Laurie Fine Response To ESPN

Case 5:12-cv-00836-DEP Document 111-1 Filed 11/15/15 Page 1 of 46
UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK
LAURIE J. FINE,
Plaintiff,
Index No. 5:12-cv-00836 (DEP)
-againstECF Case
ESPN, Inc. a subsidiary of Walt Disney,
Inc.; MARK SCHWARZ, in his individual
capacity and as an employee of ESPN, and
ARTHUR BERKO, in his individual
capacity and as an employee of ESPN,
Defendants.
MEMORANDUM IN OPPOSITION TO DEFENDANTS

MOTION FOR SUMMARY JUDGMENT
Lawrence H. Fisher, Esq.
Kevin W. Tucker, Esq.
One Oxford Centre
301 Grant St., Suite 4300
Pittsburgh, PA 15219
(724) 986-9785
Counsel for Plaintiff, Laurie J. Fine
TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................................................................................. v
PRELIMINARY STATEMENT ........................................................................................... 1
STATEMENT OF FACTS .................................................................................................... 2
ARGUMENT ........................................................................................................................ 3
I.
II.
No one disputes that the statements complained of are defamatory.......................... 4

A.
Allegations of child abuse concerns .............................................................. 4
B.
Allegations of a sexual relationship with Davis ............................................ 6
C.
ESPNs guidelines classify its reporting as defamatory ................................ 7
Clear and convincing evidence establishes ESPNs reports as materially false........ 8

A.
Standards governing Plaintiffs burden to demonstrate material

falsity are not insurmountable ....................................................................... 9
B.
Contrary to ESPNs false reports, Laurie Fine did not witness, know of,
or have concerns that Bernie Fine was sexually abusing young, minor
boys, under the age of 17 ............................................................................... 9
C.
1.
When you start to talk about sexual abuse, we have to draw

the line between what the law says. And so its very important
to look at the statutes that would be applicable at the time. ............ 10
2.
The age of consent in New York is 17-years old .............................. 12
3.
Davis was at least 17-years old at all times material to ESPNs

reporting about Plaintiff .................................................................... 12
4.
As Davis was at least 17-years old at all times Laurie Fine

purportedly witnessed, knew of, and developed child abuse
concerns, ESPNs reporting constitutes a material deviation
from the truth ..................................................................................... 15
Sex with Bobby Davis ................................................................................... 16

1.
Nobody corroborates Bobby Daviss allegation he had sex

with Laurie Fine, and Davis is not credible ....................................... 16
ii
2.
III.
Clear and convincing evidence establishes ESPNs actual malice............................ 19

A.
The actual malice standard ............................................................................ 19
B.
Defendants self-serving declarations that they believed Davis are

irrelevant ........................................................................................................ 20
C.
Highlights of ESPNs actual malice .............................................................. 20

1.
Laurie Fines words do not constitute an admission that she

had sex with Davis such that ESPNs reporting constitutes
another material deviation ................................................................. 17
ESPN did in fact doubt Daviss story ................................................ 20

a.
ESPNs President admits There were significant

credibility issues with Bobby Davis. ................................... 21
b.
At least two other ESPN executives had such serious

doubts that they actually recommended leaking the tape
to another news entity, and allowing someone else to
break the story first. ............................................................... 21
c.
Even Defendant Berko admits that ESPN did, in fact, lack

confidence in Bobby Davis ................................................... 22
2.
ESPN had obvious reasons to doubt the veracity of its sources,

particularly Mike Lang, who Defendants incredibly point to as
the lynchpin that ultimately justified their reporting ......................... 22
3.
ESPN fabricated a storyline about Laurie Fine having child

abuse concerns, etc., to make its reporting more condemnatory
than the facts support ......................................................................... 25
4.
ESPN resorted to slipshod and sketchy investigative techniques,

despite having almost a decade to tell its story ................................. 26
a.
ESPN lied about an audio expert confirming Laurie

Fines voice ........................................................................... 26
b.
ESPN disregarded the experts it consulted when

convenient to do so ................................................................ 28
iii
IV.
V.
c.
Mark Schwarz put Zach Tomaselli in contact with

Bobby Davis .......................................................................... 30
d.
Mark Schwarz maintained contact with Robert Davis

for nearly a decade................................................................. 31
5.
ESPN used Bobby Davis and Danielle Roach to stoke the

Syracuse Police Department into action in order to cloak
themselves from future lawsuits ........................................................ 31
6.
ESPN failed to contact Laurie Fine ................................................... 33
7.
ESPNs own executives admit their reporting really lowered

the bar on the Laurie Fine story ....................................................... 36
Clear and convincing evidence establishes ESPNs gross irresponsibility ............... 37

A.
Chapadeaus gross irresponsibility standard................................................. 37
B.
Given how Defendants acted with actual malice, gross

irresponsibility has been established ............................................................. 37
ESPNs reports are not privileged under Section 74 of New Yorks Civil
Rights Law................................................................................................................. 39
CONCLUSION ..................................................................................................................... 40
iv
TABLE OF AUTHORITIES
CASES
Abell v. Cornwall Industrial Corp.,
241 NY 327 (1925) .......................................................................................................... 8
Anderson v. Liberty Lobby, Inc.,
477 US 242 (1986) .......................................................................................................... 20
Armstrong v. Simon & Schuster, Inc.,
85 N.Y.2d 373 (1995) ...................................................................................................... 4
Bose Corp. v. Consumers Union of United States, Inc.,
692 F.2d 189 (1st Cir. 1982) ........................................................................................... 20
Buckley v. Littell,
539 F.2d 882 (2d Cir. 1976) ............................................................................................ 9
Celle v. Filipino Reporters Enters., Inc.,
209 F.3d 163 (2d Cir. 2000) ......................................................................................... 3, 4, 9, 20
Chapadeau v. Utica Observer-Dispatch, Inc.,
38 NY2d 196 (1975) ........................................................................................................ 37, 39
Collins v. Troy Publishing Co.,
623 NYS2d 666 (1st Dept 1995) .................................................................................... 33
Curtis Publishing Co. v. Butts,
388 U.S. 130 (1967) ..................................................................................................... 19, 26, 28
Davis v. Ross,
754 F.2d 80 (2d Cir. 1985) .............................................................................................. 40
DiBella v. Hopkins,
403 F.3d 102 (2d Cir. 1979) ............................................................................................ 9
Goldwater v. Ginzburg,
414 F.2d 324 (2d Cir. 1969) ............................................................................................ 8, 9, 19
Harte-Hanks Commcns v. Connaughton,
491 US 657 (1989) .......................................................................................................... 9, 23, 26
Herbert v. Lando,
441 US 153 (1979) .......................................................................................................... 4, 19
Hutchinson v. Proxmire,
443 US 111 (1979) .......................................................................................................... 19
Karedes v. Ackerly Group, Inc.,

423 F.3d 107 (2005) ........................................................................................................ 3
Kerik v. Tacopina,
__F. Supp. 3d __, 2014 US Dist. LEXIS 167446 (S.D.N.Y. 2014) ................................ 20
Masson v. New York Magazine,
501 US 496 (1991) .......................................................................................................... 8, 9, 15
New York Times Co. v. Sullivan,
376 US 254 (1964) .......................................................................................................... 9, 19
Pep v. Newsweek, Inc.,
553 F.Supp. 1000 (S.D.N.Y. 1983) ................................................................................. 23
Reliance Ins. Co. v. Barrons,
442 F. Supp. 1341 (S.D.N.Y. 1977) ................................................................................ 20
Sanctuary v. Thackrey,
72 NYS2d 104, affd 273 AD 883 (1947) ....................................................................... 8
St. Amant v. Thompson,
390 U.S. 727 (1968) ............................................................................................... 19, 20, 22, 25
Vocational Guidance Manuals v. United Newspaper Magazine Corp.,
116 NYS2d 429, affd 305 NY 780 (1952) ..................................................................... 8
Weiner v. Doubleday & Co.,
74 NY2d 586 (1989) ........................................................................................................ 3
Weldy v. Piedmont Airlines, Inc.,
985 F.2d 57 (2d Cir. 1993) .............................................................................................. 37
Westmoreland v. CBS, Inc.,
596 F. Supp. 1170 (S.D.N.Y. 1984) ................................................................................ 25
White Motor Co. v. United States,
372 US 253, 259 (1963) .................................................................................................. 19
STATUTES
New York Penal Code 130.05, 1965 vol. II 2391 (1965)................................................ 12, 16, 40
vi
PRELIMINARY STATEMENT
This case is not about Bernie Fine; its not a case about Jim Boeheim; and its not a case
about Syracuse Universitythis case is about Laurie J. Fine: a wife, a mother, and a woman who
was once proudly employed helping children, but has since been destroyed by the reckless and
false reporting of these Defendants. In that regard, Mark Schwarz, Arthur Arty Berko, and
ESPN, reported on November 27, 2011 a condemnatory account that was far more than the law
allows, and vanquished Laurie from her New York home in humiliation.
This case is also about greedreportorial greedand the lengths reporters go to break a
story. Whats more, this case is about sketchy and slipshod investigating, as well as lies to a
worldwide audience and the admission by ESPN bosses that their reporters disregarded industry
standards on more than one occasion.
This case is likewise about the law, and the disregarded advice of an esteemed FBI Agent
who warned Schwarz and Berko that it was very important to review the age of consent in New
York before reporting Bernie Fine sexually abused Robert Davis, or that Laurie Fine witnessed,
knew of, and had concerns for the same. Finally, this case is about Schwarz and Berko ignoring
Agent Lannings advice at every turn, and how ESPN defamed Mrs. Fine as a result.
The Honorable Court should allow a jury to evaluate this case in the light of fairnessto
permit a private citizen to clear her name. The Court should allow this case to be a cautionary tale
and a warning to reporters not to tread on incidental news subjects in the course of reporting on a
central figure. Your Honor should allow Mrs. Fine to showin courtthat the statements
published by ESPN materially deviate from the truth. The Court should deny Defendants Motion
for Summary Judgment.
STATEMENT OF FACTS
Defendants Memorandum in Support of their Motion for Summary Judgment is
completely off point. Rather than focus the Court on the material facts necessary to render a
decision, Defendants harp on rumor, gossip, and Bernie Fines defense in the 1980s. While such
harping makes good headlines in the local news, it is unhelpful to this Courts resolution of the
legal issues before it.
Rather than engage Defendants many pithy and immaterial contentions, Plaintiff will stay
true to the material facts and issues at the heart of this litigation: exactly what [Plaintiff] knew
and when she knew it. Defendants have ignored this issue for 12 years, since FBI Agent Kenneth
Lanning first told them that being able to prove exactly what [Plaintiff] knew and when she knew
it is going to be a very difficult. Document 98-37; Schwarz Dec. Ex. 9, p. 16.
Robert Davis was born in January 1972. Fisher Decl. Ex. 1, pp. 73-78 (SPD072;
ESPN001902; ESPN003283-84; ESPN003628; ESPN 003631). Mark Schwarz knew this. Fisher
Decl. Ex. 1, p. 82 (Schwarz Dep. at p. 104). Davis told ESPNs audience on November 27, 2011
that Plaintiff was a person that I talked to a lot about the situation as I got older. Document 4516, p. 3. As proof, ESPN published snippets of a telephone conversation between Davis and
Plaintiff, which Davis secretly recorded in October 2002. Document 98-30; Schwarz Decl. Ex. 2,
pp. 32-33; Document 98-28; Schwarz Decl. at 7; Document 98-27; Berko Decl. at 6. Davis was
30-years old in October 2002, when he purportedly made Plaintiff aware of his alleged abuse.
Many years had passed since Davis was the young boy Defendants portrayed in their reporting.
In Daviss secret tape, Defendants contend Plaintiff tacitly acknowledged having once
looked through a basement window to see Davis and her husband sitting on a couch. Id. Davis
would later claim hed been sexually abused during this window incident. Defendants contend
the window incident supports their defamatory reporting that Plaintiff witnessed, knew of, and

