adopt the reasoning of Foretich outright, 12

however, because this case does not require us to do so and also

because its rationale has divided scholars. Compare David A.

Elder, A Libel Law Analysis of Media Abuses in Reporting on the

Duke Lacrosse Fabricated Rape Charges, 11 Vand. J. Ent. & Tech. L.

99, 115-17 (2008) (describing Foretich's holding as "groundbreaking

and scholarly" and "necessary to vindicate the accuseds'

reputations"), with 1 Robert D. Sack, Sack on Defamation § 5:3:11,

at 5-66 (4th ed. 2011) ("The Foretich court's analysis is not

persuasive. The logical connection between the plaintiffs' freedom

to speak with relative impunity in reply to charges under commonlaw principles, and their not being required to prove 'actual

malice' when subsequently spoken about under constitutional

-22-
But that is not what happened here. Although the Vicinis

claim that the El Mundo article was a call to arms, the record is

clear that they took little if any action directly in response to

it. Juan testified that the only action he took was to order an

internal inquiry concerning one accusation; Felipe testified that

he took no action whatsoever. And even if the El Mundo article had

some indirect influence on their conduct over the next four years,

that conduct went well beyond any reasonable measure of selfdefense, as we have shown.13

4. Public Figures and Geography

The Vicinis' final argument on the limited-purpose public

figure issue is a geographic one. They say that none of the above

conduct makes them public figures in the United States, where the

principles, is unstated and unclear. When a person has been drawn

into speaking on an issue, one would think that the law should

encourage the continuation of the debate rather than cutting it off

once that person has spoken."), and William K. Jones, Insult to

Injury: Libel, Slander, and Invasions of Privacy 50 (2003) ("[T]he

grandparents' comments [in Foretich] could be viewed as going

beyond [their daughter-in-law's] attack and seeking to influence

the outcome of the custody dispute. But the court resolved doubts

in favor of [the grandparents] to vindicate their right of selfdefense: 'Further extending the New York Times actual malice

standard here would serve only to muzzle persons who stand falsely

accused of heinous acts and to undermine the very freedom of speech

in whose name the extension is demanded.' The problem with this

reasoning is that the postulated muzzling effect is potentially

applicable to anyone considering whether to participate in a public

debate.") (internal footnote citation omitted).

The same analysis applies to subsequent media items that the 13

Vicinis claim, in a single footnote, further goaded them into the

public arena, such as a January 2005 newspaper exposé and June 2005

film trailer.

-23-
alleged defamation was published. The argument rests on an analogy

to general-purpose public figures, and those authorities that

require such individuals to have achieved notoriety where they were

defamed. The Vicinis reason that this geographic restriction must

also be true for limited-purpose public figures, who are the more

"protected" of the two. 

The analogy is flawed. Gertz held that the plaintiff was

not a public figure for all purposes because he had "no general

fame or notoriety in the community" and was not generally known to

"the local population." 418 U.S. at 351-52. Based on that

language, some courts -- we have not addressed the question and we

do not do so today -- have extrapolated that a general-purpose

public figure need not attain "nationwide fame," only "notoriety

where he was defamed[,] i.e., where the defamation was published." 

Waldbaum, 627 F.2d at 1295 n.22. Arguably, this so-called 14

community standard actually expands rather than restricts the

applicability of the New York Times rule, at least for generalpurpose public figures.

Compare Lewis v. Coursolle Broad. of Wis., Inc., 377 N.W.2d 14

166, 171-72 (Wis. 1985) (agreeing with Waldbaum), and Williams v.

Pasma, 656 P.2d 212, 216 (Mont. 1982) (same), with Bowman v.

Heller, 651 N.E.2d 369, 373 (Mass. 1995) ("The fame required for an

individual to be a public figure for all purposes, as opposed to a

limited purpose public figure, is very great; the individual must

be a 'household name' on a national scale."). See generally Sack,

Sack on Defamation § 5:3:9, at 5-50 ("The president of a college

student body, for example, might be a 'pervasive' public figure for

purposes of commentary by the student newspaper but not for

commentary by Time magazine or the 'CBS Evening News.'"). 

