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Full Opinion
Case: 19-10315 Date Filed: 09/02/2020 Page: 1 of 37
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
__________________________
No. 19-10315
__________________________
SHKELZEN BERISHA,
Plaintiff - Appellant,
versus
GUY LAWSON,
ALEXANDER PODRIZKI,
SIMON & SCHUSTER, INC.,
RECORDED BOOKS, INC.,
Defendants - Appellees.
____________________________________
On Appeal from the United States District Court
for the Southern District of Florida
____________________________________
(September 2, 2020)
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Before MARTIN, NEWSOM, and OâSCANNLAIN,â Circuit Judges.
OâSCANNLAIN, Circuit Judge:
We must decide whether the son of the former Prime Minister of Albania,
who alleges that he was defamed in a book that accused him of being involved in
an elaborate arms-dealing scandal in the early 2000s, may succeed in his
defamation action against the bookâs author and its publisher.
I
This case arises out of brief references to Shkelzen Berishaâthe son of the
former Prime Minister of Albania, Sali Berishaâin Guy Lawsonâs 2015 book
Arms and the Dudes: How Three Stoners from Miami Beach Became the Most
Unlikely Gunrunners in History. The book tells the supposedly true story of
Efraim Diveroli, David Packouz, and Alex Podrizki, three young Miami, Florida,
men who became international arms dealers during the early 2000s.
A
We recount the tale as it is presented in Lawsonâs book. According to the
book, in the early 2000s, Diveroli, a teenager in Miami, came up with a plan to
open a business specializing in arms trading in order to fulfill defense contracts
with the United States government. At that time, private companies were
â Honorable Diarmuid F. OâScannlain, United States Circuit Judge for the Ninth Circuit,
sitting by designation.
2
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permitted to bid on large military contracts through a website operated by the
federal government, FedBizOpps.com. Diveroli was originally inspired to enter
the trade after working for his uncleâs arms company while living with him for a
few years in Los Angeles. After a falling out with his uncle, Diveroli returned to
Miami and convinced his father to sell him an unused shell company to build his
own arms-trading enterprise: AEY, Inc. Diveroli had significant early success
bidding on small contracts unlikely to attract the attention of major arms dealers,
and he quickly grew both his businessâs capital and his own connections with arms
vendors. Eager to see his operation expand, Diveroli later brought on his
childhood friend David Packouz to help him run the business.
Much of the book, and Berishaâs alleged involvement in the operation,
revolves around AEYâs biggest procurement deal: a roughly $300 million contract
that AEY won in the summer of 2006 to equip Afghan security forces fighting the
Taliban. The contract required AEY to ship 100-million rounds of AK-47
ammunition to Afghanistan. At the time, AEY had a deal with a Swiss middleman,
Heinrich Thomet, who had access to surplus ammunition in Albania that AEY
could purchase at low prices. Thomet had purchased the ammunition through the
Military Export Import Company (âMEICOâ), an Albanian state-owned arms-
dealing company. Packouz hired another childhood friend, Alex Podrizki, to travel
to Albania, to collect the ammunition, and to load it onto planes to Afghanistan.
3
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In Albania, Podrizki inspected the ammunition and found it packed in
Chinese cratesâpotentially raising a significant issue, because federal regulations
barred AEY from fulfilling the contract with Chinese ammunition. Packouz and
Diveroli decided to use the ammunition anyway, with a plan to repackage the
rounds to conceal their Chinese origin. AEY hired Albanian businessman Kosta
Trebicka to coordinate the repackaging job. In the course of his work, Trebicka
discovered that Thometâthe middleman between AEY and the Albanian state-
owned MEICOâhad charged AEY nearly twice the price he paid to MEICO for
the ammunition.
According to Lawsonâs book, in May 2007, after Trebicka told Diveroli of
the overcharges, Diveroli flew to Albania to renegotiate the price and to attempt to
remove Thomet from the deal. Diveroliâs supposed trip to Albania in 2007 is the
subject of significant dispute by the parties here. According to the book, Diveroli
and Podrizki met with Ylli Pinari, the director of MEICO, who drove the pair to an
abandoned, half-completed building in Tirana, where he introduced them to Mihail
Delijorgji. Delijorgji is described in the book as a âhard-lookingâ man who
offered to lower the AEYâs price if his own company were paid to repackage it
instead of Trebickaâs. As Lawson tells it, the Americans also saw another man,
who appeared to be in his mid-20s, who was never introduced and who remained
silent throughout. According to the book, Diveroli and Podrizki would later learn
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that this man was Berisha and that the entire operation was involved in organized
crime. The relevant passages in the book read (with emphasis to the portions
relating to Berisha added):
Ylli Pinari escorted Diveroli and Podrizki to . . . an abandoned
construction site for a partially completed office building. Pinari led
the pair up a set of stairs and along a corridor until they reached a
door. Stepping inside, they found . . . a hard-looking manâa real
thug, Podrizki thought, fear rising. . . .
This was Mihail Delijorgji. Diveroli and Podrizki then turned
to see a young man around their age sitting in the corner. Dressed in
a baseball cap and a sweater, he had dark hair, a soft chin, and
sharklike eyes. He wasnât introduced. This was Shkelzen Berisha, the
son of the prime minister of Albania, they would later be told by
Pinari. Shkelzen was part of what was known in Albania as âthe
family,â the tight-knit and extremely dangerous group that
surrounded and lived at the beneficence of the prime minister, Sali
Berisha. . . .
Delijorgji said that if Diveroli wanted a discount he would have
to change the arrangements for the repackaging operation . . . by
giving the contract to repack to Delijorgjiâs company. The son of the
prime minister remained silent. . . . .
Diveroli and Podrizki departed.
âThat guy looked stupid enough to be dangerous,â Diveroli said
of Delijorgji.
âDid we just get out of a meeting with the Albanian mafia?â
Podrizki joked.
