This is a diversity libel action brought by Hammer DeRoburt, President of the Independent Republic of Nauru. Defendants are Gannett and its wholly owned subsidiary Guam Publications, Inc., publisher of Pacific Daily News.

The ease was previously before us in DeRoburt v. Gannett Co., Inc., 733 F.2d 701 (9th Cir.1984), cert. denied, 469 U.S. 1159 , 105 S.Ct. 909 , 83 L.Ed.2d 923 (1985) (error for trial judge to deny motion for reconsideration where plaintiff’s fourth amended complaint only minimally intruded into events involving the act of state doctrine). On remand the district court directed a verdict for the defendant Gannett and a jury found for defendant Guam Publications.

Plaintiff first contends that failure to give a jury instruction constitutes error. Defendants claimed a lack of constitutional malice in that there were credible sources of information for the published material. In the course of discovery, and contrary to the court’s order, the defendants failed to disclose the sources of the publication. The news reporter, Francisco Uludong, who is not a defendant, claimed a constitutional privilege against disclosure. In 1982 the district court entered an order which provided that because of defendants’ recalcitrance, defendants could not assert or attempt to prove the existence of any sources and that the jury would be instructed that it must presume there were none. The district court did not give that instruction.

The district court’s original decision to instruct the jury that it must presume there were no sources was a sanctioning device. The initial article authored by Ulu-dong was attributed to undisclosed sources. The record shows Uludong did not promptly disclose the sources to his employer, defendants Pacific Daily News, or to defense counsel. Approximately a month before the trial, plaintiff’s trial counsel informed the defendant that one of the sources had died. Defense counsel was able to confirm that fact through the news reporter and confirmed the identity of the source. A few days before trial plaintiff's counsel claimed he knew the identity of the other source.

The record supports the defendant’s contention that before and during trial, plaintiff’s counsel chose to present his case in a manner inconsistent with a theory of no sources. In fact, the plaintiff himself introduced evidence at trial concerning the existence of and identities of the claimed sources, the defendant’s refusal to disclose, and the circumstances of the defendant’s ultimate confirmation of knowledge gained by the plaintiff through other means. The *716 news reporter testified that Jerry Kramer was one of the sources. Plaintiff called Jerry Kramer who denied being a source. The jury apparently chose to believe the news reporter. Plaintiff did not request an instruction as contemplated by the court’s earlier order. The court instructed the jury as follows:

For the district court judge to then instruct the jury that it should conclusively presume that there were no sources would have been contrary to the evidence presented at trial by both parties and contrary to the truth.

Plaintiff next contends that it was error to direct a verdict in favor of defendant Gannett. Plaintiff had argued that Gannett, the parent company of defendant Guam Publications, could be liable under respondeat superior or agency theories. The district court judge held that there was no evidence in the record to justify going to the jury under either theory. We have been directed to nothing in the record which would support plaintiff’s claims. We agree with the district court judge. Furthermore, since we conclude that defendant Guam Publications is not liable, the question of Gannett’s vicarious liability is purely academic.

The matter of costs and attorneys’ fees is not before us at this time. We direct that any appeal to this court with respect to costs and fees be referred to this panel. The judgment of the district court is affirmed.