Anaya v. CBS Broadcasting Inc. (626 F. Supp. 2d 1158, 2009)

AMENDED MEMORANDUM OPINION AND ORDER

JAMES 0. BROWNING, District Judge.

THIS MATTER comes before the Court on CBS’s Initial Motion for Summary Judgment, filed May 13, 2008 (Doc. 150)(“Motion”). The Court held a hearing on September 18, 2008. The primary issues are: (i) whether Plaintiff Lillian Ana-ya was a public official under the law of defamation; (ii) whether Lillian Anaya was a “limited-purpose public figure” under the law of defamation; and (in) whether, if she was either or both, there is sufficient evidence of Defendant CBS Broadcasting Inc.’s actual malice to go to a jury. The Court determines that Lillian Anaya was not a public official, and that she was not a public figure during the time period encompassing the first three broadcasts. The Court will therefore deny the motion for summary judgment in part and require the Plaintiffs to show only negligence to recover actual damages for those broadcasts. Additionally, because Lillian Anaya became a public figure by the time of the October 8, 2003 and April 27, 2004 broadcasts, the Court will evaluate claims arising out of those broadcasts under the actual-malice standard. Because the Court believes that the Plaintiffs have not shown a genuine issue of material fact on certain statements, but have on others, the Court will grant the motion for summary judgment in part and deny it in part, and allow the Plaintiffs to seek punitive damages on certain statements.

FACTUAL BACKGROUND

In 2002, Los Alamos National Laboratory (“LANL”) became the focus of a controversy involving mismanagement, and purchasing and property control. This controversy threatened to end the University of California’s sixty-year management of LANL. CBS contends that the controversy began when the discovery of Lillian Anaya’s apparent purchase of a Mustang using a government purchase card triggered an External Review Team audit of LANL’s purchase-card program. See Motion at 8, Undisputed Fact No. 40; Exhibit 1 to Tab C of CBS’ Memorandum in Support of its Initial Motion for Summary Judgment, filed May 13, 2008 (Doc. 151)(“CBS’ Memo.”), August 20, 2002 LANL Press Release at 1 (dated August 20, 2002)(“Aug. 20 Press Release”). Lillian Anaya clarifies the actual language of the LANL Press Release, upon which CBS relies. The document states that LANL placed one of its employees and a subcontract worker on leave “in connection with apparent irregularities in the use of the Laboratory-issued purchase cards. The two individuals are holders of the cards associated with these apparent irregularities.” Aug. 20 Press Release at 1. “The irregularities triggered a more comprehensive examination of all purchase card transactions for the past two years.” Id. The dispute about the origin of the controversy is not material, and the Court understands that both Lillian Anaya and CBS agree that the public became aware of the purchase card irregularities with the August 20, 2002 press release, and that Lillian Anaya was one of the individuals placed on leave. See Deposition of Lillian Anaya at 80:12-20 (taken April 22, 2008)(Tab I to CBS’ Memo.)(“April 22 Anaya Depo.”).

1. Lillian Anaya’s Position at LANL.

Lillian Anaya began working at LANL in 1970. See Exhibit C to Declaration of Michael L. Goldberg in Support of Plaintiffs’ Memorandum Opposing CBS’ Initial Motion for Summary Judgment (executed July 8, 2008)(“Goldberg Decl.”), Deposition of Lillian Patricia Anaya at 10:10-14 (taken February 8, 2008)(“Feb. 8 Anaya Depo.”). Over the course of her thirty-two year career at LANL, Lillian Anaya gained increasing responsibility until she ultimately attained the position of procurement assistant in 1990. See First Amended Complaint for Defamation, Negligence, Intentional Infliction of Emotional Distress, False Light Invasion of Privacy, Appropriation of Name and Likeness, Fraud[,] Prima Facie Tort, and Loss of Consortium ¶ 11, at 3, filed August 23, 2006 (Doc. 18-1)(“FAC”). Lillian Anaya describes her work responsibilities as including responsibility “for procurement and purchases,” “solicitation, negotiation, award, contract administration, negotiation of administration of change orders, modifications, claims, problem resolution, and purchase order close out.” Exhibit 6 to April 22 Anaya Depo., Resume of Lillian P. Anaya at 1 (not dated)(“Resume”). Lillian Anaya awarded and administered purchase orders and purchase-order terminations according to “Laboratory, UC [University of California] and DOE acquisition regulations and policies and procedures.” Resume at 1.

To facilitate her responsibilities, Lillian Anaya possessed a purchase card with a transaction limit of $25,000. See Exhibit 13 to April 22 Anaya Depo., Letter from Bank One at 1. Aside from the $25,000 transaction limit, Lillian Anaya also had a monthly spending limit of $900,000.00. See id. On at least one occasion, she processed a single purchase-order transaction valued at five million dollars. See April 22 Anaya Depo. at 24:16-20. Thus, Lillian Anaya had substantial spending capability at LANL, and from October 1998 to June 2002, she was the most active cardholder at LANL, accounting for approximately 13% of LANL’s purchase-card volume. See id. at 22:6-23:4. The purchase card that Lillian Anaya used at LANL functioned like a credit card, and the United States paid the bill. See id. at 23:5-14. Thus, the expenditures made on the purchase card were paid with taxpayer money. Id.

Aside from those facts, which do not appear to be disputed, the parties have some disagreement over the extent of Lillian Anaya’s work responsibilities and the amount of discretion and/or supervisory authority that she was able to exercise. The Court observes some tension between Lillian Anaya’s deposition testimony and her declaration. At the April 22, 2008 deposition, Anaya read from her resume— which she testified was accurate — that she was “responsible for procurement for purchase cards and purchases up to 1.5 million. [She was] responsible for solicitation, negotiation, award, contract administration of change orders, modifications, claims, problem resolution, and purchase order closeout.” April 22 Anaya Depo. at 32:15-19. She also testified that she would “award and administer purchase orders in compliance with the Laboratory, [University of California (‘UC’)], and [Department of Energy (‘DOE’)] policies, procedures, and regulations. [She] developed] solicitations, determin[ed] method of subcontracting, identified] the appropriate type of order, and specific solicitation/purehase order language and clauses.” Id. at 32:21-25. She “served as a point-of contact on procurement matters with private industry representatives, vendors, manufacturers, technical offices, management officials of technical divisions, and transportation specialists.” Id. at 33:9-12. She would also “coordinate a wide range of administrative actions to ensure compliance.” In addition, “[she] ma[de] decisions, anticipated] problems, and solve[d] issues related to office administration and procurements. [She] ha[s] mentored and trained four junior members of the ESA Procurement Team,” and served as a “primary contact for small/streamline purchases.” Id. at 19-25.

