Case 1:17-cv-04853-JSR Document 35 Filed 08/10/17 Page 1 of 2
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------- x

SARAH PALIN,
Plaintiff,
-v-

17-cv-4853(JSR)
ORDER

THE NEW YORK TIMES COMPANY,

Pending before the Court is the motion of defendant The New
York Times Company (the "Timesn) to dismiss pursuant to Rule
12(b) (6),

Fed. R. Civ. P., the claim of plaintiff Sarah Palin that

she was defamed by a Times editorial that appeared on or about June
14, 2017. One close question presented by that motion is whether the
Complaint contains sufficient allegations of actual malice, an
essential element of the claim. To a large extent, determination of
that issue may turn on what inferences favorable to the plaintiff are
reasonable given the circumstances alleged in the Complaint. For
example, the Complaint alleges that the allegedly false statements of
fact that are the subject of the Complaint were contradicted by
information already set forth in prior news stories published by the
Times. However, these prior stories arguably would only evidence
actual malice if the person(s) who wrote the editorial were aware of
them. This is information peculiarly within the knowledge of
defendant; but on it arguably depends the reasonableness vel non of
inferring actual malice.

 Case 1:17-cv-04853-JSR Document 35 Filed 08/10/17 Page 2 of 2

Accordingly, to help inform the Court of what inferences are
reasonable or unreasonable in this context, the Court, pursuant to
Rule 43(c), will convene an evidentiary hearing on Wednesday, August
16 at 2:00 PM EST. At the hearing, defense counsel must produce the
author(s)

of the editorial, who

than one author)

(or each of whom,

if there is more

will be examined under oath by defense counsel for

no more than thirty (30) minutes,

to be followed by cross-examination

of plaintiff's counsel of no more than forty-five
followed by no more than fifteen

(45) minutes, to be

(15) minutes of redirect by defense

counsel. The Court also may question each such witness.
SO ORDERED.
Dated:

New York, NY
August

JE,

JED S. RAKOFF, U.S.D.J.

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