âAbsolutely. Absofuckinglutely.â
Ultimately, the group brokered a deal to purchase the ammunition at a
discount, cutting Trebicka out of the scheme in favor of Delijorgji. Angered at
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being removed from the deal, Trebicka sought to blow the whistle on kickbacks
that he believed Diveroli and AEY were paying to Albanian officials. Hoping to
substantiate his claims, Trebicka recorded a telephone call with Diveroli, in which
Diveroli told him that he could not help bring Trebicka back into the scheme
because the corruption âwent up higher, to the prime minister, to his son.â
Trebickaâs allegationsâand his recorded conversation with Diveroliâ
became the source of a number of public reports about AEYâs illegal scheme.
Most notably, on March 27, 2008, the New York Times published a front-page
story, which reported the allegations that AEY had illegally trafficked in Chinese
ammunition and paid kickbacks to Albanian officials, including Pinari and
Minister of Defense Fatmir Mediu. The story quoted Diveroliâs statements that the
scheme âwent up higher to the prime minister and his sonâ and that Berisha was
part of âthis mafia.â The article also reported on another recent matter Trebicka
had blown the whistle on (and accused Berisha of being involved in): the tragic
explosion of an Albanian munitions stockpile, which had killed 26 people in the
village of Gerdec and for which Delijorgji and Pinari had been arrested. Several
months later, the New York Times ran another article that reported the supposedly
accidental death of Trebicka, and detailed suspicions that Trebicka had actually
been murderedâperhaps with the involvement of the Berisha familyâto prevent
him from testifying about the AEY and Gerdec matters. Once again, the Times
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story quoted Diveroliâs statement about the corruption going âall the way upâ to
Berisha.
At the same time, federal agents were investigating AEY for violating the
embargo against shipping Chinese ammunition. On August 23, 2007, federal
investigators raided AEYâs offices in Miami while Podrizki was still abroad in
Albania. In 2008, federal prosecutors charged Diveroli, Packouz, and Podrizki
with defrauding the United States government. All three pled guilty and were
convicted; Podrizki and Packouz were sentenced to house arrest, while Diveroli
was sentenced to four years in prison.
B
Lawson first published an account of the AEY saga in a March 2011 feature
article in Rolling Stone, entitled âArms and The Dudes: How Two Stoner Kids
from Miami Beach Became Big Time Arms Dealers â Until the Pentagon Turned
on Them.â It was told largely from âthe dudesââ perspective, whom Lawson found
to be quite unlike the âhardened criminalsâ that the New York Times coverage and
federal government had portrayed them to be. Relevant here, like the New York
Times story, Lawsonâs article reported that AEYâs deal to purchase ammunition
from MEICO was structured to pay kickbacks to Albanian government officials
and quoted Diveroliâs statement that the scheme went âup higher to the prime
minister and his son.â Lawsonâs article also reported that the repackaging job was
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transferred to âa friend of the presidentâs son.â Though he was aware of the
article, Berisha never sued Lawson or Rolling Stone for anything printed in the
article.
Following the success of the article, Simon & Schuster, Inc., entered into a
publishing agreement with Lawson to expand the story into a non-fiction book.
After four years of additional research, including interviews with Podrizki and
Packouz (who were paid life rights for the story), Lawson published his full
account of the saga in his June 2015 book. He also sold the movie rights to
Warner Brothers, which turned the story into the 2016 major motion picture War
Dogs, starring Jonah Hill and Miles Teller.
C
On June 8, 2017, Berisha sued Lawson, Diveroli, 1 Podrizki, Packouz, and
Simon & Schuster, and also named Recorded Books, Inc., which was responsible
for producing the audio version of Lawsonâs book. The complaint alleges that
Berisha was defamed by a few scattered references to him in Lawsonâs book. In
addition to the passage about the 2007 meeting in Tirana quoted aboveâwhich, as
Berisha emphasizes on appeal, is the core of his allegationsâthe complaint also
takes exception with the following references:
⢠On page 150, the book states that âDiveroli had agreed to cut Trebicka
out of the repacking job, which was now being done by a company
1
Diveroli was later dismissed from the lawsuit following a settlement.
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called Alb-Demil, an entity seemingly controlled by the prime
ministerâs son and Mihail Delijorgji.â
⢠On page 160, the book quotes the conversation that Trebicka recorded
with Diveroli, and which was featured in the 2008 New York Times
article. In that conversation, Diveroli said, âThe more it went up
higher, to the prime minister, to his sonâthis Mafia is too strong for
me. I canât fight this Mafia. It got too big. The animals got too out
of control.â
⢠The book features a photo of Berisha with the caption: âAlso
involved, the dudes discovered, was the prime ministerâs son,
Shkelzen Berisha.â
Over the next year, the parties conducted extensive discovery, in which the
defendants assert they produced nearly 20,000 documents, including all of the
research relied upon by Lawson in writing his book and nearly all communications
relevant to the bookâs editorial process. On July 13, 2018, however, Berisha
moved to compel production of additional communications that were exchanged
between Lawson and Simon & Schusterâs attorneys as part of the publishing
houseâs legal pre-publication review. A magistrate judge denied that motion,
finding the materials to be privileged after viewing the defendantsâ privilege log
and viewing some of the documents in camera.
D
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Following discovery (which was twice extended), 2 the defendants moved for
summary judgment, arguing that there was not sufficient evidence to allow a
reasonable juror to conclude that Lawson or the other defendants had defamed
Berisha. The district court agreed and granted summary judgment against Berisha.
Berisha timely appealed.
II
Berisha first challenges the district courtâs findings as to the merits of his
claims. Specifically, the court found that Berisha is a âlimited public figure for
purposes of the controversy at issue in this case,â and that he therefore can prevail
only by demonstrating that the defendants acted with âactual maliceâ against him.
The court then granted summary judgment against Berisha, finding that the
evidence in the record could not reasonably support the conclusion that the
defendants had acted with such malice.
Berisha argues that the district court erred both: (1) in requiring him to
show actual malice in the first place and, even if that were the correct standard to
apply, (2) in concluding that the record evidence could not support such a finding.
A
2
The district court extended the discovery deadline (once on a joint motion and once at
Berishaâs request) a total of two monthsâfrom June 1, 2018, ultimately to August 1, 2018. Two
weeks before discovery was set to close (and three weeks before summary judgment motions
were due), Berisha sought even more time to take discovery. The court denied the motion but
permitted the parties to âagree to conduct discovery beyond the discovery deadline.â
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We first ask: is Berisha a public figure for purposes of his defamation suit?