Moreover, Lillian Anaya testified at the deposition that she “demonstrated a high degree of judgment in determining sources of supply and analyzing purchasing requirements, including price trends, economic factors, and transportation costs.” Id. at 51:23-52:3. She testified that she was a member of a “self-directed work team” in which she “actively participate^] in the decision on procurement team [sic] and provide[d] leadership.” Id. at 52:15-25. CBS maintains that this deposition testimony, and other similar deposition testimony and documentary evidence, establish that, in addition to having significant spending authority, Lillian Anaya had substantial supervisory authority and discretion in performing her job. She also testified, however, that, although she had the ability to carry out large purchases with the purchase card or through purchase orders, she could not do so without the approval of the requestor or of the requestor’s manager and a financial representative. See April 22 Anaya Depo. at 16:4-25.

Lillian Anaya submitted a Declaration as part of her response in which she appears to downplay her authority and discretion. In that Declaration, Anaya states: “At no point during my employment in the purchasing department did I hold a policy or supervisory position of any sort, nor did I hold a position that gave me any discretionary authority over the expenditure of funds.” Declaration of Lillian P. Anaya in Opposition to CBS’ Initial Motion for Summary Judgment ¶ 4, at 2 (executed July 8, 2008)(“Anaya Deck”). She further states, in her Declaration, that “[t]here were at least four layers of management above me.... There was no one below me and no one to whom I gave direction or acted in any way as a supervisor.” Id. ¶ 5, at 2. According to the Declaration: “My job ... was to purchase equipment and supplies for the Engineering Science and Applications (ESA) Division, at the direction of persons within that division.” Id. ¶ 7, at 2. “There was one ‘buyer’ ... who specialized in purchase orders. These typically were purchases for larger amounts of money than the types of purchases for which I was responsible and involved different paperwork, procedures and were more complex.” Id. ¶ 7, at 2-3.

The Declaration addresses other specific aspects of the deposition testimony. For example, in the Declaration, Lillian Anaya admits that, while she did not have explicit supervisory authority over any other members of her procurement team, she often served in an unofficial mentoring and training capacity for other less experienced members of her team, and many members of the team appear to have deferred to her judgment in various matters. See Anaya Decl. ¶¶ 4-6, at 2. In the Declaration, she also notes that “[a]ny discretionary authority [she] had was only in special circumstances and was limited.” Id. ¶ 15, at 6. To illustrate what she meant by “discretion,” Lillian Anaya explained:

“I once was asked by an employee of the ESA division to purchase underwear for lab workers working in a remote site. The workers needed a change of clothes because they were working with contaminants. The requestor specificied the sizes of all of the underwear, bras and even the brand that he wanted to have purchased. I had the discretion to choose a retailer and I called Wal-Mart and obtained price quotes. I took the price quote to the finance department, which approved the request because it was within the approved budget. Only then could I go to Wal-Mart and pick up these items.”

Id. Such examples, and others like it, appear throughout the Declaration to underscore the lack of discretion and authority that Lillian Anaya exercised.

CBS disputes the contention that Lillian Anaya had no supervisory authority, contending that Anaya was “in charge” and “decided who did what.” Exhibit 41 to Declaration of Sharyl Attkisson, Tab L to CBS’ Memo, (executed May 8, 2008)(“Att-kisson Deck”), Interview with Sulema Martinez at 1 (dated September 11, 2002).

To address some of the apparent tension between Lillian Anaya’s deposition testimony and her declaration, Lillian Anaya conducted a 30(b)(6) deposition of Richard F. Strickler, who was Deputy Group Leader for “BUS-5,” LANL’s procurement organization. Exhibit B to Supplement to Plaintiffs’ Memorandum in Opposition to Defendant CBS’s Motion for Summary Judgment, filed November 19, 2008 (Doc. 196), Video Deposition of Richard F. Strickler at 6:6-12 (taken November 12, 2008)(Doc. 196-3)(“Striekler Depo.”). Strickler stated that Lillian Anaya did not have anyone working under her, see Strickler Depo. at 12:7-13, that she did not have a higher status than other purchasing assistants, and that her high purchase limit was related to the fact that the organization she supported was extremely busy and had a high volume of repetitive transactions, see id. at 20:7-21. According to Strickler, there were several layers of management above Lillian Anaya, including three levels within BUS-5, and an additional five levels of management above BUS-5. See id. at 13:3-14:17.

Strickler also confirmed that Lillian Anaya could not purchase anything without a request, that she had no role in deciding what ought to be purchased, see id. at 21:24-22:5, and that, in the context of BUS-5’s billion-dollar yearly purchases, Lillian Anaya’s purchases were “very small,” id. at 36:20-37:6. According to Strickler, Lillian Anaya had “Q” security clearance because of the location of her office, and that there were janitors and grounds-keepers who had the same level of access as Lillian Anaya, see id. at 38:1-14.

2. Lillian Anaya’s Apparent Attempt to Purchase a Souped-Up Mustang and the Ensuing Investigation.

In August 2002, Lillian Anaya’s position at LANL was jeopardized when she became the subject of an FBI and internal investigation into her purchase-card activity. See Tab T to CBS’ Memo., Declaration of Steve Doran ¶ 8, at 3 (executed March 11, 2008)(“Doran Decl.”). Part of the basis for the investigation — and the centerpiece of the subsequent CBS news coverage of these events — was the allegation that Lillian Anaya attempted to purchase a customized Mustang using the LANL purchase card. See id. at ¶¶ 5-12, at 2-4. Pending the results of the investigation, LANL placed Lillian Anaya on leave and issued a press release indicating that an employee and a contract worker were under investigation for purchase-card irregularities. See Aug. 20 Press Release at 1.

Glenn Walp, whom the LANL office of security had hired earlier in 2002, and Steve Doran, who was hired days earlier, began the investigation in late July. See Tab S to CBS’ Memo., Declaration of Glenn Walp ¶¶ 10-13, 17-18, at 3-6 (executed February 17, 2008)(“Walp Decl.”). The Federal Bureau of Investigation (“FBI”) was also investigating the case. See Doran Decl. ¶ 4, at 2. During the investigation, FBI Agent Jeff Campbell interviewed Lillian Anaya and former defendant Thomas Thompson of All Mustang Performance, or AMP Performance, of Phoenix Arizona (“All Mustang”). See Exhibits D-F to Goldberg Decl., Campbell’s FD-302s for Anaya and Thompson (date of transcription August 13, 2002)(“Anaya 302,” “Aug. 8 Thompson 302,” and “Aug. 9 Thompson 302”). Agent Campbell’s report regarding his investigation of Thompson revealed that Thompson “acknowledged that he had mislead [sic] over the past two weeks concerning the attempted sale of the vehicle to Anaya,” but that he told the truth in his August 8, 2002 interview with Campbell. August 8 Thompson 302 at 4. Because of the purchasing irregularities, LANL also underwent an external audit, which PricewaterhouseCoopers (“PwC”) conducted. See Exhibit 4 to Tab C of CBS’ Memo., December 19 LANL Press Release at 1.

