Hulk Hogan vs. Gawker civil trial jury instructions

8/19/2019 Hulk Hogan vs. Gawker civil trial jury instructions

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Filing # 39120497 E-Filed 03/17/2016 08:22:02 AM

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

TERRY GENE BOLLEA professionally

known as HULK HOGAN,

Plaintiff,

Case No. 12012447CI-011vs.

GAWKER MEDIA, LLC aka GAWKER

MEDIA; NICK DENTON; A.J.

DAULERIO,

Defendants.

— ____ ____________________________ /

JURY INSTRUCTIONS

Trial: March 7, 2016 - March 18, 2016

Presiding Judg e:

Pam ela A.M. Cam pbellC ircui t Jud ge

* *ELECTRONICALLY FILED 03/17 /2016 08:22:02 AM: KEN BURKE, CLERK OF THE CIRCUIT COURT, PINELLAS COUNTY*



INDEX OF JURY INSTRUCTIONS

Instruction

#

Title

1 D escription of the Case a nd O ath of Ju ro rs BeforeVoir Dire

2 Qualifications Instruction

3 In troduction of P artic ipan ts and Their Roles

4 E xp lanation of the Voir Dire Process

5 Oath of Ju ro r and In troduction

6 Overview of Claims an d Defenses

7 Legitimate Public Co ncern

8 G reater W eight of the Evidence

9 E xplanation of the Trial Procedure10 Note-Taking by Ju ro rs

11 Juror Quest ions

12 Deposition Testimony, Interrogatories, Stipulated

Testimony, S tipulations, an d Adm issions

13 Instru c tion w hen First Item of D ocum entary,

Pho tographic, o r Physical Evidence Is Adm itted

14 Instru c tion w hen Evidence Is F irst Published to

Ju ro r s

15 Instru c tion Regarding V isual or D em onstrative Aids

16 Evidence A dm itted for a Limited Purpose

17 Instruction Before Recess

18 In troduction to F inal In stru c tio ns

19 B urden of Proof

20 G reater W eight of the Evidence

21 Final Overview of Claims an d Defenses

22 Pu blication of Private F acts

23 Invasion of Privacy by Intru sio n

24 Invasion of Privacy B ased on M isappropriation

25 In ten tional Infliction of E m otional D istress

26 Violation of Florida Security of C om munications Act

27 Legitimate Public C oncern

28 Good Faith Defense

29 D am ages: In troduction

30 D am ages



Instruction

#

Title

31 Liability of M ultiple T ortfeasors

32 Multiple Claims, Numerous Parties, Consolidated

Cases33 Punitive D am ages - B ifurcated Procedure

34 Weighing the Evidence

35 Believability of W itnesses

36 C oncluding Instru c tion (Before Final Argument)

37 Closing Instruc tion



th eir website. Mr. Bollea alleges th a t over 7 million people acce ssed

the video on the Intern et after i t w as posted.

Mr. Bollea asserts claims against defendants for invasion of

privacy, vio la tion of h is righ t of publicity, in ten tional in fliction of

em otional distres s, an d violation of Florida’s Sec urity of

C om m unications Act. Mr. Bollea seeks com pensatory dam ages and

punit iv e dam ages.

D efen dan ts deny Mr. Bollea’s claim s. They also con tend th a t

their post was protected by the First Amendment because i t related

to m atters of legit im ate public concern. D efendan ts con tend tha t

they publishe d the ex cerpts from the video an d accom panying audio

from those excerpts w ith a good faith belief th at the posting was

lawful an d protected by the First Am endment. They furth er claim

that their publication was not made for a commercial or advertising

purpose. And, D efendants m ain ta in th a t Mr. Bollea did no t

experience emotional dist ress becau se of their cond uct an d tha t he

is not entit led to m onetary dam ages.

As you may recall from your Jury Questionnaire, the principal

w itnesse s who will or m ay testify in th is ca se are:

1. Te rry Gen e Bollea

2. David H ouston

3. Elizabeth R osenthal Trau b

4. Mike Foley

2



5. Jef f A nderson

6. Sh ant i Sh un n

7. B ub ba Clem

8. H ea the r Cole

9. Nick D enton

10. A.J. Daulerio

11. Sc ott Kidder

12. Em m a Carm ichael

13. Andrew G orens tein

14. M ichael Kuntz

15. E rin Pettigrew

16. Tom P lunk ett

17. Jo h n Cook

18. R ichard Peirce

19. Ju les W ortman

20. Tony B urton

21. Peter H oran

22. David Rice

23. Kevin B latt

24. Jam es Donohue

25. B rett Goldenberg

3



INSTRUCTION # 2

QUALIFICATIONS INSTRUCTION

Many of you have cell phones, com puters, an d othe r electronicdevices. Even thou gh you have no t yet been selected as a juror,

there are some strict rules th at you m us t follow abo ut using your

cell pho nes, electronic devices and com puters. You m us t not use

any device to search the Internet or to find out anything related to

any cases in the courthouse.

Between now a nd wh en you have been discharged from jury

du ty by the judge, you m us t no t provide or receive any inform ation

ab ou t you r jur y service to anyone, including friends, co-workers,

and family members. You may tell those who need to know where

you are th a t you have b een called for jur y duty. If you are picked for

a jury, you m ay tell people th a t you have been picked for a jury and

how long the case m ay take. However, you m u st no t give anyon e

any information about the case itself or the people involved in the

case. You m u st also warn people not to try to say any thing to you or

write to you ab ou t yo ur ju ry service or the case. T his include s face-

to-face, phone or computer communications.

In this age of electronic com m unication, I w ant to stress tha t

you m us t not us e electronic devices or com puters to talk ab ou t this

case, including tweeting, texting, blogging, e-mailing, posting

information on a website or chat room, or any other means at al l .

Do not send or accept any messages, including e-mail and text

m essages, ab ou t yo ur jur y service. You m us t not disclose you r

4



tho ug hts ab ou t yo ur jur y service or as k for advice on how to decide

any case.

After you are called to the courtroom, the judge will give you

specific ins truction s ab ou t these m atters. A judge will tell you w hen

you are released from this instru ction . All of u s are d epen ding on

you to follow these rules, so that there will be a fair and lawful

resolu tion of every case.

5



INSTRUCTION # 3

INTRODUCTION OF PARTICIPANTS AND THEIR ROLES

Who are the peop le here an d w ha t do they do?

J u d g e / Court I am the Judge. You may hear people

occasionally refer to me as “The Court.” That is the formal name for

my role. My job is to m ain tain o rder an d decide how to apply the

rule s of the law to the trial. I will also ex plain vario us rules to you

th a t you will need to know in ord er to do yo ur job a s th e jury . It is

my job to rem ain n eu tral on the issues of this lawsuit .

Parties: A party who files a lawsuit is called the Plaintiff. A

pa rty th a t is su ed is called the D efendant.

Attorneys: The a ttorne ys have the job of repres enting their

clients. Tha t m eans they sp eak for the ir cl ient here a t the trial. They

have taken oaths as attorneys to do their best and to follow the

rule s for the ir profession.

Plaintiffs Counsel: The a ttorneys on this side of the cou rtroom ,

Charles Harder, Kenneth Turkel, and Shane Vogt, represent

Plaintiff Terry Bollea, who filed the law suit he re a t the co urth ou se.

Th eir job is to pre se nt th eir clien t’s side of thing s to you. They an d

the ir client will be referred to m os t of the time a s “th e p laintiff.”

Mr. Bo llea’s a ttorn ey, David H ou ston , will also be se ate d a t

6



Ju ry : Last, b u t no t least, is th e jury, w hich we will begin to

select in a few m om ents from am ong all of you. T he ju ry ’s job will be

to decide what the facts are and what the facts mean. Jurors

should be as neutral as possible at this point and have no fixed

opinion ab ou t the lawsuit.