Because of the expressive freedom guaranteed by the First Amendment, a
defendant may not be held liable for defaming a public figure about a matter of
public concern unless he is shown to have âacted with actual malice.â Silvester v.
Am. Broad. Cos., 839 F.2d 1491, 1493 (11th Cir. 1988); see generally N.Y. Times
Co. v. Sullivan, 376 U.S. 254, 270â83 (1964). Berisha does not dispute that
Lawsonâs book concerned matters of public interest; the only question is whether
the district court erred in finding him to be a âpublic figure.â An individual may
qualify as a public figure either generallyâthat is one with such fame and
notoriety that he will be a public figure in any caseâor for only âlimitedâ
purposes, where the individual has thrust himself into a particular public
controversy and thus must prove actual malice in regard to certain issues. Turner
v. Wells, 879 F.3d 1254, 1272 (11th Cir. 2018). Here, the district court found that
Berisha fell within the second categoryâa public figure at least for the limited
purpose of this lawsuit.
We apply a two-part test to determine whether someone is a limited public
figure: âFirst, [we] must determine whether the individual played a central role in
the controversy. Second, [we] must determine whether the alleged defamation was
germane to the individualâs role in the controversy.â Id. at 1273 (citations
omitted). Two âfundamentalâ criteria help draw the line between public and
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private figures: (1) âpublic figures usually have greater access to the media which
gives them a more realistic opportunity to counteract false statements than private
individuals normally enjoyâ; and, more importantly, (2) public figures typically
âvoluntarily expose themselves to increased risk of injury from defamatory
falsehoods.â Silvester, 839 F.2d at 1494 (internal quotation marks omitted).
Lawson suggests that Berishaâwho according to one survey in our record
had one hundred percent name recognition in Albaniaâmight qualify as a public
figure generally. Putting that question aside, we agree with the district court that
he at least is a public figure for the limited purpose of this lawsuit. As described
above, the lawsuit concerns whether Berisha was defamed in Lawsonâs description
of AEYâs involvement in a corrupt scheme to defraud the United States in
conjunction with certain Albanian government officials and an Albanian âmafia.â
Berishaâs purported role in that scheme was covered by news media in both
Albania and the United Statesâincluding in two New York Times stories reporting
Berishaâs supposed connections to the AEY deal and to a so-called Albanian
mafia. These same matters were also addressed in a television documentary
produced by Al Jazeera, which covered, among other things, Berishaâs supposed
role in corrupt arms dealing and in the Gerdec explosion.
Berisha contends that he cannot be a public figure because he did not
voluntarily insert himself into the publicity surrounding these affairs. But the
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record shows that Berisha did indeed place himself in the public eye regarding the
Albanian arms-dealing scandal. Of course, if the many press reports about his
involvement in that affair are true, then there can be no doubt he entered into the
matter voluntarily. But even putting aside the truth of such reports, Berisha
undoubtedly forced himself into the public debate over his supposed involvement
in these activities. First, he admits that he privately met with Kosta Trebicka in an
effort to convince him that he was not involved in the AEY matterâand that
shortly thereafter Trebicka produced a statement âto the mediaâ retracting his
allegations against Berisha. Berisha also admits that he contacted a group of
âmedia representativesâ to request that they publish a statement presenting what he
called the âtruth [of] the accusations against me,â which explicitly âencourage[d]
the press to follow this story to the end and investigate it.â We have recently held
that an individual may insert himself into a controversyâand thus become a public
figure with respect to that controversyâby encouraging third parties to make
public statements in his defense and by inviting further public attention in an effort
to influence the debate. See Turner, 879 F.3d at 1273.
Moreover, even if Berisha never voluntarily sought public attention, federal
courts have long made clear that one may occasionally become a public figure
even if âone doesnât choose to be.â Rosanova v. Playboy Enters., Inc., 580 F.2d
859, 861 (5th Cir. 1978); see also, e.g., Turner, 879 F.3d at 1273 (citing
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approvingly the statement that â[i]t may be possible for someone to become a
public figure through no purposeful action of their ownâ (internal quotation marks
omitted)). As this circuit 3 once put it, the âpurpose served by [the public figure
standard] would often be frustrated if the subject of publication could choose
whether or not he would be a public figure. Comment upon people and activities
of legitimate public concern often illuminates that which yearns for shadow.â
Rosanova, 580 F.2d at 861; see also Silvester, 839 F.3d at 1496 (where a person
âinvoluntarily and, against his will, assumes a prominent positionâ in the outcome
of a public controversy, will be treated as a public figure â[u]nless he rejects any
role in the debateâ). Berisha argues cases of involuntary public figures must be
kept âexceedingly rare,â Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974),
and refers us to a decision from the Fourth Circuit in this regard. See Wells v.
Liddy, 186 F.3d 505, 539 (4th Cir. 1999) (â[B]ecause the usual and natural
conception of a public figure encompasses a sense of voluntary participation in the
public debate, . . . the class of involuntary public figures must be a narrow
one . . . .â). But Berishaâs is exactly the rare case in which courts recognize
involuntary public-figure status. The purposes underlying the public figure
doctrine apply unequivocally to Berisha: he was widely known to the public, he
3
Rosanova is a Fifth Circuit case from shortly before that circuit was divided, making it
precedential for todayâs Eleventh Circuit. See Bonner v. City of Pritchard, 661 F.2d 1206 (11th
Cir. 1981) (en banc).
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had been publicly linked to a number of high-profile scandals of public interest, he
availed himself of privileged access to the Albanian media in an effort to present
his own side of the story, and he was in close proximity to those in power. Even
under the Fourth Circuit case that he invokes, Berisha would still be regarded as a
public figure. See id. (individual may be involuntary public figure where she has
âsought to publicize her views on the relevant controversyâ or âhas taken some
action . . . in circumstances in which a reasonable person would understand that
publicity would likely inhereâ).