had concerns her husband was sexually abusing a young, minor ball boy but did nothing to stop it.
Fisher Decl. Ex. 1, pp. 34-35 (Doria Dep. at pp. 47-48); Fisher Decl. Ex. 1 p. 224 (Bray Dep. at p.
39). However, the window incident occurred in the summer of 1991, when Davis was 19-years
old, and no longer a young, innocent ball boy. Fisher Decl. Ex. 1, p. 79 (Young Dep. at p. 6).
Not to be forgotten, Defendants also assert that Plaintiffs use of the term, with you, on
the secret tape, proves she engaged in a sexual relationship with Davis when he was still in high
school.
ARGUMENT
Libel is a method of defamation expressed in writing or print. Under New York Law a
plaintiff must establish five elements to recover in libel: (1) a written defamatory statement of fact
concerning the plaintiff; (2) publication to a third party; (3) fault (either negligence or actual
malice depending on the status of the libeled party); (4) falsity of the defamatory statement; and
(5) special damages or per se actionability (defamatory on its face). Celle v. Filipino Reporters
Enters., Inc., 209 F.3d 163, 176 (2d Cir. 2000) (internal citations omitted).
The gravamen of an action alleging defamation is an injury to reputation. The New York
Court of Appeals has defined a defamatory statement as one that exposes an individual to public
hatred, shame, obloquy, contumely, odium, contempt, ridicule, aversion, ostracism, degradation or
disgrace, or to induce an evil opinion of one in the minds of right-thinking persons, and to deprive
one of their confidence and friendly intercourse in society. Karedes v. Ackerly Group, Inc., 423
F.3d 107, 113 (2005) (citing Celle, 209 F.3d at 177).
Whether the contested statements are reasonably susceptible of a defamatory connotation
presents, in the first instance, a legal question for determination by the court. Weiner v. Doubleday
& Co., 74 NY2d 586 (1989). The New York Court of Appeals has developed standards that
federal courts follow in determining whether a statement or publication is defamatory. Celle, 209
F.3d at 177 (citing Davis v. Ross, 754 F.2d 80, 83 (2d Cir. 1985)).
First, the Court of Appeals has repeatedly instructed that courts must give the disputed
language a fair reading in the context of the publication as a whole. Challenged statements are not
to be read in isolation, but must be perused as the average reader would against the whole
apparent scope and intent of the writing. Second, courts are not to strain to interpret such writings
in their mildest and most inoffensive sense to hold them nonlibelous. Celle, 209 F.3d at 177
(quoting Armstrong v. Simon & Schuster, Inc., 624 N.Y.S.2d 477, 649 N.E.2d 825, 829 (1995)).
In other words, a publisher may be liable for the implications of what he said or wrote, not
just the literal statements made. See Herbert v. Lando, 781 F.2d 298, 307 (2d Cir. 1986).
I. No one disputes that the statements complained of are defamatory.
A. Allegations of child abuse concerns.
To fully understand the context and implications of ESPNs vicious reporting in this case,
the Court must look back before that reporting. First, the Court must look back to March 31, 2011,
when child abuse concerns became front and center in the Jerry Sandusky case. Back then, Sara
Ganim, a reporter from Harrisburg, PA, broke the story of Jerry Sandusky and a grand jury
investigation into allegations hed assaulted young boys, ages 12 and 15, during and after his 32year tenure as a Penn State University assistant football coach. Fisher Decl. Ex. 1, pp. 1-5 (Jerry
Sandusky, former Penn State football staffer, subject of grand jury investigation). Shortly after
her story broke, some 200 reporters descended on State College to play catch-upincluding
Schwarz and his producer, Berko. Fisher Decl. Ex. 1, pp. 6-7 (ESPN001393-94).
On November 5, 2011, the grand jury presentment against Sandusky was released and the
world learned the enormity of allegations against the former coach. Though the number of victims
grew before he was convicted of 45 criminal counts in 2012, the presentment found Sandusky

sexually assaulted 8 minor male children, ages 10 to 13, over many years. Fisher Decl. Ex. 1, pp.
8-30 (Sandusky Grand Jury Presentment). With the presentments release, a tragic narrative was
front-and-center in every news network: old college coach sexually assaults young, minor boys.
Days later, Robert Daviss stepbrother, Mike Lang, called Schwarz, refuting a decade of
denial, and suddenly claimed that Bernie kind of messed with him too years before. Fisher Decl.
Ex. 1, p. 31 (ESPN001894). Based solely on this utterly incredible account, and ignoring a host of
reasons to disbelieve Lang, ESPN chose to publish a report on Bernie Fine that, for good reason,
had long been sidelined.
But the Bernie Fine story was not enough to satisfy Defendants salacious appetite, for they
also possessed a taped telephone conversation between Davis and Bernies wife, Laurie Fine,
secretly recorded a decade earlier. The problem: the tape had holes, a lot of holes. According to
Schwarz himself, the tape was damning but not definitive. Fisher Decl. Ex. 1, p. 32
(ESPN003606); Fisher Decl. Ex. 1, p. 33 (Schwarz Dep. at p. 62). As a result, Schwarz had to find
some way to overcome these holes in order to fit the story within Sanduskys old coach vs. little
boy narrative. Document 98-44; Schwarz Decl. Ex. 16, p. 2 (This Penn State things driving me
nuts...).
Ultimately, Schwarz and Berko found Danielle Roach, Daviss longtime friend, to give her
personal and toxic play-by-play of the Tape. ESPN eventually published this toxic play-by-play
alongside portions of the Tape, falsely implying Laurie witnessed, knew of, and had concerns her
husband was sexually abusing minor boys, just like Sandusky, but never did anything to stop it.
Mark Schwarz: Danielle Roach, who has been friends with Davis since the second
grade, says that as a teenager she served as the Fines babysitter for about three
years. Recently, Roach listened to the conversation again. Davis first played the
call for her after recording it in 2002.
Danielle Roach: This tape tells me that Laurie knew and watched it go on
knowingly, that it was going on in her home for a long time.

Mark Schwarz: Roach, who is now a mother herself, says she cannot imagine how
any mother could know sexual abuse was happening in her home and not act.
Danielle Roach: Its amazing that she can say some of the things she says to
Bobby but couldnt pick up a phone and say, Maybe this isnt the place for your
kid. Maybe he shouldnt be here.
Document 45-16, p. 5. Vince Doria, ESPNs former Senior Vice President and Director of News,
admits Defendants reporting concerned Lauries alleged knowledge of sexual abuse of young,
minor children, under the age of 17.
Q.
Does this publication discuss that Laurie Fine had knowledge of supposed
sexual abuse of children under the age of 17 in her home, including Bobby
Davis, or at least Bobby Davis?
A.
Yes, I believe it does.
Q.
Would you agree that a reasonable viewer would have interpreted this
publication as conveying that Laurie Fine knew or had concerns that
sexual abuse was occurring in her home?
A.
Yes.
Fisher Decl. Ex. 1, pp. 34-35 (Doria Dep. at pp. 47-48). It is hard to imagine how such
implications would not expose Mrs. Fine to public hatred and shame. Bob Ley, who anchored
ESPNs libelous reports agrees, stating: [t]his is the worst charge you can make against
someone[.] Fisher Decl. Ex. 1, p. 36 (ESPN002842). Ditto Vince Doria: [w]e also have to
consider with stories of this nature, the allegations are so damning that its difficult to recover from
them. Fisher Decl. Ex. 1, pp. 37-38 (ESPN1803-04).
B. Allegations of a sexual relationship with Davis.
ESPN also reported falsely that Mrs. Fine had a sexual relationship with Davis, when he
was 18-years old.
Mark Schwarz: Davis says he and Laurie Fine had a sexual relationship that she
initiated when he says he was 18 and a senior in high school.

Mark Schwarz: Were you ever with her sexually?

Bobby Davis: Yes.
Mark Schwarz: Slept with her?
Bobby Davis: Yes.
Mark Schwarz: Had intercourse with her?
Bobby Davis: Yes.
Document 45-16, pp. 5-6. This statement and the implications beneath it are defamatory for the
same reasons ESPN Senior Coordinating Producer Dwayne Bray contends they are newsworthy.
Bray explained that he thought the fact that this boy had been hanging around the house since he
was 11 years old and by the age of 18 ended up having sex with both of the adults in the context of
this story was newsworthy. Fisher Decl. Ex. 1, p. 39 (Bray Dep. at p. 49). Though Plaintiff
vehemently disputes its truth, she agrees viewers would interpret ESPNs reporting in this lighta
light that magnified the hatred and shame she subsequently faced because of the reports larger,
child sexual abuse context.
C. ESPNs guidelines classify its reporting as defamatory.
ESPNs own Editorial Guidelines for Standards & Practices label its reporting on Laurie as
defamatory. Specifically, as of November 27, 2011, ESPNs Guidelines provided:
Our general guideline is that out of fairness to a news subject we dont report
allegations of criminal activity against a news subject unless that news subject is
charged with a crime. Our feeling is that unless authorities believe the allegations
arise to the level of charges being filed, it is defamatory to the news subject on
our part to report criminal allegations before authorities concur that in their
opinion a crime may have been committed.
Document 98-60; Doria Decl. Ex. 1, p. 12. Of course, Laurie never committed the child
endangerment crimes implied by ESPNs reporting, nor was she charged. Fisher Decl. Ex. 1, pp.
40-43 (Laurie Fine might also have faced prosecution on a misdemeanor charge of endangering

the welfare of a child); Document 45-3 referencing Siegel Decl. Ex. C-4; Defendants Statement
of Material Facts Not Genuinely in Dispute at 77.
Realizing the trouble these Guidelines might present in litigation, ESPN removed this
language altogether and now insists the Guidelines dont constitute hard and fast rules.
Document 98-59; Doria Decl. at 26. Such a cavalier attitude is nothing new for ESPN. In fact,
the companys first ombudsman, George Solomon, warned ESPN executives it should make
certain its guidelines and standards are known and followed by everyone taking its paychecks.
Fisher Decl. Ex. 1, pp. 44-46 (Latest Terrell Owens media binge just too much). Unfortunately
for Mrs. Fine, Defendants totally ignored this warning, among numerous others detailed below.
II. Clear and convincing evidence establishes ESPNs reports as materially false.
Plaintiff understands that defamatory words can be true and such truth is a complete
defense to an action for libel or slander, regardless of the harm done by the statement, and
regardless of the malicious or evil motives that may have prompted their publication. Sanctuary v.
Thackrey, 72 NYS2d 104, affd 273 AD 883, 78 NYS2d 361 (1947). Substantial truth is all that is
required, with the test for establishing this element being whether the libel as published would
have a different effect on the mind of the reader from that which the pleaded truth would have
produced. Masson v. New York Magazine, 501 US 496 (1991). That said, when true statements are
interspersed in a defamatory publication, the defamatory publication is still actionable. Vocational
Guidance Manuals v. United Newspaper Magazine Corp., 280 AD 593, 116 NYS2d 429, affd 305
NY 780 (1952). In other words, a defamatory charge is not justified when it exceeds the truth.
Abell v. Cornwall Industrial Corp., 241 NY 327 (1925).
Plaintiff here is not a public figure, but the Court should note the conflicting authority on
the burden with which a public-figure plaintiff must prove falsity. The Second Circuit in
Goldwater v. Ginzburg, 414 F.2d 324, 341 (2d Cir. 1969) required only a preponderance and has

since noted that [a]t present it is unclear whether a public figure must establish falsity by a
preponderance of the evidence or by clear and convincing proof. Celle v. Filipino Reporters
Enters, Inc., 209 F.3d 163, 181 (2d Cir. 2000). Most courts that have addressed the issue, however,
have required the higher standard of proof. See, e.g., Buckley v. Littell, 539 F.2d 882, 889-90 (2d
Cir. 1976); DiBella v. Hopkins, 403 F.3d 102, 110 (2d Cir. 1979) (New York law; acknowledging
the existence of some contrary authority elsewhere).
A. Standards governing Plaintiffs burden to demonstrate material falsity are not
insurmountable.
Although the New York Times standard may be difficult to meet, it is not insurmountable.
Masson v. New York Magazine, 501 US 496 (1991); Harte-Hanks Commcns v. Connaughton, 491
US 657 (1989); Buckley v. Littell, 539 F.2d 882 (2d Cir. 1976); Goldwater v. Ginzburg, 414 F.2d
324 (2d Cir. 1969).
B. Contrary to ESPNs false reports, Laurie Fine did not witness, know of,
or have concerns that Bernie Fine was sexually abusing young, minor
boys, under the age of 17.
Bernie Fine did not sexually abuse Robert Davis; nor did he sexually abuse Mike Lang.1
However, for the purposes of her Opposition, Plaintiff contends that even if this Court were to

