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Originally Posted by Hollywood Hasney
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I don't know the details surrounding the judge's decision to not allow Bubba's testimony. That being said, based on the info we have, I don't see why Gawker would feel confident of this being over turned on appeal due to Bubba's testimony being deemed inadmissible.
Admission of evidence and testimony is decided at the discretion of the trial judge. Unless the judge abused his discretion when deciding not to allow Bubba's testimony, Gawker won't win on appeal because of it. An appellate court will evaluate whether the trial judge’s decision was arbitrary, fanciful, or unreasonable. If reasonable people could differ regarding whether it was proper or not for the judge to decide to not allow Bubba's testimony, then the judge was not unreasonable and there can be no finding of an abuse of discretion.
The judge likely disallowed Bubba's testimony because it would amount (although not literally of course) to putting Bubba on trial. The jury would spend too much time arguing over whether Bubba was credible and not on whether Gawker was guilty of public disclosure of private facts.
In addition, whether Hogan did or didn't know about the tape when it was recorded is irrelevant. If Hogan was aware he was being recorded and it even occurred to him that it might leak, that doesn't mean Hogan intended for the tape to be disclosed publicly or distributed on the internet.
It seems like the only defense Gawker had in this case, that there was public interest in the sex tape, the jury didn't buy. Hogan had to prove that there was:
- a public disclosure (internet obviously)
- of private facts (the sex occurred at a private residence indoors)
- lack of public interest (maybe there was public interest in the existence of the tape and Hogan's comments but NOT the sexual content of the tape itself)
- and the disclosure would be objectionable to a reasonable person in Hogan's position