Christopher Chandler v. Donald Berlin ( 2021 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 9, 2020 Decided May 28, 2021
No. 20-7020
CHRISTOPHER CHANDLER,
APPELLANT
v.
DONALD BERLIN, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:18-cv-02136)
Joseph R. Oliveri argued the cause for appellant. With him
on the briefs was Thomas A. Clare.
John P. Dean argued the cause for appellee. With him on
the brief was Steven M. Oster.
Before: GARLAND *, PILLARD and KATSAS, Circuit Judges.
Opinion for the Court filed by Circuit Judge PILLARD.
*
Then-Judge Garland was a member of the panel at the time this case was
submitted but did not participate in the final disposition of the case.
2
PILLARD, Circuit Judge: Christopher Chandler, an
international businessman, appeals from summary judgment
holding his libel claims time-barred. Chandler sued over what
he contends are defamatory statements about him and his
brother in a 2003 confidential report that were widely
republished in the British media in 2017 and 2018. Defendant
Donald Berlin, a private investigator, prepared the report for a
nonparty client who allegedly repeated its falsehoods in various
public fora between 2009 and 2015 without identifying Berlin
as a source of the information. Then, in 2017, that client
allegedly shared Berlin’s report with a British reporter, leading
to the repeated publication of the statements in British media.
After learning that Berlin was the original source of the
statements, Chandler sued Berlin in 2018 for both his sale of
the report to the client in 2003 and for that client’s supplying
the report to the media in 2017. The district court granted
summary judgment to Berlin. It held that Chandler’s claim on
the 2003 publication was barred by the one-year statute of
limitations for defamation and that Berlin could not be held
liable for the client’s republication in 2017 because the
republication was not reasonably foreseeable.
We reverse in part. The district court erred in holding
Chandler’s claim on the 2003 report time-barred on the
summary judgment record, because the evidence does not
establish as a matter of law that a reasonably diligent plaintiff
would have sued Berlin more than a year before he did in 2018.
Berlin and his former client are not so closely connected that
Chandler’s knowledge of the client’s pre-2017 defamatory
statements itself caused accrual of Chandler’s action against
Berlin. And reasonable jurors could differ as to whether facts
available to Chandler before 2017 put him on inquiry notice of
any claim against Berlin. But we affirm the district court’s
holding that Berlin cannot be held liable for the nonparty
client’s republication of Berlin’s statements in 2017. Because
3
that type of belated republication was not reasonably
foreseeable to Berlin in 2003, compensation for additional
harms flowing from the republication would not be recoverable
in any judgment that Berlin’s 2003 report was libelous.
BACKGROUND
Donald Berlin is a D.C.-based private investigator and the
President and CEO of Investigative Consultants, Inc., a
company that uses online databases and other research to
conduct background investigations into individuals and
organizations on behalf of its clients. 1 Robert Eringer is a
writer of espionage-themed books and a self-described
intelligence operative. In 2002, Eringer began working for
Prince Albert II of Monaco, purportedly in an intelligence
capacity. As part of his work for the Prince, Eringer hired
Berlin to investigate Christopher Chandler and his brother
Richard Chandler, two businessmen and investors originally
from New Zealand who at the time were living and operating
in part in Monaco. In early 2003, Berlin delivered to Eringer a
134-page report (2003 Report) with the results of his
investigation. 2 Titled “Introduction and Overview, Richard
Chandler Limited Global Scan,” the 2003 Report included
allegations of illicit activity by the Chandler brothers, including
claims that they were engaged in money laundering on behalf
of high-level Russian officials and Russian organized crime
through a company said to be headquartered in Monaco. The
report cited both public and proprietary databases as well as
1
Berlin does business through two corporate entities: Investigative
Consultants, Inc. and Investigative Consultants of Washington, DC,
Inc. Both are defendants in this case. We refer to them collectively
as Investigative Consultants, Inc.
2
Only the first 34 pages of the 2003 Report are part of the record.
Those pages include a header indicating that the complete document
was 134 pages.
4
several unidentified people as the sources of its allegations.
Each page of the report was marked “Confidential
Memorandum to File.”