In order to have a fair and lawful trial, there are rules that all

ju ro rs m u s t follow. A basic rule is th a t ju ro rs m u s t decid e the case

only on the evidence prese nted in the courtroom . You m us t not

communicate with anyone, including friends and family members,

ab ou t this case, the people and places involved, or yo ur jury

service. You m u st not disclose your tho ug hts ab ou t this case or as k

for advice on how to decide this case.

I w ant to s t ress th at th is rule m eans you m us t not use

electronic devices or computers to communicate about this case,

including tweeting, texting, blogging, e-mailing, posting information

on a website or chat room, or any other means at al l . Do not send

or accept any messages to or from anyone about this case or your

ju ry serv ice.

You m us t not do any research or look up words, nam es, or

anything else that may have anything to do with this case. This

includes reading newspapers, watching television or using a

computer, cell phone, the Internet, any electronic device, or any

8



other means at al l , to get information related to this case or the

people an d pla ces involved in th is case. This applies w hether you

are in the c ou rthou se, a t hom e, or anyw here else.

Many of you m ay have cell pho nes, tablets, laptop s o r other

electronic devices with you here in the courtroom.

All cell phon es, com pu ters, table ts or oth er types of electronic

devices m us t be turn ed off while you are in the co urtroom . Tu rned

off m ea ns th a t the p hon e or oth er electronic device is actua lly off

an d n ot in a si lent or vibrating mode. You may us e the se devices

during recesses, bu t even then you m ay not use y our cell phone or

electronic device to find out any information about the case or

communicate with anyone about the case or the people involved in

the case. Do not take photog raphs, video recordings or audio

recording s of the proc eedings or of yo ur fellow jur o rs. After eac h

recess, please double check to make sure your cell phone or

electronic device is tu rn ed off. At the end of the case, while you are

deliberating, you m us t not com m unicate with anyone outside the

ju ry room. You can n o t have in the ju ry room any cell phones,

com puters, or other electronic devices. If someone need s to contact

you in an emergency, the court can receive messages and deliver

them to you w ithout delay. A con tact pho ne nu m be r will be

provid ed to you.

9



W hat are the reason s for these rules? These rules are imposed

because ju ro rs m u s t decide the case w ithout d istrac tion an d only

on the evidence pres ented in the courtroom. If you investigate,

researc h, o r m ake inqu iries on you r own outside of the courtroom ,

the t r ia l judge ha s no way to m ake su re th at the information you

ob tain is pro pe r for the case. The pa rties likewise have no

opp ortunity to d ispute or challenge the accu racy of w hat you find.

T hat is con trary to ou r judicial system , which as su res every party

the right to ask questions about and challenge the evidence being

considered against i t and to present argument with respect to that

evidence. Any indep end ent investigation by a ju ro r unfairly and

improperly prevents the parties from having that opportunity our

jud icial system prom ises.

Any jur o r who violates these restrictions jeopardizes the

fairness of these proceedings, an d a m istrial could resu lt tha t would

require the entire trial process to start over. A mistrial is a

tremendous expense and inconvenience to the parties, the court ,

an d the taxpay ers. If you violate these ru les, you m ay be held in

contem pt of court , an d face sanc tion s, su ch as serving t im e in jail ,

payin g a fine or both .

All of yo ur co m m unications w ith co urtroom personn el, or me,

will be pa rt of the record of these proceedings. Th at m ean s those

10



communicat ions shal l e i ther be made in open court with the court

re po rter p re se n t or, if the y are in writing, th e w riting will be filed

with the court clerk. I have instru cted the courtroom person nel

that any communicat ions you have with them outside of my

presence m u s t be reported to me, an d I will te ll the parties [and

their at torneys] about any communication from you that I believe

m ay be of intere st to the parties [and their at torneys].

However, you may communicate directly with courtroom

personnel ab o u t m a tte rs concerning your com fort a n d safety , such

as [juror parking] [location of bre ak areas] [how an d w hen to

assemble for duty] [dress] [what personal items can be brought into

the cou rthou se or jur y room] [list any o ther types of routine ex

parte com m unications perm it te d].

If you become aware of any violation of these instruc tions or

any othe r instru ctio n I give in this ca se, you m u st tell me by giving

a note to the bailiff.

l l



INSTRUCTION # 4

EXPLANATION OF THE VOIR DIRE PROCESS

Voir Dire:

The last thing I want to do, before we begin to select the jury,

is to explain to you how the selection pro cess w orks.

Q ues tions/ Challenges: This is the p art of the case where the

parties an d th e ir lawyers have the opportunity to get to know a little

b it ab ou t you, in order to help them come to th e ir own conclusions

about your ability to be fair and impartial, so they can decide who

they think should be the juro rs in this case.

How we go about that is as follows: First, 111 ask some general

qu estion s of you. Th en, eac h of the lawyers will have m ore specific

que stions th a t they will ask of you. After they have aske d all of their

questions, I will meet with them and they will tell me their choices

for juro rs. Eac h side can a sk th a t I exclude a person from serving

on a jury if they ca n give me a rea son to believe th a t he or she

might be unable to be fair and impartial . That is what is called a

challenge for cause . The lawyers also have a ce rtain nu m be r of w hat

are called peremptory challenges, by which they may exclude a

person from the ju ry w ithou t giving a reason . By th is p rocess of

elimination, the remaining persons are selected as the jury. It may

12



quest ion, please raise your hand and ask for an explanat ion or

clarification.

In sum, this is a process to assist the parties and their

attorn ey s to select a fair an d im partial jury. All of the qu estion s

they ask you are for this purpose. If, for any reason, you do not

think you c an be a fair and imp artia l juror, you m ust te ll us .

14



INSTRUCTION # 5

OATH OF JUROR & INTRODUCTION

Adm inister Oath: Do you solem nly swe ar or affirm th at you

will well and truly try this case between the plaintiff and

defendants , and a t rue verdict render according to the law and

evidence [so help y ou God]?

You have now taken an oath to serve as jurors in this trial .

Before we begin, I am going to provide you with an overview of the

claims and defenses at issues in this case and let you know what

you can expect as the trial proceeds.

It is my intention to give you an overview of the rules of law

associated with the claims and defenses in this case, but i t might

be th a t I will no t know for su re all of the law th a t will apply in th is

case u n til all of the evidence is prese nted . However, I can anticip ate

m ost of the law a nd will give you an overview of it at the beginning

of the trial so th at you will better un d ers tan d w hat to be looking for

while the evidence is pre sen ted. If I later decide th a t different or

additional law applies to the case, I will tell you. In any event, at the

end of the evidence I will give you the final instru ctio ns on w hich

you m us t base yo ur verdict , including specific instruc tions

governing the elem ents of each claim a nd defense. At th at t ime,

15



you will have a com plete w ritten set of the in stru ctio ns so you do

no t have to m emorize w hat I am ab ou t to tell you.

16



INSTRUCTION # 6

OVERVIEW OF CLAIMS AND DEFENSES

I will now discuss each of the specific claims and defenses,

an d define some of the term s you will u se in deciding this case.

Plaintiff ha s as ser ted five claims ag ainst Defendan ts. Ea ch of

these is a separate and independent claim which you will decide in

this case. Th ese claim s are as follows:

Plaintiffs first claim is for invasion of privacy ba se d u po n the

publication of priv ate facts . T hat cla im consists of the publication

of truth fu l private inform ation th at a reason able p erson would find

highly offensive, an d th a t does n ot relate to a m atte r of legitim ate

public concern.

