Parisi V Sinclair: 92 Memorandum in Opposition To Re 87 MOTION To Strike 77

Case 1:10-cv-00897-RJL Document 92 Filed 12/20/10 Page 1 of 11
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UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF COLUMBIA
)
DANIEL PARISI, et al., )
)
Plaintiffs, )
v. ) Civil Action No. 10-0897-RJL
)
LAWRENCE W. SINCLAIR a/k/a “Larry Sinclair”, et al., )
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)
Defendants. )
)
PLAINTIFFS’ OPPOSITION TO B&N’S MOTION TO STRIKE

CERTAIN PORTIONS OF PLAINTIFFS’ OPPOSITION
TO B&N’S MOTION FOR SUMMARY JUDGMENT
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Plaintiffs, Daniel Parisi, Whitehouse.com Inc., Whitehouse Network LLC, and White
House Communications Inc. (collectively “plaintiffs”), oppose the motion of defendants Barnes
& Noble, Inc. and Barnesandnoble.com LLC (collectively “B&N”) to strike portions of
plaintiffs’ opposition to B&N’s motion for summary judgment. Specifically, B&N seeks to
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strike Exhibits B, I, J, K, L, M, N, O, P, X, and Y that plaintiffs have cited in opposition to the
dispositive motion and the specific portions of plaintiffs’ opposition where the exhibits are
discussed. (Dkt. No. 77).
ARGUMENT
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I. EXS. I, J, K, L, M, N, O, P, X, AND Y ALL SUPPORT PLAINTIFFS’ REQUEST

TO DENY OR CONTINUE B&N’S MOTION FOR SUMMARY JUDGMENT
PENDING DISCOVERY.
B&N’s reply (Dkt. No. 86) is replete with statements that the plaintiffs have “no
evidence” of certain facts that would support their claim. Most of the exhibits at issue go to the
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fact that plaintiffs have not yet obtained any discovery from any party or non-party to this case,
and plaintiffs have invoked Fed. R. Civ. P. 56(f) in opposing the dispositive motions filed by the
non-Sinclair defendants. (Decl. ¶ 29, 30). That Rule provides:
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If a party opposing the motion shows by affidavit that, for
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specified reasons, it cannot present facts essential to justify its
opposition, the court may:
(1) deny the motion;
(2) order a continuance to enable affidavits to be obtained,

depositions to be taken, or other discovery to be undertaken; or
(3) issue any other just order.
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See, e.g., Woods v. City of Chicago, 234 F. 3d 979, 990 (7th Cir. 2000) (“Rule 56(f) authorizes a
district court to refuse to grant a motion for summary judgment or to continue its ruling on such a
motion pending further discovery if the nonmovant submits an affidavit demonstrating why it
cannot yet present facts sufficient to justify its opposition to the motion.”). Summary judgment
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is proper only after the non-moving party has been given “adequate time for discovery.” 1443
Chapin St., LP v. PNC Bank, Nat’l Ass’n, 258 F.R.D. 186, 187 (D.D.C. 2009) (internal quotation
marks omitted); see also Committee for First Amendment v. Campbell, 962 F.2d 1517, 1521
(10th Cir. 1992) (“After the nonmovant has had a full opportunity to conduct discovery, this
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burden falls on the nonmovant”).
It is well recognized that an “important aspect of a Rule 56(f) affidavit is that it need not
contain evidentiary facts going to the merits of the case; rather, it is merely a sworn statement
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explaining why these facts cannot yet be presented.” 10B C. Wright, A. Miller, and M. Kane,
FED. PRAC. AND PROC. § 2740 (1983). “[T]he affidavit need not contain evidentiary facts ….”
Campbell, 962 F.2d at 1522.
The questioned exhibits pertain to – and establish why – the dispositive motions should
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be denied or continued pending appropriate discovery. The declaration accompanying plaintiffs’
opposition to the B&N summary judgment motion express averred that:
Plaintiffs have not yet obtained any discovery from any party or
non-party to this case. B&N’s motion is based on broad and
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conclusory generalities. Plaintiffs should have the opportunity to
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obtain discovery, including the deposition of B&N’s declarants,
Sinclair, and Sinclair’s “print on demand” companies before any
summary judgment motion should be considered by the Court.
(Dkt. No. 77 Decl. ¶ 29). It also averred that:
Information which plaintiffs need in discovery of B&N and third