On August 20, 2002, LANL issued the press release in which it announced that an employee and a subcontractor were placed on leave pending the investigation of purchasing irregularities in the use of LANL purchasing cards. See LANL Press Release at 1. Although the Press Release did not name Lillian Anaya, she was the suspended employee of which it spoke. See April 22 Anaya Depo. at 80:12-20. Between August and November 2002, and before CBS made any of the broadcasts at issue in this ease, the media began to report on the investigation of the alleged Mustang purchase and other irregularities. Although Lillian Anaya’s name does not appear in these reports, and the alleged Mustang purchase is seldom the focus of the articles, there is frequent mention of the apparent Mustang purchase. The media also picked up on the fact that, in late November 2002, LANL fired Walp and Doran, the two internal investigators who had taken on the role of whistle-blowers in the controversy. See Walp Dec. ¶ 35, at 9-10. Moreover, before CBS made its first broadcast on the topic, Project on Government Oversight (“POGO”), a non-profit government-watchdog group, issued press releases and circulated documents regarding the purchasing and property control controversy at LANL, including the charges for the Mustang. See, e. g., Exhibit 3 to Declaration of Danielle Brian (executed May 9, 2008)(Tab U to CBS’ Memo.), The POGO ALERT: Leaked Document: Mishandling Lost and Stolen Computers at Los Ala-mos, attachment B at 7 (dated November 19, 2002)(Attachment B shows the records of the All Mustang Charges, and the dates upon which those charges were disputed). Thus, before CBS began broadcasting the story, Lillian Anaya’s alleged attempt to charge a $30,000.00 Mustang to a government-paid purchase card had attracted some attention from both the media and from a government-watchdog group.

After CBS began broadcasting about Lillian Anaya and the Mustang, more media coverage ensued discussing Anaya and/or the Mustang controversy. Some of the stories made only tangential reference to Lillian Anaya or the Mustang purchase, while others either named Lillian Anaya or gave more than passing attention to the allegation. It appears, however, that CBS was first to name Lillian Anaya, although other members of the media had access to documents that named her. See Declaration of Patricia Gingrich at 9 (executed July 8, 2008)(“Gingrich Decl.”).

3. The Three Pre-Wrong-Number Explanation Broadcasts.

Picking up on the Mustang controversy and the firing of the whistle-blowers, CBS aired five separate broadcasts on the topic between November 2002 and April 2004, and posted stories on its website. Defendant Sharyl Attkisson conducted the investigation and interviews underlying the broadcasts. The three broadcasts that preceded the release of the internal report that exonerated Lillian Anaya aired on November 27, 2002, December 20, 2002, February 26, 2003. The last two, which aired on October 8, 2003, and April 27, 2004, came after LANL had released the results of the exonerating report,

i. The November 27, 2002 Broadcast.

The November 27, 2002 broadcast focused on the firing of Doran and Walp, and aired clips of an interview that Sharyl Attkisson conducted with them. Walp expressed his view that they were dealing with a “major criminal investigation concerning major thefts at the lab.” Exhibit 17 to Attkisson Deck, CBS Evening News Broadcast DVD at 1:35-1:44 (“Broadcast DVD”). Attkisson reported on the investigation, and stated that it “uncovered millions of dollars in stolen and missing items,” and that LANL workers were “using government credit cards like personal blank checks.” Id. at 1:45-2:08. In the broadcast, Doran recounted discovering “thousands of items that had been purchased that had been unauthorized.” Id. at 2:08-2:15. Immediately after Doran was shown discussing the thousands of unauthorized purchases, the broadcast cut to Walp, and then back to Doran as they recited a list of such items: “A diamond necklace, diamond earrings, a diamond bracelet ...,” and “refrigerators, VCRs, television sets.” Id. at 2:15-2:21. In this context, Attkisson reported that “one worker, who had a million-dollar-a-month credit line, charged a custom Mustang vehicle to the taxpayers on her government credit card.” Id. at 2:23-2:34. The rest of the broadcast focused on Walp’s and Do-ran’s allegations that “the more that [they] uncovered, the more they say lab managers tried to cover up — worried more about keeping the security problems quiet” Id. at 2:51-3:56. After discussing the manner in which LANL fired Walp and Doran— because they were not “a good fit”' — and the ongoing FBI and DOE investigations, Attkisson closed out by observing that those investigations go on “without the help of the two investigative insiders who may have been able to help them uncover the most.” Id. at 3:20-3:45.

In preparing the November 27, 2002 broadcast, Attkisson relied on the interview she conducted with Walp and Doran. The interview lasted approximately one hour and was edited significantly to fit the short time frame of the broadcast. In the interview, Walp and Doran explained, in more complete form, that no Mustang had ever been built or delivered. See Exhibit 15 to Attkisson Deck, Interview DVD, November 26, 2008 Interview with Doran and Walp, at 32:45-33:50. Moreover, Walp and Doran explained that their investigation resulted in the Mustang transaction being stopped before it could be completed. See id. The statement that Walp’s and Do-ran’s investigation led to the charges being stopped appears to contradict the working external investigation report, which showed that the charges had been contested before Walp and Doran became involved in the investigation. Attkisson had the working external investigation report that showed that the charges had been contested, and a page of the report was actually displayed as a graphic in the November 27, 2008 broadcast. See Broadcast DVD at 2:23-2:34. An astute observer could have seen the misspelled word “disbuted” above the list of charges for All Mustang as the page from the PwC external review working report was flashed on the screen during the broadcast. The date listed for the dispute of the charges was June 18, 2002 — nearly a month before Walp and Doran joined the investigation. See id. (showing the background image that appeared when the price of the Mustang is superimposed over it). See also Walp Decl. ¶¶ 10-13, 17-18, at 3-6 (stating that Walp and Doran were brought into the investigation in July 2002).

ii. The December 20, 2002 Broadcast.

In the opening headlines for the CBS Evening News on December 20, 2002, Dan Rather stated that there are “new allegations of a cover-up of massive credit card abuse by employees at a vital defense lab.” Broadcast DVD at 4:08-4:17. As the portion on LANL opened, Attkisson stated: “Los Alamos Weapons Lab holds some of the Nation’s most sensitive nuclear secrets and will play a critical role in the new homeland security plan. So critics say reports of major mismanagement and fraud at the lab are deeply disturbing.” Id. at 5:04-5:17. Attkisson proceeded to discuss the external audit, which PwC conducted, and described the report as showing evidence of a “staggering amount”-— $ 153 million dollars worth — of questionable transactions. Id. at 5:20-5:50. Attkisson’s report noted that, while LANL found that very few of those transactions turned out the be improper, LANL’s speedy conclusions in that regard had attracted criticism. See id.