Plaintiffs second claim is for invasion of privacy ba sed on

intrus ion upo n seclusion. Th at claim con sists of the wrongful

intrusion through physical or electronic means into a place in

which Plaintiff had a reasonable expectation of privacy in such a

m ann er as to outrage or cause m ental suffering, sham e or

hum iliation to a perso n of ordinary sensibili ties.

Plaintiffs th ird claim is for inva sion of privacy base d on

m isapprop riation of the right of publicity. Th at claim con sists of

the un au thor ized u se of Plaintiffs nam e or l ikeness for a

comm ercial or advertising purpo se.

17



Plaintiffs fourth claim is for intentional infliction of emotional

distress. T hat claim con sists of extrem e and outrage ous c ond uct by

a defendan t tha t caus es severe em otional dist ress an d w as engaged

in either with an intent to cause severe emotional distress or a

reckless disregard of the high probability tha t i t would c ause severe

em otional distress. Extreme an d outrage ous cond uct is behavior

which, under the circumstances, goes well beyond all possible

b ou nd s of decency an d is regarded as shockin g, atroc io us, and

utte rly intolerable in a civilized com m unity. Em otional D istress is

severe when i t is of such intensity or duration that no ordinary

person shou ld be expecte d to end ure it.

Pla intiffs fifth claim is for violation of Flo rida’s Se cur ity of

C om m unications Act. T hat claim con sists of the disclosure of oral

com m unications in wh ich Plaintiff ha d a reason able ex pectation of

priv acy by one who know s or h a s reaso n to know th a t the

communications were recorded without Plaintiffs knowledge or

consent.

D efendants deny Plaintiffs claims. D efendants con tend th at

the video, in the context of the accom panying repo rt and

commentary, was protected by the First Amendment because i t

related to a m atter of public concern. They also deny specific par ts

of Plaintiffs claim s. For example, the Defen dants deny th at they

intru de d ph ysically or electronically into a private place. They also

18



deny that they used Plaintiffs name or l ikeness for a commercial or

advertising purpo se. They furth er m aintain tha t Plaintiff did not,

in fact , suffer severe em otional distress as a re su lt of their co nduct.

And they contend that they posted the video containing Plaintiffs

oral communications on Gawker.com in good faith reliance on a

good faith determ ination th at th eir con duc t w as lawful.

19



INSTRUCTION # 7

LEGITIMATE PUBLIC CONCERN

The issue of “legitim ate pu blic co nc ern ” or “new sw orthin ess” is

an elem ent of P laintiffs claim for pu blication of private facts, a s well

as a First Amendment defense raised by Defendants to each of

P laintiffs claims . I will now define legitim ate public conc ern.

The righ t of privacy an d the right of freedom of the pre ss are

bo th fu ndam en ta l rights, w hich m u st be balanced. The right to

priv acy can be outw eig hed if a publication rela tes to m atte rs of

legitimate public concern.

A m atter of public conce rn is one th at can be fairly considered

as relating to any m atte r of political, social, or oth er co nce rn to the

community or that is subject to general interest and concern to the

public. The m ere fact th a t a publication con tains arguab ly

inappropriate content does not remove i t from the realm of

legitim ate public intere st.

In weighing this issue, you should take into account the

content, context an d form of the m aterial at the t ime of publication

to determ ine wh ether i t relates to a m atter of public concern. The

line betwe en the righ t to privacy an d th e freedom of the p res s is

draw n where th e pu blication c ease s to be the giving of inform ation

to which the public is enti t led, and becomes a morbid and

20



INSTRUCTION # 8

GREATER WEIGHT OF THE EVIDENCE

The parties m us t prove the ir respective claims an d defenses by

the grea ter weight of the evidence. “G reater weight of the evidence”

m ean s the m ore persuasive an d convincing force and effect of the

entire evidence in the case.

22



INSTRUCTION # 9

EXPLANATION OF THE TRIAL PROCEDURE

Now th a t you have h eard an overview of th e cla im s and

defenses, I want to let you know what you can expect as the trial

proceeds.

Opening Statements: In a few m om ents, the attorne ys will

each have a chance to m ake w hat are called opening statem ents. In

an opening statement, an attorney is al lowed to give you his or her

views about what the evidence will be in the trial and what you are

likely to see a nd he ar in the testimony.

Evid entiary Phase: After the attorn ey s’ opening statem en ts the

pla in ti ffs will b ring th e ir w itnesses an d evid ence to you.

Evidence: Evidence is the inform ation th a t the law allows you

to see or hear in deciding this case. Evidence includes the

testimony of the w itnesses, do cum ents, an d anything else th at I

ins tru ct you to consider.

Witnesses: A w itness is a perso n who takes a n oa th to tell the

tru th and then answ ers at torne ys’ quest ions for the jury. The

answ ering of atto rn ey s’ qu estion s by witne sses is called “giving

testimo ny.” Testimony mea ns s tatem ents th at are m ade when

someone ha s sworn an o ath to tel l the t ruth .

23



The plaintiffs lawyer will normally ask a w itness the que stions

first. That is called direct examination. Then the defense lawyer

may ask the same witness addi t ional quest ions about whatever the

witness has testified to. That is called cross-examination. Certain

documents or other evidence may also be shown to you during

direct or cross-examination. After the plaintiffs witnesses have

testified, the defendant will have the opportunity to put witnesses

on the stand and go through the same process. Then the plaint i ffs

lawyer gets to do cross-examination. The process is designed to be

fair to bo th sides.

I t i s important that you remember that test imony comes from

witnesses. The attorneys do not give testimony and they are not

themselves witnesses.

Objections: Som etim es the attorne ys will disagree ab o ut the

rules for trial procedure when a question is asked of a witness.

W hen tha t hap pen s, one of the lawyers may m ake w hat is called an

“objection.” The rules for a trial can be complicated, and there are

many reasons for attorneys to object. You should simply wait for me

to decide how to proceed. If I say th a t a n objection is “su sta in ed ,”

th at m eans the witness may not answ er the question. If I say that

the objection is “overruled,” th at m eans the w itness m ay answ er the

question.

24



W hen there is an objection and I m ake a decision, you m us t

not assume from that decision that I have any part icular opinion

other than that the rules for conducting a trial are being correctly

followed. If I say a q ue stion m ay no t be aske d o r answ ered, you

m us t not t iy to guess wh at the answ er would have been. That is

aga inst the rules, too.

Side Bar Conferences: So m etime s I will nee d to spe ak to the

attorneys ab ou t legal elem ents of the c ase th at are n ot approp riate

for the jury to hear. The attorneys and I will try to have as few of

these conferences as possible while you are giving us your valuable

tim e in the cou rtroom. But, if we do have to have su ch a conference

during testimony, we will tiy to hold the conference at the side of

my desk so that we do not have to take a break and ask you to

leave the courtroom.

Recesses: B reaks in an ongoing trial are usu ally called

“rece sse s.” Du ring a recess you sti ll have your du ties as a ju ro r an d

m u st follow the rules, even while having coffee, at lun ch , o r at

home.

Instructions Befo re Closing A rgum ents: After all th e evidence

has been presented to you, I will instruct you in the law that you

m us t follow. I t is im portant th at you rem em ber these instruct ions

to assist you in evaluating the final at torney presentations, which

25



come next, and, later, during you r deliberations, to help you

correctly sort th rou gh the evidence to rea ch yo ur decision.

Closing Arguments: The attorn ey s will the n have the

opportunity to make their final presentations to you, which are

called closing argu m ents.

Final Instructions: After you have he ard the closing

arguments, I will instruct you further in the law as well as explain

to you the proc edu res you m us t follow to decide the case.

Deliberations: After you he ar the final jur y instruction s, you

will go to the jur y room an d discu ss a nd decide the q uestion s I have

p u t on your verdic t fo rm . [You will have a copy of the ju ry

instruct ions to use during your discussions.] The discussions you

have an d the decisions you m ake are u su ally called “jury

delibe rations .” Your deliberation s are abso lutely private and ne ither

I no r any one else will be w ith you in the jur y room.