parties would include, inter alia, the following: (a) evidence
relating to its knowledge of the defamatory statements at issue; (b)
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the operation of its business; (c) B&N’s contacts with Sinclair
regarding the book and the product description; (d) third party
contacts with B&N regarding the book and its publication; (e) the
creation and development of the product descriptions and other
promotional materials for the Sinclair book; and (f) the contractual
obligations and amounts paid to Sinclair or his publisher, SPI, by
B&N after a book is sold. The Court should deny or continue
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B&N’s motion for summary judgment pending discovery.
(Id. ¶ 30).
Exhibits that reflect postings on a website, www.theregulator.net, support the argument
that a bookseller can be held liable for its own conduct after it had reason to know that that the
book it sold was false and defamatory and that there were issues of fact as whether B&N had
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such knowledge. (Dkt. No. 77, Decl. ¶ 30). Plaintiffs’ complaint alleges that prior to the filing
of this action, B&N knew or had reason to know of the defamatory statements at issue but
continued to publish, offer for sale and/or sell Sinclair’s book. (Dkt. No. 1 ¶¶ 47, 49, 58, 67, 72).
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B&N’s summary judgment motion did not provide any evidentiary facts disputing these
allegations or that it lacked such knowledge. Plaintiffs’ opposition then stated that: “Without
having had any discovery, plaintiffs have come forward with facts showing that there were such
communications with B&N. (See, e.g., Decl. Exs. I-N).” (Dkt. No. 77 at 14). The opposition
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emphasized that: “Whether B&N had constructive notice and, if so, when is a question of fact
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that should not be decided without providing plaintiffs with an opportunity to obtain discovery
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from defendants B&N, Sinclair and SPI and third-parties.” (Dkt. No. 77 at 13-14).1
The declaration by plaintiffs’ counsel filed with the exhibits did not assert that the
www.theregulator.net postings were true, only that he found and printed them. The postings
show that there is evidence of an issue of fact on which plaintiffs have not had any discovery
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from Sinclair, the other defendants, or third-parties. Discovery would enable plaintiffs to
authenticate documents and to remedy hearsay objections. There is no reason to strike Exs. I, J,
K, L, M, and N.
II. THE AUDIO AND VIDEO TAPES SHOULD NOT BE STRICKEN (EXS. X, Y).
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Another exhibit targeted by B&N pertains to communications that Sinclair had with B&N
(Dkt. No. 77, Decl. ¶ 27 & Ex. X). Exhibit X is a an audio recording of a conversation that
Sinclair had with B&N employees in Georgia on or about February 15, 2010. Sinclair does not
dispute that he posted the message or that his conversation with B&N took place. (Dkt. No. 89).
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Plaintiffs’ counsel has had numerous telephone conversations with and voice messages from
Sinclair and has averred that it is Sinclair’s voice on Ex. X. (Dkt. No. 84, Decl. ¶ 9). Thus, the
audio is authentic under FRE 901(5) and (6) (voice identification and telephone conversations).
Ex. Y is a video that Sinclair posted on YouTube on July 31, 2009, in which he expressly
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stated that he was engaged in the process of having B&N carry his book on the store
1
In FTC v. Accusearch, Inc., 2007 U.S. Dist. LEXIS 74905 (D. Wyo. Sept. 28, 2007), the
Federal Trade Commission (FTC) sued the owner of a website and others alleging that they
engaged in unfair business practices by obtaining and selling confidential customer phone
records without the affected customers' authorization. The Court refused to apply CDA § 230
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immunity. Id. at *8. By soliciting request for phone records and purchasing them for resale”
CDA immunity did not apply. Id. at *16. Here, evidence to be adduced in discovery will show
that B&N was aware of the false statements in Sinclair’s book and marketing materials, but
nevertheless solicited the defamatory material and published/distributed it in reckless disregard
for the truth or falsity.
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shelves. (Dkt. No. 77, Decl. ¶ 28 & Ex. Y). Neither B&N nor Sinclair can deny that the video is
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authentic pursuant to FRE 901(4), (5) (distinctive characteristics and voice identification). “We
are happy to allow the videotape to speak for itself.” Scott v. Harris, 550 U.S. 372 (2007). The
video is relevant. Sinclair explained that B&N does not directly put a new book on its shelves.
There is a process, which entails the publisher providing a copy of the book to B&N’s corporate
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office and a marketing plan with a letter explaining what makes the book unique and a book that
B&N will be able to sell. Sinclair stated that he was preparing the documentation for B&N, that
it would be sent to its New York office, and that “[w]e will get the book in the stores.” (Id.).
Further, while B&N asserts that “the book was sold exclusively on barnesandnoble.com”
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(Dkt. No. 87-1 at 11, emphasis in original), B&N did not move to strike plaintiffs’ Ex. E, which
is a receipt for a purchase of Sinclair’s book on June 11, 2010 from B&N’s retail store at 3040 M
Street, NW, Washington, DC. (Dkt. No. 77, Decl. ¶ 8 & Ex. E). There is an ample basis on
which to find a disputed issue of material fact.

