CINCINNATI — The Ohio Supreme Court heard arguments Tuesday in a Sycamore Township case that could rewrite the rules for libel lawsuits.
Township Trustee Tom Weidman asked the court to modify the statute of limitations so he can pursue a defamation claim against real estate developer Chris Hildebrant.
The case involves a fake email that Hildebrant admitted creating in 2011 but Weidman says he didn’t know about until 2020. When Weidman sued for defamation in 2021, a trial judge ruled the one-year statute of limitations started in 2011 and dismissed the case.
In a 35-minute hearing, justices seemed open to Weidman’s proposed “discovery rule” to allow for later lawsuits when the alleged defamation is “secretive, concealed, or otherwise unknowable” to the person defamed.
“How can a plaintiff bring an action about something that they don’t know about?” Justice Michael Donnelly asked.
Justice Jennifer Brunner added: “What would stop someone from publishing something that was just patently false in a very closed setting among a small group of people, waiting for a year and then releasing it widely on the internet, they would be insulated from any liability, correct?”
Justices Pat DeWine and Joe Deters recused themselves from the case. They were replaced on the panel by two appellate court judges. Weidman is a longtime GOP fundraiser in Hamilton County, where Deters served as prosecutor and DeWine, as county commissioner.
The case flowed from a controversy that erupted in 2021, when Hildebrant accused Weidman of soliciting bribes for proposed Kenwood land deals from 2009 to 2011. Hildebrant offered an email as evidence of the alleged bribes, but later admitted he wrote the email to himself before showing it to a colleague in December 2011. When Hildebrant showed it to Sycamore Township officials in early 2020, they requested a state investigation. Weidman learned about the fake email from state investigators.
A Warren County judge dismissed Weidman’s defamation claim, saying it should have been filed within one year of the email’s first use in 2011. The 12th District Court of Appeals disagreed.
“Given the secretive manner in which Hildebrant went about publishing the defamatory remarks, Weidman could not have known about the libelous conduct and the injury resulting therefrom until November 18, 2020 – the date he met with investigators from the Auditor's Office,” said the May 2022 ruling.
The Ohio Supreme Court agreed to review the case in July 2022. During Tuesday’s hearing, Weidman sat behind the podium where attorney Todd McMurtry argued on his behalf. McMurtry said 10 state supreme courts have modified libel rules to account for changes in technology and other factors.
“Secretive publications are probably more problematic today, with the ability to create a fake email account, disguise yourself as somebody else, send that email,” McMurtry said. “I think the court, in a very limited way, is just having to adjust to the modern realities of publications that are secretive, concealed or otherwise unknowable.”
Hildebrant’s attorney, Chad Ziepfel, argued Weidman’s proposed solution is unworkable and unnecessary in Ohio.
“The General Assembly has obviously known for 130 years that the discovery rule doesn’t apply to defamation in Ohio,” Ziepfel said. “And if it were a real problem, we would expect the General Assembly to remedy that. That’s a policy issue that should be left to the legislature.”
Justice Melody Stewart took issue with Ziepfel’s argument that Weidman’s proposed standard is unworkable.
“If the plaintiff never discovers it, the claim never exists,” Stewart said. “If he gets wind of it, gets notice, it’s discovered, you have a year to bring a claim. If you don’t you lose it.”
Justice Pat Fischer questioned whether attorneys could find ways to exploit the language suggested by McMurtry.
“I’m OK with the words secret and concealed. I’m talking about the phrase ‘otherwise unknowable.’ It just seems like a nebulous term to me,” Fischer said.