Verdict W hen you have finished answering the questions, you

will give the verdict form to the bailiff, and we will all return to the

courtroom where yo ur verdict will be read. W hen th at is completed,

you will be released from your as signm ent as a juror.

W hat are the rules?

Finally, before we begin the trial, I w an t to give you ju s t a brief

explanation of rules you m u st follow as the case proceeds.

26



Keeping an Open Mind: You m u st pay close attention to the

testimony and other evidence as it comes into the trial. However,

you m u st avoid forming any final opinion or telling anyone else you r

views on the case until you begin your deliberations. This rule

requires you to keep an open m ind un ti l you have h eard all of the

evidence and is designed to prevent you from influencing how your

fellow jur or s think un ti l they have h eard all of the evidence and ha d

an opportunity to form their own opinions. The time and place for

coming to your final opinions and speaking about them with your

fellow ju ro rs is du ring deliberations in the ju ry room, after all of the

evidence has been presented, closing arguments have been made,

and I have instruc ted you on the law. I t i s im portant th at you h ear

all of the facts a nd th at you he ar the law an d how to apply i t before

you sta rt deciding anything.

Consider Only the Evidence: It is the things you hea r an d see

in this courtroom th at m atter in this trial . The law tells us th at a

ju ro r can consider only the testim ony an d o ther evid ence th a t all

the o ther juro rs have also hea rd an d seen in the presence of the

judge an d the lawyers . Doing any th ing else is w rong an d is ag a in st

the law. That m eans th at you m ust n ot do any work or investigat ion

of you r own abou t the case. You m us t not obtain on your own any

information about the case or about anyone involved in the case,

27



from any source whatsoever. This includes reading newspapers,

watching television or using a computer, cell phone, the Internet,

any electronic device, or any other means at all, to get information

related to this case or the people and places involved in this case.

This appl ies whether you are in the courthouse, a t home, or

anyw here else. You m us t no t visi t places m entioned in the trial or

use the internet to look at maps or pictures to see any place

discussed during trial .

Do not provide any information about this case to anyone,

including friends or family members. Do not let anyone, including

the closest family members, make comments to you or ask

quest ions ab ou t the t r ia l. Ju ro rs m us t not have discussions of any

sort with friends or family members about the case or the people

and places involved. So, do not let even the closest family members

make comments to you or ask questions about the trial . In this age

of electronic com m unication, I w ant to stre ss again th at ju s t as you

m us t not ta lk a bou t this case face-to-face, you m ust n ot ta lk ab out

this case by usin g a n electronic device. You m us t not use pho nes,

tablets, computers or other electronic devices to communicate. Do

not send or accept any messages related to this case or your jury

service. Do not discuss this case or ask for advice by any means at

28



all , including posting information on an Intern et website, ch at room

or blog.

No Mid-Trial D iscussions: W hen we are in a recess, do not

discuss anything abo ut the t ria l or the case with each other or with

anyone else. If at torneys app roac h you, d on ’t spe ak with them . The

law says they are to avoid contact with you. If an attorney will not

look at you or spe ak to you, do not be offended or form a conclusion

about that behavior. The attorney is not supposed to interact with

ju ro rs ou tside of the courtroom and is only follow ing the rules. The

attorn ey is not being impolite. If an attorn ey or anyo ne else does try

to speak with you or says something about the case in your

presence, p le ase in form the bail iff im m edia te ly .

Only the Jury Decides : Only you get to deliberate and a nsw er

the ve rdict ques tions at the end of the trial. I will no t intrud e into

your deliberations at all. I am required to be neutral. You should

not assume that I prefer one decision over another. You should not

try to gu ess w hat m y opinion is ab ou t any p ar t of the case. It would

be w rong fo r you to conclu de th a t anyth ing I say or do m eans th a t I

am for one side or an oth er in the trial . D iscussing a nd deciding the

facts is yo ur job alone.

29



INSTRUCTION # 10

NOTE-TAKING BY JURORS

If you w ould like to take no tes d urin g the trial, you m ay do so.

On the o ther han d, of course, you are not required to take notes if

you do n ot w an t to. T ha t will be left u p to you individually.

You will be provided with a note p ad an d a p en for u se if you

wish to take notes. Any notes th a t you take will be for yo ur perso nal

use. However, you should not take them with you from the

courtroom. Du ring recesses, the bail iff will take po ssession of you r

notes and will return them to you when we reconvene. After you

have com pleted you r de liberations, th e bailiff will deliver yo ur notes

to me. T hey will be d estroye d. No one will ever rea d yo ur no tes.

If you tak e n otes, do no t get so involved in no te-taking th a t

you become distracted from the proceedings. Your notes should be

us ed only as aids to you r memory.

Whether or not you take notes, you should rely on your

m emory of the evidence and yo u sh ou ld no t be un du ly influenced

by the no tes of o ther ju ro rs . Notes are no t en title d to any greater

weight tha n each ju ro r’s m emory of the evidence.

31



INSTRUCTION # 1 1

JUROR QUESTIONS

Qu estions fo r the court or courtroom personne l:

During the trial , you may have a question about these

proceedin gs. If so , please write it down and h a n d it to the bailiff,

who will the n h an d it to me. I will review yo ur que stion w ith the

parties an d th e ir a tto rneys before respondin g.

Questions fo r w itnesses:

You also may have a question you think should be asked of a

witness. If so, there is a way for you to request that I ask the

witness a question. After al l the attorneys have completed their

que stioning of the w itness, you shou ld raise you r ha nd if you have

a question. I will then give you sufficient time to write the question

on a piece of pa pe r, fold it, an d give it to the bailiff, who will p as s it

to me. Do not put your name on the question, show it to anyone or

disc uss i t with anyone.

I will then review the question with the attorneys. Under our

law, only certain evidence m ay be co nsidered by a jury in

determ ining a verdict . You are b ou nd by the sa m e ru les of evidence

th at control the attorn ey s’ questions. If I decide th at the question

may not be asked under our rules of evidence, I will tell you.

Otherwise, I will direct the question to the witness. The attorneys

32



may then ask follow-up questions if they wish. If there are

additional questions from jurors, we will follow the same procedure

again.

By providing this proced ure, I do no t m ean to sug gest th at you

m us t or should subm it w rit ten qu est ions for w itnesses. In mo st

cases, the lawyers will have ask ed the nec essary q uestions.

33



INSTRUCTION # 12

DEPOSITION TESTIMONY, INTERROGATORIES, STIPULATED

TESTIMONY, STIPULATIONS, AND ADMISSIONS

Deposition or pr ior te stim ony:

Members of the jury, the sworn testimony of (name), given

before tr ia l, will now be presented . You are to consider a n d weigh

this testimon y as you w ould any othe r evidence in the case.

Interrogatories:

M emb ers of the jury , a nsw ers to interrogator ies will now be

read to you. Interrogatories are writ ten questions that have been

p resen ted before tria l by one party to ano ther. They are answ ered

under oath. You are to consider and weigh these quest ions and

answ ers a s you would any oth er evidence in the case.

Stipulated testimony:

M embers of the jury , the pa rties have agreed th a t if (name of

witness) were called as a witness, [he] [she] would testify (read or

describe the testimony). You are to consider and weigh this

testim ony a s you would any o ther evidence in the case.

Stipulations:

M embers of the jury, the parties have agreed to certain facts.

You m us t accept these facts as true. (Read the agreed facts).

Adm is sions:

1. Applicable to all pa rties :

34



M embers of the jury, (identify the p arty or p arties th at have

adm itted th e facts) [has] [have] adm itted c ertain facts. You m u st

accep t thes e facts as true. (Read the adm issions).