1
See
(a) Bernie Fines public statement on November 18, 2011 (Simply put, these allegations are
patently false in every respect) Fisher Decl. Ex. 1, p 47 (Syracuse assistant coach Bernie
Fine- Allegations are false "in every respect");
(b) Bernie Fines complaint for defamation (37. The allegations of sexual abuse made by
ESPN in the November 17 Broadcast about and concerning [Bernie Fine] are false) Fisher
Decl. Ex. 1, pp. 49-62 (Bernie Fine Complaint);
(c) Syracuse Universitys 2005 Investigation, concluding with a letter to Robert Davis that
[a]fter conducting a thorough investigation, the University has not substantiated your
allegations. Fisher Decl. Ex. 1, p. 202 (SU590);
(d) Jim Boeheims statement ([t]his matter was fully investigated by the University in 2005
and it was determined that the allegations were unfounded. I have known Bernie Fine for
more than 40 years. I have never seen or witnessed anything to suggest that he would be
involved in any of the activities alleged. Had I seen of suspected anything, I would have
taken action. Bernie has my full support.) Fisher Decl. Ex. 1, pp. 203 (SU044); and

view the Tape in a light least favorable to her, the evidence still demonstrates with convincing
clarity she did not witness, know of, or have concerns about her husband sexually abusing a
young, minor ball boyas ESPNs reporting falsely implies.
1. When you start to talk about sexual abuse, we have to draw the line between
what the law says. And so its very important to look at the statutes that would be
applicable at the time.
When it comes to the false reporting by these Defendants, neither Schwarz nor Berko are
experts in the realm of child sex abuse. Fisher Decl. Ex. 1, p. 63 (Schwarz Dep. at p. 162); Fisher
Decl. Ex. 1, p. 64 (Berko Dep. at p. 31). Consequently, after Davis approached them in 2003, they
interviewed former FBI Agent Kenneth Lanning (Agent Lanning). Fisher Decl. Ex. 1, p. 65
(Schwarz Dep. at p. 16). On occasions too numerous to require citation, Defendants tout this
expert consultation as proof that Mrs. Fine cannot prevail against their request for summary
judgment. Ironically, this very consultation proves otherwise.
During the course of this interview, Agent Lanning could not have been more unsupportive
of Defendants mission to report on Mrs. Fines supposed knowledge of abuse. As a threshold
matter, Agent Lanning told Schwarz and Berko: [y]ou can say she should have known, she
probably knew, but being able to prove exactly what she knew and when she knew it is going to be
a very difficult. Document 98-37; Schwarz Decl. Ex. 9, p. 16. Despite Agent Lannings warning,
Defendants disregarded his expert advice, brazenly opting to report on what Mrs. Fine supposedly
knew, and when she knew it, without ever once speaking with her.
Agent Lanning emphasized the importance of when, if at all, Mrs. Fine became aware of
Daviss alleged abuse. To this end, Agent Lanning advised Schwarz and Berko that a line exists
between sexual abuse of children and adult sexual relationships. When you start to talk about

(e) Syracuse Universitys failure to find a single complaint and grievance ever filed against
Bernie Fine in his 40+ year career. Fisher Decl. Ex. 1, pp. 207 (SU005).

10
sexual abuse, we have to draw the line between what the law says. And so its very important to
look at the statutes that would be applicable at the time. Document 98-37; Schwarz Decl. Ex. 9, p.
22. Agent Lanning explained the law does not treat both sides of the line the same way.
And I always ask the question, well, who would trade sex for attention,
affection, kindness, gifts, money and privileges? And to the best I can figure
out, the answer is pretty much everybody, to one degree or another.
And the reason were supposed to be protecting this boy is because children are
developmentally immature and tend, to a higher degree, to make mistakes and
errors in judgment. Thats why we protect them from the consequences of their
decisions and say that they cant do certain things like sign contracts and do this,
and drive automobiles and vote or whatever it is in our society that were going
to allow them to do. So theyre not allowed to choose an adult sexual partner at
this age because theyre not developmentally mature enough because theyre
going to make errors in judgment. Now, do adults make errors in judgment? Sure
they do. But at some point we just have to draw a line so we have more
protections for children.
Document 98-37; Schwarz Decl. Ex. 9, p. 10.
Alas, Agent Lanning identified a material distinction to keep in mind when ESPN
investigated Bernie and Laurie Fine. In other words, ESPN knew that if it were to report Bernie
Fine sexually abused Robert Davis, then the facts better establish the sexual interactions occurred
while Davis was younger than New Yorks age of consent. And by extension, if ESPN were to
report Mrs. Fine witnessed, knew of, and had concerns that her husband was sexually abusing
Davis, then ESPN better prove she did so while Davis was younger than New Yorks age of
consent. According to Agent Lanning himself, pinning down Lauries knowledge in this regard is
going to be very difficult. If only Defendants had not disregarded his advice.
2. The age of consent is New York in 17-years old.
At all times relevant to this action, the age of consent in New York was seventeen years of
age. Fisher Decl. Ex. 1, pp. 66-70 ( 130.05, 1965 vol. II 2391 (1965)). Despite Agent Lannings

11
pointed directive that Mark Schwarz look at the statutes, Schwarz was not aware of this fact.
Fisher Decl. Ex. 1, pp. 71-72 (Schwarz Dep. at pp. 106-07); pp. 136-137 (Schwarz Dep. at pp.
108-09).
3. Davis was at least 17-years old at all times material to ESPNs reporting about
Plaintiff.
Defendants reporting that Mrs. Fine witnessed, knew of, and had concerns her husband
was sexually abusing Davis (as a young boy under the age of 17) was improperly based on two
events, only.
1. The first event occurred in the summer of 1991 when Mrs. Fine allegedly witnessed
through a basement window an interaction between her husband and Davis.
2. The second is October 2002, when Davis secretly recorded a telephone conversation he
had with Mrs. Fine.
As demonstrated below, allegations that Mrs. Fine had concerns that her husband was abusing
Davis are entirely unsupported in light of Daviss date of birth, New York law regarding the age of
consent, and common sense.
First, Davis does not contend he was a child when Mrs. Fine supposedly saw [Bernie
Fine] through the basement window...grabbing [him] and pullingyou know, touching [him].
Document 45-16, p. 3. Instead, Davis told ESPNs audience this occurred when he was a junior in
high school. Id. But by then, Davis was at least 17-years old.2 Consequently, ESPNs reports
about Mrs. Fines supposed child abuse concerns are easily dismissed as false, because the only
event to which Defendants point in showing her firsthand knowledge occurred after Davis had

2
Discovery has proven Davis was not a junior in high school during this window incident.
However, even if Davis were a junior in high school, he would have been 17-years old at the time.
Indeed, a more precise account of this event establishes that it occurred in the summer of 1991.
Fisher Decl. Ex. 1, p. 79 (Young Dep. at p. 6). Given his birthdate, Davis was at least 17-years old
during the summer months of his junior year in high school, and Defendants knew this. Fisher
Decl. Ex. 1, pp. 73-78 (CNYLEADS NARRATIVE SUPPLEMENT 072; ESPN001902;
ESPN003283-84; ESPN003628; ESPN003631).

12
reached New Yorks age of consent, and long after he stopped being a ball boy. This point was
driven home during discovery.
The parties deposed Cynthia Young, who was present during the window incident that
Davis and ESPN describe as proof of Mrs. Fines real-time abuse concerns. Young recalled the
window incident from when she babysat the Fine children in the summer of 1991. Fisher Decl.
Ex. 1, p. 79 (Young Dep. at p. 6). Young testified to having looked through the window with Mrs.
Fine, but what she saw was not abuse, no matter Daviss age.
I was out in the driveway playing with the kids and BernieLaurie was sitting on
the stairs and she said, look in the basement window. What are they doing? And
I wasI didnt understand really what her question was. I understood what she
was asking me to do but I didnt really understand why, and so the basement
windows aligned the driveway so I looked in the window. There are blinds and so
I looked in the window and I could see them sitting on the couch together. Bernie
wasthey were sitting next to each other and Bernie was had his hand on
Bobbys like leg, just like a coach would on the bench kind of thing and Bobby
had his handshead in his hands, looked upset I thought, and then thats all I
saw, so I turned around and I said to Laurie, Theyre just sitting there[.]
Fisher Decl. Ex. 1, p. 80 (Young Dep. at p. 11). On cross-examination, Plaintiffs counsel followed
up on Youngs earlier testimony.
Q.
You testified earlier in your deposition you saw Bernie Fine with his
hands on Bobby Daviss knee?
A.
Yes.
Q.
I thought you phrased it the way a coach would do?
A.
Yes.
Q.
Was Bernie Fine fondling Bobby Daviss knee?
A.
I was above them. I was looking straight down to the couch. They were
directly below me and his hand was on his knee. There was no fondling I
guess.
13
Q.
Thank you. Did this situation that you observed through the window...did
this situation seem abusive to you?
A.
No.
Fisher Decl. Ex. 1, p 81 (Young Dep. at p. 19).