-24-
That debate, however, has no relevance here. Gertz

defined a limited-purpose public figure not in terms of geography

but in terms of the controversy that he has stepped into. See

Gertz, 418 U.S. at 351 (defining a limited-purpose public figure as

one who "voluntarily injects himself or is drawn into a particular

controversy"); Tavoulareas, 817 F.2d at 772 ("[T]he scope of the

controversy in which the plaintiff involves himself defines the

scope of the public personality."). That suggests to us that, if

Gertz envisioned any limitation on public-figure status, it is a

limitation inherent in the scope of the controversy itself.

Cases on this point, though rare, have reached

essentially the same conclusion. See, e.g., Trotter v. Jack

Anderson Enters., Inc., 818 F.2d 431 (5th Cir. 1987). In Trotter,

the Fifth Circuit held that the plaintiff was a limited-purpose

public figure for purposes of a U.S. publication because the

controversy -- labor violence at a Coca-Cola bottling plant in

Guatemala -- resonated in the United States: "Because of the

proximity of other Western Hemisphere countries to the United

States, social and political turmoil occurring there has aroused

particular domestic concern." Id. at 434. Although the

plaintiff's affiliation with a U.S. company played some role, the

court's analysis focused on the fact that the controversy had

"captured the attention of a diverse and broadly-based audience [in

the United States], including the media, political leaders, human-

-25-
rights organizations, labor unions, and Coca-Cola shareholders." 

Id.15

Similarly, here, the batey controversy was not confined

to the shores of the Dominican Republic. Rather, it resounded in

the United States for obvious humanitarian reasons and a lessobvious geopolitical one: a long-standing import quota system

under U.S. law that subsidizes Dominican sugar producers, including

the Vicinis. Indeed, one of Felipe's core responsibilities was 16

See also Bryant v. Associated Press, 595 F. Supp. 814, 817 15

(D.V.I. 1984) (rejecting the plaintiff's argument that, although he

might have been a limited-purpose public figure in St. Kitts, he

was not one in the U.S. Virgin Islands where the defamation was

published), cited in David Elder, Defamation, Public Officialdom

and the Rosenblatt v. Baer Criteria -- A Proposal for

Revivification: Two Decades After New York Times Co. v. Sullivan,

33 Buff. L. Rev. 579, 627 n.205 (1984) ("It is doubtful the result

[in Bryant v. Associated Press] would or should be different if the

story had been picked up and published by the Associated Press on

the mainland, i.e., South Florida or New York City."). Cf. Carr v.

Forbes, Inc., 259 F.3d 273, 282 & n.2 (4th Cir. 2001) (holding that

the plaintiff was a limited-purpose public figure for purposes of

an allegedly defamatory article in widely-circulated Forbes

magazine, even though his conduct giving rise to public-figure

status occurred only in circumscribed localities within Arizona and

South Carolina); Nielsen v. Wall, No. C9-01-173, 2001 WL 969004, at

*3 (Minn. Ct. App. Aug. 28, 2001) (rejecting the plaintiff's

argument that "his status as a limited-purpose public figure ends

at the geographical boundaries of the Roseville area" for lack of

"pertinent supporting authority").

For a history of the subsidy, see for example Michael R. 16

Hall, Sugar and Power in the Dominican Republic: Eisenhower,

Kennedy, and the Trujillos (2000). For current efforts in Congress

to undo the subsidy, see Stop Unfair Giveaways and Restrictions

(SUGAR) Act, S. 25, 112th Cong. § 4 (as introduced and referred to

S. Comm. on Agriculture, Nutrition, and Forestry, Jan. 25, 2011),

and Sen Shaheen Wants to End the Sugar Subsidies (NHPR radio

broadcast Mar. 2, 2011), http://www.nhpr.org/sen-shaheen-wants-endsugar-subsidies.