2. Applicable to fewer th a n all pa rties:

M embers of the jury, (identify the p arty o r parties th at have

adm itted th e facts) [has] [have] ad m itted certa in facts. You m u st

accept these facts as true in deciding the issues between (identify

the affected parties), but these facts should not be used in deciding

the issues between (identify the unaffected parties). (Read the

admissions).

35



INSTRUCTION # 13

INSTRUCTION WHEN FIRST ITEM OF DOCUMENTARY,

PHOTOGRAPHIC, OR PHYSICAL EVIDENCE IS ADMITTED

The (describe item of evidence) has now been received in

evidence. Witnesses may testify about or refer to this or any other

item of evidence during the rem ainde r of the trial. This a nd all other

items received in evidence will be available to you for examination

during yo ur deliberations at the end of the trial .

36



INSTRUCTION # 14

INSTRUCTION WHEN EVIDENCE IS

FIRST PUBLISHED TO JURORS

The (describe item of evidence) ha s b een received in evidence.

It is being shown to you now to help you understand the testimony

of this w itness an d other w itnesses in the case, as well as the

evidence as a whole. You may examine (describe item of evidence)

briefly now. It will also be available to you for exam ination during

yo ur deliberations at the end of the trial .

37



INSTRUCTION # 1 5

INSTRUCTION REGARDING VISUAL OR DEMONSTRATIVE AIDS

Generally:

This witness will be using (identify demonstrative or visual

aid(s)) to assist in explaining or illustrating [his] [her] testimony.

The tes tim on y of the w itnes s is evidence; however, [this] [these]

(identify demonstrative or visual aid(s)) [is] [are] not to be considered

as evidence in the case unless received in evidence, and should not

be u sed as a su b stitu te for evidence. Only ite m s received in

evidence will be available to you for consideration during your

deliberations.

Specially created visual or demonstrative aids based on

disputed assumptions:

This witness will be using (identify demonstrative aid(s)) to

assist in explaining or illustrating [his] [her] testimony. [This]

[These] item[s] [has] [have] been prepared to assist this witness in

explaining [his] [her] testimony. [It] [They] may be based on

ass um ption s w hich you are free to acce pt or reject. The testim ony of

the witness is evidence; however, [this] [these] (identify

demonstrative or visual aid(s)) [is] [are] not to be considered as

evidence in the case unless received in evidence, and should not be

38



used as a substitute for evidence. Only items received in evidence

will be available to you for cons ideration du ring y ou r deliberations.

39



INSTRUCTION # 16

EVIDENCE ADMITTED FOR A LIMITED PURPOSE

The (describe item o f evidence) ha s n ow bee n received into

evidence. It has been admitted only [for the purpose of (describe

purpose)] [as to (name party)] . You m ay consider it only [for th a t

purpose] [as it m ig ht affect (name party)] . You m ay not consider

that evidence [for any other purpose] [as to [any other party] [(name

oth er party(s)].

40



INSTRUCTION # 17

INSTRUCTION BEFORE RECESS

We are about to take [our first] [a] recess. Remember that all of

the rules I have given you apply even when you are outside the

courtroom, suc h as at recess.

Rem em ber th e basic rule: Do no t talk to anyone , including

yo ur fellow jur o rs, friends, family or co-workers ab ou t any thing

having to do w ith this trial, except to spea k to cou rt staff. This

m ean s no e-m ailing, text messag ing, tweeting, blogging, or any

other form of com m unicat ion. You cann ot do any research ab out

the case or look u p an y information abo ut the case. Rem ember to

observe during ou r recess the other ru les I gave you. If you becom e

aware of any violation of any of these rules at all, notify court

personnel of th e vio la tion.

After each recess, please doub le check to m ake sure [that you r

cell phone or other electronic device is turned off completely] [that

you do not bring your cell phone or other electronic device into the

courtroom or ju iy room].

41



INSTRUCTION # 19

BURDEN OF PROOF

The p laintiff m u st prove h is claim s for invas ion of privacy

based on publication of priv ate facts , invasion of priv acy by

intrusion upon seclusion, invasion of privacy by misappropriation

of the right of publicity, intentional infliction of emotional distress,

an d violation of Florida ’s Sec urity of C om m unication s Act by the

gre ater weight of the evidence. If plaintiff proves his claim s, the n

you will decide whether defendants proved by the greater weight of

the evidence the ir affirmative defenses. If plaintiff proves an y or all

of his claims, a nd defen dan ts do no t prove their defenses, you will

the n con sider the issu e of dam ages. I will now define som e of the

terms you will use in deciding this case.

43



INSTRUCTION # 20

GREATER WEIGHT OF THE EVIDENCE

“G reater weight of the evidence” m ean s the more p ersuasive

an d convincing force a nd effect of the entire evidence in the case.

44



INSTRUCTION # 2 1

FINAL OVERVIEW OF CLAIMS AND DEFENSES

I will now d iscu ss eac h of the specific claims an d defenses,

an d define som e of the term s you will us e in deciding this case.

Plaintiff ha s as serte d five claim s aga inst Defendants. Ea ch of

these is a separate and independent claim which you will decide in

this case. The se claim s are as follows:

Plaintiffs first claim is for invasion o f privacy ba sed up o n th e

publication of priv ate facts . T hat cla im consists of the publication

of truth fu l private inform ation th at a reason able p erson w ould find

highly offensive, an d th a t does n ot relate to a m atte r of legitim ate

public concern.

Plaintiffs secon d claim is for invasio n of privacy ba sed on

intrus ion upo n seclusion. T hat claim consists of the wrongful

intrusion through physical or electronic means into a place in

which Plaintiff ha d a reason able expectation of privacy in su ch a

manner as to outrage or cause mental suffering, shame or

hum iliation to a perso n of ordinary sensibil it ies.

Plaintiffs third claim is for invasion of privacy based on

m isappro priation of the right of publicity. T hat claim con sists of

the unauthorized use of Plaint i ffs name or l ikeness for a

com m ercial or advertising purpose.

45



Plaintiffs fourth claim is for intentional infliction of emotional

distress. T hat claim con sists of extrem e and outrage ous c ond uct by

a defendan t tha t caus es severe em otional dist ress an d w as engaged

in either with an intent to cause severe emotional distress or a

reckless disregard of the high probability tha t i t would c ause severe

emo tional distress. Extreme an d outrage ous cond uct is behavior

which, under the circumstances, goes well beyond all possible

b ou nd s of decency an d is regarded as shockin g, a trocio us, and

utte rly intolerable in a civilized com m unity. Em otional D istress is

severe when i t is of such intensity or duration that no ordinary

person shou ld be expecte d to end ure it.

Pla intiffs fifth claim is for violation of Flo rida’s Se cur ity of

C om m unications Act. T hat claim con sists of the disclosure of oral

com m unications in wh ich Plaintiff ha d a reason able ex pectation of

priv acy by one who know s or h a s reaso n to know th a t the

communications were recorded without Plaintiffs knowledge or

consent.

D efendants deny Plaintiffs claims. D efendants contend tha t

the video, in the context of the accom panying repo rt and

commentary, was protected by the First Amendment because i t

related to a m atter of public concern. They also deny specific pa rts

of Plaintiffs claim s. For example, the Defen dants deny th at they

intru de d ph ysically or electronically into a private place. They also

46



deny that they used Plaintiffs name or l ikeness for a commercial or

advertising purpo se. They furthe r m aintain tha t Plaintiff did not,

in fact, suffer severe em otional distres s a s a r es ult of the ir condu ct.

And they contend that they posted the video containing Plaintiffs

oral communications on Gawker.com in good faith reliance on a

good faith de term ination th at th eir con du ct w as lawful.