Youngs testimony is critical for several reasons. First, it demonstrates that Bernie Fine did
not touch Davis in a sexual manner. Second, it concretely establishes Davis was 19-years old at the
time of the window incident. In fact, Young directly stated: [h]e was my age, 19, at that time.
Fisher Decl. Ex. 1, p. 235 (Young Dep. at p. 9). To this end, Davis was born in January 1972.
Fisher Decl. Ex. 1, pp. 73-78 (SPD072; ESPN001902; ESPN003283-84; ESPN003628;
ESPN003631). Schwarz knew this. Fisher Decl. Ex. 1, p. 82 (Schwarz Dep. at p. 104). As a result,
regardless in what summer month the window incident took place, Davis was at least 19.3
Second, Davis told ESPNs worldwide audience that Mrs. Fine was a person that I talked
to a lot about the situation as I got older. Document 45-16, p. 3. Perhaps Davis should have said,
much older, because as proof of his conversations with Mrs. Fine, he provided ESPN, and ESPN
subsequently published, a tape he secretly recorded in October 2002. Document 98-30; Schwarz
Decl. Ex. 2, pp. 32-33; Document 98-28; Schwarz Decl. at 7; Document 98-27; Berko Decl. at
6. No other evidence establishes a timeline when Davis first informed Mrs. Fine of his abuse
claims. From the tape itself, and her probing of Davis in it, one can conclude Mrs. Fine was

3
Even Danielle Roach corroborates the fact that Davis was 19 when he alleges what Mrs. Fine
knew and when she knew it. First, she tells Schwarz and Berko that Bobby is over a year older
than I am. Document 98-34; Schwarz Decl. Ex. 6, p. 15 (18-19 lines up from the bottom). In fact,
Roach, born in January 1974, is almost exactly two years younger than Davis. Fisher Decl. Ex. 1,
p. 73 (CNYLEADS Narrative Supplement). Furthermore, she repeatedly frames her corroboration
of Daviss allegations to the time when she was 16 or 17, right around that border. Document
98-34; Schwarz Decl. Ex. 6, p. 40 (5 lines up from the bottom); p. 5 (second line from bottom), p.
6 (20 lines up from the bottom), p. 7 (6 lines up from the bottom), p. 8 (17 lines up from the
bottom), p. 9 (9 lines down from the top), p. 12 (10 lines down from top), p. 18 (4 lines down from
the top) p. 40 (5 lines up from the bottom), and Document 98-47; Schwarz Decl. Ex. 19, p. 24 (10
lines down from the top)).

14
confronting his accusations for the very first time. However, by this time, Davis was 30-years old.
As a result, what was true in 1991 held true in 2002: Davis was at least 17-years old at all times
Mrs. Fine purportedly had concerns, as falsely published by ESPN.
4. As Davis was at least 17-years old at all times Laurie Fine purportedly witnessed,
knew of, and developed child abuse concerns, ESPNs reporting constitutes a
material deviation from the truth.
Substantial truth may be all thats required for Defendants to prevail on summary
judgment, but ESPNs reporting lacked any truth at all. The test for establishing substantial truth
focuses on whether the libel as published would have a different effect on the reader from that
which the pleaded truth would have produced. Masson v. New York Magazine, 501 US 496 (1991).
In this case, it certainly would have.
The libel published here was ESPNs reporting that Mrs. Fine witnessed, knew of, and had
concerns her husband was sexually abusing a young ball boy, a minor child, in her home, but did
nothing to stop it. This is clear from the admissions of Vince Doria and Dwayne Bray, among
others. Fisher Decl. Ex. 1, pp. 34-35 (Doria Dep. at pp. 47-48); Fisher Decl. Ex. 1, p. 224 (Bray
Dep. at p. 39). This is also clear upon consideration of the lingering context of the Sandusky
scandal, in which a college coach had abused young boys, from 10 to 13 years of age.
The pleaded truth, however, paints a far-different picturea picture that didnt neatly fit
into the narrative of the Sandusky scandal. Had Defendants simply published a story about the
pleaded truth, Mrs. Fine would not have been subjected to the shame shes endured since
November 27, 2011. The difference between these pictures proves with convincing clarity that
ESPNs reporting was not substantially true. It was, as to Plaintiff, materially false.
More specifically, viewing Daviss tape in a light least favorable to Plaintiff, the pleaded
truth establishes that Mrs. Fine first harbored concerns about the relationship between Davis and
her husband in 1991, when she and Cynthia Young saw the two through a basement window. No

15
credible evidence in this case contradicts this unassailable fact. By the time Mrs. Fine supposedly
witnessed something through a basement window, many years had passed since Davis was the ball
boy ESPNs reporting implies. Rather, he was a 19-year old man. Even without considering New
Yorks age of consent, this difference is material. ESPNs reasonable viewersand Mrs. Fines
neighborswould not have subjected her to such hatred and ridicule had ESPN simply reported
that Davis was a 19-year old man when Mrs. Fine developed concerns about his alleged
relationship with Bernie Fine.
The materiality of the difference between ESPNs reporting and the pleaded truth is even
more apparent considering Agent Lannings interview. During this interview, Agent Lanning
stated unequivocally how difficult it would be for ESPN to prove exactly what [Mrs. Fine] knew
and when she knew it. To this end, Agent Lanning directed Schwarz and Berko to review
applicable New York law. They did not. Fisher Decl. Ex. 1, pp. 71-72 (Schwarz Dep. at pp. 10607). But had they, Defendants would have realized New York Penal Code 130.05 permits anyone
17-years or older to engage in a consensual, sexual relationship. This detail is key, as it removes
any doubt that ESPN overstepped the deference First Amendment law affords by implying Mrs.
Fine endangered the welfare of a child.
C. Sex with Bobby Davis.
In ESPNs publication, Davis contends he had sex with Mrs. Fine when Davis was eighteen
and a senior in high school.
Document. 45-16, pp. 3-4.
Aside from Daviss incredible
accusations, nothing supports this contention.

1. Nobody corroborates Bobby Daviss allegation he had sex with Laurie Fine, and
Davis is not credible.
In the course of discovery, the parties deposed many individuals close to Mrs. Fine. None
of them corroborated Daviss charge that he had sex with her. Here, too, Cynthia Youngs
16
testimony is important. To reiterate, Young was the Fines babysitter in 1991, the same year Davis
was a senior in high school and, according to him, had sex with Mrs. Fine. Fisher Decl. Ex. 1, p.
79 (Young Dep. at p. 6); Fisher Decl. Ex. 1, p. 83 (The Bernie Fine chronology); Fisher Decl.
Ex. 1, p. 220 (SU586, paragraph 3, Davis states that he graduated Henninger in 1991).
Q.
Based on everything you observed between Laurie Fine and Bobby Davis,
did you ever - - were you ever suspicious that there was an improper
relationship between Laurie Fine and Bobby Davis?
A.
No. She actually was annoyed by him being there. She would roll her eyes
and be very frustrated that he was in the home.
Q.
Did you ever suspect that Laurie Fine was having sex with Bobby Davis?
A.
Oh, no way.
Fisher Decl. Ex. 1, p. 85 (Young Dep. at p. 20).

In addition to Young, Debbie Gaetano, Peggy Rogers, Sara Fine, and Sheila Streeter all
denied knowing or believing that Mrs. Fine engaged in a sexual relationship with Davis. Fisher
Decl. Ex. 1, p. 86 (Debbie Gaetano Dep. at p. 45), p. 87 (Rogers Dep. at p. 19), p. 88 (Sara Fine
Dep. at p. 71), and p. 89-90 (Streeter Dep. at pp. 86-87). ESPN has not produced a scintilla of
evidence in support of this outrageous accusation.
Considering that Davis lacks credibility as demonstrated further herein, his false allegations
should not have been reported by ESPN.
2. Laurie Fines words do not constitute an admission that she had sex with Davis
such that ESPNs reporting constitutes another material deviation.
ESPN cites the secret tape as its only corroborating source for Daviss incredible claim he
had sex with Mrs. Fine. Fisher Decl. Ex. 1, p. 91 (Doria Dep. at p. 12). Specifically, ESPN points
to Mrs. Fines statement on the tape, when I was with you, as its only piece of corroborating
evidence for this libelous statement. Describing this statement, Vince Doria explains, I believe
17
that a reasonable reading of the transcript of the phone conversation, while she doesnt directly say
that, there is certainly strong intimation of it.... Fisher Decl. Ex. 1. p. 92 (Doria Dep. at p. 57)
Unfortunately, another ESPN executive had far more difficulty reaching Dorias
reasonable reading. In fact, David Kraft, ESPN Digitals Senior Editor of News Operations, was
so stumped that he emailed Dwayne Bray on November 27, 2011, writing, [t]he line where we
say Mrs. Fine admitted the relationship with Davis...thats Schwarz asking Davis, right? Not sure
on the transcript I see her admitting it. Am I missing it? Fisher Decl. Ex. 1, p. 93 (ESPN002291).
Kraft was not missing anything, because there was no admission to find. As Mrs. Fine explained in
her deposition, [i]ts as simple as that word is. When I was with him. Not with sex. I think my
mouth is pretty big. I would have said that. Fisher Decl. Ex. 1, p. 94-95 (Laurie Fine Dep. at p.
229-30).4
In their Statement of Material Facts Not Genuinely in Dispute, at 75, ESPN proclaims
Syracuse police interviewed multiple witnesses...who stated that they believed that Mrs. Fine had
many extramarital relationships, including with Davis. This Court has already established that
ESPNs [p]ublications make clear that their descriptions of Plaintiffs conduct, as well as their
descriptions of the content and meaning of the tape, were made by Defendants themselves or nonlaw-enforcement persons Defendants interviewed... Document No. 56, p. 12. Defendants never
interviewed anyone who stated that Mrs. Fine had sex with Davis. Likewise, not a single person

4
Despite the glaring absence of any comments on the tape that support ESPNs definition of the
words, with you, Defendants deride Mrs. Fine, mocking her for claiming her words on the Tape
do not mean what ESPN, state and federal law enforcement authorities, Websters Dictionary, and
the rest of the world understand them to mean. Document 98-1, at p. 22. When it comes to the
meaning of Mrs. Fines words, however, ESPN cannot rationally claim the rest of the worlds
understanding. And ESPNs representations about the conclusion(s) reached by law enforcement
are irrelevant. Document No. 56, p. 12. Moreover, ESPN specifies nothing from Websters
Dictionary that defines any of Lauries words. To remove the rampant doubt and concern ESPN
executives expressed, perhaps Defendants should have simply asked Mrs. Fine herself.

18
has come forward in this case to corroborate the defamatory report that Davis had a sexual
relationship with Mrs. Fine, nor has an iota of evidence been produced to substantiate such a
scandalous lie. It almost goes without the need to say, but reporting that Mrs. Fine had sex with
Bobby Davis was a material deviation from the truth, which is that Daviss allegations in this
regard are a complete lie.
III. Clear and convincing evidence establishes ESPNs actual malice.
A. The Actual Malice Standard.
Courts often indicate that summary judgment is not only disfavored in public-figure
defamation actions, it is presumptively inappropriate. Goldwater v. Ginzburg, 261 F. Supp. 784,
788 (S.D.N.Y. 1966), affd 414 F.2d 324 (2d Cir. 1969). The theory is that actual malice is a
state of mind (Herbert v. Lando, 441 US 153 (1979)) and issues as to state of mind are ordinarily
for the jury. White Motor Co. v. United States, 372 US 253, 259 (1963). This theory should not
change just because the court hears a First Amendment case. The Supreme Court explains, we are
constrained to express some doubt about the so-called rule [that defendants motions for
summary judgment are generally granted in defamation cases]. The proof of actual malice calls a
defendants state of mind into question...and does not readily lend itself to summary disposition.
Hutchinson v. Proxmire, 443 US 111, 120 n.9 (1979) (citing New York Times Co.).
In order to succeed in an action for defamation, a public-figure plaintiff must plead and
prove that the statement was made with actual malicethat is, with knowledge that it was false
or with reckless disregard of whether it was false or not. N.Y. Times Co. v. Sullivan, 376 U.S. 254,
280 (1964); Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967). There must be sufficient
evidence to permit the conclusion that the defendant in fact entertained serious doubt as to the truth
of his publicationa culpable state of mind. St. Amant v. Thompson, 390 U.S. 727, 731 (1968).
19
B. Defendants self-serving declarations that they believed Davis are irrelevant.