-26-
seeing to it that this quota system remained intact through

lobbying and other efforts. Concerns that negative publicity about

the bateyes might jeopardize the quota system prompted him and

Juan, at least in part, to launch the PR blitz that reached U.S.

media outlets and policymakers, as we have shown. We are satisfied

that such conduct is enough to make the plaintiffs public figures

in the United States for purposes of this lawsuit.17

B. Attorney-Client Privilege

Documentarians commonly obtain insurance against

potential "errors and omissions" in their films. The pursuit of

such insurance in this case led the filmmakers to Frederick

Leopold, an attorney and specialist in that field. Leopold told

them that, in order to procure insurance, he would need a thirdparty report confirming the accuracy of the script, and recommended

or directed that they retain Elizabeth Bardsley and her company to

do it. The filmmakers then hired Bardsley; she worked closely with

the filmmakers and in the process numerous email communications

The Vicinis rued at oral argument, although not in their 17

brief, that this conclusion takes us back to Rosenbloom. Although

the argument comes too late, United States v. Bayard, 642 F.3d 59,

66 n.10 (1st Cir. 2011) (arguments raised at oral argument but not

in a party's initial brief are waived), we swiftly reject it on the

merits. The plurality in Rosenbloom suggested a standard that

would require a private individual to prove actual malice if his

speech touched on an issue of public concern. Rosenbloom, 403 U.S.

at 43-44. That standard was repudiated by Gertz in favor of a

framework linking the plaintiff's burden of proof to his status.

Gertz, 418 U.S. at 343. As demonstrated above, we have faithfully

applied the Gertz framework in this case. 

-27-
were generated between them. Ultimately, she rendered a report in

the form of an annotated script which she provided to the

filmmakers and to Leopold. 

During discovery the Vicinis sought the email

communications and the report, but the filmmakers withheld them all

on attorney-client privilege grounds. The Vicinis responded by 18

filing a motion to compel and averred at a 2008 hearing on pending

motions that the documents were pertinent to the filmmakers' state

of mind. At that time, the district court indicated that the

nature of the relationship between Leopold, the filmmakers and

Bardsley may involve a factual matter requiring live testimony. 

The topic of possible in camera review also was broached. This

particular discovery dispute, however, remained unresolved for a

stretch of time in the midst of the parties' ongoing motion

practice. 

Finally, litigation on the then-renewed motion to compel

came to a head around the same time that the filmmakers pitched

their summary judgment motion. At a 2009 hearing again addressing

The filmmakers initially sought to shield the documents based 18

on both attorney-client privilege grounds and under the attorney

work product doctrine. Yet, their objection to the renewed motion

to compel exclusively focused on the former, a position the

filmmakers continue in their responsive brief before us. We simply

note therefore that the work product doctrine plays no part of our

analysis. See generally United States v. Textron, Inc. and

Subsidiaries, 577 F.3d 21 (1st Cir. 2009), cert. denied, 130 S. Ct.

3320 (2010) (discussing scope of work product doctrine); Maine v.

U.S. Dept. of Interior, 298 F.3d 60, 68 (1st Cir. 2002) (same). 

-28-
pending motions, the Vicinis identified the desired documents as

material to the issue of actual malice. Acknowledging that the

renewed motion to compel had "fallen through the cracks," the

district court indicated that it would consider the document

request in the context of the then-pending dispositive motion. 

Ultimately, while it granted the filmmakers summary judgment in a

detailed and necessarily lengthy order, the court denied the

renewed motion to compel without any substantive discussion. 

On appeal the Vicinis argue that the district court erred

in denying their discovery motion and that the documents are

critical to the actual malice inquiry. For their part, the

filmmakers contend that the district court properly determined that

the attorney-client privilege applies. We conclude that the 19

record fails to support the district court's ruling that the

filmmakers established that all the documents are protected by the

attorney-client privilege as a matter of law. Rather than reverse

the district court's decision, we think it prudent under the

circumstances of this case to vacate and remand for the court to

take up the matter in light of the guidance we provide forthwith.

The standard of review concerning a claim of privilege

depends on the particular issue. Cavallaro v. United States, 284

The filmmakers also assert that the Vicinis did not 19

adequately preserve the privilege question for appeal, but our

review of the record satisfies us otherwise and prompts us to

proceed directly to the merits. 

-29-
F.3d 236, 245 (1st Cir. 2002). Questions of law are reviewed de

novo, findings of fact for clear error, and evidentiary

determinations for abuse of discretion. Id. The standard does not

change when the district court's ruling is unexplained. FDIC v.

Ogden Corp., 202 F.3d 454, 460 (1st Cir. 2000) ("Although a lower

court's elucidation of its reasoning invariably eases the appellate

task, motions often are decided summarily. . . . [W]e are aware of

no authority that would allow us automatically to vary the standard

of review depending on whether a district court has taken the time

to explain its rationale."). Here, the privilege issue as decided

by the district court largely turns on a legal question that we

review de novo.