47



INSTRUCTION # 24

INVASION OF PRIVACY BASED ON RIGHT OF PUBLICITY

The issues for you to decide on Plaintiffs claim for invasion of

priv acy based on com m on law righ t of publicity are:

(1) W hether D efend ants, in po sting the VIDEO on

Gaw ker.com, us ed Plaintiffs nam e or likeness for a

com m ercial or advertising purpose; and , if so,

(2) W hethe r Plaintiff gave his cons en t to D efend ants to u se

his image or likeness.

I will now define som e of the se term s for you. Using an o th er ’s

name or image for a commercial or advertising purpose means

using the name or image to directly promote a product or service

other tha n the pub lication in which the nam e or image is use d. In

other words, to find that the Defendants used Plaintiffs name or

likeness for a comm ercial or advertising purp ose, you m us t find

th at his nam e or likeness was use d to promote something other the

D efen da nts’ own publication.

50



INSTRUCTION # 2 5

ISSUES ON INTENTIONAL INFLICTION OF

EMOTIONAL DISTRESS

The issues for you to decide on Plaintiffs claim for intentional

infliction of em otional d istres s are:

(1) W hether the D efendants engaged in extrem e and

outrageous conduct in post ing the VIDEO on

Gaw ker.com; an d, if so,

(2) W hether the Defend ants acted either with the inten t to

cause Plaintiff severe emotional distress, or acted with

reckless disregard of the high probabili ty of causing

Plaintiff severe em otional distress ; an d, if so,

(3) W he ther Plaintiff in fact suffe red severe emo tional

distress; and, if so

(4) W hether tha t extreme an d outrageous cond uct was a

legal caus e of severe emo tional distress.

I will now define som e of th es e term s for yo u now:

Extreme and outrageous conduct is behavior, which, under

the circum stance s, goes well beyond all possible b ou nd s of decency

and is regarded as shocking, atrocious, and utterly intolerable in a

civilized com m unity.

51



Emotional distress is severe when i t is of such intensity or

du rat ion th at no o rdinaiy person sho uld be expected to end ure i t.

Legal cause generally:

Extreme a nd outrage ou s con duc t is a legal cau se of severe and

em otional distress if i t directly an d in na tur al an d co ntinuo us

sequence produces or contributes substant ial ly to producing such

severe emotional distress, so that is can reasonably be said that ,

b u t for the extrem e an d outrageous conduct, the severe em otio nal

distress w ould no t have occurred.

Concurring cause:

In order to be regarded as a legal cause of severe emotional

dist ress , extreme and outrageous conduct need not be the only

cause. Extreme an d outrageous cond uct m ay be a legal cause of

severe emotional distress even though i t operates in combination

with some o ther cause i f the extreme an d o utrageous co nduct

contributes substantially to producing such severe emotional

distress.

52



INSTRUCTION # 26

VIOLATION OF FLORIDA SECURITY OF COMMUNICATIONS ACT

The issues for you to decide on Plaintiffs claim for violation of

Florida’s S ecurity of C om m un ications Act are:

(1) W hethe r the “oral co m m un ication s” of Plaintiff con tained

on the VIDEO were recorded without his knowledge or

consent; and, if so,

(2) W hether Plaintiff ha d a reason able expectation th at his

oral com m unications were no t being recorded; a nd , if so,

(3) W hether Defendants knew or ha d reason to know tha t

those oral communicat ions were recorded without his

knowledge or cons ent; a nd , if so,

(4) W hether the Defendan ts intentionally disclosed or us ed

those oral com m unications; and, if so,

(5) W hether Plaintiff suffered ac tua l dam age s as a re su lt of

de fen da nts’ disclosure or u se of the oral

communica t ions .

For a conversation to qualify as an “oral communication,”

the plaintiff m us t have an ac tual subjective expectation of privacy,

an d society m us t be prepare d to recognize the expectation as

reasonable un de r the ci rcum stances. Where both elements are

p resen t, the s ta tu te h as been vio la ted w hether th e in tercepte d

53



INSTRUCTION # 2 7

BURDEN OF PROOF

If the greater weight of the evidence does n ot sup po rt Plaintiffs

claims, you r verdict shou ld be for Defendants.

However, if the greater weight of the evidence supports

Plaintiffs claims, then you shall consider the defenses raised by

D efendants. If the greater weight of the evidence sup po rts the

defense s, yo ur verdict sh ou ld be for D efend ants. However, if the

greater weight of the evidence does not support the defenses, your

verdict will be for Plaintiff and you will consider the issue of

damages.

55



INSTRUCTION # 28

LEGITIMATE PUBLIC CONCERN

The issu e of “legitim ate pub lic con cern ” or “new sw orthin ess” is

an elem ent of Plaintiffs claim for pu blication of private facts, a s well

as a First Amendment defense raised by Defendants to each of

P laintiffs claims. I will now define legitim ate public con cern.

The right of privacy and the right of freedom of the press are

bo th fundam en ta l righ ts, w hic h m u s t be balanced . The righ t to

priv acy can be outw eig hed if a publication rela tes to m atte rs of

legitimate public concern.

A m atter of public con cern is one th a t ca n be fairly considered

as relating to any m atte r of political, social, or oth er co nce rn to the

community or that is subject to general interest and concern to the

public. The m ere fact th a t a publication con ta ins arguably

inappropriate content does not remove i t from the realm of

legitim ate pub lic interest.

In weighing this issue, you should take into account the

content, context an d form of the m aterial at the t im e of pub lication

to determ ine wh ether i t relates to a m atter of public concern. The

line betw een the right to privacy and the freedom of the p res s is

draw n where th e p ub lication cea ses to be the giving of inform ation

to which the public is enti t led, and becomes a morbid and

56



sensational prying into private lives for its own sake, with which a

reasonable m em ber of the publ ic , wi th dec ent s tand ard s, w ould say

tha t he or she had no concern.

57



INSTRUCTION # 29

GOOD FAITH DEFENSE

Defendants have asserted a “good faith” defense which applies

only to Plaintiffs claim un d er F lorida’s Se curity of C om m unications

Act. If you find tha t the D efend ants relied in good faith on a good

faith determination that their conduct in disclosing the oral

communications of Plaintiff contained on the Video was lawful,

the n they have a complete defense to this claim.

58



INSTRUCTION # 30

DAMAGES: INTRODUCTION

If yo ur verdict is for defen dan ts, you will not c on sider the

m atter of dam ages. B ut if the grea ter weight of the evidence

sup po rts an y of plainti ffs c laims, you should determ ine an d w rite

on the ve rdict form, in dollars, the total am o un t of loss, injury, or

damage which the greater weight of the evidence shows will fairly

an d adeq uately com pensa te plaintiff for his loss, injury, or dam age.

59



INSTRUCTION # 3 1

DAMAGES

If you find for Plaintiff, you sh all c on side r the following

elem ents of dam age sou gh t by Plaintiff:

1. On the claim s for invasion of privacy by pu blication of

private facts , in trus ion u p o n seclu sio n, in ten tional in fliction of

em otional distress , a n d violation of the Florida Security

Com m unications Act, you m ay award an am ou nt of money tha t the

gre ater weight of the evidence show s will fairly an d ade qu ately

com pensa te Plaintiff for the emo tional distress he expe rienced as a

con sequ enc e of the p ub lication of the Video. There is no exact

stan da rd for fixing the c om pensa tion to be aw arded on ac cou nt of

suc h elements of damage. Any award should be fair an d ju s t in

light of the evidence. This is the only dam age you ca n aw ard for

these claims.

If yo u find for Plaintiff on his claim for pu blica tion of private

facts and/or intrusion upon seclusion, but f ind that no such

damages have been proved, you may award nominal damages.