In that context, Attkisson named Lillian Anaya for the first time. See id. at 6:17-6:26. Attkisson characterized Lillian Ana-ya as “the biggest spender. She allegedly charged a $30,000 Mustang to her government card.” Id. Attkisson also noted: “It’s unclear whether anyone has sifted through her other purchases: $15 million in less than four years. She didn’t return our repeated calls.” Id. at 6:27-6:37. Do-ran also appeared in the report, expressing his view that there was a “complete lack of control” at LANL. Id. at 6:38-45.

Attisson had the PwC audit documents before the December 20, 2002 broadcast. See Attkisson Decl. ¶¶ 83, 89-92, at 26, 28-29. Attkisson states: “With my access to the non-public External Audit reports, I was able to compare them critically to the version released to the public by the lab.... As I read the public version of the report, I noticed that many facts and findings that were contained in the nonpublic update reports were ignored in the public version.” Id. ¶ 89, at 28.

iii. The February 26, 2003 Broadcast.

The February 26, 2003 broadcast focused on Walp and Doran, the two whistle blowers who had provided interviews and information for the previous reports. See Broadcast DVD at 8:22-8:30. Attkisson began the report explaining that, “[a]s Los Alamos struggles to rescue its reputation as steward of America’s nuclear weapons, two whistle blowers who first spoke to CBS News testified before Congress today.” Id. at 8:52-8:37. The report focused mainly on Walp’s and Doran’s testimony before Congress, and on the two whistle blowers’ contentions that LANL had chosen to cover up, rather than pursue prosecutions for the mismanagement occurring within its ranks. See id. at 8:52-10:34. The only portion of the broadcast that alluded to Lillian Anaya was a clip from an interview Attkisson conducted with Doran and Walp. See id. at 9:20-9:40. Attkisson asked whether there had been any prosecutions or indictments, and when the whistle blowers answered negatively, she responded: “Not even the employee whom the lab gave a $1 million-a-month credit line and got caught charging a custom Mustang at taxpayer expense?” Id. at 9:28-9:40. Doran replied: “As far as we know, she’s still on the payroll and has not yet been terminated.” Id. Aside from this brief discussion, Attkisson did not further discuss the allegations against Lillian Anaya, nor did Attkisson name Lillian Anaya at any point in the broadcast.

4. The Wrong-Number Theory.

In June 2003, after CBS had made three broadcasts about the Mustang controversy, LANL exonerated Lillian Anaya and publicized its version of the manner in which the alleged Mustang charges came into being. LANL released the results of its investigation in a report and a press release that purported to exonerate Lillian Anaya. Lillian Anaya’s version conforms to the official line that LANL has taken— what CBS has styled the wrong-number theory. See CBS’ Memo, at 29.

According to LANL, and Lillian Anaya, on May 1, 2002, Lillian Anaya received instructions to process an approved order for five pressure transducers, to be purchased from the approved vendor, Fluid Conditioning, located in Phoenix, Arizona. See Exhibit N to Goldberg Deck, LANL Mustang Purchase Investigation at 4 (dated June 25, 2003)(“Purchase Investigation”). Fluid Conditioning’s main telephone number, as listed in LANL’s purchase-order database, was 602-437-1325. See id. at 5 n. 2. Although Lillian Anaya does not specifically remember calling that telephone number on May 1, 2002, her customary practice would have been to retrieve Fluid Conditioning’s telephone number from a directory on LANL’s computer system. See April 22 Anaya Depo. at 114:6-115:15.

Unbeknownst to Lillian Anaya, Fluid Conditioning had recently relocated its offices from Phoenix to Tempe, Arizona and had acquired a new telephone number. See Exhibit 6 to Tab F to CBS’ Memo., Letter from Bruce B. Darling and attached LANL Mustang Purchase Investigation at 5 (dated June 25, 2003)(“Darling Letter”). According to the report, Fluid Conditioning had a great deal of difficulty receiving communication from its customers as a result of its move to Tempe. It received reports from customers that, when they called the former number, they were greeted with curses and told that Fluid Conditioning had gone out of business. See id.

Fluid Conditioning’s old telephone number had become an unlisted “back line” at a Phoenix hot-rod shop called All Mustang, which dealt in performance Mustang automobiles and parts. See Exhibit M to Goldberg Deck, Investigation Finds Laboratory Employee Innocent in Mustang Case, Los Alamos National Laboratories News and Public Affairs at 1 (dated June 26, 2003)(“News and Public Affairs”). LANL’s telephone records show six telephone calls between All Mustang and LANL numbers on May 1, 2002 — one of those calls being from Lillian Anaya’s telephone to the former Fluid Conditioning number that had become All Mustang’s back line. See Exhibit 1 to Tab G to CBS’ Memo., External Review of the Purchase Card Program, Documents Produced to the Committee on Energy Commerce, attached phone record at 1 (report dated December 20, 2002)(“External Review Report Documents”). The next call, which came five minutes later, was from Lillian Anaya’s facsimile-transmission number to All Mustang’s facsimile-transmission number. See id. The facsimile-transmission contained the order for pressure transducers, addressed to Fluid Conditioning, but was sent to All Mustang’s facsimile-transmission number. See Purchase Investigation at 5 (“A fax confirmation document shows that Ms. Anaya faxed the Purchase Card Order Form, addressed to Fluid Conditioning, to All Mustang’s fax number, as a confirmation of the phone order for transducers.... LANL staff believe this is the fax recorded on phone record 10:04....”).

Lillian Anaya received her May 2002 purchase-card statement on-line and noticed seven charges by “All Mustang” totaling nearly $ 30,000.00. See Feb. 8 Ana-ya Depo. at 55:15-56:2. Lillian Anaya warned All Mustang that the charges were being made to a government credit card and demanded that All Mustang reverse the charges. See id.

CBS has been critical of LANL’s report and the wrong-number theory that LANL put forth. See CBS’ Memo, at 30. CBS points out what it considers to be significant holes in the story. For example, the original legal memorandum setting forth the explanation characterizes the wrong-number story as a “reasonable hypothesis,” whereas the LANL press release immediately following appears to be a declaration of Lillian Anaya’s innocence. See Purchase Investigation at 1-8; News and Public Affairs at 1. CBS also points to an electronic mail from LANL lawyer Bruce Herr, in which Herr states that the investigative team found that Lillian Anaya’s purchase-card database, where Lillian Anaya would have obtained the telephone number, contained the correct number to Fluid Conditioning. See Exhibit 47 to Tab K to CBS’ Memo., Electronic Mail from Bruce Herr at 1 (dated June 19, 2003)(“Herr Email”). Nevertheless, the veracity of LANL’s official position does not bear squarely on the issues presented by CBS’ Initial Motion for Summary Judgment — namely, whether Lillian Anaya is a public figure or public official, and whether, if she is, she has failed to provide a quantum of evidence to allow a jury to find, but clear and convincing evidence, that the Defendants acted with malice. More important are facts bearing on Sharyl Attkisson’s state of mind as she investigated the theory.