In the years after he received Berlin’s 2003 Report,
Eringer made claims about the Chandlers in a variety of fora
similar to the claims in that report. In 2004, Eringer prepared
his own report on the Chandlers, asserting they supported
Russian intelligence operations and repeating the money
laundering allegations in the 2003 Report. Five years later,
after his working relationship with Prince Albert apparently
soured, Eringer sued the Prince in California state court for
breach of contract and misrepresentation. In that 2009
Complaint, Eringer identified his investigation of the
Chandlers among the intelligence work he claimed to have
performed for the Prince. The complaint alleged it was
“suspected [the Chandlers] were engaged in money laundering
for Russian interests,” noting that Eringer “possesse[d]
documents on this matter” and claiming he had established that
the Chandlers engaged in “unregistered, unlawful business in
Monaco.” J.A. 310-11. In 2014, Eringer self-published a book
entitled The Spymaster of Monte Carlo (2014 Book) that
included allegations like those in Eringer’s 2009 California
complaint. He posted an excerpt of that book online in an
article called “The Art of the Ruse: Richard and Christopher
Chandler” (2015 Online Article). Nowhere in the 2009
Complaint, the 2014 Book, or the 2015 Online Article did
Eringer reference Berlin, Investigative Consultants, Inc., or
their 2003 Report.
Christopher Chandler learned of Eringer’s accusations
about him and his brother soon after they first became public—
by early 2010 at the latest. He discussed Eringer’s California
lawsuit in a January 2010 email to his brother, stating it was a
“[p]ity to see this type of unfounded assertion/allegation in a
5
court filing” and “[n]ot good for our reputation, even though
we know it to be false.” J.A. 448. He added: “Makes me
wonder if we should sue this guy (Robert Eringer) to force him
to prove the comment or retract it.” Id. And in a 2015 email,
he described Eringer’s “The Art of the Ruse” article as “old
news [that] has been around for years.” J.A. 450. 3 Chandler
admits that by November 2015 he was also aware of Eringer’s
2014 Book. J.A. 443.
Claims regarding Chandler’s alleged connections to
Russia became a source of public controversy for the first time
in December 2017, when the British newspaper The Sunday
Times published a story claiming that Chandler “was once
placed under investigation in Monaco over his links to Russia.”
Tom Harper, “Brexit, dirty tricks and an international game of
I Spy,” The Sunday Times (Dec. 3, 2017),
https://www.thetimes.co.uk/article/brexit-dirty-tricks-and-an-
international-game-of-i-spy-3xq8cbxdj. At that time, Chandler
was the object of political scrutiny in Britain because of his
financial support for a think tank advocating the country’s exit
from the European Union. The Times story reported “that an
87-page dossier—which includes what appear to be copies of
Monaco police files—is being circulated about Chandler and
his brother Richard with allegations over links to Russia.” Id.Several months later, in May 2018, a British Member of
Parliament publicly stated that French intelligence services had
suspected Chandler of working for Russian intelligence since
2003. Those statements led to widespread reporting by British
media of the allegations against Chandler. The MP’s
3
The record also contains a 2012 email from Chandler, apparently
referring to other material Eringer posted online (but omitted from
this record), in which Chandler states that “we can carry on with our
lives and leave the curiosity to others.” J.A. 452 (email to Chandler
referring to an “image from the Eringer Blog”).
6
statements referenced documents he had seen that allegedly
originated with Monaco security officials.
During an interview with the Sunday Times following the
MP’s statements, the Times showed Chandler the “87-page
dossier” that the paper had referenced the prior December.
Tom Harper & Oliver Shah, “Christopher Chandler: Russian
spy? Money man for Putin and Trump? No—I’m just a shy
billionaire,” The Sunday Times (May 13, 2018),
https://www.thetimes.co.uk/article/christopher-chandler-spy-
money-man-for-putin-and-trump-no-im-just-a-shy-billionaire-
2h58mbmqh. That document, which Chandler alleges Eringer
shared with the Times in November 2017, included both the
report that Eringer prepared on the Chandler brothers in 2004
and 34 pages of Berlin’s original 2003 Report made at
Eringer’s behest. According to Chandler, this was the first time
that he learned of the existence of the 2003 Report. After his
interview, Chandler investigated its origins and learned that
Berlin was its author.
In September 2018, Chandler sued Berlin and
Investigative Consultants, Inc., in federal court for libel per se.