Nominal dam ages are dam ages of a n inconsequential am o u n t w hic h

are awarded to vindicate a right where a wrong is established but

no damage is proved.

2. On the claim for m isapp rop riation of the right of

publicity , you m ay aw ard an am o u n t of m oney th a t the greater

weight of the evidence shows will fairly and adequately compensate

Plaintiff for any economic damages relating to the publication of the

60



Video. There is no exact sta n d ar d for fixing the c om pen sation to be

aw arded on accou nt of suc h elem ents of damage. Any award

shou ld be fair an d ju s t in l ight of the evidence.

61



INSTRUCTION # 32

LIABILITY OF MULTIPLE TORTFEASORS

If you find for plaintiff ag ain st m ore th a n one of the

defendants, you should assess plaintiffs damages in a single

amount against the defendants whom you find to be l iable to

plain tiff.

62



INSTRUCTION # 3 3

MULTIPLE CLAIMS, NUMEROUS PARTIES,

CONSOLIDATED CASES

In your deliberations, you will consider and decide five distinct

claims. Th ey includ e 1) Pu blication of Private Fa cts; 2) In tru sio n

Up on S eclusion; 3) M isapp rop riation of the Right of Publicity;

4) Inten tion al Infliction of Em otional D istress; an d 5) violation of the

Florida Security of Co m m unications Act. Although these claims

have been tried together, each is separate from the others, and each

p arty is en titled to have you separa tely consider each cla im as it

affects th a t party. Therefore, in yo ur deliberations, you shou ld

consider the evidence as i t relates to each claim separately, as you

would h ad each claim been tried before you separately.

63



INSTRUCTION # 34

PUNITIVE DAMAGES — BIFURCATED PROCEDURE

First stage o f bifurcated pun itive da m ag es procedure:

There is an addit ional claim in this case th at you m u st decide.

If you find for the Plaintiff an d ag ains t one of m ore D efend ants, you

m u st decide w hether, in addit ion to com pensatory dam ages,

punitive dam ages are w arran ted as p u n ish m e n t to one or m ore of

the defend ants and as a d eterrent to others .

The trial of the punitive d am ages issu e is divided into two

p a rts . In th is fir st part, you will decide w hether th e conduc t of the

Defendants is such th at puni tive dam ages are w arranted. If you

decide that punit ive damages are warranted, we will proceed to the

second part of that issue during which the part ies may present

additional evidence an d a rgu m en t on the issu e of punitive dam ages.

I will then give you additional instructions, after which you will

decide whether, in your discretion, punitive damages will be

assesse d and, i f so, the am ount .

Punitive dam ages for acts o f an individual defendant:

Plaintiff claim s th at pu nitive dam ages shou ld be awa rded

against defendants for intentionally or recklessly posting the Video

on Gawker.com. Punitive damages are warranted against

defen dan ts if you find by clear an d convincing evidence th at they

64



were guil ty of intentional m iscond uct which was a su bs tan tial

ca use of loss, injury or dam age to plaintiff. U nde r tho se

circumstances you may, in your discretion, award punitive damages

against one or all of defendants. If clear and convincing evidence

does not show such conduct by defendants , puni t ive damages are

not w arran ted. Your determ ination to aw ard punitive dam ages to

Plaintiff m u st be based on actua l ha rm suffered by him. You m ay

not pun ish D efendants for ha rm suffered by anyone else. W hen

determ ining the am ou nt, if any, of punitive dam ages to be awarded,

you may not impose puni t ive damages to punish a defendant for

harm s caused to others whose cases are not before you.

“Intentional miscond uct” m eans tha t a defendan t ha d actual

knowledge of the w rongfulness of the con duc t and there w as a high

probabil ity of in jury or dam age to pla in ti ff an d , desp ite th a t

knowledge, defen dan t intentionally pu rsu ed th at co urse of condu ct,

result ing in injury or damage.

“Clear and convincing evidence” differs from the “greater

weight of the evidence” in th a t it is more compelling an d p ersua sive.

As I have already in stru cte d you , “gre ater weight of the evidence”

m ean s th e m ore persuas ive a nd convincing force an d effect of the

entire evidence in the case.

65



Direct liability fo r acts o f managin g agent, prim ary owner, or

certain others:

Plaintiff claim s th at pu nitive dam ages shou ld be awarded

against Gawker Media, LLC for the acts of Nick Denton and A.J.

Daulerio. Punitive dam ages are w arran ted aga inst Gaw ker Media,

LLC if you find by clear an d convincing evidence th a t Nick Denton

or A.J. Daulerio were personally guilty of intentional misconduct

wh ich was a su bs tan tial ca use of loss, injury or dam age to plaintiff.

Under those ci rcumstances you may, in your discret ion, award

punitive dam ages aga inst G aw ker Media, LLC. If c lear and

convincing evidence does n ot show s uc h con du ct by Nick Den ton or

A.J. Daulerio, punit ive damages are not warranted against Gawker

Media, LLC.

Vicarious liability fo r a cts o f emp loyee:

Plaintiff claim s th at pu nitive dam ages shou ld be awarded

ag ain st A.J. D aulerio a n d G aw ker Media, LLC for A.J. D aule rio’s

condu ct. Punitive dam ages are w arran ted agains t A.J. Daulerio if

you find by clear and convincing evidence that A.J. Daulerio was

personally guil ty of in ten tional m isconduct w hic h w as a su b stan tia l

ca us e of loss, injury or dam age to plaintiff. U nde r those

circumstances you may, in your discretion, award punitive damages

ag ain st A.J. D aulerio. If clear an d convincing evidence does no t

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show such conduct by A.J. Daulerio, punit ive damages are not

warranted against either A.J. Daulerio or Gawker Media, LLC.

If you find th at pu nitive dam ages are w arran ted aga inst A.J.

Daulerio you may also, in your discretion, award punitive damages

ag ain st G awker M edia, LLC if you find from c lear an d convincing

evidence th at:

(A) . G aw ker Media, LLC actively an d know ingly pa rticip ate

in su ch con duc t of A.J. D aulerio; or

(B) . the officers, direc tors or m an ag ers of Ga w ker M edia, LL

knowingly condoned, ratified, o r conse nted to su ch con duc t of A.J.

Daulerio; or

(C) . G awk er Media, LLC engaged in con du ct th a t co ns titute

gross negligence and that contributed to the loss, damage or injury

to plaintiff.

If clear and convincing evidence does not show su ch cond uct

by Gaw ker Media, LLC punitiv e dam ages are no t w arran ted ag ainst

Gawker Media, LLC.

Second stage o f bifurcated punitive dam age procedure:

Opening instruction, se con d stage:

M embers of the jury , I am now going to tell you ab ou t the

rules of law th at app ly to determ ining w hethe r punitive dam ages

sho uld be ass ess ed and , if so, in w hat am ou nt. W hen I finish with

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thes e instru ction s, the parties will pr es en t add ition al evidence. You

should consider this additional evidence along with the evidence

already presented, and you should decide any disputed factual

issues by the greater weight of the evidence. “Greater weight of the

evidence” m ean s the m ore persuasive an d convincing force and

effect of the entire evidence in the case.

Punitive dam age s — determination o f amount:

You are to decide the am o un t of pun itive d am ages, if any, to

be a ssessed as p u n ish m en t aga in st defendan ts and as a d e te rren t

to others. This amount would be in addit ion to the compensatory

damages you have previously awarded. In making this

determination, you should consider the following:

(A), the n atu re, extent and degree of m iscond uct and the

related circumstances, including the following:

i. w he the r the wrongful co nd uc t w as m otivated solely by

unreasonable financial gain;

ii. w hether the unre ason ably dangerou s na ture of the

conduct, together with the high likelihood of injury resulting from

the conduct, was actually known by defendants;

iii. w hethe r, at the tim e of the loss, injury or dam age to

plain tiff, the defendan ts h ad a specific in ten t to h arm pla in ti ff and

the con duc t of defen dan ts did in fact harm plaintiff, an d

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(B). the financ ial reso urc es of def end ants; and

You may in your discretion decline to assess punitive

damages. You may assess puni t ive damages against one defendant

and not the other[s] or against more than one defendant. Punitive

damages may be assessed against different defendants in different

amoun t s .

