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Trump v. O'Brien

October 24, 2008

DONALD J. TRUMP, PLAINTIFF-RESPONDENT,
v.
TIMOTHY L. O'BRIEN, TIME WARNER BOOK GROUP, INC., AND WARNER BOOKS, INC., DEFENDANTS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-545-06.

The opinion of the court was delivered by: Payne, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued: October 24, 2007

Before Judges Axelrad, Payne and Sapp-Peterson.

In January 2006, Donald Trump filed suit in the Superior Court of New Jersey, Camden County, against Timothy O'Brien and his publisher,*fn1 claiming that O'Brien defamed him by reporting, in his 2005 biographical book, TrumpNation, that "[t]hree people with direct knowledge of Donald's finances, people who had worked closely with him for years, told me that they thought his net worth was somewhere between $150 million and $250 million," and observing "[b]y anyone's standards this still qualified Donald as comfortably wealthy, but none of these people thought he was remotely close to being a billionaire." In his suit, Trump claimed multi-billionaire status and argued that O'Brien's low estimates of his wealth injured his credit and otherwise harmed his business interests.

After issue was joined, Trump served discovery upon O'Brien that sought, among other things, the identity of the sources of O'Brien's information regarding Trump's net worth and his notes of interviews with those sources. When O'Brien declined to provide this information and certain other discovery, citing the newsperson's privilege, Trump moved to compel its production.*fn2

In opposition to the motion, O'Brien claimed with respect to the three sources that their identities were confidential, and that they feared retribution by Trump upon disclosure. The motion judge nonetheless granted Trump's motion in its entirety. His order forms the basis for this appeal, which we consider by leave granted. In addition to the arguments of the parties, upon appeal we also have the benefit of amicus briefing, filed on behalf of a multitude of entities*fn3 with interest in the issues raised herein.

I.

O'Brien is a journalist who lives in New Jersey, but has worked throughout his career in New York for various publications including the Wall Street Journal and Talk magazine. At the time he wrote TrumpNation, O'Brien was employed as a staff writer for the New York Times, where according to the book's jacket, "he has written about leading business personalities, computer scams, Russia, the art world, Wall Street, terrorism, money and politics, and Donald Trump." O'Brien also covered the Trump businesses in 1990 as a research assistant to Wayne Barrett, the author of a Trump biography, and he is the author of a 1998 book, entitled Bad Bet: The Inside Story of the Glamour, Glitz, and Danger of America's Gaming Industry, that reported on Trump's casino dealings. O'Brien's research for Bad Bet "subsequently informed" newspaper articles that he wrote for the Times. In 2004, defendant participated in writing a series of articles about Trump, appearing in the Times in September of that year, that focused on Trump's efforts to recapitalize his casinos and on related issues such as his net worth. At that time he reported, in language very similar to that found in TrumpNation:

The largest portion of Mr. Trump's fortune, according to three people who had had direct knowledge of his holdings, apparently comes from his lucrative inheritance. These people estimated that Mr. Trump's wealth, presuming that it is not encumbered by heavy debt, may amount to about $200 million to $300 million. That is an enviably large sum of money by most people's standards but far short of the billionaire's club.

O'Brien has certified that he integrated research conducted in connection with the 2004 reportage with that undertaken in connection with his 2005 book. He has further stated that the sources of net worth information utilized in his reporting for the Times are the same as those utilized for TrumpNation, but that the revised wealth figures were the product of separate interviews, conducted while writing the book. In October 2005, at the time of TrumpNation's publication, the Times ran an excerpt from Chapter 6 of the book on the front page of the Sunday Business section that included the net worth information at issue in this case.

The jacket copy for TrumpNation describes the book in the following terms:

He has one of the highest-rated shows on television--yet he prefers to spend his nights at home, quietly watching television and munching hamburgers.

He has a line of stylish clothing and bottled water emblazoned with his name and unmistakable image--yet he once needed a loan from his siblings to stay afloat.

His name is plastered on some of the most magnificent hotels and casinos in the world--yet his casino company, swamped in debt, was forced into bankruptcy.

This is the work of Donald Trump, full of glitz, glamour, and other people's money. Yet despite glaring cracks in the shimmering façade, the myth and the image have remained stubbornly impenetrable to a fascinated public--perhaps even to Trump himself. In this unique look inside the life of one of the world's most charismatic businessmen, entrepreneurs, and larger-than-life personalities, top New York Times investigative reporter Timothy L. O'Brien pulls back the velvet curtain surrounding the wizard of hype known simply as The Donald. Featuring interviews not only with Trump's closest friends and associates, but with Trump himself, TrumpNation delivers revelations of Trump-size proportions.

So step right up, ladies and gentlemen, to the shocking, hilarious, riveting, and completely true story of America's favorite billionaire bad boy, bad hair and all. From the massive egos of New York mayors he courted or defied, to the glamour queens he loved and lost, to the talking dolls, colossal casinos, and personal Oz he created out of smoke and mirrors, prepare to enter TrumpNation.

The book, written in a breezy, irreverent style, contains chapters that focus on Trump's childhood and family, his casino and real estate business dealings, his television ventures, the merchandizing of his name, and his financial difficulties in the early and mid 1990s. Each chapter ends with a facetious "TrumpQuiz." Collectively, maintains O'Brien, the quizzes provide the "secret keys to becoming a billionaire, just like Donald." For instance, at the conclusion of the first chapter (focusing on Trump's introduction of his new suit line at Macy's at a function that also featured his other consumer products and additionally focusing on a cross-country interview by O'Brien of Trump in his jet, during which Trump declared Clint Eastwood to be the greatest star ever and consumed quantities of Oreo cookies), the following TrumpQuiz appears:

To become a megabillionaire like Donald, you should:

1) Spend $500 and wear a navy, pin-striped Donald J. Trump Signature Collection suit.

2) Spend $550 and wear a gray, pin-striped Donald J. Trump Signature Collection suit, with a vest.

3) Memorize all the correct moves in Trump: The Game.

4) Watch Clint Eastwood movies.

5) Eat lots of Oreos.

6) Just pretend.

7) Read this ...


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