There is a threshold issue about whether to apply federal

or state privilege law. The Vicinis assert, and the filmmakers do

not contest, that federal law applies. The basis for that position

seems to be that the disputed documents are relevant to actual

malice, a requirement gleaned from the federal constitution. See

N.Y. Times, 376 U.S. at 279-80. We doubt that the parties' choice

of law is correct: defamation is a state cause of action, as the

Vicinis recognized when they brought this suit in diversity, and by

rule privilege issues arising out of such actions are to be

determined "in accordance with State law." Fed. R. Evid. 501;

Herbert v. Lando, 441 U.S. 153, 182 (1979) (Brennan, J.,

dissenting) (recognizing that state law governs privilege claims in

-30-
defamation suits brought in diversity: "Although [New York Times]

placed constitutional limits on state libel claims, it did not

itself create a federal cause of action for libel. The 'rule of

decision' in this case, therefore, is defined by state law.").

But in this instance we need not disturb the parties'

choice. When the parties agree on the substantive law that should

govern, "we may hold the parties to their plausible choice of law,

whether or not that choice is correct." Perry v. Blum, 629 F.3d 1,

8 (1st Cir. 2010); see Moores v. Greenberg, 834 F.2d 1105, 1107 n.2

(1st Cir. 1987) (noting that when the parties agree on what

substantive law controls, a federal court "ordinarily should" honor

the agreement). Here, all parties indicate, at least implicitly,

that federal law controls, and they have briefed and argued the

privilege question on that basis. In all events, the parties have

not identified any material difference between federal and state

(presumably Massachusetts) law on this point, nor has our research

found any. We think it practical under these circumstances to

abide by the parties' choice and decide the question under federal

law.

We begin with the basics. By safeguarding communications

between attorney and client, the privilege encourages disclosures

that facilitate the client's compliance with law and better enable

him to present legitimate arguments when litigation arises. United

States v. Mass. Inst. of Tech., 129 F.3d 681, 684 (1st Cir. 1997);

-31-
see Upjohn v. United States, 449 U.S. 383, 389 (1981). The

privilege is not limitless, however, and "courts must take care to

apply it only to the extent necessary to achieve its underlying

goals." In re Keeper of Records (Grand Jury Subpoena Addressed to

XYZ Corp.), 348 F.3d 16, 22 (1st Cir. 2003). In other words, "the

attorney-client privilege must be narrowly construed because it

comes with substantial costs and stands as an obstacle of sorts to

the search for truth." Id. (citing United States v. Nixon, 418

U.S. 683, 709-10 (1974)).

The contours of the privilege are reasonably well honed.

It protects "only those communications that are confidential and

are made for the purpose of seeking or receiving legal advice."

Id.; see also In re Grand Jury Subpoena (Mr. S.), No. 10-2048, 2011

WL 5153837, at *4 (1st Cir. Nov. 1, 2011) (outlining necessary

prerequisites to the privilege); 8 John H. Wigmore, Evidence §

2292, at 554 (John T. McNaughton rev. 1961). That protection

ceases, or is often said to be "waived," when otherwise privileged

communications are disclosed to a third party. Mass. Inst. of

Tech., 129 F.3d at 684. The rationale is that such disclosure

"destroys the confidentiality upon which the privilege is

premised." In re Keeper of Records, 348 F.3d at 22; see generally

2 Paul R. Rice, Attorney-Client Privilege in the U.S. § 9:79, at

357 (2d ed. 1999). The party invoking the privilege must show both

-32-
that it applies and that it has not been waived. In re Keeper of

Records, 348 F.3d at 22. 

There is a possible extension of the privilege when a

third party helps the lawyer give legal advice. See United States

v. Kovel, 296 F.2d 918 (2d Cir. 1961) (Friendly, J.). In Kovel,

the Second Circuit held that third-party specialists, such as

accountants, hired to assist lawyers in complicated matters, cannot

be compelled to testify about client confidences. Id. at 919. The

court reasoned that "the presence of an accountant, whether hired

by the lawyer or by the client, while the client is relating a

complicated tax story to the lawyer, ought not destroy the

privilege" because "the accountant is necessary, or at least highly

useful, for the effective consultation between the client and the

lawyer which the privilege is designed to permit." Id. at 922.20

The filmmakers try to fit the Bardsley documents into the

Kovel mold. They argue that Bardsley was "necessary, or at least

highly useful" because Leopold required her report in order to

analyze and assess the legal risks associated with the film. That

may be true (though a point we do not resolve here), but it is not

sufficient. The key, it seems to us, involves considering the

source and nature of the information contained in the documents. 

