Hearing Date Set in Gilman v Toll Defamation Suit

Nevada First District Justice James Wilson has set December 20th for a hearing in Gilman v. Toll. The hearing, to be held at the Courthouse in Virginia City, will determine whether 1) Sam Toll is a journalist, and 2) if The Storey Teller is a “newspaper or periodical”. The hearing will begin at 8:00 am and end at 5:00 pm. Judge Wilson will render a decision at the end of the hearing.

On December 7th, 2017, Lance Gilman sued Sam Toll for defamation per se for writing articles critical of Mr. Gilman. Mr. Gilman claimed that Mr. Toll uses The Teller to wage a personal jihad against him. In his complaint, Gilman asserted that “virtually every” article written in The Teller is a vicious attack or smear on Mr. Gilman. While The Teller has written about Gilman, barely 40 of the over 334 posts to date actually mention Gilman by name.

Judge Dismisses 7 of 8 counts

On April 9th, 2018, First District Court Judge James Wilson issued an order dismissing 7 of the 8 counts of defamation per se and allowed limited discovery on the remaining count. In his order, Judge Wilson ordered that Gilman may conduct discovery limited solely to information as to whether Toll knew the resident communications were false or whether he acted with a high degree of awareness of the probable falsity of the statement or had serious doubts as to the publication’s truth. 

On May 4th, 2018, Mr. Gilman’s lawyer Gus Flangas of Las Vegas deposed Mr. Toll in the nearly finished Community Chest Community Center. During the deposition, Mr. Toll refused to disclose information about his sources of information surrounding Toll’s investigation about if Mr. Gilman actually lives at the Mustang Ranch. Mr. Toll invoked Nevada’s robust Reporter Shield Law that prevents a reporter from revealing his sources of information. After the 12th question that Toll refused to answer, Flangas terminated the deposition and advised Mr. Toll and his attorney, Luke Busby, that he would seek a hearing to rule on Toll’s status as a reporter.

Hearing to Compel Ordered

After the deposition, Flangas indeed filed his motion to determine if Toll is a reporter and to determine if The Teller is a newspaper or periodical. On June 26th, Judge Wilson ordered an evidentiary hearing to compel. In the hearing, the court will determine:

1. Whether Mr. Toll was a reporter at the time the “residence and perjury” article (see Order Granting Anti-SLAPP Spcl. Mot. To Dismiss pp. 7-8) was written; and
2. Whether the Storey Teller is a newspaper or periodical.

As part of that order, he instructed Both Gilman and Toll’s lawyers to prepare a joint hearing statement that “(1) identifies all witnesses each side intends to call at the hearing and a description of the testimony the witness is expected to provide; (2) a list of exhibits each side intends to use and attach a copy of any exhibits that have not already been 28 provided to the Court; any new points and authorities on the issues -the parties are not to restate what they have already provided; and (4) estimate of time each party believes is necessary for examination of his own and the other party’s witnesses, and closing argument.

Witness List Submitted

On July 13th, Gilman and Toll’s lawyers submitted a statement containing 1149 pages to Judge Wilson.  In the statement, Toll listed 3 expert witnesses and a lay witness, including the description of the testimony the witness is expected to provide. Those witnesses are:

• Barry Smith – Executive Director of the Nevada Press Association
• Patrick File – Assistant Professor, Media Law, Reynolds School of Journalism, UNR
• Angela Mann – 40-year journalist and former owner of The Comstock Chronicle
• David Thomas – Virginia City Highlands Resident

Lance Gilman presented a more extensive list of witnesses:

• Lance Gilman
• Sam Toll
• Vanessa Stephens – Storey County Clerk/Treasurer
• Nicole Barde – Storey County Commission Candidate and owner of bardeblog.com
• Gerald Antinoro – Storey County Sheriff
• Greg “Bum” Hess – Former Storey County Commissioner
• Jim Miller – Former Storey County Sheriff
• Karen Woodmansee – Former Owner of The Virginia City News
• Elaine Barkdull Spencer – Owner of The Comstock Chronicle

Interestingly, Gilman also included hundreds and hundreds of pages of articles from The Teller in his exhibit list, none pertaining to Mr. Gilman.

Toll’s lawyers estimated a day of testimony and Gilman estimated two days for testimony and rebuttal.

Witnesses Disallowed

On August 8th, 2018, Judge Wilson issued an Order regarding the evidentiary hearing as to Toll’s status as a reporter and The Teller’s status as a newspaper or periodical. In his order, Judge Wilson disallowed Toll’s witness Dave Thomas on the grounds that Mr. Thomas is not an expert witness. Judge Wilson then ruled that because Gilman failed to follow the instruction of the court identifying the expert nature of the witness and the expected testimony, all of Gilman’s witnesses are disallowed.

In the order, Judge Wilson also reduced the length of the hearing from three days to one. For those interested in attending, the schedule is as follows:

• 8:30 to 10:30 Evidence
• 10:30 to 10:40 Break
• 10:40 to 12:00 Evidence
• 12:00 to 12:45 Lunch
• 12:45 to 1:45 Evidence
• 1:45 to 1:55 Break
• 1:55 to 3:25 Evidence
• 3:25 to 3:35 Break
• 3:35 to 4:45 Evidence
• 4:45 to 5:00 Oral Hearing

Conclusion

There you have it, gentle reader. At the end of the day on December 20th, the world should know if The Teller is a newspaper/periodical and if Toll was a reporter at the time he published the article accusing Gilman of perjury.

Should Judge Wilson find in favor of Gilman, we expect the deposition will resume and we will be forced to reveal our sources. Should Judge Wilson rule in our favor, all that remains is for him to decide on the remaining count.

While it is highly unlikely, we are keeping our fingers crossed that Judge Wilson will have had enough time to marinate on the whole case. If Judge Wilson rules in our favor and all that is left is to make the final determination, it would be awesome to have him put this to bed on December 20th.

Fingers Crossed.