The district court was correct to apply the heightened defamation standard
for claims brought by public figures.
B
Next, did the district court err in finding that there was insufficient evidence
to support Berishaâs claim that the defendants acted with actual malice?
Because Berisha is a public figure, he cannot prevail in this suit unless he
shows, by clear and convincing evidence, that the defendants acted with actual
malice toward him. Harte-Hanks Commcâns, Inc. v. Connaughton, 491 U.S. 657,
659 (1989). That is, he must be able to showâwell beyond a preponderance of the
evidenceâthat the defendants published a defamatory statement either with actual
knowledge of its falsity or with a âhigh degree of awarenessâ of its âprobable
falsity.â Garrison v. Louisiana, 379 U.S. 64, 74 (1964). It is a subjective test,
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which asks whether the publisher âin fact entertained serious doubts as to the truth
of his publication.â Silvester, 839 F.2d at 1498 (emphasis added) (internal
quotation marks omitted); see also St. Amant v. Thompson, 390 U.S. 727, 731
(1968) (standard âis not measured by whether a reasonably prudent man would
have published, or would have investigated before publishingâ). Even an âextreme
departure from professional [publishing] standardsâ does not necessarily rise to the
level of actual malice. Harte-Hanks, 491 U.S. at 665.
Thus, the question here is whether the record could allow a reasonable juror
to conclude (clearly and convincingly) that Lawson held serious doubts about the
truth of the bookâs portrayal of Berisha as involved in the AEY scheme.
1
Although Berisha has little evidence to suggest Lawson knowingly
published falsehoods about him, Berisha argues that a juror could reasonably find
that Lawson at least held serious doubts about his portrayal of Berisha, because he
knew better than to trust his firsthand sources for that account: primarily the three
âdudes.â For his part, Lawson testified that he did believe his sources, and that in
particular he found Podrizki and Packouz to be âextremely reliable,â with
information that consistently matched the other evidence available. But, as Berisha
points out, these were not the most dependable individuals. They had been
convicted of fraud, Packouz and Podrizki were self-interested in providing Lawson
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with a profitable story, and, in the book, Lawson himself describes Diveroli as âa
liar . . . [who] misled directly, indirectly, compulsively.â Thus, Berisha argues,
evidence of Lawsonâs awareness of these many credibility flaws could clearly
show that Lawson must have doubted what they said about Berisha. Berisha,
however, greatly overstates the significance of such evidence.
a
First, though factors like those Berisha identifies might undermine a sourceâs
credibility, they do not show that a publisher necessarily acted with malice by
relying on the source. See, e.g., Spacecon Specialty Contractors, LLC v.
Bensinger, 713 F.3d 1028, 1045 (10th Cir. 2013) (âThat Bensinger knew Wilson
. . . may have been biased . . . is not evidence Bensinger had obvious reasons to
doubt Wilsonâs veracity or the accuracy of his report.â); Cobb v. Time, Inc., 278
F.3d 629, 638 (6th Cir. 2002) (publisher could rely on paid source who was a drug
user with a âcriminal backgroundâ); Reuber v. Food Chem. News, Inc., 925 F.2d
703, 715 (4th Cir. 1991) (âActual malice cannot be proven simply because a source
of information might also have provided the information to further the sourceâs
self-interest.â). Further, Lawsonâs book explicitly informed the reader of these
supposed problems with the menâs credibility, describing them as young partiers
who drank, used drugs, and committed a major international fraud. With regard to
Diveroli, the book explicitly described his penchant for lying in order to further his
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own interests. In other words, the book makes clear that the account offered by
these men might be dubious. As we have recently recognized, where a publisher in
this manner âinform[s] its audience that its primary source [is] not an
unimpeachable source of information, it serve[s] to undermine claims showing that
the report was issued with actual malice.â Michel v. NYP Holdings, Inc., 816 F.3d
686, 703 (11th Cir. 2016) (internal quotation marks omitted).
b
Second, whatever one might say about the âdudesââ credibility, Lawson did
not rely solely on their assertions about Berisha but rather found their stories
corroborated by several other sources.
Most obviously, Lawson relied on the many prior published reports that had
similarly accused Berisha of being involved in the AEY fraud and in an Albanian
criminal underworld. These include: at least four published news articles,
including two in the New York Times, two separate books (one published in the
United States and one in Albania), leaked diplomatic cables published on
WikiLeaks,4 and the investigative report by Al Jazeera. The law is clear that
individuals are entitled to rely on âpreviously published reportsâ from âreputable
sourcesâ such as many of these. Liberty Lobby, Inc. v. Dow Jones & Co., 838 F.2d
4
These leaked cables purport to show John Withers, the then-U.S. Ambassador to
Albania, reporting allegations that Berisha had personally been involved in the Gerdec matter.
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1287, 1297 (D.C. Cir. 1988). Thus, as the district court recognized, Lawsonâs
reliance on these many independent sources, alone, should defeat any claim of
actual malice. See Rosanova, 580 F.2d at 862 (â[S]ubjective awareness of
probable falsity . . . cannot be found where, as here, the publisherâs allegations are
supported by a multitude of previous reports upon which the publisher reasonably
relied.â (emphasis added)).
Further, Lawson interviewed several additional sources who corroborated
the claims about Berisha. For example, Erion Veliaj, the mayor of Tirana, told
Lawson that the Berisha family was like a âwolf packâ that used individuals like
Delijorgji to protect Shkelzen and that he was not surprised to hear that Berisha
was involved in the AEY deal. Likewise, Trebickaâs daughter told Lawson that
she believed her father had been removed from the AEY deal in order to make way
for âBerishaâs sonâ and that she considered Berisha to be a suspect in her fatherâs
mysterious death. Finally, Andy Belliu, a former worker at the Gerdec factory,
called Berisha the âshadowâ behind the factory and implicated him in âmafiaâ
dealings.
Berisha contends that these additional sources had their own credibility
problems, for example suggesting that the prior publications themselves all trace
back to Diveroli or that the other individuals were biased against him and his
father. But even if that is so, it was not Lawsonâs (perhaps impossible) duty to find
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only pure, unimpeachable sources of information. Even if Berisha might nitpick
each source for one reason or another, this wealth of evidence considered
altogether does not permit a reasonable juror to find clear and convincing proof
that Lawson held serious doubts about the depiction of Berisha in his book.
