Ohio Court of Appeals Adopts "Discovery Rule" in Libel Case Involving a Forged E-Mail

From Weidman v. Hildebrant, decided Monday by the Ohio Court of Appeals (Twelfth District), in an opinion by Judge Robert Hendrickson, joined by Judges Mike Powell and Robin Piper III (for more, see this Cincinnati Enquirer [Scott Wartman] article):

This action involves the defamation of [Thomas] Weidman, a Sycamore Township trustee, by [Christopher] Hildebrant, a Cincinnati real estate developer. In 2011, Hildebrant was facilitating the sale of property owned by SDI Foods, Inc. to Sycamore Township, for which he would receive a consulting fee from both parties if the sale was successful. Hildebrant claims Weidman and Stanford Roberts, the individual who negotiated the sale for SDI, each repeatedly sought a kickback from Hildebrant's consulting fee after the sale occurred.

In response to the pressure he felt from Weidman and Roberts, Hildebrant created a fictitious gmail account under the name [e-mail] and, on December 20, 2011, sent an email to himself from the [e-mail] account (the "2011 email"). The 2011 email portrayed Weidman as having received illicit payments and demanding bribes in exchange for his support of several real estate developments in Sycamore Township. On December 20, 2011, after creating and sending the 2011 email to himself from the [e-mail] account, Hildebrant forwarded the email to Roberts. Hildebrant hoped that the email would demonstrate to Roberts that he did not have any money left to pay Roberts a bribe as Weidman had also demanded payment.

Near the end of 2019, Hildebrant, acting on behalf of his development group, the Morelia Group-DE, LLC, sought to purchase a parcel of real estate owned by Sycamore Township (the "Sycamore Township Property"). Purchase of the property required the unanimous consent of the township's sitting trustees. This was problematic for Hildebrant, as Weidman opposed the sale of the property.

On January 25, 2020, Hildebrant met with Sycamore Township trustee James LaBarbara and Sycamore Township Administrator Raymond Warrick at a golf club in Maineville, Ohio in order to discuss the purchase of the Sycamore Township Property. At that time, Hildebrant showed LaBarbara and Warrick the 2011 email sent from the [e-mail] account. Based on the email, and the insinuations of bribery therein, the Auditor for the State of Ohio was notified. The Auditor's Special Investigation's Unit ("SIU") launched an investigation into Weidman.

During the course of the investigation, the SIU subpoenaed from Hildebrant any emails that contained correspondence between himself, Weidman, and SDI Foods, Inc. regarding the development of property in Sycamore Township in 2011. The 2011 email from the [e-mail] account was turned over to investigators. In turning the document over, Hildebrant, represented by counsel, stated the following:

CH [Hildebrant] has included in this response an email dated December 20, 2011 from an internet account noted on the face of the document as belonging to Mr. Weidman. This communication is included because this email was drafted by CH and Mr. Weidman jointly and sent by Mr. Weidman to CH so that CH could represent certain facts about an agreement between CH and Weidman to SDI Foods.

A little over two months later, Hildebrant, now represented by new counsel, sought to amend his response to the subpoena. In his amended response, Hildebrant stated that his "document production … includes an email dated December 20, 2011 from the email account [e-mail] to the email account [e-mail]. In order to avoid any misunderstanding, please be advised that this email was not written by Mr. Weidman. Mr. Hildebrant drafted this email and sent it to himself."

On November 18, 2020, Weidman was interviewed by SIU investigators and, for the first time, learned of the [e-mail] account and the December 20, 2011 email purportedly sent by him to Hildebrant. Weidman denied the authenticity of the email and email account, informing investigators that the email account did not belong to him and that he had not written the 2011 email. Though he asked for a copy of the 2011 email, he was not permitted to obtain a paper or electronic copy of the 2011 email until January 15, 2021.

Weidman sued for libel, but the trial court rejected the claim on statute of limitations grounds. The court of appeals disagreed (departing from the view of some other district court of appeals in Ohio):

We [take the view] that a plaintiff who did not know, or with reasonable diligence could not have discovered, that he or she had been defamed due to the secretive nature of the libelous publication cannot be said to have been sleeping on his or her rights…. "Once a plaintiff knows of an injury and the cause of the injury, the law gives the plaintiff a reasonable time to file suit. Yet if the plaintiff is unaware that his or her rights have been infringed, how can it be said that he or she slept on those rights?" …. Therefore, applying the rationale expressed by the Ohio Supreme Court in [other, non-defamation cases], we hereby hold that the discovery rule applies to those libel actions where the publication of the defamatory statements was secretive, concealed, or otherwise inherently unknowable due to the nature of the publication. In such instances, a cause of action for defamation accrues when the plaintiff discovers, or by the exercise of reasonable diligence should have discovered, that he or she was injured by the wrongful conduct of the defendant. Application of the discovery rule in such instances eases the unconscionable result to a plaintiff who, by exercising even the highest degree of care, could not have discovered the wrongful conduct of the defendant….

We further find, contrary to Hildebrant's arguments, that adopting the discovery rule in those limited instances where the publication of the defamatory statement was concealed or done in secret, rather than in a public manner or by means of mass media, does not create an unworkable rule. By limiting application of the rule to those instances where the publication was secretive, concealed, or otherwise inherently unknowable due to the nature of the publication, we have specifically tailored the rule to the particular context in which it is to be applied.

In the overwhelming majority of cases, the discovery of defamatory statements in publicly available media, i.e., a website, book, magazine, or newspaper, will coincide with publication, making the date of publication the accrual date for a libel action. However, in those limited class of cases where the publication was concealed, made in secret, or was inherently unknowable to the plaintiff due to the nature of the publication, it is not the date of publication on which the libel action accrues. Rather, in those limited circumstances, the date on which the libel action accrues is the date that the plaintiff discovered, or by the exercise of reasonable diligence should have discovered, that he or she was injured by the wrongful conduct of the defendant….

Congratulations to Todd V. McMurtry and J. Will Huber (Hemmer DeFrank Wessels PLLC), who represented Weidman.