Mere statements by the defendant of his or her belief in the truth of a publication will carry
the day only if they are not overridden by evidence establishing knowing or reckless falsity.
Anderson v. Liberty Lobby, Inc., 477 US 242, 256 (1986); St. Amant, 390 US at 732 (The
defendant in a defamation action brought by a public official cannot...automatically insure a
favorable verdict by testifying that he published with a belief that the statements were true.);
Reliance Ins. Co. v. Barrons, 442 F. Supp. 1341, 1350 (S.D.N.Y. 1977). Because it would be a
rare case where a defendant admits to publishing a statement while knowing it to be false, a court
typically will infer actual malice from objective facts. Celle, 209 F.3d at 176; see Bose Corp. v.
Consumers Union of United States, Inc., 692 F.2d 189, 196 (1st Cir. 1982). Courts should thus
take into account circumstantial evidence relating to the defendants behavior. Kerik v. Tacopina,
__F. Supp. 3d __, 2014 US Dist. LEXIS 167446, at *61-62 (S.D.N.Y. 2014). It is thus of no matter
that Defendants have testified to believing their story, or that Mrs. Fine herself remarked that
Defendants deluded themselves into believing the same. This Court must look to the objective
evidence relating to Defendants November 2011 reporting, and the investigation beneath it.
C. Highlights of ESPNs actual malice.
1. ESPN did in fact doubt Daviss story.
A public-figure plaintiff may satisfy the actual malice standard by demonstrating a
defendant entertained serious doubt as to the truth of its publication. St. Amant, 390 U.S. at 731.
Here, Defendants serious doubts about Daviss story are vast and wide.
20
a. ESPNs President admits: There were significant credibility issues with

Bobby Davis.
Defendants self-serving Declarations ignore the admissions of their boss, ESPN President
John Skipper. Following ESPNs reporting, Skipper admitted ESPN had concerns about Daviss
credibility, stating unequivocally:
There were significant credibility issues with Bobby Davis...We did not believe
we could go forward with a story..5
Fisher Decl. Ex. 1, p. 97 (ESPN003554). Skippers remark is critical, for Daviss credibility never
changed from 2003 to 2011. The same reasons to doubt Davis in 2003 existed in 2011. No new
evidence as to Davis was presented to justify Defendants reporting, only the added accusations of
his stepbrother, Mike Lang. And for reasons provided in section 2, supra, Defendants should never
have credited Mike Lang. In any event, and in addition to President Skipper, other ESPN
executives also had serious doubts about the reporting.
b. At least two other ESPN executives had such serious doubts that they actually
recommended leaking the tape to another news entity, and allowing someone
else to break the story first.
Vince Doria and Norby Williamson had such serious doubts as to the tapes meaning that
they suggested allowing another media entity to publish it first. In an email written on November
19, 2011, Doria shared his thoughts,
Have a thought on phone tape, runs counter to our instincts, but want your
thoughts, ran it by Norby, he agrees. Now that police have the tape, [redacted
information] its possible somebody leaks it, and another media organization airs
it. As I consider that, not the worst thing for us. At this point, were out there by
ourselves on this one, and when we air tape, its evidence from the same source.
For those who want to make case that Davis is orchestrating campaign against

5
For example, Davis obtained the tape by deception. He never told Mrs. Fine that he was taping
their conversation. Document 98-65; Fisher Decl. Ex. 1, p. 96 (ESPN001921). Additionally, in his
interview with Schwarz, Davis admits that he is a liar. Document 98-30; Schwarz Decl. Ex. 2, pp.
19 and 62 (I just kept telling him...lies[.] Davis also lied to people and told them that Bernie Fine
was his uncle.).

21
Fine, for whatever reason, and were the cooperating vehicle, its one more peg in
that argument. If someone else airs, we have one more media organization in the
hunt, producing original material that points to Fines guilt.
Fisher Decl. Ex. 1, p. 98 (ESPN001108). Dorias doubt was so serious that he originally approved
publication only in the event The Post-Standard, Syracuses local newspaper, broke the story first.
Fisher Decl. Ex. 1, pp. 99-102 (ESPN002162, ESPN002180-82).
c. Even Defendant Berko admits that ESPN did, in fact, lack confidence in Bobby
Davis.
Berko wrote an email around 2003. Fisher Decl. Ex. 1, p.103 (Berko Dep. at p. 16); Fisher
Decl. Ex. 1, p. 104 (Berko Dep. at p. 20); Fisher Decl. Ex. 1, p. 105 (Schwarz Dep. at p. 263). The
email makes clear that Defendants harbored doubt in Daviss story, even after interviewing him
multiple times, obtaining his secret tape, and consulting Agent Lanning. Berko wrote, [m]aybe
its time to take a different approach and investigate this story with the full and complete
confidence that BDs story is true. Fisher Decl. Ex. 1, p. 106 (ESPN000520). Berko was
apparently addressing his remarks, in part, to Schwarz, who, during his interview with Agent
Lanning, described Daviss story as an unbelievable scenario. Document 98-37; Schwarz Decl.
Ex. 9, p. 27. And when Lang changed his story in 2011, Schwarz described this, too, as
[u]nbelievable. Fisher Decl. Ex. 1, p. 31 (ESPN001894). In other words, Defendants lacked
confidence after first investigating Daviss accusations, and even afterward in 2011.
2. ESPN had obvious reasons to doubt the veracity of its sources, particularly Mike
Lang, who Defendants incredibly point to as the lynchpin that ultimately justified
their reporting.
Repeatedly, the United States Supreme Court and courts of this Circuit have identified a
media defendants reliance on sketchy sources to demonstrate actual malice. See St. Amant, 390
U.S. at 732 (publication despite obvious reasons to doubt the veracity of the informant upon whom
22
the article is based or the accuracy of his or her reports); Harte-Hanks Communications, Inc. v.
Commaughton, 491 U.S. 657 (1989); Pep v. Newsweek, Inc., 553 F.Supp. 1000 (S.D.N.Y. 1983).
Laughably, in their Memorandum in Support of Summary Judgment, at p. 13, ESPN
identifies Lang (as well as confirmation of an investigation by the Syracuse Police Department
(SPD)), as the lynchpin for airing its reports in this case. Regarding Lang, ESPN had obvious
reasons to doubt the veracity of his sudden and inconsistent accusations in 2011. First, Schwarz
and Berko were aware Lang had denied being abused by Bernie Fine at least a hundred million
times over a period of many years. Fisher Decl. Ex. 1, p. 107 (ESPN000186). Everyone involved
in ESPNs investigation was aware of this fact. Schwarz knew. Fisher Decl. Ex. 1, p.108 (Schwarz
Dep. at p. 185). Doria knew. Fisher Decl. Ex. 1, p. 109 (Doria Dep. at p. 59). Bray knew. Fisher
Decl. Ex. 1, p. 110 (Bray Dep. at p. 42). However, nobody at ESPN considered this incredible flipflop in weighing Langs credibility. Rather, as Berko lamely put it, they chose Langs 2011
accusations over his 2003 denials based on gut instinct. Fisher Decl. Ex. 1, p. 111 (Berko Dep. at
p. 121).
Defendants were also aware of, but admittedly disregarded, a host of other reasons to doubt
Langs flip-flop in November 2011.
Schwarz was aware Lang had recently accepted free tickets from Bernie Fine to attend a
Syracuse basketball game. Fisher Decl. Ex. 1, p. 112 (Schwarz Dep. at p. 197); Schwarz
Decl. at 35.
Schwarz was aware Lang brought his children to practices at Carmelo Anthony Arena.
Schwarz Decl. at 35.
Schwarz was aware that Lang asked Bernie Fine to allow Langs sons to serve as Syracuse
University ball boys, under Fines watch. Fisher Decl. Ex. 1, p. 112 (Schwarz Dep. at p.
197).
Schwarz was aware Lang attended Bernie Fines 60th birthday party in 2006. Fisher Decl.
Ex. 1, p. 112 (Schwarz Dep. at p. 197).
23
Schwarz knew Lang came to his stepbrother, Davis, in 2011, under the guise of getting
that fucking faggot. Document 98-45; Schwarz Decl. Ex. 17, pp. 28 and 31; Fisher Decl.
Ex. 1, p. 113-114 (Schwarz Dep. at pp. 191-92).
Unconscionably, none of these inconsistencies played a role in ESPNs assessment of
Langs credibility. When asked whether he considered the above in weighing Langs credibility,
Schwarz answered, [n]o, because of the nature of sexual child abuse. Fisher Decl. Ex. 1, p. 115
(Schwarz Dep. at p. 198). Schwarz refused to explain what he meant by this outlandish statement
and a jury should judge him for being so obtuse. He refused to explain why the nature of child
abuse would not cause him to pause after discovering Lang asked a supposed sexual predator to
look over his own kids. As foolish, Berko explained these inconsistencies never played a major
factor in the production of our report. Fisher Decl. Ex. 1, p. 116 (Berko Dep. at p. 116).
The Court should also note Langs story of abuse was entirely inconsistent with that of
Davis. For example, Schwarz asked Lang if Bernie tried to get Lang alone, where no one else was
around, and Lang said [n]o, never. No, he didnt. He didnt. I got to say that. Document 98-44;
Schwarz Decl. Ex. 16, p. 8 (3 lines up from the bottom of the page). Additionally, Lang noted,
they were in the sauna together, but nothing ever really happened out of that. Document 98-44;
Schwarz Decl. Ex. 16, p. 7 (11 lines down from the top of the page). And when they were alone in
a hotel, Lang stated that Bernie didnt attempt to do anything with me[.] Document 98-44;
Schwarz Decl. Ex. 16, p. 9 (19 lines down from the top of the page). These statements
diametrically oppose Daviss accusations against Bernie Fine.
These inconsistencies accrue greater importance in light of Agent Lannings interview,
where he explained:
Generally what I spent 20 years doing in my career is listening to that kind of
information and evaluating it primarily to see if it is consistent. Is it consistent
with other similar type allegations and is there consistency among the allegations?
Is there consistency about what they describe the perpetrator doing?