The defendants moved to dismiss or, in the alternative, for
summary judgment, arguing that they cannot be held liable for
Eringer’s alleged 2017 republication because they could not
have reasonably foreseen it. They raised a one-year statute of
limitations as a defense to any liability arising from initial
publication of the 2003 Report they prepared for Eringer. Even
if that limitations period were tolled by a discovery rule
applicable to claims arising from injuries not immediately
discoverable by plaintiffs, the defendants asserted that any
tolling ceased once Chandler was put on notice of the libelous
material. They alleged Chandler had such notice once Eringer
included the libels in the 2009 Complaint, the 2014 Book, and
7
the 2015 Online Article, so the 2018 claims were time-barred
because filed more than one year thereafter.
In April 2019, the district court granted summary
judgment to the defendants with respect to the claim arising
from the 2017 republication. Citing precedent that, under D.C.
law, the maker of a defamatory statement can be held liable for
his statement’s republication “if such republication was
reasonably foreseeable,” Tavoulareas v. Piro, 759 F.2d 90, 136
n.56 (D.C. Cir. 1985), vacated in part on other grounds, reh’g
en banc granted, 763 F.2d 1472, 1481 (D.C. Cir. 1985) (mem.),
the court held that it was not reasonably foreseeable to Berlin
in 2003, when he provided his report to Eringer, that Eringer
would republish it more than a dozen years later.
The district court initially denied summary judgment on
Chandler’s claim against Berlin and his firm for publication of
their 2003 Report to Eringer. Because that Report’s 2003
publication was secret, the D.C. discovery rule applied to toll
the limitations period for that claim. The court noted the
absence of evidence bearing on Chandler’s awareness of the
2009, 2014, or 2015 publications by Eringer that the defendants
contend restarted the limitations period. The court thus
authorized discovery on that point. 4
Discovery unearthed emails showing that Chandler knew
of Eringer’s publications more than a year before he filed suit,
so the district court granted summary judgment to the
defendants with respect to the 2003 Report. Chandler v.
Berlin, 436 F. Supp. 3d 322, 324 (D.D.C. 2020). The court
4
Following that order, Chandler’s counsel issued a subpoena duces
tecum to Eringer, attempting to serve him at his last known address
in California. But Eringer had sold that property, and Chandler’s
counsel declared before the district court that, even with the help of
private investigators, they were unable to locate Eringer.
8
held that, even though Chandler did not learn of Berlin’s 2003
Report until 2018, under D.C. law Chandler’s earlier
knowledge of Eringer’s assertedly defamatory statements
caused accrual of Chandler’s claim against Berlin because
Eringer and Berlin were “closely connected.” Id. at 326-30(quoting Diamond v. Davis, 680 A.2d 364, 381 (D.C. 1996)).
The court alternatively held that Eringer’s pre-2017
publications put Chandler on inquiry notice of his claim against
Berlin because Eringer’s writings used first-person plural
pronouns in describing the investigation into the Chandlers,
and because his 2009 Complaint referenced “documents” he
had on the matter. The district court concluded that those
“obvious clues ought to have alerted [Chandler] to the
possibility that Eringer was not acting alone and that others
could have supplied Eringer with the false information he was
publishing.” Id. at 330-31. The court also rejected Chandler’s
argument that the time bar did not apply insofar as Berlin’s
2003 publication caused harm distinct from that caused by
Eringer’s republications years later. The court noted that the
discovery rule does not permit a plaintiff to stand idly by “when
an investigation would otherwise turn up evidence of a co-
defendant’s transgressions, even if a separate but related
‘harm.’” Id. at 332.
DISCUSSION
On appeal, Chandler argues that the district court erred in
both of its orders granting summary judgment to the
defendants. We review an order granting summary judgment
de novo. Moose Jooce v. FDA, 981 F.3d 26, 28 (D.C. Cir.
2020). Summary judgment is appropriate if a “movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). A dispute is “genuine” “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
9
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).
We conclude that the district court erred in holding as a
matter of law that Chandler’s claim against Berlin accrued
when Chandler learned of Eringer’s pre-2017 publications.
But we affirm the judgment in the defendants’ favor insofar as
Chandler seeks damages for Eringer’s alleged 2017
republication, because such republication was not reasonably
foreseeable when Berlin shared his report with Eringer in 2003.
