The New York Post reports that Sarah Palin’s legal team has moved to the discovery phase of the defamation suit against the New York Times. They would like to subpoena almost two dozen current and former Times reporters, editors, and other employees. Palin’s lawyers would also like all internal communications concerning the former governor at the newspaper dating back to 2011, the year that then Rep Gabby Giffords was shot. The Times would prefer that it not have to cough up this information and would like to see the suit dismissed.

Why such an extensive discovery?

Discovery is the phase of a lawsuit in which a plaintiff demands information from a defendant that would support the legal action being brought. Sarah Palin is contending that the New York Times defamed her by publishing an editorial that blames the shooting of Gabby Giffords and others on a graphic her political action committee created using crosshairs against targeted congressional districts. In order to prove defamation, Palin’s legal team has to prove both a reckless disregard for the truth and malice.

The reckless disregard for the truth is easy to prove. The theory offered by the Times editorial was debunked quickly after the shooting took place. Giffords’ assailant, Jared Loughner, was a mentally ill man who had never seen the graphic in question and had been obsessed by the congresswoman for years before he pulled the trigger.

Malice is somewhat more difficult to prove. To be sure, Palin has been subjected to more unfair abuse that almost any other public figure in modern history. However, specific instances need to be found for the defamation suit to be successful. New York Times reporters and editors will be grilled in depositions about their opinions on former Gov.

Palin. Emails and memos will be poured over to find instances of bias against the plaintiff. Palin’s legal team is likely going to set out to prove that there existed a culture of bias against their client that led directly to the defaming editorial.

The New York Times responds

The Times is in a precarious position. It is demanding that the suit will be dismissed because the newspaper claims that Palin cannot prove malice.

However, if the lawsuit is tossed, Palin’s lawyers will certainly not be able to prove malice because the discovery phase will be short circuited.

One cannot tell what a judge will do in advance of his or her doing it. However, it seems to the casual observer that for justice to be served, discovery will have to be allowed to proceed. Certainly, enough circumstantial evidence exists that Palin was well hated at the Times. The sad truth is that the newspaper was not unique insofar as the mainstream media goes.