Closing instruction, second stage:

M embers of the juiy , you have now h eard an d received all of

the evidence on the issue of punitive dam ages. Your verdict on the

issue s raised by the punitive d am ages claim of plaintiff aga inst

defendants m us t be based on the evidence th at h as been received

du ring the trial of the first phase of this case an d on the evidence

that has been received in these proceedings and the law on which I

have instructed you. In reaching your verdict , you are not to be

swayed from the performance of you r du ty by prejudice or

sym pathy for or again st any party.

Your verdict m ust be un anim ou s, th at is, your verdict m us t be

agreed to by each of you.

You will be given a form of verdict, w hich I sh all now re ad to

you:

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When you have agreed on your verdict , the foreman or

forewoman, acting for the jury, should date and sign the verdict.

You m ay now retire to con sider you r verdict.

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INSTRUCTION # 35

WEIGHING THE EVIDENCE

In deciding this cas e, it is yo ur du ty as ju ro rs [to decide the

issues, and only those issues, that I submit for your determination]

[to answer certain questions I ask you to answer on a special form,

called a verdict form]. You m us t come to an agreem ent ab ou t [your

verdict] [what your answers will be. Your agreed-upon answers to

my q uestion s are called you r ju iy verdict].

The evidence in this case c ons ists of the sworn testim ony of

the witnesses, all exhibits received in evidence [and] all facts that

were ad m itted or agreed to by the pa rties [, an d any fact of w hich

the cou rt ha s take n judicial notice (explain as necessary)].

In reaching your verdict, you m us t think abo ut an d weigh the

test imony and any documents, photographs, or other material that

ha s been received in evidence. You m ay also consider any facts tha t

were ad m itted or agreed to by the lawyers. Your job is to determ ine

w hat the facts are . You may us e reaso n an d com mon sen se to reach

conclusions. You may draw reasonable inferences from the

evidence. But you should not guess about things that were not

covered here. And, you m u st always app ly the law as I have

explained it to you.

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INSTRUCTION # 36

BELIEVABILITY OF WITNESSES

General considerations:

Let me speak briefly about witnesses. In evaluating the

believabil ity of any w itn ess an d the weig ht you will give the

testimony of any witness, you may properly consider the demeanor

of the w itness while testifying; the fran kn es s o r lack of fran kn es s of

the w itness; the intell igence of the w itness; any intere st the w itness

m ay have in the outcome of the case; the m eans and opportuni ty

the w itness h ad to know the facts a bo ut which the w itness testified;

the abil ity of the w itness to rem em ber the m atters a bo ut which the

w itness testified; an d the re aso nab lenes s of the testimo ny of the

w itness, co nsidered in the light of all the evidence in the case an d in

the l ight of you r own experience a nd com m on sense.

Expert w itn esses:

[You have heard opinion testimony [on certain technical

subjects] from [a person] [persons] referred to as [an] expert

w itness es].] [Some of the testim ony before you was in the form of

opinions ab ou t certain technical subjects.]

You may accept such opinion testimony, reject it , or give it the

weight you think it deserves, considering the knowledge, skill,

experience, training, or educ ation of the w itness, the reaso ns given

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by th e w itness for the opinion expressed , an d all th e o ther evid ence

in the case.

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INSTRUCTION # 37

CONCLUDING INSTRUCTION (BEFORE FINAL ARGUMENT)

T ha t is the law you m u st follow in deciding this case. The

attorneys for the parties will now present their final arguments.

When they are through, I will have a few final instructions about

you r deliberations.

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INSTRUCTION # 38

CLOSING INSTRUCTIONS

M embers of the juiy , you have now he ard all the evidence, my

instruct ions on the law th at you m us t apply in reaching your

verdict and the closing arg um en ts of the attorne ys. You will shortly

retire to the jury room to decide this case. [Before you do so, I have

a few last in stru ctio ns for you.]

During deliberat ions, juro rs m us t comm unicate ab ou t the

case only with one ano ther a nd only w hen all juro rs are p rese nt in

the jury room. You will have in the jury room all of the evidence

th at w as received during the trial. In reaching your decision, do not

do any rese arch on your own or as a group. Do not us e dictionaries,

the In ternet, or any othe r reference m aterials. Do not investigate the

case or conduct any experiments. Do not visi t or view the scene of

any event involved in this case or look at maps or pictures on the

Internet. If you h ap pe n to pa ss by the scene, do not stop or

investigate. All jur or s m us t see or hea r the sam e evidence at the

same time. Do not read, l isten to, or watch any news accounts of

this trial.

You are not to communicate with any person outside the jury

ab ou t this case. U ntil you have reach ed a verdict, you m u st not talk

about this case in person or through the telephone, writ ing, or

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electronic communication, such as a blog, twitter, e-mail, text

m essage, or any o ther m eans. Do not contact anyone to ass is t you,

such as a family accountant, doctor, or lawyer. These

com m unications rules a pply un ti l I discharge you at the end of the

case.

If you become aware of any violation of these instruc tions or

any o ther instruc tion I have given in this case, you m u st tel l me by

giving a note to the bailiff.

Any notes you have taken during the trial may be taken to the

ju ry room for u se du ring y our d iscussions. Your no tes are sim ply

an aid to your own memory, and nei ther your notes nor those of

any o ther ju ro r are binding or conclusive. Your notes are n ot a

sub st i tute for your own mem ory or th at of other jurors . Instead,

you r verdict m us t resu lt from the collective mem ory and jud gm en t

of all juro rs based on the evidence an d testimony presented during

the trial.

At the co nc lusion of the trial, th e bailiff will collect all of yo ur

notes and immediately destroy them. No one will ever read your

notes.

In reaching your verdict, do not let bias, sympathy, prejudice,

public opin io n, or any o ther sen tim en t for or aga in st any party to

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influence you r decision. Your verdict m us t be ba sed on the evidence

th at h as been received and the law on which I have instru cted you.

Reac hing a verdict is exclusively yo ur job. I can no t participa te

in that decision in any way and you should not guess what I th ink

your verdict should be from something I may have said or done.

You should not think that I prefer one verdict over another.

Therefore, in reaching your verdict , you should not consider

anything that I have said or done, except for my specific

instructions to you.

Pay careful attention to all the instructions that I gave you, for

th a t is the law th a t you m u st follow. You will have a copy of my

instructions with you when you go to the jury room to deliberate.

All the ins truction s are im portant, a nd you m u st consider all of

them together. There are no other laws that apply to this case, and

even if you do no t agree with these laws, you m u st use them in

reaching yo ur decision in this case.

W hen you go to the jury room, the first thing you sho uld do is

choose a presiding juro r to act a s a foreperson d uring your

deliberations. The foreperson should see to i t that your discussions

are orderly and th a t everyone has a fair cha nce to be heard.

It is your d uty to talk with one an oth er in the jur y room an d to

consider the views of all the juro rs. Eac h of you m u st decide the

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write the date and sign i t at the bottom and return the verdict[s] to

the bailiff.

If any of you ne ed to co m m unicate with me for any reason ,

write me a note and give it to the bailiff. In your note, do not

disclose an y vote or split or the reaso n for the com m unication.

You may now retire to decide your verdict[s].

Hulk Hogan vs. Gawker civil trial jury instructions

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