A. The 2003 Publication
The District of Columbia has a one-year statute of
limitations for libel claims, D.C. Code § 12-301(a)(4), and
there is no dispute that D.C. law applies in this diversity tort
case, see Capitol Servs. Mgmt., Inc. v. Vesta Corp., 933 F.3d
784, 790 (D.C. Cir. 2019). Typically, “the statute of limitations
runs from the date of publication.” Mullin v. Wash. Free
Weekly, Inc., 785 A.2d 296, 298 (D.C. 2001). “Publication” is
a term of art in defamation law, referring to one person’s
intentional or negligent communication of a defamatory
statement about another to a third party. See Hall v. District of
Columbia, 867 F.3d 138, 148-49 (D.C. Cir. 2017); Restatement
(Second) of Torts § 577(1) (1977).
When “the relationship between the fact of injury and the
alleged tortious conduct [is] obscure,” D.C. courts apply the
discovery rule to toll the statute of limitations “until plaintiffs
know or reasonably should have known that they suffered
injury due to the defendants’ wrongdoing.” Mullin, 785 A.2d
at 298-99 (alteration in original) (quoting Colbert v.
Georgetown Univ., 641 A.2d 469, 472 (D.C. 1994) (en banc)).
The D.C. Court of Appeals has declined to adopt the discovery
rule “in the case of defamatory statements published in a mass
media outlet,” as “the fact of . . . injury [in such cases] can be
10
readily determined.” Id. (quoting Colbert, 641 A.2d at 472).
But it has “expressly left open the question of whether the
discovery rule should be applied where the statement was
undiscoverable because a defendant concealed the material, or
because it was not otherwise discoverable.” Oparaugo v.
Watts, 884 A.2d 63, 74 n.8 (D.C. 2005); see also Mullin, 785
A.2d at 299 n.5 (raising possibility that the discovery rule
“might be justified” in the case of defamatory statements that
are “published secretly”).
The parties here agree that the discovery rule applies to
Chandler’s claim against Berlin arising from the 2003 Report.
The issue under the discovery rule is when that claim accrued.
“Although what constitutes the accrual of a cause of action is a
question of law, when accrual actually occurred in a particular
case is a question of fact for the fact finder.” Doe v. Medlantic
Health Care Grp., Inc., 814 A.2d 939, 945 (D.C. 2003).
Under D.C. law, a claim accrues “when a plaintiff either
has actual knowledge of a cause of action or is for some reason
charged with knowledge of that cause of action.” Diamond,
680 A.2d at 372. “The latter is known as inquiry notice,” which
is counterfactual in the sense that it refers to “that notice which
a plaintiff would have possessed after due investigation.”
Capitol Servs. Mgmt., 933 F.3d at 791. “The critical question
in assessing the existence vel non of inquiry notice is whether
the plaintiff exercised reasonable diligence under the
circumstances in acting or failing to act on whatever
information was available to him.” Ray v. Queen, 747 A.2d
1137, 1141-42 (D.C. 2000). Inquiry notice, in other words, is
notice ascribed to a plaintiff whose unawareness results from
the plaintiff’s failure to exercise reasonable diligence
appropriate to the particular circumstances.
11
Assessing whether inquiry notice exists requires a “highly
factual analysis.” Diamond, 680 A.2d at 372. In some cases,
“the relevant facts may be such that it may be reasonable [for a
plaintiff] to conduct no investigation at all.” Id. In such a case,
there is no inquiry notice so the limitations period does not start
to run. “[A]lthough summary judgment on the issue of when
accrual occurred may be granted in cases when there is no
disputed issue of fact . . . , summary judgment is improper when
there is a disputed question about plaintiff’s diligence in
investigating a possible cause of action.” Medlantic, 814 A.2d
at 946. If the evidence would permit the jury to find that the
plaintiff neither knew more than a year before he filed suit that
the defendant defamed him, nor reasonably should have then
recognized a need to take steps that would have uncovered an
unknown source of defamation, summary judgment must be
denied.
An added complication to the discovery rule arises in cases
where a plaintiff knows of harm but remains unaware of the
very existence of one or more of the actors who may share
culpability for it. Adopting the approach that we first applied
to that issue in Fitzgerald v. Seamans, 553 F.2d 220 (D.C. Cir.
1977), the D.C. Court of Appeals held in Diamond that “the
plaintiff’s knowledge of wrongdoing on the part of one
defendant [does] not cause accrual of his action against
another, unknown defendant responsible for the same harm,
unless the two defendants [are] closely connected, such as in a
superior-subordinate relationship.” 680 A.2d at 380.
