On Monday, November 19, the News-Press kept their case against The Independent alive when the judge allowed one of their five claims to proceed to trial. Though that claim of copyright infringement survived, The Indy also gained some serious ground: U.S. District Court Judge Edward Rafeedie entirely dismissed the News-Press‘ three claims of unfair business competition, intentional interference with business advantage, and negligent interference with business advantage, and left the final claim - that the weekly stole trade secrets from the daily - to be determined at a later date.
That was not entirely apparent when reading the News-Press on Tuesday. On the daily’s front page, an article by associate editor Scott Steepleton declared victory over The Indy.
“It’s interesting to see what the News-Press picked and chose to write about,” said Randy Campbell, The Independent‘s publisher. “There were five different claims and the article mentioned one of them. And that one’s going to trial - the story made it seem like it was a done deal. It left out the other four claims, one of which is hanging on by a thread to go to trial, and the other three were dismissed by the judge.”
Campbell does, however, admit that the copyright infringement aspect was always the major part of the federal lawsuit. He has never denied that The Indy linked to the article, but does not understand what possible damages could have come from the posting. When asked by the judge at a preliminary hearing on the matter a few weeks ago about what damages were being sought, the News-Press‘s attorney Stanton “Larry” Stein did not provide a number, only that he intended to “punish” The Indy and the weekly’s sources.
The case stems from the July 2006 mass exodus of News-Press employees who left the paper - in some cases after nearly 40 years - because owner Wendy McCaw and her editorial page editor Travis Armstrong were interfering in the newsroom and inserting bias into news articles. During that time, former N-P reporter Scott Hadly penned an article describing the meltdown from the inside, but that story never saw the printed page - the News-Press censored it, instead later running an editorial by McCaw on the front page about their commitment to journalistic ethics.
So The Independent‘s Nick Welsh, who was covering the meltdown with articles both in-print and online, linked to a PDF version of the censored article in an online story he wrote. Welsh explained the posting in a later column when he wrote, “The letter link provided what we thought was documentary evidence underscoring our criticism of the News-Press‘ bad faith attitude towards the community, its workers, and the practice of journalism.” Four days after the link was posted, News-Press lawyers sent a cease-and-desist letter requesting The Indy to remove the link, and the weekly complied. (See Welsh on that compliance here.)
The second aspect of the News-Press‘ claims - that Welsh also obtained an unpublished article related to arbitration between McCaw and former editor Jerry Roberts, whose resignation in July 2006 inspired the door to further departures - is where the misappropriation of trade secrets claim comes in. Though Welsh told former N-P reporter Vladimir Kogan that he had access to the article, Welsh denies ever actually having the document - he was just using a common reporter technique to gather information from a source. And in Kogan’s declaration on this matter, he has said that he never made the story available to anyone, not even his editor.
The News-Press does not believe Welsh, and is now pursuing legal avenues to compel Welsh to divulge his sources. Judge Rafeedie’s Monday decision kept that claim alive pending a ruling on whether Welsh should be forced to reveal his confidential sources. If so, it could also go to trial, but The Indy firmly believes Welsh is protected by journalist shield laws.
“It’s unheard of for one newspaper to sue another to find out its sources,” said Marianne Partridge, The Independent‘s editor-in-chief. “Sources are the very lifeblood of journalism and any attempt to do that is to put a great chill on journalism.”
In light of Monday’s ruling, Campbell and Partridge, who own The Independent with two other partners, have been discussing options with the newspaper’s attorneys. One interesting aspect of the ruling was that the judge agreed that the use of the article was “transformative” in nature and “for the public good,” both factors that could favor the weekly’s case in the continuing legal process. In the meantime, the attorneys are preparing for the trial.
On Tuesday afternoon, two attempts were made to contact associate editor Steepleton and as two attempts were made to contact Stanton “Larry” Stein. Those calls and emails were not returned by the time of this posting.
Aside from any future motions, the pre-trial conference is set for January 22 with a trial start date on January 29. To see the entire ruling for yourself, here’s a PDF.