Herbert v. Lando

In two separate dissenting opinions, Justices Stewart and Marshall questioned the prudence of what they saw as overly-liberal discovery by plaintiffs in defamation cases. Justice Stewart concluded that information obtained (and opinions held) by editorial and media staff, which was not published, was simply not relevant to the case. Liability attached only to published defamatory information. Justice Marshall, in turn, was concerned with the unfettered ability of plaintiffs to harass defendants by excessive discovery requests, and saw a clear potential for abuse of the discovery process.

Justice Brennan, who concurred with the majority but dissented in part, believed that the Court should adopt a "qualified" rather than absolute privilege, as requested by defendants, so that plaintiffs in defamation cases could inquire into the previously-discussed areas, only after demonstrating to the trial court that the publication in question represented a prima facie defamatory falsehood.