On Tuesday afternoon, Judge James Brown issued a tentative ruling in the News-Press‘ attempt to retrieve the child porn-laden hard drives from the City of Santa Barbara. Brown denied the motion. Although the News-Press‘ attorneys will get their chance to argue against this tentative ruling tomorrow morning at 9:30 a.m. in Brown’s courtroom, it’s rare for a judge to change his or her mind.
The ruling provides a bit more insight into what the News-Press hoped to do with the hard drives, if their experts were able to determine that former editor Jerry Roberts had downloaded the illegal child porn. Roberts, for his part, denies all charges, is seeking an official retraction to the front-page story that linked him to the images, and is determining whether a libel suit should be filed against his former employer.
The attempt is directly linked to the arbitration currently underway between Roberts and Ampersand Publishing, which owns the News-Press and is owned solely by newspaper publisher Wendy McCaw. McCaw initially sought $500,000 from Roberts, he turned around and demanded $10 million from her, and then she countered with $25 million from Roberts.
According to Judge Brown’s ruling, the newspaper’s management believes that the evidence on the hard drives might be “inculpatory” against Roberts, and that, if he was responsible for downloading the illegal pornography, it would “diminish significantly or extinguish entirely” his claims against the News-Press. Specifically, it seems that, had Roberts been downloading child porn to the tune of 15,000 images-which is the amount so far discovered on the hard drive in question-he may have violated the “conduct/morals clause” in his employment contract. (As an editorial aside, it seems that two immediate questions arise from that last sentence: One, if Roberts had, in fact, downloaded so much kiddie porn, when did he have time to improve the newspaper as he so clearly did while editor? And two, News-Press has a “conduct/morals clause”?)
As for the legal reasons that Judge Brown denied the motion to retrieve the hard drives, he sides with the City of Santa Barbara, which cited an exemption to the Public Records Act that does not require government agencies to turn over evidence from investigations. And the News-Press attorneys, according to the tentative ruling, did “not articulate any legal argument why the hard drives do not fall within the equally broad exemption.”
In a bit of a legal slap, Judge Brown writes, “This proceeding seems to be an end run around civil discovery. Which brings the court to the second missing element here - Mr. Roberts, the real party in interest as to any discovery. The proofs of service in the file indicate that petitioner has given Mr. Roberts no notice of this proceeding, even though it claims that it is seeking civil discovery for use in an action against Mr. Roberts.” Translation: If you’re trying to use this as evidence against Roberts, at least let the guy know! Brown also goes onto instruct the News-Press attorneys that, since this seems to be a matter of civil discovery, then Roberts is also allowed to have his own expert look at the hard drive if the News-Press is able to.
As such, Judge Brown’s ruling advised what everyone expected: Take it up in arbitration, a process that was started by the News-Press.
The tentative ruling was not a total loss for the News-Press. Judge Brown shared the newspaper’s concern that the City of Santa Barbara seemed intent on destroying the evidence, as they would other contraband such as illegal drugs. Writes Brown, “[The City of Santa Barbara] has apparently taken the position that the illegal material cannot be in anyone’s possession. It is possible that destruction could happen before petitioner can seek discovery through the arbitrator. The court is inclined to agree with petitioner that, with appropriate protective orders, the allegedly illegal material can be examined by attorneys and their experts without violating any criminal statutes.” Translation: If the material is allowed to be examined by experts during the civil arbitration process, then it should not be destroyed. Brown placed an order preventing the destruction of the material for 60 days.
Despite Judge Brown’s tentative ruling, the News-Press is expected to give arguments in support of their position tomorrow morning starting at around 9:30 a.m.