The parties dispute whether Eringer and Berlin are
“closely connected” such that Chandler’s knowledge of
defamation on the part of Eringer before 2017 caused his claim
against Berlin to accrue then, more than a year before he sued.
They do so by analogy to Fitzgerald, in which an employee of
the Air Force alleged “a conspiracy to terminate his
12
government service in retaliation for his congressional
testimony.” 553 F.2d at 228. Because the appellant “had facts
in hand sufficient to put him on notice of the conspiracy”
within the Air Force more than three years before he filed suit,
we affirmed summary judgment under the three-year
limitations period in favor of all the Air Force officials
appellant had sued. Id. at 228-29. That decision barred claims
against even lower-level Air Force employees “not known to
appellant three years before the complaint was filed,” because
even though he did not then know who they were, appellant
had “constructive knowledge of grounds for the late lodged
suit” and could have uncovered the specific identities of the
subordinates who participated had he “proceeded with
diligence within the 3-year period by suing those conspirators
known to him at the time.” Id. at 229. Where suit was not
timely filed against the higher-ups, “it would be anomalous and
unjust,” we explained, “to allow appellant to begin an action
against lesser fry merely because their identity and
participation were earlier unknown.” Id.By contrast, we reversed summary judgment time-barring
Fitzgerald’s claims against a White House official whose role
in the alleged conspiracy only later “emerged by happenstance
during the Watergate hearings.” Id. Unlike the “lesser fry in
the Air Force,” the White House official was “a person of
influence in a different center of power.” Id. Nothing in the
record established “as a matter of law [that appellant] should
have become aware prior [to the year of the hearings] of any
White House involvement in his removal.” Id.Urging extension of Fitzgerald to the case at hand, Berlin
argues that his relationship with Eringer is analogous to that
between the higher- and lower-level Air Force officers. He
claims that it is immaterial he was not an employee of Eringer,
as his alleged actions as a contractor supplying Eringer with
13
false information were like those of the Air Force subordinates,
who were unnamed informants in the improperly motivated
investigation that led to Fitzgerald’s removal. The district
court agreed, noting that Berlin and Eringer worked in
“lockstep to develop adverse information about” Chandler.
436 F. Supp. 3d at 329. Chandler, on the other hand, contends
that Berlin is more like the White House official. He argues
that Berlin and Eringer were not closely connected in the way
that a superior and subordinate are, but were rather parties to a
single, arm’s-length transaction.
We need not decide which analogy better fits the facts at
hand, because the Fitzgerald framework runs into a threshold
obstacle to its application here: Under the facts at hand,
Eringer and Berlin cannot be described as responsible for “the
same harm” in the way the Fitzgerald framework
contemplates. Diamond, 680 A.2d at 380. That framework
suits a case where, for instance, defendants are alleged to be
part of one conspiracy. See, e.g., Nader v. Democratic Nat’l
Comm., 567 F.3d 692, 701-02 (D.C. Cir. 2009); Fitzgerald, 553
F.2d at 228-29. But defamation law considers each publication
of defamatory material as a distinct tort. See Restatement
(Second) of Torts § 577A; see also Jankovic v. Int’l Crisis
Grp., 494 F.3d 1080, 1087 (D.C. Cir. 2007).
Berlin argues that treating his 2003 Report and Eringer’s
ensuing publications as different harms is inconsistent with
Chandler’s theory of the case, which claims that Berlin’s 2003
Report was the basis of Eringer’s defamation. But even if
Eringer did rely in later publications on the 2003 Report, that
does not merge the harms. This case is thus unlike Fitzgerald
because the unknown defendant here is alleged to be
responsible for at least one distinct publication.
14
We address below whether Chandler can hold Berlin
liable for Eringer’s alleged 2017 publication. The limited
question at the threshold is whether, under Fitzgerald,
Chandler’s knowledge of Eringer’s statements triggered
accrual of Chandler’s claim against a different defendant
(Berlin) and about a different publication (the 2003 Report to
Eringer). We hold that it did not.