In her Declaration, Attkisson discusses her skepticism of the wrong-number theory, and states that Walp and Doran gave her further information: “Walp and Doran provided me with documents relating to the Mustang investigation to show how flawed the Lab’s wrong-number theory was. These included summaries of interviews that had been conducted by Lab investigators (including Doran) and the FBI.” Anaya Decl. ¶ 160, at 45. She also asserts that she received internal LANL documents, which related to Anaya being placed on investigative leave on August 19, 2002. See id. ¶ 160, at 46. Anaya also received copies of the FBI 302s, including Lillian Anaya’s. See Anaya Decl. ¶ 162, at 46.

5. Lillian Anaya’s Participation in the Media Before LANL’s Wrong-Number Explanation.

Lillian Anaya states that, before the Mustang controversy surfaced, the media did not know who she was and that she was never involved with the media. See Anaya Decl. ¶ 22, at 8. She notes that, according to her recollection, the only time her name had appeared in the news before the CBS broadcasts was as a “survivor” in her uncle’s obituary. Id. After CBS started running the stories, she avoided media contact and refused interviews. See id. She shunned the media on the advice of her criminal defense attorney, Dan Cron. See id. The attention she received “humiliated, saddened, and frightened” her, and as a result of the attention, she “stayed at home and kept her blinds drawn to avoid contact with the people [she] knew in her community and any media members. [She] stayed at home and wept.” Id.

6. Post-Wrong-Number Broadcasts.

After LANL announced the wrong-number theory, and after Lillian Anaya entered into the media arena to combat the bad publicity, CBS issued two more broadcasts. Unlike the prior broadcasts, the two post-wrong-number theory broadcasts focused on Lillian Anaya and the Mustang purchase. The two broadcasts also dismissed the wrong-number explanation that LANL had issued. In the two broadcasts, Attkisson characterized the wrong-number theory as a cover-up, rather than a legitimate explanation for the All Mustang charges on Lillian Anaya’s purchase card,

i. The October 8, 2003 Broadcast.

Unlike the previous three broadcasts, which focused more generally on mismanagement and fraud at LANL, the October 2003 broadcast centered mainly on Lillian Anaya and her alleged Mustang purchase. It opened with Rather announcing the headline: “Hey, nice car! She bought it and charged it to you, the taxpayer. The Inside Story, tonight.” Broadcast DVD at 11:07-11:13. As Rather read the headline, a photograph of an attractive-looking, black Mustang flashed on the screen. See id. Rather announced that, “[u]nder fire, the Lab recently made changes. So things have changed for the better, right? Hold your horses ’til you hear about the Mustang.” Id. at 11:57-12:08. Attkisson noted that the Mustang was the “most sensational of all the suspect purchases.” Id. at 12:10-12:20. Again, the photograph of the Mustang appeared, and Attkisson mentioned that one “like this” was “charged” by Lillian Anaya. Id. 12:20-12:28. As Attkisson was reporting, Lillian Anaya’s photograph was displayed prominently on the screen.

Attkisson then reported, based on the 302 that FBI agent Campbell prepared after interviewing Lillian Anaya, that Lillian Anaya “could not offer any explanation, reasonable or not” for the calls and facsimile transmissions recorded between her office and All Mustang. Id. at 12:56-13:00. Again, Anaya’s photograph was displayed, next to a photograph of the black Mustang, with the text “Could not offer any explanation, reasonable or not[ ]” in quotation in a box below the two photographs. Id. So, according to Attkisson, “one was concocted for her by the University of California” Id. at 12:59-13:06. Attkisson then reported on LANL’s official exoneration of Lillian Anaya, which included the wrong-number theory. Id. at 13:10-13:25. According to Attkisson’s description of LANL’s explanation, an internal legal memorandum discussed a “reasonable hypothesis” that “Anaya was trying to buy lab equipment called transducers but dialed a wrong number and did not realize she was actually speaking to the Mustang company, which then tricked her into ordering a car.” Id. at 13:15-13:25. Attkisson added: “[T]he lab announced that’s what happened, as if it were a fact, not just a theory.” Id. at 13:26-13:31. Nevertheless, Attkisson stated: “Documents obtained by CBS News cast serious doubt on [the Lab’s] story. Before turning the investigation over to the lab, the FBI questioned Anaya. FBI documents show she ‘denied any knowledge or involvement’ with the car, and said she ‘never heard of the car company.” Id. at 12:20-12:25.

Attkisson interviewed Thompson of All Mustang — whom she styled “the man who sold the Mustang” — who denied that anything had happened other than Lillian Anaya ordering a car. See id. at 14:02-14:16. Thompson recalled: “She wanted a late-model Mustang, black convertible, with, like, black leather interior. She wanted it loaded up with all the options, and then she wanted to make it go fast.” Id. As Thompson described the specifications that he allegedly received from Lillian Anaya, footage of a late-model black Mustang appeared, with cuts to different sides of the car and its interior. See id. Attkisson pointed to the fact that “lab auditors flagged thousands more suspect purchases Anaya made as ‘attractive for personal use’ or ‘unallowed.’ Yet the lab declared her innocent and warmly welcomed her back to the Los Alamos team.” Id. at 14:18-14:33. Attkisson finished the report by observing: “Congress now wants the Energy Department to explain why it swallowed the wrong number defense.” Id. at 14:39-14:44.

It is evident from the broadcast that Sharyl Attkisson had the FBI 302 report on Lillian Anaya by the time CBS aired the October 8, 2003 story. Attkisson quoted part of the 302. Lillian Anaya’s 302 provides, in part:

Anaya is unaware of how the various May 2002 credit card charges to All Performance Mustang (AMP) appeared on her LANL credit card. Anaya clearly denied any knowledge or involvement related to the referenced credit card charges.... Prior to reviewing her May 2002 credit card bill via her LANL computer in June 2002, she had never heard of AMP or Allmustang.com. When she first reviewed her May 2002 credit card bill in June 2002, she immediately questioned the credit card charges to AMP and telephoned AMP to inquire what type of merchandise they sell. She recalled speaking to a Tom (LNU) from AMP regarding the suspicious credit card charges.

Anaya was presented with May 2002 telephone records by the interviewing agents that were obtained from her office telephone number ... and her office facsimile machine.... Anaya could not offer any explanation, reasonable or not, of how the telephone and fax records could show the referenced contacts to AMP in early May and June 2002.

Anaya’s 302 at 2. Aside from the 302, Attkisson had access LANL’s report, which presented the wrong-number hypothesis.

ii. The April 27, 2004 Broadcast.