24
Document 98-37; Schwarz Decl. Ex. 9, p. 1. Defendants, however, entirely disregarded Agent
Lannings warnings about consistency, the importance of which he emphasized nearly 20 times
during the interview. Had Defendants not so disregarded Agent Lannings advice to compare
Davis and Langs accounts, they would have seen the obvious: either one, or both, accounts lack
credibility. Either way, Langs inconsistencies, measured against his own behavior and Daviss
accusations, leave no doubt that Defendants had obvious reasons to doubt the veracity of Langs
accusations in 2011.
3. ESPN fabricated a storyline about Laurie Fine having child abuse concerns, etc.,
to make its reporting more condemnatory than the facts support.
New York courts find actual malice where a defendant intentionally misstates the facts in
order to make [them] seem more convincing or condemnatory than they really are.
Westmoreland v. CBS, Inc., 596 F. Supp. 1170, 1174 (S.D.N.Y. 1984); see also St. Amant, 390
U.S. at 732 (fabrications may be defamatory).
As has already been demonstrated, ESPN transformed a set of facts that, in its worst light,
suggest Mrs. Fine saw Davis and her husband through a basement window in 1991, when Davis
was a 19-year old man, into a story about her witnessing, knowing, and allowing child sexual
abuse to occur on her watch. This transformation was done with the intent of fitting Daviss
accusations into the mold cast by the reporting about Jerry Sandusky. But this transformation also
made ESPNs reporting false and more condemnatory than the evidence supports. ESPN simply
had no evidence Mrs. Fine witnessed, knew of, or had concerns of any inappropriate conduct
before the 1991. As such, it was defamatory for ESPN to publish the tape, citing this 1991 incident
as proof of her real-time child abuse concerns.
Relatedly, New York courts will also find an inference of malice and reckless disregard for
the truth where the objective evidence demonstrates a media defendant deliberately presented only
25
those selected facts that would place the plaintiff in the worst light. Daniel Goldreyer, Ltd. v. Dow
Jones & Co., Inc., 678 NYS2d 453 (Sup. Ct. 1998). In this vein, without explanation, Defendants
chose not to publish all of the known reasons to disbelieve Mike Lang. A reasonable jury may well
infer actual malice from Defendants unexplained failure to provide the whole story.
4. ESPN resorted to slipshod and sketchy investigative techniques, despite having
almost a decade to tell its story.
The Supreme Court considered the use of slipshod and sketchy investigative techniques
in finding actual malice in Curtis Publishing Co. v. Butts, 388 US 130 (1967). See also HarteHanks Commcns v. Connaughton, 491 US 657 (1989). In so considering, the Supreme Court paid
particular attention to the fact the article was not hot news requiring reportorial speed. Id.
ESPNs reporting of Daviss tape did not require reportorial speed. This is self-evident
from the fact ESPN possessed the tape for nearly a decade. However, to dispel any notions
otherwise, Norby Williamson made clear, we are in no rush here. I know we have sunday (sic)
show but thats arbitrary deadline. We wont be pushed to make a decision based on edit schedule
or show deadline. Fisher Decl. Ex. 1, p. 117 (ESPN001094). Nevertheless, ESPN turned around
the November 27, 2011 story in just a few days. Fisher Decl. Ex. 1, p. 118 (ESPN000429). To
accomplish this quick turnaround, ESPN undertook a course of slipshod and sketchy conduct that
cut corners, manipulated law enforcement, and in the end, defamed Mrs. Fine.
a. ESPN lied about an audio expert confirming Laurie Fines voice.
In the first moments of ESPNs reporting on November 27, 2011, Bob Ley told Outside the
Lines audience that an independent audio analyst has confirmed to ESPN that the voice you are
about to hear is the voice of Laurie Fine[.] See Document 45-16, p. 1; Fisher Decl. Ex. 1, pp. 119120 (ESPN002804, ESPN002810). Schwarz reaffirmed this in an interview with CNN that day.
Thats why we wanted to, before airing it, take the extra step to run it by a voice
recognition expert who says, yes that is the voice of Laurie Fine. Because, we

26
were able to compare it to other voice of Laurie Fine examples we were able to
provide.
Fisher Decl. Ex. 1, p. 121 (ESPN002500). Doria too reaffirmed this company line when he stated
in an interview the next day, on November 28, 2011:
This time around when we re-engaged on the story we did in fact have video we
found on-line of her serving a meal to Bernie and a number of young men who
may or may not have been Syracuse players. In this video you could clearly hear
her. This allowed us to submit the audio to a voice recognition expert which we
did last week.
Fisher Decl. Ex. 1, pp. 122-124 (ESPN000499-501). Unfortunately, by pushing this company line,
Ley, Schwarz and Doria lied to their audience in more ways than one.
First, ESPN never contacted an independent audio analyst or a voice recognition
expert. Instead, Dwayne Bray contacted Christopher Kikel, a [s]uccesful sales/sales management
professional specializing in business management, healthcare information technology and
workflow optimization with his only apparent experience in voice recognition technology
apparently relates to the legal and medical transcription products he sells. Fisher Decl. Ex. 1, p.
125-126 (ESPN001828-29); Fisher Decl. Ex. 1, p. 127-130 (Christopher Kikel | LinkedIn).
Kikel is a far cry from the expert ESPN hyped in its reporting. Kikel, in fact, would agree. Kikel
didnt know he was the voice recognition expert Bob Ley referenced on November 27, 2011. He
had to email Bray to confirm: Out of curiosity, was the voice recognition expert the newscaster
mentioned who verified the recording me? Fisher Decl. Ex. 1, pp. 131-132 (ESPN000879-80).
Worse than ESPNs intentional misrepresentation as to his qualifications, Kikel did not
even confirm Mrs. Fines voice on the tape!
I have had the opportunity to review and have trusted others to give their analyses
of the clips several times...As I originally thought, the quality of the phone
conversation is not high quality enough to run it through any piece of
software that would be able to make a comparison like this. One friend of
mine stated:

27
Hi. I have had a chance to listen to the audio files and the Youtube (sic) clips.
Unfortunately, I do not think we can use these files for doing a comparison. The
quality of the telephone files is too low. In addition, as I said, the channels are
very different (high channel mismatch). Based on my experience, this data is
not enough to make any conclusion. I think you may want to look for an
individual who does voice comparisons based on more traditional methods. Since
the audio quality is bad, I believe the expert would have to base his/her decision
on inflections, dialect, etc. and not purely on the voice.
I have spent a great deal of time on this today and do not honestly know where to
go from here. There is not anyone out there I have spoken with that is able to
prove this based off technology.
Fisher Decl. Ex. 1, pp. 132-133 (ESPN000880-81) (emphasis added). But ESPN knowingly
disregarded Kikels advice. In an email to Vince Doria, Kikels shortcomings were explicitly
pointed out and acknowledged by Patrick Stiegman who wrote spoke to source who seemed to
corroborate the wife on tape [sic] Dwayne is aware but it is not rock solid [sic] A leak here would
help us then follow with our own version. Fisher Decl. Ex. 1, p. 236 (ESPN3520) (emphasis
added). Deliberately ignoring the truth, Dwayne Bray nevertheless stuck with the unqualified and
technologically incompetent Christopher Kikel, who, despite identifying several reasons why he
could not make a comparison, gave Bray what he clearly wanted: Kikels professional opinion
the voice on the tape was most likely Mrs. Fine. Id. However, in light of Kikels profession,
his opinion meant squat.
This new light shows just how material the difference is between Kikels sheepish opinion
and Bob Leys opening remarks. It also demonstrates just how sketchy Defendants investigation
became in order to meet Outside the Lines arbitrary deadline.
b. ESPN disregarded the experts it consulted when convenient to do so.
In Curtis Publishing Co. v. Butts, 388 US 130 (1967), the Supreme Court considered a
journalists failure to consult subject matter experts as a factor in finding actual malice. This factor
is relevant here, where Defendants consulted but disregarded a child abuse expert. Neither

28
Schwarz nor Berko are experts in this area. Fisher Decl. Ex. 1, p. 63 (Schwarz Dep. at p. 162);
Fisher Decl. Ex. 1, p. 64 (Berko Dep. at p. 31). As a result, they interviewed former FBI agent,
Kenneth Lanning, in 2003. Fisher Decl. Ex. 1, p. 65 (Schwarz Dep. at p. 16).
At the time of his deposition, Schwarz recalled only one takeaway from Agent Lannings
interview: that molestation can occur beyond childhood. Fisher Decl. Ex. 1, p. 135 (Schwarz Dep.
at p. 176). Unfortunately, he and Berko disregarded most everything else Agent Lanning had to
saythings that cautioned them from reporting Mrs. Fine witnessed, knew of, and had concerns
her husband was sexually abusing minors, but did nothing to stop it.
For example, Agent Lanning bluntly stated, one explanation is that its a lie, that it didnt
happen and they just made it up. And thats certainly a very real possibility. Document 98-37;
Schwarz Dec. Ex. 9, p. 27.
Agent Lanning also told Schwarz and Berko to research governing law. When you start to
talk about sexual abuse, we have to draw the line between what the law says. And so its very
important to look at the statutes that would be applicable at the time. Document 98-37; Schwarz
Dec. Ex. 9, p. 22. But Defendants never did. Fisher Decl. Ex. 1, pp. 136-137 (Schwarz Dep. at pp.
108-09). For reasons already expressed in this brief, Defendants failure in this regard is critical.
Furthermore, Agent Lanning told Defendants: [y]ou can say she should have known, she
probably knew, but being able to prove exactly what she knew and when she knew it is going to be
a very difficult. Document 98-37; Schwarz Dec. Ex. 9, p. 16. Despite this difficulty, Defendants
implied Mrs. Fine witnessed, knew of, and had concerns her husband was abusing young boys, but
did nothing to stop it. However, there just is no proof. Reading the evidence in its worst light,
Defendants could not possibly impute such knowledge to Mrs. Fine before 1991, when Davis was
19-years old.
29
Agent Lanning also told Defendants, a true investigation has to listen to all sides. And at
some point you want to hear what the other side has to say. Document 98-37; Schwarz Dec. Ex.
9, p. 29. Nevertheless, Defendants never attempted to contact Mrs. Fine before publishing without
her perspective, although they could have simply knocked on her door or called her on the
telephone. Fisher Decl. Ex. 1, pp. 138-143 (ESPN001198; ESPN002636-37; ESPN000074;
ESPN002335; ESPN002341).
Moreover, Agent Lanning emphasized the importance of consistency nearly 20 times in his
interviewconsistency between an accuser and his actions, and consistency between the accounts
of different accusers. Document 98-37, Schwarz Decl. Ex. 9, p. 1. But Defendants admit they
never considered Langs wildly inconsistent account and behavior in weighing his credibility.
Fisher Decl. Ex. 1, p. 115 (Schwarz Dep. at p. 198); Fisher Decl. Ex. 1, p. 116 (Berko Dep. at p.
116). Nor is there evidence Defendants compared Langs account to Daviss accusations. Had they
done so, Defendants would have realized the two men told very different stories. According to
Agent Lanning, this should have cautioned them from breaking the story in 2011.
c. Mark Schwarz put Zach Tomaselli in contact with Bobby Davis.
On or about November 18, 2011, Zach Tomaselli contacted Mark Schwarz, claiming
Bernie Fine too had sexually abused him. Fisher Decl. Ex. 1, p. 144-145 (ESPN000096-97).
Schwarz immediately put Tomaselli in touch with Davis, knowing Tomaselli had yet to speak with
law enforcement. Fisher Decl. Ex. 1, p. 146 (Schwarz Dep. at p. 257). This timeline is clear from
Tomasellis brief email to Schwarz on November 18, 2011,
Mark,
Just an FYI, after talking to Bobby, I have decided to call the police on Monday.
Thanks,
Zach
30
Fisher Decl. Ex. 1, pp. 144-45 (ESPN000096-97). Schwarzs bosses condemned this conduct as
entirely inappropriate. As explained by Bray, you want to get stories from sources independently.
You dont really want them talking to each other, comparing notes and stories. Fisher Decl. Ex. 1,
p. 147 (Bray Dep. at p. 33). Doria expressed a similar point of view, it is not standard practice,
journalistically speaking. Fisher Decl. Ex. 1, pp. 148-149 (Doria Dep. at pp. 28-29). As proof of
this, Berko admitted he never before had seen a journalist put two sources together the way
Schwarz did here. Fisher Decl. Ex. 1, p. 150 (Berko Dep. at p. 156).
d. Mark Schwarz maintained contact with Robert Davis for nearly a decade.
After Davis first contacted ESPN in 2003, and after his story fell flat at that time, Schwarz
kept pushing Davis, contacting him in 2003, 2005, 2006, 2008, 2009, and 2011. In some of these
emails, Schwarz went so far as to suggest Bernie Fine was still out there, molesting other children.
Fisher Decl. Ex. 1, pp. 151-166 (ESPN002014-16; ESPN003335; ESPN003238; ESPN003178-82;
ESPN003327-332; ESPN003170-71). To make matters worse, much of Schwarzs contact with,
and manipulation of, Davis came after Davis wished to drop the story. Fisher Decl. Ex. 1, p. 167
(Schwarz Dep. at p. 227); Fisher Decl. Ex. 1, p. 154 (ESPN003335).
In his deposition, Vince Doria confirmed this behavior was inappropriate.
Q.
Do you feel it was appropriate for MS to continually keep in contact with BD over a
ten-year period of time?
A.
Id have to know the specifics of that contact, but in general, no.
Fisher Decl. Ex. 1, pp. 168-169 (Doria Dep. at p. 64-65). Ultimately, Doria had to reel back
Schwarz for siding too much with Davis. Fisher Decl. Ex. 1, p. 172 (ESPN001339).
5. ESPN used Bobby Davis and Danielle Roach to stoke the Syracuse Police
Department into action in order to cloak themselves from future lawsuits.
Unbelievably, at page 13 of its Memorandum in Support of Summary Judgment, ESPN
states that confirmation of the Syracuse Police Departments investigation (along with the fact that

