This prior post related the interesting story of former University of Alabama football coach and current University of Texas at El Paso football coach Mike Price‘s $20 million libel lawsuit against Time Inc. The lawsuit involves an allegedly false and malicious story that Time’s Sports Illustrated magazine ran in May, 2003 involving a very wild night that Coach Price had in Pensacola, Florida while attending a University of Alabama football-related golf tournament. That night of festive activity led to Coach Price’s termination as the Alabama football coach before he had ever coached a game for the Crimson Tide.
Well, the Price v. Time case is getting very interesting, as this recent AL.com story relates. An appellate panel of the Eleventh Circuit Court of Appeals has advised Time’s attorney in this decision that the attorney-client privilege does not obviate the attorney’s parallel obligation as an officer of the trial court to advise the court of perjury that would help identify a confidential source. The attorney stuck between a rock and a hard place is Gary C. Huckaby of Huntsville, Ala., who represents Time in the Price lawsuit.

The crux of the issue before the Eleventh Circuit was the magazine’s article in 2003 that Coach Price invited two women he met at a strip club to his hotel room and had sex with them there. Coach Price has denied having sex with any woman in his hotel room that night, so in pursuing his libel suit, he has sought to discover from Time the identity of the anonymous source for the article. Time objected to the discovery on the grounds that the identity of such a sources is confidential.
A U.S. District Judge previously ordered Time to identify the confidential source, and the magazine appealed. During oral argument on that appeal in May, Eleventh Circuit Judges Edward E. Carnes and William H. Pryor Jr. asked Mr. Huckaby from the bench what he would do if, during cross-examination of a witness in a deposition, he heard the person who he knew to be the confidential source deny being the source and, thus, commit perjury. Mr. Huckaby confirmed to the appellate court that he would advise the U.S. District Judge handling the case of any such perjured testimony.
As a result, the panel issued this July decision that vacated the District Court’s order requiring Time to disclose the identity of its confidential source. However, the panel went on to point out that Coach Price’s counsel could discover the source’s name anyway by simply deposing the four women who everyone knows were interviewed for the story and then asking each witness whether she was the confidential source. Faced with the prospect of Mr. Huckaby having to divulge perjury committed by its confidential source, Time requested that the panel reconsider its ruling on the grounds that the attorney-client privilege and ethical standards precluded Mr. Huckaby from identifying his client’s confidential source — even if he knew that she was committing perjury — because Mr. Huckaby had no duty to advise the trial court of the perjury of a witness who was not his client.
The Eleventh Circuit panel did not buy Time’s argument:

“[Time] insist[s] that it is the perfect prerogative of an officer of the court to stand silently by as the search for truth is led astray by perjury — assuming, of course, that the perjury serves his client’s interests.
That is an interesting position. Whatever its merit in general circumstances, there may be problems with it in situations involving the search for a confidential source in a libel case, as this case illustrates. Through their counsel defendants have steadfastly refused to divulge their confidential source for the article in question; they have attempted to shield her identity by every legal means; . . . Now they say that if the confidential source lies under oath and obstructs the pathway to the truth that their counsel has urged us to take, he has no duty to remove the obstruction by reporting the lie. We have some problems with that position.

Does anyone else get the sense that Time needs to settle this case quietly?