The final broadcast relevant to this case also focuses primarily on Lillian Anaya. In the headline, Rather announced: “She’s at it again. A government worker using your tax dollars for more questionable purchases. We’ll give you the Inside Story.” Broadcast DVD at 15:09-17. As Rather made this assertion, Lillian Anaya’s photograph appeared, accompanied by the words “Spending Spree” followed by footage of the black Mustang. Id. Attkisson stated: “For months, the Energy Department has focused on one single government employee in New Mexico and her spending habits with the company credit card using your tax dollars. Her name is Lillian Anaya. She was a purchasing specialist at Los Alamos Nuclear Weapons Lab.” Id. at 16:24-16:42. Lillian Anaya’s photo was displayed as her name is given. See id. “CBS News was first to report the lab’s own auditors flagged $100 million in questionable purchases at the lab, including thousands of charges by Anaya, most notably a custom black Mustang, like this one.” Id. at 16:46-17:01. At that point in the broadcast, a photograph of a black late-model Mustang — the same photograph that was shown previously — appeared in the background. See id. Attkisson then continued: “Lab managers claimed there was no widespread fraud and insisted Ana-ya got tricked into ordering the car over the phone, something the Mustang dealer denies.” Id. at 17:01-17:10. Thompson, of All Mustang, then appears, saying: “There’s no doubt she wanted a black Mustang convertible, black leather.” Id. at 17:12-17:16.

The discussion of the Mustang served as background to the new story: that Congress asked the Energy inspector to dig deeper, given its doubts about LANL’s explanation of the allegations. See id. at 17:17-17:22. “The results were not released to the public, but CBS News has learned a small sampling found taxpayers footed the bill for more suspicious items: car parts, a mini utility service vehicle, gas grill, refrigerator, five expensive bicycles and computers nobody at the lab can seem to find to this day.” Id. at 17:22-17:42. Attkisson reported that the “inspector general says ‘Anaya’s employment status should be re-evaluated, given the findings of this and prior reports.” Id. 17:53-18:05. Attkisson also gave LANL’s response: “Ms. Anaya has suffered enough as a result of the allegations surrounding the Mustang and the purchase card problems and should be left alone.” Id. 18:05-18:15. Lillian Anaya’s photograph was displayed multiple times throughout the broadcast.

To prepare the April 2004 broadcasts, Attkisson relied on — and alluded in the broadcast to — the United States Department of Energy Inspector General’s Report. The Report stated: “Weaknesses highlighted by the University during its review of Ms. Anaya’s transactions prompted us to conduct an independent review to determine whether her transactions, as a Laboratory procurement official, were in compliance with the Laboratory’s policies and whether corrective actions had been initiated to resolve questionable transactions.” Exhibit P to Goldberg Deck, United States Department of Energy, Office of Inspector General, Special Report to Management, Cover Memorandum at 1 (dated April 12, 2004)(faxed to Attkisson April 15, 2004)(“DOE IG Report”). The report discussed a review of approximately 11,000 transactions entered into over a forty-five month period. See id. Of those 11,000 transactions, the reviewers examined a pool of transactions consisting of both randomly selected individual ■ transactions and other that were judgmentally selected. See id. Of this pool of 254 selected transactions, the reviewers identified twenty-one purchases that “did not follow established procedures.” DOE IG Report- at 1. Seventeen of the transactions were for items that were purchased even though LANL protocols established that such items should not be procured with purchase cards. See id. Ultimately, a number of these transactions proved to have a legitimate business purpose. See id. Four of the transactions, however, could not be shown as having a business purpose, including the purchase of five bicycles — one of which could not be located. See id. at 2. The DOE IG Report also noted that certain property that Lillian Anaya had ordered, including a computer, could not be located. See id. at 3.

The report also evaluated the earlier review conducted by a committee which UC chartered. This review involved sixty-seven transactions by Lillian Anaya, all of which the review demonstrated to be allowable. See id. The DOE IG Report recommended “[r]evew[ing] specific transactions in this report for cost allowability,” directing LANL to continue looking for missing inventory identified in the report, and determining “what administrative action, if any, should be taken against Ms. Anaya, given the findings of this and previous reviews.” Id. at 4. Finally, the report made clear that Lillian Anaya did not have access to her office, and did not engage in any purchasing or procurement activity after she was put on leave in the summer of 2002. Id., Cover Memorandum at 1. Thus, all of the transactions referenced in the report, questionable or not, were from the period before Lillian Anaya was placed on leave.

Although Lillian Anaya avoided contact with the media, it is undisputed that, when LANL was preparing to release the report setting forth the wrong-number explanation, Lillian Anaya and Mr. Cron expressed a desire for the exoneration to be equally as public as the condemnation. See Tab J to CBS’ Memo, Deposition of Dan Cron at 63:21-24 (taken March 20, 2008)(“Cron Depo.”). Regarding that desire for public exoneration, Mr. Cron testified: “Once I knew that a press release from the lab was going to be a reality, I regarded it as my job to try to get them to agree to put things to Lillian in the most favorable light in the context of what I told you earlier about trying to get information out to the public if there ever was going to be a news story.” Id. at 64:21-25.

Lillian Anaya received a draft of the press release before it was published, and was given the opportunity to make comments about it before its release. See id. at 66:12-67:22. Mr. Cron’s billing statements for Lillian Anaya also reflected that he billed her for “conferences ... regarding media,” “public relations,” and “prepar[ation] for media contact; phone conferences with several newspapers reports.” Exhibit 2 to Cron Depo., Billing Statement for July 7, 2003 (“July Billing Statement”). After that point, Mr. Cron appeared in the press, speaking on Lillian Anaya’s behalf. For example, Mr. Cron was quoted in an Associated Press story as stating: “When you stand back and look at this, it’s nonsensical that she would have ever tried to have bought such a thing.” Exhibit 8 to Cron Depo., Leslie Hoffman, Los Alamos Exonerates Employee Accused of Charging Car to Lab Credit Card, Associated Press, June 26, 2003. In that same article, Mr. Cron was cited as saying that his client was well-versed in LANL-procurement rules and would never have attempted such an outlandish purchase. See id. He also pointed out that she had a thirty-year record of “stellar performance” at LANL. Id.

In an article published in the Albuquerque Journal, Mr. Cron also defended Lillian Anaya. See Exhibit 15 to Cron Depo., Adam Rankin, Senator Questions LANL About Mustang, Albuquerque Journal at 2, October 18, 2003. In the article, Mr. Cron insisted that the evidence clearly points to Lillian Anaya’s innocence. See id. In response to Senator Grassley’s skepticism at the report that formed the basis for Lillian Anaya’s exoneration, Mr. Cron stated: “It’s clear to me ... that Senator Grassley’s office doesn’t know what the facts are,” and “[i]t looks to me there are too many uninformed people filtering the information to the Senator.” Id. Thus, in conjunction with LANL’s press release advancing the wrong-number explanation, Lillian Anaya, through her lawyer, began to speak out in her defense.