31
Lang came forward) justified their reporting in this case. This Court has already established that
ESPNs [p]ublications make clear that their descriptions of Plaintiffs conduct, as well as their
descriptions of the content and meaning of the tape, were made by Defendants themselves or nonlaw-enforcement persons Defendants interviewed... Document No. 56, p. 12. All the same, in
2011, ESPN rolled out Daviss long-shelved accusations piece-by-piece, producing a pathology of
defamation for its worldwide audience. ESPNs decision in this regard was not without concern of
future lawsuits. Decl. Ex. 1, pp. 173-174 (ESPN000521; ESPN001114). Thus, ESPN took phony
measures aimed at the SPD and designed to insulate itself from future risk.
To this end, ESPN spoon-fed the SPD information when doing so was self-serving. This is
clear in comparing ESPNs actions in 2003 and 2011. In 2003, ESPN chose not to publish Daviss
story. As such, ESPN also chose not to warn the SPD of a supposed pedophile in its community.
Berko explained, [w]e have yet to follow up on this issue with the Syracuse PD out of fear that
we would tip [off] BF or worse, expose ourselves to legal action. Fisher Decl. Ex. 1, pp. 173-174
(ESPN000521; ESPN001114).
Things changed in 2011. The Sandusky story broke and ESPN decided to publish. This
time, ESPN brought the SPD off the bench. ESPNs decision was not pursuant to some moral
purpose, but to fabricate a Section 74 fair reporting defense should it be sued at a later date.
On November 17, 2011, Danielle Roach connected Davis and Lang with the SPD. She also
warned the SPD about ESPNs involvement and gave its officers a copy of Daviss tape at that
time. Fisher Decl. Ex. 1, pp. 175-177 (CNYLEADS Narrative Supplement; ESPN002311;
ESPN001100). Aware of her actions, ESPN knew the SPD would open an investigation into the
same matter it was about to report. Defendants just had to confirm the same, so as to reference the
investigation in its reporting, and it could assert a Section 74 defense if it needed to at a later date.
32
To confirm this coveted investigation, ESPNs Paula Lavigne tracked down the contact
information of SPD Sgt. Tom Connellan. She provided it to Dwayne Bray and Tim Hays around
5:00 PM on November 17, 2011. Fisher Decl. Ex. 1, p. 178 (ESPN000938). Bray left a message on
Sgt. Connellans cell phone around 6:00 PM. Fisher Decl. Ex. 1, p. 179 (ESPN002604). By 11:42
PM, Bray had spoken to Sgt. Connellan, who confirmed the SPD was in the early stages of the
investigation[.] Id. Sgt. Connellan also told him; [a] lot of what came to us today is the result of
you guys and stuff of what youve been doing here. Id. (emphasis added).
For nearly a decade, ESPN refused to contact the SPD. However, just hours before ESPN
broke its first story, Defendants instigated, then confirmed the SPDs investigation into Bernie
Fine. ESPN could have tipped off the SPD a decade earlier, but did not. Rather, the timing of these
actions, and Sgt. Connellans statement above, show ESPNs attempt to fabricate a Section 74
privilege in order to publish a series of allegations it knew were too shaky to publish without.6
6. ESPN failed to contact Laurie Fine.
Summary judgment is improper where a media entity makes a deliberate decision not to
acquire knowledge of facts that might confirm probable falsity of published statements. Evidence
sufficient to overcome summary judgment may be found where a journalist fails to contact the
subject of his article or the subjects family to verify information prior to publication. Collins v.
Troy Publishing Co., 213 AD2d 879, 623 NYS2d 666 (1st Dept 1995).
Defendants knew they should have sought comment from Mrs. Fine before publishing on
November 27, 2011. However, Schwarz and Berko made a deliberate decision not to contact the
subject of their report.

6
The Court should recall Defendants previously denied Motion for Judgment on the Pleadings
where the following misrepresentation was made by their counsel about Plaintiff: she also resorts
to inventing wild charges...such as claiming that ESPN prodded Ms. Roach to report Daviss
charges to police and that police launched their investigation at the behest of ESPN. Document 52
at p. 14, n.4. As it turns out, these wild charges were absolutely true.

33
Norby Williamson emailed on November 19, 2011, we need to go to Fine and his wife and
tell them we have a tape... Fisher Decl. Ex. 1, p. 180 (ESPN001095); After we interview him
regarding the tape we have to try and get to the wife. At least make an attempt to get her
reaction. Fisher Decl. Ex. 1, p. 181 (ESPN001092).
Chris Buckle asked on November 26, 2011, Who is reaching out to ms. fine this evening if we
go with it? Fisher Decl. Ex. 1, p. 182 (ESPN002271).
On November 18, 2011, Dwayne Bray instructed Greg Amante to get in touch with this
woman (sic) without having her husband know about it. Fisher Decl. Ex. 1, p. 183
(ESPN002629); Fisher Decl. Ex. 1, pp. 184-185 (Bray Dep. at p. 10-11). To this end, Amante
remained outside the Fine household from 5:30 AM to 4:30 PM on November 19, 2011. Fisher
Decl. Ex. 1, p. 186-187 (ESPN002632-33). In fact, Amantes presence caused neighbors to call
police, a fact Amante was commended for during his mid-year review. Fisher Decl. Ex. 1, p.
188 (ESPN001396).
Dwayne Bray testified to having directed Berko to contact Mrs. Fine in preparation of
Defendants November 27, 2011 reporting. Fisher Decl. Ex. 1, pp. 189 (Bray Dep. at p. 15).
Paula Lavigne provided Greg Amante with three telephone numbers with which to contact
Mrs. Fine on November 19, 2011. Fisher Decl. Ex. 1, p. 141 (ESPN000074).
Vince Doria requested someone seek comment from Mrs. Fine prior to ESPNs reporting on
November 27, 2011. Fisher Decl. Ex. 1, p. 190 (Schwarz Dep. at p. 59).
In sum, everybody thought it was important to get comment...because we generally try to
get both sides of the story. Fisher Decl. Ex. 1, p. 191 (Bray Dep. at p. 20). Doria agrees and
believed that Schwarz shared this responsibility. Fisher Decl. Ex. 1, p. 192 (Doria Dep. at p. 20).
Bray reaffirmed, journalists should diligently seek subjects of news coverage to allow them to
respond to criticisms or allegations of wrongdoing. Fisher Decl. Ex. 1, p.193 (Bray Dep. at p. 52).
Agent Lanning said the same; a true investigation has to listen to all sides. And at some point you
want to hear what the other side has to say. Document 98-37; Schwarz Dec. Ex. 9, p. 29.
Completely disregarding this overwhelming consensus among ESPNs leadership, as well
as the expert they consulted, neither Schwarz nor Berko ever attempted to contact Mrs. Fine.
Fisher Decl. Ex. 1, pp. 194-196 (Schwarz Dep. at pp. 54-56). Had they sought Mrs. Fines

34
comment, Defendants would have further confirmed the window incident at the foundation of its
reporting occurred when Davis was an adult, not as the young, innocent ball boy their reporting
implied. Instead, Schwarz and Berko intentionally chose not to verify such key information prior
to publishing something as difficult to prove as what Mrs. Fine knew, and when she knew it.
Fisher Decl. Ex. 1, pp. 138-143 (ESPN001198; ESPN002636-37; ESPN000074; ESPN002335;
ESPN002341).
At page 17 of their Memorandum in Support of Summary Judgment, ESPN attempts to
defend its failure to contact Mrs. Fine by twisting the record and claiming that she had decided
not to comment. To the contrary, Mrs. Fine stated, I didn't want to comment to CNN or MSNBC. They're not the ones that wrote the story. Fisher Decl. Ex. 1, pp. 197-198 (Laurie Fine Dep.
at pp. 179-80). Regarding ESPN, Mrs. Fine continued, [a]ll they had to do was knock. At least I
would have had a right to say no, I don't or yes, I do.I was never afforded that right.They took
that all away from me. Id.
ESPN further attempts to defend its failure to contact Mrs. Fine by pointing to its attempt
to reach Bernie Fine through his attorney at the Harris Beach law firm. See Document 98-1 at pp.
17-18. This argument is a sham. Defendants had no reason to believe counsel at Harris Beach
represented Mrs. Fine, or that her husbands lawyers had any duty to her. Fisher Decl. Ex. 1, p.
199 (Doria Dep. at p. 17).
In fact, Defendants had reason to believe otherwise. For years, Defendants believed Bernie
and Laurie Fine had a sham of a marriage. As a result, it is utterly ridiculous for them to expect
to reach Mrs. Fine through her husbands lawyers. For example, Schwarz previously explained to
Agent Lanning in 2003, it is apparent that the husband and wife have no relationship. Theres
disdain and hatred...Its a sham of a marriage on all accounts. Document 98-37; Schwarz Decl.
Ex. 9, p. 17. ESPN was reckless in trying to reach Mrs. Fine through Bernie Fines counsel, only.