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III. EX. J IS RELEVANT TO B&N’S KNOWLEDGE.
In addition to plaintiffs’ response above, Ex. J creates a disputed issue of material fact
that a self-publishing/publish on demand company, Aardvark, refused to publish Sinclair’s book
and that B&N knew it. The exhibit quotes an email from an Aardvark employee stating that it
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removed the Sinclair listing from its website “due to the nature of the book.” Discovery will
confirm Aardvark’s refusal to publish the book. B&N’s knowledge of Aardvark’s action with
respect to Sinclair’s manuscript is legally relevant. (See, e.g., Dkt. No. 77 at 11-18). This case is
certainly on par with Brandewyne v. Author Solutions, Inc., Mem. Decision, Case No. 04-CV-
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4363 (18th Judicial Dist. Ct., Kansas Aug. 3, 2006) (Dkt. No. 61, Decl. Ex. 19). There, Brock
wrote a book about his ex-wife, Brandewyne, which alleged that Brandewyne was a child
abuser, drug abuser, plagiarizer and felon, who had adulterous affairs and hired a hit man to kill
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Brock. Brandewyne sued Brock and his self publishing company that printed the book,
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AuthorHouse. A jury found Authorhouse liable and returned a verdict for $230,000. The
Kansas Court subsequently ruled that Authorhouse must pay $240,000 in punitive damages. The
Court found that AuthorHouse was responsible for the damages because the company knew that
Brock did not want to spend money on printing the book only to have it canceled because of its
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content and concerns with libel issues, as other publishers had done. Mem. Decision at 4.
AuthorHouse argued it merely printed the book after Brock signed a contract taking full
responsibility for the contents. In addition, the company said, only three copies of the book were
sold. “While an online publisher cannot be expected to read every book from every customer,
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given Brock’s description of his own book, a responsible publisher would make some effort to
screen the content of the book at issue in this case before accepting the book for publication.” Id.
at 10.
Here, too, B&N’s knowledge would provide a basis for liability. B&N argues that as a
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mere bookseller, it cannot be expected to read every book. However, if B&N was aware that
Aardvark or other publishers/printers refused to publish or print Sinclair’s manuscript, liability
would attach.
Also illustrative is a recent example of another bookseller that claims CDA immunity,
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defendant Amazon. In November 2010, stories surfaced that “Amazon is selling a self-published
book defending pedophiles, sparking discussions about the retailer's obligation to vet items
before they are sold in its online stores. The book, ‘The Pedophile's Guide to Love and Pleasure:
a Child-lover's Code of Conduct’ by Philip R. Greaves II, offers advice to pedophiles afraid of
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becoming the center of retaliation. It is an electronic book available for Amazon.com Inc.'s
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Kindle e-reader.” (Declaration of Richard J. Oparil annexed hereto (“Opp. Decl.”) Ex. 1).
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Amazon’s Product Description for the book read:
This is my attempt to make pedophile situations safer for those