2
In addition to his attacks on the credibility of Lawsonâs sources, Berisha
argues that he can show Lawson exhibited a general pattern of dishonesty in his
book, whichâwhen considered âin the aggregateââundermines the notion that
Lawson actually believed his portrayal of Berisha. Again, Berisha overstates the
significance of such evidence, which is largely irrelevant to the truth of the claims
made about him in the book.
a
First, Berisha asserts that evidence shows that Lawson was determined to
publish a preconceived story about him, regardless whether it could be supported.
He quotes Lawson as boasting at various times that his forthcoming book might
âbring down the Prime Minister of Albania.â But each of these quoted emails was
sent by Lawson after he had done substantial work on the book. In other words,
such statements do nothing to show that Lawson began with an unfounded plan to
take down Berisha and his father, but rather reflect only that after Lawson had
reported and begun writing the book he believed that the story he had discovered
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might do so. Accordingly, this evidence offers no reason to doubt the sincerity of
Lawsonâs belief in the many sources that corroborated his depiction of Berisha.
b
Second, Berisha argues that evidence shows that Lawson intentionally
fabricated at least two details in the book. But even if that were true, neither minor
detail would reasonably cast doubt on whether Lawson harbored serious doubts
about his broader depiction of Berisha.
i
First, Berisha claims that Lawson made up the fact that specifically Ylli Pinari
told Podrizki and Diveroli that Berisha was present at their Tirana meeting. The
passage in question reads (with emphasis added):
Diveroli and Podrizki then turned to see a young man around their age
sitting in the corner. Dressed in a baseball cap and a sweater, he had
dark hair, a soft chin, and sharklike eyes. He wasnât introduced. This
was Shkelzen Berisha, the son of the prime minister of Albania, they
would later be told by Pinari.
Berisha argues that the Pinari attribution is not sourced to anyone other than
Diveroli (whom, again, he casts as utterly unreliable). He points out that, at least
according to Podrizki, Berisha was identified to them by Trebicka, not Pinari. And
because Lawson himself admitted that Trebicka would not have known whether
Berisha attended the Tirana meeting, Berisha argues that a âreasonable jury could
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conclude that Lawson manufactured the provenance of his information (i.e., Pinari)
to hide the unreliability of his actual âsourcingâââi.e., Diveroli.
Even if we assume that Lawson did fabricate the Pinari detail, 5 that still
would not be enough to demonstrate he acted with actual malice. As the district
court recognized, under applicable Florida law, 6 the key question in a defamation
case is whether the âgist or stingâ of the challenged statements was defamatory.
Levan v. Capital Cities/ABC, Inc., 190 F.3d 1230, 1240 (11th Cir. 1999). The
âgistâ and âstingâ of Lawsonâs depiction of Berisha was that he was involved in
the ammunition repackaging fraud and, more broadly, with an Albanian criminal
underworld. The gist does not include which of the many individuals involved in
the scheme first identified Berishaâs presence to the Americans. Indeed, as written,
the book still conveys the undisputed truth that Diveroli and Podrizki said they
were told secondhand that Berisha was present at their meeting. At worst, the
book misidentifies where they claimed to have received such information.
The general irrelevance of this minor detail is apparent when considered in
context. The sentence in the book with which Berisha takes issue reads: âThis was
5
Lawson of course disputes this, and the record certainly does not prove that Lawson did
fabricate the attribution of the identification by Pinari. Lawson argues that the attribution to
Pinari was his own conclusion as the most likely source following his research.
6
Florida law governs the merits of Berishaâs defamation action, though standards for
public figures and âactual maliceâ derive from the First Amendment and thus, as discussed
above, are matters of federal law. See, e.g., Nelson Auto Ctr., Inc. v. Multimedia Holdings Corp.,
951 F.3d 952, 956 (8th Cir. 2020).
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Shkelzen Berisha, the son of the prime minister of Albania, [Diveroli and Podrizki]
would later be told by Pinari.â We agree with the district court that the overall
âgistâ of the bookâs depiction of Berisha would not materially change if instead
that sentence simply read: âThis was Shkelzen Berisha, the son of the prime
minister of Albania, Diveroli and Podrizki would later be told.â7
ii
Second, Berisha claims that Lawson âdeliberately falsifiedâ an interview
between Albanian Defense Minister Fatmir Mediu and New York Times reporter
Nicholas Wood, in an effort to âreinforce his claim of Berishaâs involvement with
AEY.â The passage in question details an interview during which Wood prodded
Mediu with questions about, among other things, Albanian officialsâ involvement
in the AEY scandal. At one point, according to Wood, Mediu burst out in anger
after Wood asked a question about Mediuâs previous conviction on drug charges.
7
Along similar lines, Berisha makes much of the fact that Lawson originally hoped to
include the following sentence in his description of a meeting between New York Times
journalist Nicholas Wood and Kosta Trebicka: âThe head of MEICO Ylli Pinari had told
Trebicka that the Prime Ministerâs son was involved in the AEY contract . . . .â At one point,
Lawson shared that passage with Wood, out of concern that the claim âmight be a slight stretch,â
depending on what Trebicka discussed with Wood. No response to that email is included in the
record, but in the final version of the book, Lawson omits any reference to Pinari and instead
simply says that âTrebicka had heard the allegation that the prime ministerâs son was involved in
the AEY contract.â
Berisha suggests that Lawsonâs hope to include a âstretchedâ reference to Pinari shows
that Lawson planned to put âdramatic effectâ before âthe truth.â But, as Lawson points out, the
fact that he ran this passage by Wood before publishingâand then subsequently edited itâ
shows exactly the opposite. This sort of fact checking is exactly what Berisha suggests Lawson
should have done.
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In the book, Lawson presents Mediu as lashing out in response to a different
question âdescribing how Albanian officials were allegedly being paid kickbacks
on AEYâs contract, including Diveroliâs recorded description of the Albanian
âMafiaâ and the prime ministerâs son.â Berisha argues that Lawson changed the
timing of Mediuâs outburst to imply that Mediu knew Diveroliâs accusations about
Berisha were true.