PROCEDURAL BACKGROUND

Lillian Anaya brings various claims arising out of the five CBS Evening News Broadcasts and stories that CBS published. See FAC ¶¶ 33-45, at 8-12. According to the Lillian Anaya, the broadcasts and stories contained defamatory statements and were defamatory because they “accused Ms. Anaya, either by name or by inference that it was she, of committing a felony, of being dishonest, and of cheating her employer and the Public.” Id. ¶ 45, at 12. “Due to the method by which [CBS] published the communication, those persons watching the broadcasts would have understood them to be defamatory.” Id. ¶ 45, at 12.

CBS argues that Lillian Anaya is required to prove malice under federal constitutional law because she is either a public official, a limited purpose public figure, or both. See CBS’ Memo, at 36-53. CBS maintains that Lillian Anaya does not meet the rigorous requirements for a showing of malice that the First Amendment demands in defamation suits brought by plaintiffs who are public officials or public figures. See id. at 53.

1. Arguments Regarding Lillian Ana-ya’s Status as a Public Official.

In arguing that Lillian Anaya is a public official, CBS contends that “ ‘even relatively low-level [governmental] employees’ can be deemed public officials, and this is ‘especially true when the employee exercises unsupervised discretion in the expenditure of funds.’ ” Id. at 37 (quoting Harris v. City of Seattle, 315 F.Supp.2d 1105, 1110 (W.D.Wash.2004)). CBS also points out numerous cases in which courts have found government purchasers to be public officials, particularly where those purchasers had independent supervisory authority. See CBS’ Memo, at 37-39. In light of the case law it cites — none of which is controlling authority — CBS maintains that it is “clear that Anaya, a supervisor in the Lab’s purchasing division, with a top secret clearance and a million-dollar monthly credit limit, is a public official.” Id. at 39. Under regulations governing employees such as her, Lillian Anaya was to “ ‘deliver on a timely basis the best value product or service to the customer, while maintaining the public’s trust and fulfilling public policy objectives.’ ” Id. at 42 (quoting 48 C.F.R. § 1.102)(emphasis in CBS’ brief). CBS points to Lillian Anaya’s high transaction and monthly spending limits, as well as her “considerable responsibility regarding how lab purchases were made.” Id. at 40.

In contrast, Lillian Anaya maintains that she is not a public official because she “had no policy authority, no budget, and no discretion. She merely placed orders for material and supplies requested by others, and was told what to buy, from whom, at what price, and under what shipping conditions.” Response at 44 & 46-47. Lillian Anaya also argues that, according to Supreme Court precedent, an employee’s position must be one “ ‘which would invite public scrutiny and discussion of the person holding it, entirely apart from the scrutiny] and discussion occasioned by the particular charges in the controversy.’ ” Id. at 45 (quoting Rosenblatt v. Baer, 383 U.S. 75, 86 n. 13, 86 S.Ct. 669, 15 L.Ed.2d 597)(emphasis in Response). Lillian Anaya emphasizes that she had no workers under her, and that she had four layers of management above her. See id. at 47. “[She] merely placed orders for materials that other employees of LANL determined that they needed for their particular operations, and for which these other employees secured approval from their supervisors to make the expenditures out of their budgets.” Id. (emphasis in original).

Ultimately, in Lillian Anaya’s view, she “had no supervisory authority or policy role. She was a non-exempt, hourly employee like hundreds of thousands of other government employees. She developed no training protocols,” and “because of her experience, [her junior colleagues] would sometimes look to her for advice and guidance ... [. A]ny assistance she provided was of the informal, work-place helping hand sort, which any employee would give to a more junior colleague.” Id. at 49.

2. Arguments Regarding Lillian Ana-ya as a Limited-Purpose Public Figure.

In its arguments regarding Lillian Ana-ya’s status as a limited-purpose public figure, CBS argues that a limited-purpose public figure is one who “voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues.” CBS’ Memo, at 44 (citing Gertz v. Robert Welch, Inc., 418 U.S. at 351, 94 S.Ct. 2997). CBS contends that Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287, 1296-98 (D.C.Cir.1980), represents the prevailing test for determining whether a defamation plaintiff is a limited purpose public figure. CBS presents the test from Waldbaum v. Fairchild Publications, Inc. as requiring a court to evaluate: (i) “the existence of a public controversy that has received public attention because its ramifications will be felt by persons who are not direct participants;” (ii) “the plaintiff must have more than a trivial or tangential role in the controversy[;]” and (iii) “the alleged defamation was germane to the plaintiffs participation in the controversy.” CBS’ Memo, at 45 (citing Waldbaum v. Fairchild Publications, Inc., 627 F.2d at 1296-98). CBS contends that, under the test from Waldbaum v. Fairchild Publications, Inc., Lillian Anaya is a limited-purpose public figure. See CBS’ Memo, at 49.

CBS also emphasizes the notion that Anaya might be treated as a public figure even if she did not voluntarily seek to inject herself into the publicity. There is language in Gertz v. Robert Welch, Inc. to the effect that a limited-purpose public figure is one who “voluntarily injects himself or is drawn into a particular public controversy.” 418 U.S. at 351, 94 S.Ct. 2997 (emphasis added). CBS points out that, in February 2003, Lillian Anaya was seeking to have her name cleared through the media. Thus, she was voluntarily injecting herself into the fray by that point. See CBS’ Memo, at 50; CBS’ Reply in Support of Initial Motion for Summary Judgment at 33, filed August 8, 2008 (Doc. 172)(“Reply”)(noting there is ample evidence that by June 2003, Lillian Anaya began actively courting press attention). CBS also contends that, even if the Court rejects the Waldbaum v. Fairchild Publications, Inc. standard, Lillian Anaya still satisfies the general standards that the Supreme Court has set forth for such a finding. See Reply at 23.

Lillian Anaya suggests that the “illusory” possibility of an involuntary limited-purpose public figure has never played out in Supreme Court jurisprudence, and that the Supreme Court has in fact retreated from it. See Response at 55. In her Response, Lillian Anaya observes that, in the three subsequent cases in which the Supreme Court dealt with the issue of public figures, it declined to find such status where there was not some evidence that the plaintiff invited media attention. See id. at 58.