We have never actually adopted Kovel, despite its pedigree 20

and wide acceptance, but have assumed for the sake of argument that

we would do so in the right case. Cavallaro, 284 F.3d at 247 n.6.

At the risk of being overly cautious, we follow that approach again

today.

-33-
If the communication contains only client confidences made in

pursuit of legal advice -- or legal advice based on such client

confidences -- that communication, if intended to remain

confidential, should be covered by the privilege, regardless of

whether it came from the client, his attorney, or an agent of

either one. If, however, the transmitted information consists 21

largely of facts acquired from non-client sources, those facts are

not privileged. See generally In re Grand Jury Subpoena (Mr. S.), 22

2011 WL 5153837, at *5 (remarking that real estate transaction

documents generated by attorney are ordinarily non-confidential by

nature and generally do not involve the giving of legal advice).

See, e.g., United States v. Defazio, 899 F.2d 626, 635 (7th 21

Cir. 1990) ("Communications from attorney to client are privileged

only if they constitute legal advice, or tend directly or

indirectly to reveal the substance of a client confidence."); see

also In re Bieter Co., 16 F.3d 929, 939 (8th Cir. 1994) (concluding

that communication between real estate development partnership and

developer it retained as an independent contractor for both

development and subsequent litigation was protected).

See, e.g., In re Grand Jury Proceedings, 616 F.3d 1172, 1182- 22

83 (10th Cir. 2010) ("[W]here the attorney was acting as a

'conduit' for non-confidential information, the client may not

invoke the attorney-client privilege."); United States v. Ackert,

169 F.3d 136, 139 (2d Cir. 1999) (rejecting privilege claim because

information was obtained from non-client sources); USPS v. Phelps

Dodge Ref. Corp., 852 F. Supp. 156, 162 (E.D.N.Y. 1994) (same); see

generally 1 Edna Epstein, The Attorney Client Privilege & The Work

Product Doctrine § 1-III-2-C, at 219 (5th ed. 2007) ("If the

information is independently gathered from third parties, that

factual inquiry conducted by the expert will not be deemed to be

privileged. The source of the information is not confidential

communications collected from the client. Thus, the mere fact that

the information gathered has been digested by the retained expert

for the attorney to render legal advice thereon will not transform

the inquiry into a privileged one.").

-34-
On the record before us, at least for the most part, we

seem not to be dealing with client confidences. According to the

filmmakers, Bardsley functioned as a type of fact-checker of the

assertions in the film. The very nature of that role would require

her to verify those assertions with outside sources, and the

filmmakers do not claim otherwise. Insofar as the filmmakers'

script itself is concerned, it is not confidential but is intended

for public consumption. And there is evidence that Bardsley's

report -- an annotated version of the script following her factcheck -- was designed to be disclosed to third parties (prospective

insurers), even if it ultimately was not. Indeed, a

contemporaneous document produced by the filmmakers indicates that

they hired Bardsley because "Fred [Leopold] needs a 3rd party

report to put in front of insurance co. [sic]." 

We acknowledge that the face of Bardsley's report

contains declarative markings of confidentiality, and evidence

indicates that the electronic version was password protected. Yet

deposition testimony fairly displays the filmmakers' tacit

acknowledgment that they had no expectation that Leopold would keep

Bardsley's annotated script confidential, even if his actual

disclosure of it was never brought to bear by prospective insurers. 

In short, the filmmakers have not met their burden of showing that

all of the materials they sought to protect come within the Kovel

rubric.

-35-
Turning briefly to the email communications between the

filmmakers and Bardsley, a less clear answer emerges. Simply put,

the record does not provide much help on the nature of these

communications. It may be that Bardsley in large part was

obtaining the filmmakers' sources in order to conduct her

independent evaluation, or perhaps she was providing the filmmakers

updates on her progress. While it is questionable whether such

information would fall within the privilege, it is at least

conceivable that some of the email communications may involve

client confidences to some degree. 