The default rule is that a plaintiff’s knowledge of
wrongdoing against a known defendant does not cause accrual
of her action against an unknown defendant. Diamond, 680
A.2d at 380. The exception urged here is for “closely
connected” defendants. Id. In the paradigmatic example, such
defendants are in a superior-subordinate relationship. See, e.g.,
Fitzgerald, 553 F.2d at 229; Cevenini v. Archbishop of Wash.,
707 A.2d 768, 773 (D.C. 1998). Unlike defendants acting in
concert through a close and ongoing relationship, Berlin
prepared a report for Eringer in a single, arm’s-length
transaction. Berlin had no role in Eringer’s subsequent
publications; by 2009—the first year in which Eringer is
alleged to have publicly repeated the allegations in the 2003
Report—Eringer’s relationship with Berlin had long since
ended. In light of those facts, Eringer and Berlin cannot be
described as “closely connected” defendants “responsible for
the same harm” under the Fitzgerald framework. Diamond,
680 A.2d at 380. Chandler’s knowledge of Eringer’s
wrongdoing thus did not in and of itself cause accrual of his
claim against Berlin. Cf. Capitol Servs. Mgmt., 933 F.3d at 792(despite company’s knowledge of an injury and claims against
the District of Columbia for the District’s cancellation of a
property management contract, company was not on notice of
claim against its competitor for tortious interference because it
did not know of competitor’s involvement in the cancellation).
15
Even though Chandler’s knowledge of Eringer’s
publications did not alone cause accrual, there remains a
question as to whether there was anything in those publications
to put Chandler on inquiry notice of claims against a wrongdoer
other than Eringer. The district court concluded that Eringer’s
use of the first-person plural “we” and “our” when discussing
his investigation into the Chandlers and his reference to
“documents” on the Chandler matter in the 2009 Complaint
“ought to have alerted [Chandler] to the possibility” of another
actor whose identity Chandler would have discovered had he
sued Eringer. Chandler, 436 F. Supp. 3d at 331. Berlin relies
on the same language in arguing that Chandler should have
known of the existence of an independent source, even if he did
not know the source was Berlin.
That analysis falls short here in the summary judgment
posture. Reasonable jurors could differ as to how to understand
the references in Eringer’s publications. See Anderson, 477
U.S. at 248. When the evidence is viewed in the light most
favorable to Chandler, Eringer’s earlier publications do not
necessarily suggest the existence of an independent source for
Eringer’s allegedly false statements. Even if they implied the
existence of some further source, a plaintiff in Chandler’s shoes
might reasonably have concluded that, to the extent the
statements themselves were fabrications, the intimations of
sources of the claims were also fabrications, or that accurate
information was obtained elsewhere and distorted by Eringer.
If so, reasonable diligence would not necessarily have required
Chandler to sue Eringer in order to preserve any cause of action
against an unidentified potential defamer in Berlin’s role. See
Ouellette v. Beaupre, 977 F.3d 127, 143-44 (1st Cir. 2020)
(reversing summary judgment on record from which a “jury
could easily conclude that even the most conscientious lay
person would not reasonably think that a diligent investigation
requires filing a lawsuit against one party to gain access to the
16
tools of discovery for the purpose of uncovering information
regarding other possible parties”).
The decision of the D.C. Court of Appeals in Doe v.
Medlantic Health Care Group supports the point. The court
there held that a plaintiff suing his hospital for improper
disclosure of his HIV diagnosis was not, under the
circumstances, on inquiry notice of that claim as soon as a
coworker told him a hospital employee was the source of
rumors at work about his condition. 814 A.2d at 948. When
the plaintiff confronted the hospital employee—someone who
had a second job working for the same employer as the plaintiff
and his coworker—the hospital employee denied the
accusation, and later both the hospital employee and the
plaintiff’s other coworker claimed the rumors were a joke.
Because the plaintiff reasonably could have disbelieved the
original accusation under those facts, “the jury could have
found that [the plaintiff] was not required to investigate the
hospital’s involvement” at that time. Id.The same is true here. Under the circumstances at hand, a
jury might conclude it was reasonable for Chandler “to conduct
no investigation at all” in response to hints in Eringer’s
publications of other wrongdoers. Diamond, 680 A.2d at 372.
Chandler allowed the one-year statute of limitations to expire
as to any claim against Eringer for conduct before 2017. But,
in light of our holding that Berlin and Eringer did not have the
type of relationship under Fitzgerald that would allow
knowledge of a claim against one automatically to accrue a
related claim against the other, Chandler’s decision not to
investigate Eringer does not necessarily establish a lack of
diligence with respect to his claim against Berlin.