Berishaâs insinuations about Lawsonâs depiction of this interview are
misguided. Berisha does not dispute that Wood did interview Mediu about
accusations of Albanian governmental involvement in the AEY scheme. And the
record includes an email in which Wood told Lawson that, after the interview,
Mediu threatened both the cameraman filming the interview and one of Woodâs
sources for the AEY allegations (Trebicka). Thus, even if Mediuâs outburst was
directly prompted by a question about his drug conviction, the record of this
conversation supports Lawsonâs broader narrative that Mediu was angered by the
interview and by Trebickaâs accusations of an Albanian-government conspiracy
with AEY. As Lawson testified in his deposition, âNick Wood made it clear that
[Mediuâs outburst] was a cumulative thing but that it definitely included AEY.
And the accusations about AEY were infuriating to him.â Lawson further said that
Wood reviewed that passage in the book and did not object to it.
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Even if Lawson did somewhat misrepresent Mediuâs outburst, this again is a
relatively immaterial detail in the context of the book overall. The overall effect of
any change is minimal when it remains true that: (1) Wood confronted Mediu with
accusations that Albanian officials were involved in the AEY scheme and (2)
Mediu was upset by his interview with Wood, to the point that he threatened
Woodâs cameraman and a source for the AEY accusations. Whether or not
Lawson had included the additional detail of Wood discussing Mediuâs unrelated
drug conviction in the book, the âgistâ remains the same: a reporter from the New
York Times attempted to discuss the AEY matter with Mediu and in the end
received only anger and threats as a result.
c
Finally, Berisha makes much of the fact that early drafts of Lawsonâs book
included passages discussing various issues that arguably could not be verified. In
support, he cites an email from an editor at Simon & Schuster, who contended that
Lawsonâs early manuscript focused too much on the Pentagonâs supposed
involvement in the AEY scheme, which she believed âput[] the book on shaky
ground â both from a narrative stance and in terms of credibility (to take down the
Pentagon you need armor-proof evidence).â He also cites an email from C.J.
Chivers, a writer from the New York Times, whom Lawson had contacted to clarify
certain details that Lawson wanted to print regarding the supposed inferior quality
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of the ammunition AEY provided (which were related to a photo that had been
included in Chiversâs reporting). In response, Chivers wrote angrily that Lawsonâs
questions suggested that his book would misrepresent Chiversâs reporting and
indicated that Lawson had âwritten a factually unsupportable tale and hope[d] that
it might stick.â
But, in the final book, Lawson substantially cut back the Pentagon narrative,
he independently researched and verified his claims related to the photo of the
AEY ammunition, andâeven more to the pointâneither of these matters had
anything do with Lawsonâs depiction of Berishaâs involvement with AEY. Even if
it were true that Lawson had at one point attempted to pursue unsupported details
about unrelated matters, that would not show that he clearly harbored serious
doubts about the well-sourced assertion of Berishaâs connection to the AEY fraud.
In sum, none of Berishaâs various attacks on other portions of Lawsonâs
book can reasonably be viewed to undermine his reliance on a variety of sources to
support the bookâs core claims about Berisha. 8
8
Because the evidence is insufficient to support a conclusion that Lawson himself acted
with actual malice, Berishaâs claims against the remaining defendantsâSimon & Schuster,
Recorded Books, Packouz, and Podrizkiâfail as well. Though Berisha broadly asserts that
Simon & Schuster âwas aware of Lawsonâs . . . tendency to put his narrative before the facts,â he
does not identify evidence which could show âclearly and convincinglyâ this to be true. Indeed,
the only evidence he identifies in support of such a claim is Lawsonâs early inclusion of the
under-sourced Pentagon-conspiracy storyline, which after feedback from Simon & Schuster,
Lawson largely removed from the book. Berisha has no evidence that anyone at Simon &
Schuster actually harbored doubtsâlet alone serious doubtsâabout the accuracy of Lawsonâs
depictions of Berisha, which again were corroborated by various sources.
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III
Next, Berisha contends that the district court abused its discretion in denying
his motion to compel production of certain communications between Lawson and
Simon & Schusterâs attorneys. See Bogle v. McClure, 332 F.3d 1347, 1358 (11th
Cir. 2003). The district court found that the communications were protected from
disclosure by, among other things, the attorney-client privilege. We consider
whether, under New York law, 9 that is correct.
The attorney-client privilege protects from disclosure confidential
communications between an attorney and his or her client made to solicit or to
provide legal advice. Ambac Assurance Corp. v. Countrywide Home Loans, Inc.,
57 N.E.3d 30, 34 (N.Y. 2016). The communications at issue here concern
Lawsonâs interaction with Simon & Schusterâs lawyer, as the lawyer conducted a
Second, Berisha does not identify evidence to support his conclusory assertion that
Packouz or Podrizki âfabricated Berishaâs involvement with AEYâ in order make money from
Lawson. Regardless whether these two might have had such motives to lie, Berisha offers no
evidentiary support for the notion that they indeed did lie.
Finally, Berisha acknowledges that there is no evidence on which to prove that Record
Books acted with actual malice.
9
Florida choice-of-law principles determine which forumâs privilege law applies. See
Manuel v. Convergys Corp., 430 F.3d 1132, 1139 (11th Cir. 2005). In many areas, Florida
follows âa flexible test to determine which state has the most significant relationshipsâ to the
matter, though in matters of contract Florida has rejected this in favor of a more traditional âlex
lociâ application of the law of the place of contracting. See State Farm Mut. Auto. Ins. Co. v.
Roach, 945 So. 2d 1160, 1163â64 (Fla. 2006). Though it is not readily apparent what approach
Florida courts would apply to resolve a conflict over the claim of privilege here, we need not
decide that question, because (as the parties agree) New York law would likely apply under
either approach given that the publishing contract was entered in New York, both Simon &
Schuster and Lawson are New York residents, and the communications took place in New York.