juveniles that find themselves involved in them, by establishing
certian [sic] rules for these adults to follow. I hope to achieve this
by appealing to the better nature of pedosexuals, with hope that
their doing so will result in less hatred and perhaps liter [sic]
sentences should they ever be caught.
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(Opp. Decl. Ex. 2). Customer reviews were pointedly negative. (See, e.g., id. (“As a mother of a
child who has been molested, shame on Amazon for allowing such garbage to be sold on it's site.
The author of this book is a predator and should never have been allowed to write or promote
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this trash that is called a book of information. How many children will be assaulted because of
this. Amazon-take it off your site.”). Amazon’s sale of the book prompted negative media
coverage. (See, e.g., Opp. Decl. Exs. 3, 4). Thereafter, despite having purported CDA
immunity, Amazon withdrew the book and it was no longer sold. (See, e.g., Opp. Decl. Ex. 5).
The author of the book has now been arrested for distributing obscene material. (Decl. Opp. Exs.
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6, 7).2
Thus, when an infamous book that becomes the subject of public attention through
customer reviews and the media, a bookseller, such as Amazon, has no problem stopping all
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sales of that book. Here, the evidence will show that B&N became aware of the false and
defamatory contents of Sinclair’s book, but continued to sell it anyway. B&N’s knowledge is
2
In 1998, a state grand jury indicted B&N on charges of child pornography for selling
books containing photographs of nude children. (Opp. Decl. Ex. 8).
In addition, whether Parisi is a limited public figure is a question of fact. B&N’s own
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evidence shows that Parisi has had no involvement with any adult entertainment enterprise when
Sinclair’s book was published. (See, e.g., Dkt. No. 86 at 15 n.6, citing “Al Kamen, White
House’ [sic] About-Face, Wash. Post, Feb. 13, 2006 (‘Dan Parisi, president of Whitehouse.com,
the former porn site….’)”. Moreover, B&N’s argument also refers to two articles about Sinclair
mention only Whitehouse.com, not Parisi. (Dkt. No. 86 at 15 n.7). Thus, Whitehouse.gov might
be a limited public figure, but not Parisi.
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relevant and evidence that points to such knowledge – or provides avenues for discovery of such
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knowledge – is relevant and the exhibits should not be stricken.
The specific reasons as to why Aardvark did not print Sinclair’s book and, in particular,
B&N’s knowledge thereof is an issue of fact on which plaintiffs have had no discovery. Ex. J
properly supports the denial or continuance of B&N’s summary judgment motion. (Dkt. No. 77,
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Decl. ¶ 10).3
IV. EXS. K, M, AND N AND DISCOVERY RELATED TO THEM ARE RELEVANT

TO SHOW B&N’S KNOWLEDGE.
In addition to the authenticity argument above regarding Exs. K, M, and N, there are no
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disputed issues of material fact as to B&N’s knowledge of the nature and contents of Sinclair’s
book. (Dkt. No. 87-1 at 9). B&N argues that the exhibits are not relevant because they
purportedly do not show that a “senior” employee had knowledge. The knowledge of a
company’s employees is attributed to the company. See, e.g., United States v. Science
Applications Int’l Corp., 555 F.Supp.2d 40, 55 (D.D.C. May 15, 2008) (“‘[c]orporations are
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liable for the collective knowledge of all employees and agents within (and acting on behalf of)
the corporation.’” (quoting United States v. Philip Morris USA, Inc., 449 F. Supp. 2d 1, 893-94
(D.D.C. 2006)); id. at 56 (“In this case, the government has certainly presented evidence
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suggesting that there was at least one SAIC employee who knew that SAIC was bidding for the
NRC Contracts . . . . Thus, the government's evidence is sufficient to raise a genuine dispute of
fact regarding whether SAIC’s no-OCI certifications were knowingly false.”); Bunge Corp. v.
Director, Office of Workers’ Compensation, 951 F.2d 1109, 1111 (9th Cir. 1991) (“If the
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condition is readily discoverable from the employee’s medical record in the possession of the
3
It appears that Sinclair’s self-publishing company, defendant Sinclair Publishing, Inc.,
will not comply with the Court’s deadline to engage counsel by today. (Opp. Decl. Ex. 9).
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employer, knowledge of the condition is imputed to the employer.”); Georgia-Pacific Corp. v.
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Great Plains Bag Co., 614 F.2d 757, 762-63 (Cust. & Pat. App. 1980) (knowledge of a
salesperson will be imputed to the corporation); United States v. Hangar One, Inc., 563 F.2d
1155, 1158 (5th Cir. 1977) (a corporation will be liable for violations of the False Claims Act if
its employees were acting within the scope of their authority and for the purpose of benefitting
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the corporation even if those employees lacked “substantial authority and broad responsibility.”);
Hoechst Celanese Corp. v. National Union Fire Ins. Co., 1994 WL 721786, *4 (Del. Super. Apr.
22, 1994) (“knowledge of the lower employees may be imputed to the corporation.”).
Moreover, an employer is responsible for the actions or inactions of an employee in the