35
It is disingenuous for ESPN to represent otherwise, here. To be clear, Mrs. Fine was never made
aware that ESPN tried to reach her through the attorneys at Harris Beach. Fisher Decl. Ex. 1, pp.
186, 200 (ESPN002632; Laurie Fine Dep. at p. 111). Rather, ESPN wanted to speak with Mrs.
Fine only if they could do so without Bernie Fine knowing. Fisher Decl. Ex. 1, pp. 186
(ESPN002632).
7. ESPNs own executives admit their reporting really lowered the bar on the
Laurie Fine story.
During a meeting on December 8, 2011, ESPN executive Patrick Stiegman questioned the
manner in which ESPN reported Daviss accusations against Bernie and Laurie Fine the previous
month. A report of this meeting noted,
Patrick Stiegman pointed out that our reporting failed to meet ESPNs internal
guidelines on when it is okay to report criminal allegations in the absence of
formal charges. ESPN guidelines require that one of the following four conditions
should be present when no charges have been made:
Authorities openly state they are seeking the individual or say that the person
will be charged on specific date;
The person has criminal past;
The person or his attorney openly speaks about the impending charges as way
to get their story out;
There is an event or statement from pertinent party to indicate that the
allegations will affect or threaten to affect something on the field of play.
Patrick said the fact that Syracuse put Bernie Fine on administrative leave after
we reported the story conveniently backfilled the criteria but we really lowered
the bar. In response, Jed Drake asked: Why did we lower the bar so much?
Fisher Decl. Ex. 1, p. 171 (ESPN001337). In agreement, Bray also admitted in his deposition that
ESPNs reporting went perhaps beyond the written guidelines. Fisher Decl. Ex. 1, p. 201 (Bray
Dep. at p. 56). He, and other ESPN executives have since backtracked from ESPNs Guidelines,
Brays admission, and any criticism of their reporting whatsoever. See Stiegman and Doria
36
Declarations.7 These executives claim, after-the-fact, the Guidelines are not hard and fast polices
or rules. Fisher Decl. Ex. 1, p. 201 (Bray Dep. at p. 56). However, a jury may reasonably
disagree, especially in light of its past ombudsmans warning that ESPN should make certain its
guidelines and standards are known and followed by everyone taking its paychecks. Fisher Decl.
Ex. 1, p. 44-46.
IV. Clear and convincing evidence establishes ESPNs gross irresponsibility.
For reasons set forth in her companion brief, Mrs. Fine is a private-figure plaintiff.
Defendants misconduct must thus be measured against New Yorks Chapadeau test of gross
irresponsibility.
A. Chapadeaus gross irresponsibility standard.
The court held in Chapadeau v. Utica Observer-Dispatch, Inc., 38 NY2d 196, 199 (1975)
that where the content of the article is arguably within the sphere of legitimate public concern,
which is reasonably related to matters warranting public exposition, the party defamed may
recover if he or she can establish by a preponderance of the evidence, that the publisher acted in
a grossly irresponsible manner without due consideration for the standards of information
gathering and dissemination ordinarily followed by responsible parties. Id. This is true even
when the plaintiff is a private person. Weldy v. Piedmont Airlines, Inc., 985 F.2d 57 (2d Cir. 1993).
B. Given how Defendants acted with actual malice, gross irresponsibility has been
established.
The burden of proof for a private-figure plaintiff is lower than that of a public-figure
plaintiff. As outlined above, a public-figure plaintiff must demonstrate actual malice, where a

7
In a preposterous farce, Stiegman now contends that the concerns he expressed at the editorial
board meeting were about the Bernie Fine story, not the Laurie Fine story. Document 98-73;
Stiegman Decl. at 6. This statement is head-spinning nonsense. The same problems that were
clear to Stiegman in the Bernie Fine story are exactly apparent in the Laurie Fine story. If he can
recognize it in one story he cannot plausibly deny it in the other. To do so, to borrow a phrase from
ESPNs Memorandum in Support of Summary Judgment, defies logic.

37
private-figure plaintiff need show facts satisfying the lower threshold of grossly irresponsible
reporting. Plaintiff has outlined an abundance of evidence from which a jury may reasonably infer
Defendants actual malice. This same evidence demonstrates with convincing clarity the lower,
grossly irresponsible reporting standard is also met here. Some of these include:
Schwarz never considered New Yorks age of consent, nor its impact as to what Mrs. Fine
allegedly witnessed and knew, despite Agent Lanning telling him, we have to draw the line
between what the law says. Document 98-37; Schwarz Dec. Ex. 9, p. 22.
Defendants stoked the Syracuse Police department in order to later shield their defamatory
reporting with Section 74 of New Yorks Civil Rights Law. Fisher Decl. Ex. 1, p. 179
(ESPN002604).
Schwarz put Tomaselli in touch with Davis before Tomaselli even went to the police. Fisher
Decl. Ex. 1, p. 144 (ESPN000096). Schwarzs bosses admit this was improper. Fisher Decl.
Ex. 1, p. 147 (Bray Dep. at p. 33); pp. 148-149 (Doria Dep. at pp. 28-29).
Schwarz kept in regular contact with Davis over nearly a decade. Fisher Decl. Ex. 1, pp.
151-166 (ESPN002014-16; ESPN003335; ESPN003238; ESPN003178; ESPN003181;
ESPN003327; ESPN003170). Schwarzs bosses also admit this was improper. Fisher Decl.
Ex. 1, pp. 168-169 (Doria Dep. at p. 64-65); p. 172 (ESPN001336).
ESPN chose not to contact Mrs. Fine, and misrepresented the same in its reporting. Fisher
Decl. Ex. 1, p. Fisher Decl. Ex. 1, pp. 197-198 (Laurie Fine Dep. at p. 179-180).
ESPN did not contact an audio expert before telling its audience one had independently
confirmed the voice on the tape belonged to Mrs. Fine. Fisher Decl. Ex. 1, pp. 131-133
(ESPN000879-881).
ESPN disregarded Agent Lanning, their subject matter expert, to the extent his opinions
cautioned Defendants from breaking the story. Fisher Decl. Ex. 1, p. 135 (Schwarz Dep. at
p. 176); Document 98-37.
ESPNs executives admit its reporting really lowered the bar. Fisher Decl. Ex. 1, p. 173
(ESPN001337).
Collectively, these considerations clearly show Defendants disregard for the standards of
information gathering and dissemination ordinarily followed by responsible parties. ESPNs

executives have already admitted the same in public interviews and by deposition. It is reasonable,

38
if not foreseeable, that a jury will agree with these executives and find Defendants liable under
Chapadeaus gross irresponsibility standard. For this reason, Plaintiff humbly contends a
preponderance of evidence exists demonstrating her entitlement to relief.
V. ESPNs reports are not privileged under Section 74 of New Yorks Civil Rights Law.
In their Memorandum in Support of Summary Judgment, at p. 39, Defendants contend the
allegedly defamatory statements are protected by the fair report privilege. They are wrong. They
are wrong because the defamatory statements here are not fair and true reports of Daviss secret
tape. Though Ms. Fine now concedes that the female voice on the tape is hers,8 the context in
which Defendants played the tape is materially false. Defendants, through Vince Doria and others,
admit the November 27, 2011 reporting concerned Mrs. Fine witnessing, knowing, and having
concerns her husband was sexually abusing Robert Davis as a young child, but she did nothing to
stop it. Fisher Decl. Ex. 1, pp. 34-35 (Doria Dep. at 47-48); p. 39 (Bray Dep. at p. 49). This
narrative is made clear by Roachs play-by-play and analysis of the tape, as well as the lingering
context of the Sandusky scandal. However, the tape simply does not support Defendants ratingsboosting fabrication.
According to Defendants version of the tape, Mrs. Fine tacitly acknowledges witnessing
Davis and her husband through a basement window. Discovery has proven this incident occurred

8
ESPN makes a big deal about Plaintiffs initial reaction to the taped conversation during her May
2012 press conference, and in her Complaint, but Plaintiff had ample reason for skepticism. At the
time of Plaintiffs press conference ESPN had released only excerpts of the tape. Document 98-50;
Bray Decl. at 20. Even after the entire tape was released following the press conference, no
transcript had been released, and the sound quality was sketchy. Fisher Decl. Ex. 1, p. 238
(ESPN001167, showing the tape had to be cleaned up before it was possible to publish). After
Plaintiffs press conference, ESPN ultimately produced an expert report that the tape was
continuous, unedited, etcetera. Document 98-50; Bray Decl. at 19. Plaintiff was not privy to this
expert report until after the Motion for judgment on the Pleadings when discovery finally
commenced in this case. Once ESPN turned over the expert report, and Plaintiff listened to the
entire tape alongside a transcript at her deposition, no reason existed anymore to dispute its
authenticity. Given Daviss other lies, however, there was every reason to initially doubt the tapes
authenticity.

39
in 1991, at which time Davis was 19-years old. The deposition testimony of Cynthia Young, who
was present for the window incident, credibly establishes Daviss age in this regard. Fisher Decl.
Ex. 1, p. 79 (Young Dep. at p. 6). Likewise, statements by Davis and Roach establish this fact.
Document 98-34; Schwarz Decl. Ex. 6, pp. 5-9, 12, 15, 18, 40 ; Schwarz Decl. Ex. 19, p. 24.
However, although Davis was 19 at the time, Defendants relied upon the tapes tacit
reference to this window incident as the foundation for reporting Mrs. Fine witnessed, knew of,
and had concerns of child sexual abuse, but did nothing to stop it. As discovery has shown, this
embellishment is entirely unsupported. A line exists between child sex abuse and a physical
relationship between two consenting individuals. Defendants would have realized this distinction
had they not disregarded Agent Lannings warning that [w]hen you start to talk about sexual
abuse, we have to draw the line between what the law says. And so its very important to look at
the statutes that would be applicable at the time. Document 98-37; Schwarz Dec. Ex. 9, p. 22.
New York Penal Code 130.05 draws a line at 17-years of age. Fisher Decl. Ex. 1, pp. 6670 (Section 130.05). In addition to common sense, this line distinguishes even the tapes most
condemning light from Defendants materially false reporting as it pertains to Plaintiff. Because of
this distinction, Defendants reporting does not constitute a fair and true report and Defendants
are not entitled to the protections of Section 74. Therefore, summary judgment is not warranted.
CONCLUSION
ESPNs Motion for Summary Judgment is nothing more than sound-bite spin over soundtight reason. Accordingly, the Motion should be denied.
Dated: November 15, 2015
By:
/s/ Lawrence H. Fisher

Lawrence H. Fisher, Esq.
/s/ Kevin W. Tucker
Kevin W. Tucker, Esq.
40

Laurie Fine Response To ESPN

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Case 5:12-cv-00836-DEP Document 111-1 Filed 11/15/15 Page 1 of 46

UNITED STATES DISTRICT COURT

MEMORANDUM IN OPPOSITION TO DEFENDANTS

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No one disputes that the statements complained of are defamatory.......................... 4

Allegations of child abuse concerns .............................................................. 4

Allegations of a sexual relationship with Davis ............................................ 6

ESPNs guidelines classify its reporting as defamatory ................................ 7

Clear and convincing evidence establishes ESPNs reports as materially false........ 8

Standards governing Plaintiffs burden to demonstrate material

When you start to talk about sexual abuse, we have to draw

The age of consent in New York is 17-years old .............................. 12

Davis was at least 17-years old at all times material to ESPNs

As Davis was at least 17-years old at all times Laurie Fine

Sex with Bobby Davis ................................................................................... 16

Nobody corroborates Bobby Daviss allegation he had sex

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Clear and convincing evidence establishes ESPNs actual malice............................ 19

The actual malice standard ............................................................................ 19

Defendants self-serving declarations that they believed Davis are

Highlights of ESPNs actual malice .............................................................. 20

Laurie Fines words do not constitute an admission that she

ESPN did in fact doubt Daviss story ................................................ 20

ESPNs President admits There were significant

At least two other ESPN executives had such serious

Even Defendant Berko admits that ESPN did, in fact, lack

ESPN had obvious reasons to doubt the veracity of its sources,

ESPN fabricated a storyline about Laurie Fine having child

ESPN resorted to slipshod and sketchy investigative techniques,

ESPN lied about an audio expert confirming Laurie

ESPN disregarded the experts it consulted when

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Mark Schwarz put Zach Tomaselli in contact with

Mark Schwarz maintained contact with Robert Davis

ESPN used Bobby Davis and Danielle Roach to stoke the

ESPN failed to contact Laurie Fine ................................................... 33

ESPNs own executives admit their reporting really lowered

Clear and convincing evidence establishes ESPNs gross irresponsibility ............... 37

Chapadeaus gross irresponsibility standard................................................. 37

Given how Defendants acted with actual malice, gross

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Karedes v. Ackerly Group, Inc.,

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Yes, I believe it does.

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Mark Schwarz: Were you ever with her sexually?

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I thought you phrased it the way a coach would do?

Was Bernie Fine fondling Bobby Daviss knee?

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Fisher Decl. Ex. 1, p 81 (Young Dep. at p. 19).