Judge to allow portion of Nick Sandmann lawsuit against Washington Post to continue

The Washington Post’s legal team has asked for the dismissal of the $250 million lawsuit filed...
The Washington Post’s legal team has asked for the dismissal of the $250 million lawsuit filed against them by Covington Catholic student Nick Sandmann.(Instagram/Kaya Taitano/CNN)
Updated: Oct. 28, 2019 at 11:11 PM EDT
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LEXINGTON, Ky. (Cincinnati Enquirer) - A federal judge is allowing a portion of Covington Catholic student Nick Sandmann’s lawsuit against the Washington Post to continue after first dismissing the case.

According to FOX19 NOW’s media partners at the Cincinnati Enquirer, after reviewing an amended complaint, Judge William Bertelsman ordered Monday that the case could enter the discovery phase and hence a portion of the lawsuit against the newspaper could continue.

Nick and his attorneys had alleged that the gist of The Washington Post's first article conveyed that Nick had assaulted or physically intimidated Nathan Phillips and engaged in racist conduct.

A video of the encounter shows Nick and Phillips, a Native American who was demonstrating that day, standing close to each other in a crowd, and Sandmann staring at Phillips as he plays a drum. The situation unfolded after the Right to Life March in Washington D.C. on Jan. 18.

Nick's lawyers argue that the Washington Post incorrectly characterized the teen as the aggressor in the situation and exposed him to public ridicule.

David Marburger is a Cleveland-based attorney who spent decades representing various media outlets.

He explained that Monday's ruling would allow for discovery, a legal process that allows for Nick's legal team can make requests for internal Washington Post documents concerning the events like emails and communications between editors and reporters.

Marburger told The Enquirer Monday, "Discovery is a gauntlet and now the door is open for that gauntlet."

He said the process can be very expensive and "extremely intrusive."

What isn't clear is if or how Bertelsman will limit the scope of the discovery.

Bertelsman said in the order that he stands by his decision that 30 of the 33 statements Nick's lawyers argued were damaging to Sandmann were not, but that "justice requires" further review of three of the statements.

"These three statements state that (Sandmann) 'blocked' Nathan Phillips and 'would not allow him to retreat,'" the order reads.

All of the statements the judge referenced were quotes from Phillips attributed directly to him.

Bertelsman said the amended complaint argues that Phillips "deliberately lied" and "had an unsavory reputation." The new complaint states the Washington Post should have known about Phillips due to prior coverage.

Marburger said Nick's attorneys will need to show the newspaper was indeed wrong for trusting Phillips. Then, they would also need to show that by allowing Phillips to say he was blocked and not allowed to retreat that Nick was libeled, Marburger said.

Nick's lawyers would not comment on the legal arguments surrounding the Monday’s decision or say what they hoped to uncover during discovery.

“Neither the Sandmanns nor the legal team have any comments beyond the fact that we are grateful for the positive ruling, and we look forward to moving this case forward,” lawyer Todd McMurtry said in a statement.

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