Berlin notes that the discovery rule does not allow a
plaintiff to postpone deciding whether to sue to see if additional
17
harm occurs, but this is not such a case. Berlin relies on
medical malpractice suits involving physical injury known to
plaintiffs before the time bar, in which the claims are not
rendered timely by worsening of the injury within the
limitations period. See, e.g., Nelson v. Am. Nat’l Red Cross, 26
F.3d 193, 197 (D.C. Cir. 1994). The question here, in contrast,
is whether Chandler has a timely claim for the initial harm
Berlin allegedly caused by his 2003 publication, not for any
harm caused by subsequent publications.
Because there is “a disputed question about [the]
plaintiff’s diligence in investigating a possible cause of action,”
the district court erred in granting summary judgment.
Medlantic, 814 A.2d at 946. The question on remand will be
when Chandler first knew or should have known of a possible
claim against Berlin. See Diamond, 680 A.2d at 372. That is,
when Chandler first knew or should have known of “some
injury, its cause-in-fact, and some evidence of wrongdoing”
that was distinct from the known wrongdoing by Eringer. Id.
at 381; see also id. at 379 (identifying those as the “three
elements to the requisite knowledge”). Whether Chandler
should have known of such a claim turns on whether reasonable
diligence based on the facts before him at a certain point in time
required that he then take steps that would have revealed
Berlin’s role. See id. at 372. Our holding implies no view as
to the answer to that question; we conclude only that, based on
the facts in this record, the existence or not of inquiry notice
more than a year before Chandler filed suit must be addressed
by the factfinder. See Doe, 814 A.2d at 945.
B. The 2017 Republication
Even though, on the summary judgment record, Chandler’s
cause of action on the 2003 Report is not time-barred, the
district court correctly held that Berlin cannot be held
18
responsible for Eringer’s alleged 2017 republication of the
report. “The maker of a [defamatory] statement may be held
accountable for its republication if such republication was
reasonably foreseeable.” Tavoulareas, 759 F.2d at 136 n.56;
accord Oparaugo, 884 A.2d at 73; Ingber v. Ross, 479 A.2d
1256, 1269 (D.C. 1984); Restatement (Second) of Torts § 576.
Based on the facts in the record, no reasonable jury could find
that Eringer’s republication to the British media was
reasonably foreseeable to Berlin when he delivered his
confidential report to Eringer fourteen years prior. As a result,
Chandler cannot recover for any harm he may have suffered
from the 2017 republication in the event Berlin is ultimately
liable for the 2003 publication. Given our disposition, we need
not consider how D.C. law would treat the relationship between
a reasonably foreseeable 2017 republication and the original
2003 publication—in particular, whether under D.C. law a
reasonably foreseeable republication gives rise to a separate
claim against the original publisher or instead merely bears on
the calculation of damages on the earlier publication. The
answer to that question would matter if the 2017 republication
were foreseeable and the 2003 claim ultimately held time-
barred on remand. But because the republication in this case
was not reasonably foreseeable, that issue is not presented here,
regardless of the outcome on the timeliness question we
addressed in the section above.
The only support Chandler identified for his claim that
Berlin should have foreseen that the information he sold to
Eringer would eventually be published elsewhere is
information about Eringer’s publishing history that was
publicly available in 2003—several self-published espionage-
themed books, a 2001 online article that described Eringer as a
prolific author, and a 1984 decision by this court that identified
him as a “freelance journalist,” Liberty Lobby, Inc. v.
Anderson, 746 F.2d 1563, 1567 (D.C. Cir. 1984), vacated, 477
19
U.S. 242 (1986). Chandler argues that it is “reasonable to
infer” based on Berlin’s investigative business and experience
that he was “fully familiar with Eringer’s public profile when
[he] contracted” with Eringer in 2003. Appellant Br. 27. But
Chandler produced nothing beyond general information from
Berlin’s website to support that inference, and he never sought
to depose Berlin or conduct other discovery to pin down what
Berlin actually knew in 2003 about Eringer and his plans
regarding the report. For his part, Berlin declared under
penalty of perjury that he did not authorize Eringer to disclose
the report to any third party, let alone the British press in 2017.
