Gawker wins lawsuit against F.B.I. in Hulk Hogan case

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Hogan. (AP Photo/Chris O'Meara)
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Peter Sterne

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Gawker won its lawsuit against the F.B.I. on Wednesday when a federal judge in Florida ordered the bureau and the Executive Office of United States Attorneys to give the media company evidence related to an F.B.I. investigation into Hulk Hogan's sex tape.

As a result of the ruling, evidence related to the recording—evidence that was discovered during a now-defunct F.B.I. investigation—could find its way into Hogan's invasion of privacy suit against Gawker.

As Capital previously reported, professional wrestler Hulk Hogan (real name: Terry Bollea) sued Gawker in 2012 after it published excerpts of a sex tape featuring Hogan. The tape was recorded in 2006 by Bubba the Love Sponge Clem, a shock jock who was friends with Hogan. It depicts Hogan having sex with Bubba's then-wife Heather, with Bubba's encouragement.

In late 2012, Gawker anonymously received a DVD of the sex tape, then edited the video into a roughly 100-second "highlights reel," and published that along with a long commentary on sex tapes. Hogan subsequently sued Gawker in civil court for invasion of privacy.

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At roughly the same time, according to court documents, a Los Angeles lawyer had obtained the sex tape and was trying to sell it. Hogan's lawyer David Houston contacted the F.B.I., which launched a criminal investigation into the creation and attempted sale of the video. The U.S. Attorney's Office ultimately declined to prosecute anyone, but the F.B.I. dug up a great deal of evidence related to Hogan's sex tape in the course of that investigation.

In November 2013, Gawker filed a FOIA request with the F.B.I. for this evidence, hoping to use it as part of its defense against Hogan's lawsuit. Specifically, Gawker requested "ALL documents relating to an investigation, or a request for an investigation, in October 2012 regarding allegations of illegal recording(s) of Terry Bollea a/k/a Hulk Hogan engaged in sexual relations."

The F.B.I. denied the request, on the grounds that releasing it would infringe on Hogan and Heather Clem's privacy. So Gawker asked Hogan and Clem to sign authorizations waiving their privacy rights. They refused. Gawker argued that it needed the F.B.I.'s evidence as part of its legal defense and asked the court to force Hogan and Clem to waive their rights to privacy. Judge Pamela Campbell, who is presiding over Hogan's case against Gawker, ordered that Hogan and Clem sign the privacy waivers.

Now armed with the privacy waivers, Gawker went back to the F.B.I. in November 2014 and filed another FOIA request for the evidence. This FOIA request was more detailed than the first and asked for both documents and video footage. According to the request, Gawker and Hogan had agreed that while documents could be released directly to Gawker, any video footage related to the investigation must be placed in a sealed envelope and given to a special magistrate who was overseeing the discovery phase of Hogan's suit against Gawker. (Presumably, Hogan was worried that Gawker would publish any more sex tape footage it got its hands on.)

In January 2015, the F.B.I. replied and said that it found 1,168 documents and two CDs of video material that were potentially responsive to the records request, but that it would not be releasing them since they were related to an ongoing investigation and therefore exempt from FOIA. Gawker also FOIA'd the the U.S. Attorney's Office ("EOUSA"), which ignored its request.

Gawker appealed the F.B.I.'s decision not to release the evidence, arguing that the investigation had already closed. As part of its appeal, Gawker cited correspondence between the F.B.I. and Hogan's lawyer Houston about the end of the investigation. On Tuesday, the New York Observer published part of this correspondence—a 2013 letter from the U.S. Attorney's Office to Houston detailing some of the evidence the F.B.I. had found during the course of the investigation. The government denied Gawker's appeal, so Gawker sued both the F.B.I. and the EOUSA in federal court to force them to release the documents.

That is the case that the media company won on Wednesday, when Judge Susan Bucklew of Florida's Middle District ordered that the F.B.I. and the EOUSA turn over to Gawker all of the documents (and give the two CDs to the special magistrate) by Friday. Under Bucklew's order, the F.B.I. and EOUSA can withhold documents that they believe are exempt from FOIA, but they must justify these exemptions by filing a "categorical index" of documents—laying out the specifics of which exemptions apply to which documents—by Tuesday. Bucklew will then hold a follow-up hearing next Thursday to rule on whether or not those exemptions actually apply or whether those documents, too, must be released.

Update: Gawker released an official statement on the victory: "The FBI's tapes and documents should help answer a number of questions relevant to Hulk Hogan's lawsuit — whether there are still more sex tapes out there, who was taping and why and who all knew about it. We always want to get to the bottom of every story, and now we're a step closer to knowing the full truth here."