Word of this internal investigation comes from privilege logs submitted in connection with a defamation lawsuit being pursued by Dr. Robert Huizenga, a sports doctor who worked withBiggest Loser contestants for 17 seasons.
Huizenga is in court against the New York Post over a series of stories, including one on May 22, 2016, titled “‘Biggest Loser’ Drugged Us So We’d Lose Weight.” Using research published in a medical journal as a jumping-off point, the Rupert Murdoch-owned paper interviewed former contestants with stories how Huizenga, known as “Dr. H.,” had submitted contestants to “questionable medical exams” and how contestants were supplied with Adderall and pills containing FDA-banned Ephedra. The physician, according to one contestant quoted in the story, “knew exactly what we were doing and never tried to stop it.”
In his lawsuit, Huizenga insists these are false statements that caused him lost business relationships with not only NBC, but also ABC, Bravo, MTV, Oxygen, Spike TV, Fox, The CW, Discovery, Univision, National Geographic, Netflix and on and on. It’s safe to say that Huizenga has made the rounds when it comes to offering medical expertise on television.
A judge still hasn’t formally ruled on dismissal motions — including one from the quoted contestant being sued (along with the paper) who argues her statements qualify as non-actionable opinion. Nevertheless, discovery has commenced.
Attorneys for the New York Post are pursuing a pretty standard type of inquiry in reaction to the lawsuit: They are examining whether the stories and statements were truthful, which if so, would obviously undercut the lawsuit. The paper’s lawyers are also examining Huizenga’s damages claims by investigating why the show was cancelled.
As such, NBCUniversal is the recipient of a subpoena exploring what it knows about Biggest Loser drug use, medical concerns, compensation and cancellation. Over the past two months, the two sides have been fighting over what documents must be produced.
According to a letter from an NBCU attorney in reaction to the subpoena, the Biggest Losernetwork is arguing that much information is shielded by attorney-client privilege, trade secrets, privacy and other reasons. Pushed on this matter, NBCU turned over a privilege log on June 29 describing why various emails sent to and from its executives were being deemed confidential. Many of the emails, according to the log, contained information “providing legal advice regarding investigation of allegations of the provision and/or use of Drugs on The Biggest Loser and actions considered in response to such allegations.”
Perhaps even more astonishing is that some of these emails date back to 2008, eight years before allegations surfaced in the press. Another flurry of emails related to the “investigation” happened in 2013. Other emails from 2016 don’t cite the investigation but rather are more generally described as “reflecting legal advice regarding response to the Articles.”
The New York Post isn’t satisfied.
On Monday, Steven Mintz, one of the paper’s attorneys, sent a letter to the New York federal judge overseeing the case. Mintz writes that NBC simply can’t designate “investigation” documents without establishing these documents were prepared to assist in anticipated or ongoing litigation. Mintz also raises the prospect that attorney-client privilege may have been waived on certain communications involving third parties such as Biggest Loser production companies Reveille and Endemol Shine. (Although not discussed in court papers, it is probably worth noting that Shine TV is a company founded by Elisabeth Murdoch, daughter of Rupert, and one of the company’s great early successes was Biggest Loser. It’s unclear whether one of Rupert Murdoch’s companies is pursuing documents from Endemol Shine, which is co-owned by 21st Century Fox.)
Mintz also questions how NBC hasn’t produced information about the show’s non-renewal.
“Amazingly, NBC maintains that it located no responsive documents and, as such, it produced zero documents concerning the non-renewal of the Show,” he writes. “It is simply not plausible that NBC cancelled a television show that ran for seventeen seasons and that was, at one point, one of NBC’s highest rated programs — all without a single individual sending a single email, whether it be internal to NBC employees that previously worked on the Show or external to the production company responsible for producing subsequent seasons of the Show.”
An NBC spokesperson said the company wouldn’t comment on an ongoing legal matter. The company is being represented by attorney Andrew Jacobs, who tells the judge he wishes to respond to Mintz’s letter on Friday.
Photo Credit: The Kathmandu Post – eKantipur