The information Chandler points to is insufficient to
permit a jury to find that it was reasonably foreseeable to Berlin
in 2003 that Eringer would republish Berlin’s statements
through a major news outlet more than a dozen years down the
road. This is not to suggest that the precise republication at
issue and its date need to be foreseeable to establish
republication liability. But republication under circumstances
at least roughly similar to what in fact occurred must have been
foreseeable.
That requirement is grounded in cases in which damages
liability for republication has been established. The clearest
examples are cases holding it foreseeable to a reporter’s source
that the reporter would publish what the source said. In
Tavoulareas, for instance, we held that a jury could find a
plaintiff responsible both for defamatory statements he made
to a Washington Post reporter and for the paper’s subsequent
printing of those statements because the latter was a
foreseeable consequence of the former. 759 F.2d at 136 n.56;
see also Geraci v. Probst, 938 N.E.2d 917, 922 (N.Y. 2010)
(“The obvious example [of republication foreseeability] is
when a person makes a defamatory statement to a newspaper
20
reporter who, in turn, repeats it in a newspaper article[.]”). 5 In
such a context, while the precise date and story in which a
source’s statements are published might not be foreseeable to
the source, the general type of republication—publication
within days, weeks, or months of the source’s statements in
newspapers or other media outlets—is reasonably foreseeable.
The principal republication case Chandler cites for a
broader foreseeability standard—Shepard v. Nabb, 581 A.2d
839 (Md. Ct. Spec. App. 1990)—actually aligns with our
understanding of republication foreseeability. In Shepard, the
court held that republication of a source’s statements two
months after the initial article in which the statements were
used was a reasonably foreseeable “natural and probable
consequence” of the initial statement. Id. at 843, 845-46. That
holding is consistent with Chandler’s contention, which we
embrace, that republication on a specific future date need not
have been reasonably foreseeable to support republication
liability. But Shepard does not suggest that the requisite
foreseeability could be established based on any anticipation of
any republication. The holding is more contextual. The
plaintiff’s allegation that a source’s statements to a reporter
“were made with the intent that they be published” in a
particular newspaper on a specific date made it reasonable that
a jury might find “that the republication of [the source’s]
remarks in later issues of that newspaper or another was a
natural and probable consequence of the initial remarks to the
reporter.” Id. at 846.
Similar logic undergirds Green v. Cosby, 138 F. Supp. 3d
114 (D. Mass. 2015), the only case Chandler cites in which a
5
The panel opinion in Tavoulareas was vacated in part on other
grounds upon grant of rehearing en banc. 763 F.2d at 1481. The en
banc court did not reach the issue of republication liability. See
Tavoulareas v. Piro, 817 F.2d 762 (D.C. Cir. 1987) (en banc).
21
court held that a republication that occurred years after the
original publication could have been reasonably foreseeable,
supporting republication liability. In Green, celebrity
comedian and actor Bill Cosby argued that the republication in
2014 of a statement his representative issued to a reporter in
2005 denying sexual assault accusations was not reasonably
foreseeable. The court denied his motion to dismiss, holding
that the plaintiffs’ allegation that the representative made the
denial “with the expectation and intent that [it] be republished
if [the] allegations were reported again in the future” could
support a holding of foreseeability even of a publication many
years later. Id. at 127 (citation and internal quotation marks
omitted). Such a holding demonstrates that, depending on the
context of the publication, nature of the statements at issue, or
other showing that defendant would have anticipated relatively
remote future publication, passage of time alone will not
necessarily render republication unforeseeable. Needless to
say, Green does not bind us, and is materially distinct from this
case.
Chandler attempts to fit his claim into the reporter-source
category by emphasizing Eringer’s background as an author
and journalist. But even if Berlin knew of Eringer’s writings,
there is no record suggestion that Berlin shared information
with Eringer for a news story. Instead, Berlin sold Eringer a
preliminary intelligence report that was marked confidential on
each page. Absent facts suggesting that Berlin in 2003 had
reason to foresee that Eringer would distribute such a report to
the media more than a decade later, he cannot be held liable for
Eringer’s alleged 2017 republication. Regardless, then,
whether Berlin is ultimately found liable for his own 2003
publication, Chandler failed to make a record on which Berlin
could be held responsible for damage flowing from Eringer’s
later republication.
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* * *
For the foregoing reasons, we reverse the district court’s
January 30, 2020, order granting summary judgment but affirm
its April 3, 2019, order granting summary judgment and
remand for further proceedings consistent with this opinion.
So ordered.