According to Lillian Anaya, she did not thrust herself into the vortex of this matter. She did not thrust herself to the forefront or assume any role in the resolution of the controversies in which Lab management was embroiled. See id. at 54. Instead, Lillian Anaya states that, when CBS began its broadcasts in which she was mentioned, she withdrew to' her home, drew her blinds, and wept. See id.; Ana-ya Deck ¶ 22, at 8. Lillian Anaya also disputes the charge that she was actively seeking press coverage. See Response at 58. Rather, she had no regular access to the media until after she had been dragged into the Mustang matter by CBS’ publicity and by CBS’ attempts to get her to comment. See id. at 59. In other words, rather than injecting herself into the controversy, which would arguably make her a public figure, Attkisson and CBS dragged her into it, naming her before other media report had done so. See id.; Gingrich Decl. ¶ 8, at 9.

Finally, Lillian Anaya maintains that, even if the Court were to adopt the Waldbaum v. Fairchild Publications, Inc. test, the Court should find that the test is not met in 'this case. See Response at 61. Regarding the first aspect of the test, Lillian Anaya contends that her name was not widely reported by anyone other than CBS, and that the public’s interest in how federal money is being spent is far too generalized an interest to, by itself, convert her and the allegations against her into matters of public controversy. See id. at 61. Lillian Anaya also argues that there is no authority for the proposition that Congressional attention leverages something into a matter of public controversy — it certainly did not in Hutchinson v. Proxmire, 443 U.S. 111, 99 S.Ct. 2675, 61 L.Ed.2d 411 (1979). See Response at 62.

In its Reply, CBS is critical of Lillian Anaya’s suggestion that the test from Waldbaum v. Fairchild Publications, Inc. is the subject of a circuit split. See Reply at 23. CBS points out that other courts have characterized Waldbaum v. Fairchild Publications, Inc. as -laying down a “generally accepted test to determine limited-purpose public-figure status.” Reply at 23 (quoting WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 572 (Tex.1998) and citing Trotter v. Jack Anderson Enterprises, Inc., 818 F.2d 431, 433-34 (5th Cir.1987)(noting that the test from Waldbaum v. Fairchild Publications, Inc is “sensible”)). “The circuit split,” CBS adds, “involves another D.C. Circuit case, Dameron v. Washington Magazine, Inc., 779 F.2d 736 (D.C.Cir.1985), and it concerns only whether a private figure can become a limited-purpose public figure by bad luck alone.” Reply at 23. CBS also maintains that it is incorrect to say that one must actively court publicity to become a limited-purpose public figure. See Reply at 23.

3. Arguments Regarding Whether there is Evidence of Malice.

As a general matter, CBS argues that it did not intend any of the defamatory meanings that Lillian Anaya ascribes to the broadcasts. See CBS’ Memo, at 56. Moreover, CBS contends that the undisputed evidence shows.that CBS and Attkisson personally believed what Lillian Anaya accuses them of reporting: that the allegations regarding the Mustang were true and that LANL’s theory exonerating Lillian Anaya was false. See id.

CBS maintains that Attkisson followed the purchasing and property-control controversy for weeks before reporting on it, by reviewing press reports and investigative memoranda on the various allegations that were coming to light. After whistle-blowers Walp and Doran were terminated in late November 2002, Attkisson had extensive discussions with them and considered them to be highly credible sources. See id. at 57. Furthermore, Attkisson reviewed and analyzed numerous investigative documents, including audit reports that LANL had not publicly acknowledged. See id. at 57-58.

After LANL released the wrong-number defense, Attkisson “carefully evaluated” it and investigated it for weeks before the October 8, 2003 broadcast. Id. at 58. Walp, Doran, and “veteran Senate investigator” Charles Murphy told Attkisson that LANL’s defense was implausible. Thus, after considering the theory and its criticisms, Attkisson was convinced that LANL’s defense was not reliable. See id. In April 2004, Attkisson received a copy of the confidential April 2004 report on Ana-ya by the DOE Inspector General. She read the report as providing validation for her earlier conclusions about Lillian Anaya and the allegations surrounding the Mustang. See id.

In her Response, Lillian Anaya sharply criticizes Attkisson’s Declaration. See Response at 73. Lillian Anaya asserts that she has provided sufficient evidence that CBS manipulated documents and had actual knowledge that there never was a Mustang. She also maintains that she had contested the charges as soon as they came to her attention, had actual knowledge of Thompson’s lies, had actual knowledge that Lillian Anaya passed a polygraph, and withheld exculpatory evidence that Attkisson had in hand. See id. at 73.

CBS notes that, before LANL released the wrong-number theory, nearly everyone believed the allegations about the Mustang, including Doran and Walp, the DOE Inspector General, and POGO. See Reply at 44-47. As late as February of 2003— when the third CBS broadcast occurred— LANL and UC officials “left no doubt that they were operating on the assumption that Anaya had attempted to buy the car, even while pointing to some of the plaintiffs’ so-called ‘exculpatory evidence.’ ” Id. at 48. CBS maintains that, after the wrong-number theory came out in June 2003, Attkisson had good reason to doubt its veracity. Id. at 57. The theory was “controversial from the beginning.” Id.

CBS also argues that Lillian Anaya’s extended attacks on Thompson’s credibility are irrelevant, because Attkisson did not rely solely on him for her stories, and she included him only briefly in the reports to allow him to tell “his side of the story.” Id. at 59. CBS also maintains that its editorial decisions to cut or characterize certain information is not evidence of actual malice. See id. at 60.

To further support her arguments regarding actual malice, Lillian Anaya submitted a second supplemental brief to which she attached excerpts of the deposition of Kevin Roark, LANL’s Media Relations Team Leader. See Plaintiffs’ Second Supplement to their Response in Opposition to CBS’s Motion for Summary Judgment at 1, filed November 26, 2008 (Doc. 199)(“Second Supp. Brief’). Lillian Anaya points out that Roark sent CBS a copy of the June 2003 Press Release, but that CBS delayed reporting on it for several months. See id. at 3 (citing Exhibit A to Second Supp. Brief, Deposition of Kevin N. Roark at 18:20-19:24 (taken November 17, 2008)(Doc. 199-2)(“Roark Depo.”)). Lillian Anaya also refers to a conversation between Roark and Attkisson in which Attkisson admitted that a story about how Lillian Anaya “did it” would be more interesting than a story about how Lillian Ana-ya “didn’t do it.” Second Supp. Brief at 4 (citing Roark Depo. at 38: 1-14).

CBS asserts that Roark’s deposition testimony did not support Lillian Anaya’s arguments. See CBS’s Supplemental Brief on Deposition of Kevin Roark at 15, filed November 28, 2008 (Doc. 200). CBS contends that the testimony contradicted any suggestion that CBS could have obtained additional important information or an on-camera interview with a LANL official before making its October 8, 2003 broadcast, and that Roark’s testimony demonstrates that CBS did not create the controversy about misconduct at LANL and did not place Lillian Anaya at the center of that controversy. See id. at 2-12.

4. The September 19, 2008 Hearing.

At the hearing, CBS argued that government purchasing agents that dole out money, sign contracts, solicit bids, communicate