The Vicinis rest heavily on the apparent business purpose

of the filmmakers' relationship with Leopold, and Bardley's

involvement to further that relationship, to argue that no

privilege attaches to any of the sought after documents. Yet it is

not entirely clear from this record that such purpose did not

incorporate a meaningful attorney-client privilege component. See

generally In re Grand Jury Subpoena (Mr. S.), 2011 WL 5153837, at

*5 n.3 (noting that while documents generated by attorney

facilitating a real estate transaction may not typically fall

within the privilege, "[i]t takes little imagination to conceive

instances in which a particular communication regarding a real

estate closing may satisfy all of the requirements of the attorneyclient privilege"). Notably, early on in the litigation the

district court displayed an initial instinct that live testimony

-36-
may be required for proper court resolution of the privilege

question in this case, and possible in camera review was

preliminarily discussed. While we understand that the filmmakers

bore the burden of providing sufficient evidence to establish

privilege, our careful review of the procedural history of this

case -- a tale we need not detail here -- counsels against

rendering a decision based on this legal stance. See id. ("a

blanket assertion of privilege is generally insufficient").

One final word on the substance. The doctrine construing

the attorney-client privilege narrowly seems to favor production in

this instance. That doctrine strikes us as particularly applicable

in defamation cases, such as this one, involving public figures. 

Cf. Lando, 441 U.S. at 175-76; Bruno & Stillman, 633 F.2d at 594-

97. Actual malice must be proven with "convincing clarity," N.Y.

Times, 376 U.S. at 285-86, and this same standard applies whether

the matter is resolved on summary judgment or at trial, Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 244 (1986). Mindful of this

hefty burden, upholding the district court's decision on this

record to withhold the sought documents which seemingly bear

directly on state of mind would be incompatible with the "search

for truth." Nixon, 418 U.S. at 710.

This conclusion prevents us from reaching the issue of

actual malice. Whatever documents must be produced, the trial

judge did not examine them when he granted summary judgment in

-37-
favor of the filmmakers on that issue. And because the documents

have not been submitted to us, we cannot determine whether summary

judgment was warranted despite them. We are cognizant,

nevertheless, that even should some documents or portions thereof

be disclosed in the end, some of the district court's rulings on

the seven putative defamatory statements may still stand. And yet

we deem it is unwise to embark on a piecemeal approach to these

statements at this juncture. On remand, the actual malice issue

will have to be readdressed should any documents be disclosed. 

We recognize the possibility that some documents, or

portions of some documents, may contain information that is

privileged under the framework set forth above. Rather than risk

disclosure of such information, the district court has the option

within its discretion on remand to review these documents in

camera, allow the filmmakers to withhold any documents covered by

privilege, and redact prior to production any portions of

admissible documents that it finds are privileged. See In re Grand

Jury Subpoena (Mr. S.), 2011 WL 5153837, at *3 (emphasizing

"prudential purpose" of in camera review to resolve legitimate

privilege disputes, and noting that district court may be "well

advised" to conduct review even absent an explicit request). The

court also may need to consider on remand the Vicinis' waiver

argument pertaining to the sufficiency of the privilege log, and

-38-
choose to entertain other legitimate arguments relative to

disclosure, waiver and privilege which the parties seek to raise.

We underscore that we are not intending to set any

precedent for requiring district courts to engage in a particular

procedure for discerning the validity of a privilege claim, either

in the defamation context or in another type of litigation. 

Rather, the particular procedural history before the district court

and other unique circumstances in this case call us to the present

course. See In re Grand Jury Subpoenas, 123 F.3d 695, 699-700 (1st

Cir. 1997) (remanding for in camera review where record lacked

sufficient information for appellate court to form a reasoned

judgment whether requested records were privileged).

III. CONCLUSION

For these reasons, we affirm the limited purpose public

figure status determination but otherwise vacate the dispositive

judgment, vacate the denial of the motion to compel insofar as the

Bardsley documents are concerned, and remand for further

proceedings consistent with this opinion. We take no position on

the actual-malice issue. The parties shall bear their own costs.

So ordered.

-39-