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pre-publication legal review of the contents of the book. Berisha does not
seriously dispute that, if Lawson were the lawyerâs clientâfor example if he were
a representative of Simon & Schusterâthen the communications would be
properly shielded. See, e.g., Liberty Lobby, 838 F.2d at 1302 (âPre-publication
discussions between libel counsel and editors or reporters would seem to come
squarely within the scope of the privilege . . . .â). He argues, however, that
because Lawson was merely a third-party contractor of the publishing house, his
communications are not swept within the privilege. Lawson responds that, at least
for purposes of the legal pre-clearance review, he was, as a practical matter,
effectively a Simon & Schuster employee, and is therefore covered by the
privilege.
A
The disagreement between the parties asks us to consider the âemployee
equivalentâ doctrineâan extension of the Supreme Courtâs seminal decision in
Upjohn Co. v. United States, 449 U.S. 383 (1981). In Upjohn, the Supreme Court
held that, where an attorney represents a corporation, the corporationâs attorney-
client privilege extends beyond individuals who âcontrolâ the corporation to
include other employees with whom the lawyer must consult in order to advise the
company. See id. at 391â92. New York courts have incorporated the Upjohn rule
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into the stateâs own attorney-client privilege law. Cf. Niesig v. Team I, 558 N.E.2d
1030, 1033â34 (N.Y. 1990) (discussing Upjohn).
Led by the Eighth Circuit, some courts have since held that the principles
announced in Upjohn suggest that even a non-employee like a contractor or
consultant may be covered by the attorney-client privilege where he or she acts as
the functional equivalent of an employee for the relevant matter. In In re Bieter
Co., 16 F.3d 929, 937 (8th Cir. 1994), the Eighth Circuit held that, for purposes of
the Upjohn rule, âit is inappropriate to distinguish between those on the clientâs
payroll and those who are instead, and for whatever reason, employed as
independent contractors.â The court emphasized that the very point of Upjohn is
to ensure that the lawyer may consult with knowledgeable employees to âknow all
that relates to the clientâs reasons for seeking representation [so that] the
professional mission [can] be carried out.â Id. (quoting Upjohn, 449 U.S. at 389).
To this end, the court observed there âundoubtedly are situations . . . in which too
narrow a definition of ârepresentative of the clientâ will lead attorneys not being
able to confer confidentially with nonemployees who, due to their relationship to
the client, possess the very sort of information that the privilege envisions flowing
most freely.â Id. at 937â38. Thus, in order to vindicate the concerns of Upjohn,
the privilege must be afforded to certain ânonemployees who possess a significant
relationship to the client and the clientâs involvement in the transaction that is the
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subject of the legal services.â Id. at 938 (alterations and internal quotation marks
omitted).
Several courtsâincluding courts in New Yorkâhave followed the Eighth
Circuitâs lead. See, e.g., United States v. Graf, 610 F.3d 1148, 1158â59 (9th Cir.
2010) (adopting Bieter and collecting cases in lower courts doing the same);
Alliance Constr. Solutions, Inc. v. Depât of Corrs., 54 P.3d 861, 869 (Colo. 2002)
(adopting Bieter into Colorado law); Frank v. Morgans Hotel Grp. Mgmt. LLC,
116 N.Y.S.3d 889, 891â93 (N.Y. Sup. Ct. 2020) (applying Bieter under New York
law); Sieger v. Zak, No. 19978/05, 2008 WL 598344, at *9 (N.Y. Sup. Ct. Feb. 21,
2008) (same); Waste Admin. Servs., Inc. v. Krystal Co., No. E2017-01094-COA-
R9-CV, 2018 WL 4673616, at *4â5 (Tenn. Ct. App. Sept. 27, 2018) (applying
Bieter under Tennessee law). Indeed, Berisha does not seriously dispute that New
York would embrace an âemployee equivalentâ extension of the Upjohn doctrine.
B
Berisha argues, however, that this doctrine is too narrow to apply in this
case. In Berishaâs telling, the doctrine applies only where an individual âlooks,
acts, and smells like a company employee,â such as where the individual exercises
authority on behalf of the company or falls within its chain of command. Because
Lawson did not have âcontrol over Simon & Schusterâs decision to publish the
[b]ook,â Berisha argues that he was not, in any meaningful sense, the âequivalentâ
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of a Simon & Schuster employee. Berishaâs argument essentially rests on the
premise that, for purposes of New Yorkâs attorney-client privilege law, the scope
of the âemployee-equivalentâ doctrine is to be understood similarly to the
definition of an âemployeeâ in the context of agency or employment law. Cf. In re
Vega, 35 N.Y. 3d 131, 145â51 (2020) (Rivera, J., concurring) (discussing
difference between employees and independent contractors under New York law).
Berishaâs argument might seem reasonable on its face, and indeed, in some
cases the employee-equivalent doctrine has been applied to individuals who have
effectively âassumed the functions and duties of a full-time employee.â Frank,
116 N.Y.S.3d at 892 (alterations and internal quotation marks omitted); see also id.
(citing cases). However, Berishaâs suggestion that the employee-equivalent
doctrine must be limited only to such cases misconceives the purposes underlying
the doctrine. As expressed in Upjohn, an overly restrictive view of the individuals
who qualify as representatives of an attorneyâs corporate client threatens to
frustrate the attorneyâs efforts to formulate sound legal advice based on
information possessed by those directly involved in the matter. See generally
Upjohn, 449 U.S. at 391â92. Bieter extended this logic with the recognition that
âthere undoubtedly are situations . . . [where even] nonemployees . . . , due to their
relationship with the client, possess the very sort of information that the privilege
envisions flowing most freely.â Bieter, 16 F.3d at 938. Bieterâs core holding is
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thus that the privilege must extend to cover ânonemployees who possess a
significant relationship to the client and the clientâs involvement in the transaction
that is the subject of legal services,â and who therefore âhave the relevant
information needed by corporate counselâ to advise the client. Id. (internal
quotation marks and alterations omitted). By its very nature, this includes
individuals whom we might notâfor other purposes in the lawâconsider to
behave as âemployeesâ of the corporation. Cf. Alliance Constr. Solutions, 54 P.3d
at 869 (â[W]e agree with the Bieter court that a formal distinction between an
employee and an independent contractor conflicts with the purposes supporting the
privilege. An independent contractor with a meaningful relationship to the
[corporation] may possess important information needed by the attorney to provide
effective representation.â). Thus, while factors like those referenced by Berisha
are useful in evaluating the nonemployeeâs ârelationship to the client,â an absence
of such factors does not necessarily destroy the application of the doctrine. See
generally Bieter, 16 F.3d at 938.