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regular course of her employment. See, e.g., Sheppard v. United States, 640 F. Supp. 2d 29, 34
(D.D.C. 2009) (“an employer may be held liable for the tortious acts of an employee committed
within the scope of his employment…. There are two requirements to establish respondeat
superior liability: (1) the existence of an employer-employee relationship, and (2) the tortious
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conduct occurs while the employee is acting within the scope of his employment.”); Hechinger
Co. v. Johnson, 761 A.2d 15, 24 (D.C. 2000) ("Respondeat superior is a doctrine of vicarious
liability which imposes liability on employers for the torts committed by their employees within
the scope of their employment. Under the doctrine, an employer is subjected to liability for acts
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of his employee because of his employment and in furtherance of the employer's interests. If the
employee's actions are only done to further his own interests, the employer will not be held
responsible.”) (internal footnote, citations and quotations omitted).
Responding to complaints related to books such as Sinclair’s and book reviews is part of
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their job and B&N is responsible for their actions or inactions. Also, discovery will show that a
branch manager is not a low level employee, he or she is someone entrusted with the
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responsibility of running a multimillion dollar store operation. There is no dispute that Sinclair
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was in contact with B&N employees. This is similar to defendant in Brandywyne telling
salesperson that the book in that case had been blackballed by another print on demand company.
B&N is still liable for the actions of their employees. Here, B&N concedes that it asked a
“junior level employee to review the posts to determine whether they complied with its Terms of
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Use.” (Dkt. No. 87-1 at 9). B&N’s knowledge of Sinclair’s book and the false statements
therein is relevant. (Id.). The exhibits should not be stricken and discovery should proceed.
Finally, B&N cannot escape the fact that “Citizen Wells”, a Sinclair supporter, sent an
email to B&N’s Senior Vice President for Corporate Communications, Mary Ellen Keating,
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which included comments giving notice that Sinclair’s book contained false statements. Thus,
the exhibit should not be stricken.
CONCLUSION
For all the foregoing reasons, B&N’s motion to strike should be denied.
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Dated: December 20, 2010 Respectfully submitted,
/s/ Richard J. Oparil

Richard J. Oparil (D.C. Bar No. 409723)
PATTON BOGGS LLP
2550 M Street, NW
Washington, DC 20037
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(202) 457-6000
(202) 457-6315 (fax)
Kevin M. Bell
PATTON BOGGS LLP
8484 Westpark Drive
McLean, VA 22102
(703) 744-8000
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(703) 744-8001 (fax)
Attorneys for Plaintiffs
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CERTIFICATE OF SERVICE
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I hereby certify that on December 20, 2010, a copy of the foregoing was served on the
parties and counsel for the parties that have appeared in the case by the Court’s ECF system.
s/ Richard J. Oparil
Richard J. Oparil (DC Bar No. 409723)
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Parisi V Sinclair: 92 Memorandum in Opposition To Re 87 MOTION To Strike 77

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Parisi V Sinclair: 92 Memorandum in Opposition To Re 87 MOTION To Strike 77

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Case 1:10-cv-00897-RJL Document 92 Filed 12/20/10 Page 1 of 11

PLAINTIFFS’ OPPOSITION TO B&N’S MOTION TO STRIKE

strike Exhibits B, I, J, K, L, M, N, O, P, X, and Y that plaintiffs have cited in opposition to the

discussed. (Dkt. No. 77).

I. EXS. I, J, K, L, M, N, O, P, X, AND Y ALL SUPPORT PLAINTIFFS’ REQUEST

non-Sinclair defendants. (Decl. ¶ 29, 30). That Rule provides:

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(1) deny the motion;

(2) order a continuance to enable affidavits to be obtained,

(3) issue any other just order.

burden falls on the nonmovant”).

Campbell, 962 F.2d at 1522.

be denied or continued pending appropriate discovery. The declaration accompanying plaintiffs’

opposition to the B&N summary judgment motion express averred that:

(Dkt. No. 77 Decl. ¶ 29). It also averred that:

Information which plaintiffs need in discovery of B&N and third

Exhibits that reflect postings on a website, www.theregulator.net, support the argument

which to find a disputed issue of material fact.

III. EX. J IS RELEVANT TO B&N’S KNOWLEDGE.

that a self-publishing/publish on demand company, Aardvark, refused to publish Sinclair’s book

Aardvark or other publishers/printers refused to publish or print Sinclair’s manuscript, liability

This is my attempt to make pedophile situations safer for those

IV. EXS. K, M, AND N AND DISCOVERY RELATED TO THEM ARE RELEVANT

Moreover, an employer is responsible for the actions or inactions of an employee in the

responsible.”) (internal footnote, citations and quotations omitted).

the exhibit should not be stricken.

Dated: December 20, 2010 Respectfully submitted,

/s/ Richard J. Oparil

(703) 744-8001 (fax)

Attorneys for Plaintiffs

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