C
We are mindful that an overly broad employee-equivalent rule might
threaten to sweep within the privilege conversations between a lawyer and various
individuals who have not previously been considered to fall within the ambit of the
privilegeâfor example mere third-party witnesses. Here, fortunately, we need not
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probe the outer limits of the doctrine. Regardless of his employment status,
Lawsonâs ârelationshipâ to Simon & Schuster and his âinvolvement in the
transactionâ that was the subject of the legal servicesâi.e., Simon & Schusterâs
legal review of the contents of the book he wrote for publication by the companyâ
could hardly be more significant. As the president of the Adult Publishing group at
Simon & Schuster stated in an affidavit, because âthe author is the sole proprietor
of the sourcing and background information that went into the manuscript, the
authorâs cooperation is essential to the pre-publication legal review process.â It
would, in his words, âbe impossible to conduct a meaningful pre-publication legal
review without the author.â
And, while their working relationship may not bear many of the hallmarks of
a traditional employer-employee relationship, it is hardly the case (as Berisha is
eager to suggest) that Lawson was utterly disconnected from Simon & Schusterâ
as if he were simply a witness or passerby to the companyâs activities. If it were
not apparent from the nature of the work itself, the publishing contract makes clear
that Lawson and Simon & Schuster were indeed engaged in a joint effort to
produce a published book to their mutual satisfaction and for their mutual benefit.
Among other things, that contract specified that the company would pay Lawson
an advance for his work toward producing a publishable book, laid out a process
by which they would mutually attempt to work through editorial changes requested
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by the company prior to publication, and detailed how the parties would split
royalties and various rights to the continuing use and publication of the work after
it was completed.
D
For these reasons, some courtsâincluding at least one applying New York
lawâhave found individuals in nearly identical circumstances to Lawson to be
covered by the attorney-client privilege. For example, in Davis v. Costa-Gavras,
580 F. Supp. 1082, 1098 (S.D.N.Y. 1984), the court (applying New York law)
found that the attorney-client privilege applied to conversations between lawyers
for a movie studio and the author of the book that had served as the basis for a
filmâs screenplay. Even though the author âwas not a Universal employee and did
not participate in the production of the film,â the court found that âhis participation
in the [legal preclearance] meeting was functionally equivalent to that of an author
of a magazine or newspaper article who submits his work to in-house counsel for
prepublication libel review and should thus come within the rule of Upjohn.â Id.
The same should be said for Lawson here.
More recently, in another case out of the Southern District of New York, the
court found that the privilege applied to conversations between a movie studioâs
attorney and the filmâs director and script writer, both of whom were independent
contractors. See Twentieth Century Fox Film Corp. v. Marvel Enters., No. 01 Civ.
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3016, 2002 WL 31556383 (S.D.N.Y. Nov. 15, 2002). The court explained that,
given their roles in making the movie, the director and writer were âthe functional
equivalent of employeesâ of the studio that would produce it. Id. at *2. In a
passage that could easily describe the book industry, the court elaborated:
Foxâs determination to conduct its business through the use of
independent contractors is a result of the sporadic nature of
employment in the motion picture industry; for a wide variety of
reasons, producers, directors and actors generally do not âturn outâ
movies with the same mechanical regularity with which most tangible
products are produced. The fact that the nature of the industry dictates
the use of independent contractors over employees should not, without
more, create greater limitations on the scope of the attorney-client
privilege.
Id. At least one court outside of New York has reached a similar conclusion. See,
e.g., Tyne v. Time Warner Entmât Co., 212 F.R.D. 596, 600â01 (M.D. Fla. 2002)
(disclosure of in-house legal advice from one movie studio to another involved in
the joint production of a film did not waive attorney client privilege). And Berisha
has not cited a single case in which a court disagreed that the employee-equivalent
doctrine would apply in circumstances like these.
For the reasons elaborated above, we agree that the employee-equivalent
doctrine would likely shield from discovery the communications at issue here. The
district court did not abuse its discretion in denying Berishaâs motion to compel. 10
10
Because we conclude that the communications were protected under the attorney-client
privilege, we do not consider the defendantsâ assertions of other privileges.
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IV
Finally, Berisha briefly asserts that âsummary judgment was prematureâ
because the district court denied his July 17, 2018, motion to extend further
discovery so that he could depose four of Lawsonâs foreign sources. Berisha
suggests that he would have liked this additional evidence but does not explain
why exactly it would be critical to this case. More importantly, he presents no
argument as to how the district courtâs failure to extend discovery for a third time
was legally erroneous. At that point (only two weeks before discovery was set to
end) Berisha had been given substantial opportunity to initiate such discovery, the
district had twice extended the discovery deadline, and the court had explicitly
allowed him âto conduct discovery beyond the discovery deadline,â if he so chose.
Yet, Berisha did not bother to take even the first step in securing these depositions
(filing the requisite letters of issue) until June 27, 2018âeven though he
supposedly had known he wanted to take those depositions for months.
In short, Berisha presents no grounds upon which we could conclude that the
district court abused its discretion in denying him an additional and last-minute
extension of the discovery deadline. See, e.g., Quiet Tech. DC-8, Inc. v. Hurel-
Likewise, because the district court did not err in finding the communications to be
privileged (and thus protected from production), we do not consider Berishaâs argument that it
was premature to grant summary judgment without allowing additional time for these materials
to be produced.
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Dubois UK Ltd., 326 F.3d 1333, 1351â52 (11th Cir. 2003) (no abuse of discretion
where district court denied a third extension of the discovery deadline).
V
The judgment of the district court is AFFIRMED.
37