McCAW V. DOG: Sometimes lightning strikes and sanity prevails. I’ve found it’s better to savor such a moment than to understand why they occur; some of life’s mysteries are meant to remain unsolved. Such is the case with the News-Press‘s lawsuit against The Independent. It just settled. That may not sound like much, but News-Press owner Wendy P. McCaw did not get where she’s gotten by settling. On the contrary, she has repeatedly demonstrated a preternatural determination to take her cases to the bitterest of ends. The McCaw does not back down. She does not know how. Her cars don’t come equipped with reverse. If McCaw smoked cigarettes, her brand would be Tareyton, whose slogan was, “I’d rather fight than switch.” But settle she did.
In the Valley of the Dogs
Thursday, May 8, 2008
I mention this not to gloat. It was my stupid mistake, after all, that put The Independent within McCaw’s legal crosshairs. Back when the Melt-Down first started in summer 2006, I posted a link on our then nascent Web site to an article written by former News-Press reporter Scott Hadly about the ethics controversy swirling within the News-Press and all the ensuing resignations. I posted the piece because the article had been spiked by his editors. And because no substantive alternative had been published (and still hasn’t) by the NP explaining what was taking place.
Had I merely quoted portions of the Hadly article, I would have been on firm legal ground. But by posting the thing in its entirety, I left myself and The Indy open to copyright infringement charges. Naturally, the News-Press sued, picking my birthday as the day to do so. As is to be expected, they embellished. In fact, there was so much hyperventilation contained in the complaint that anyone reading it passed out from oxygen deprivation. It charged The Indy was financially motivated to join a conspiracy to bring down the NP, and that we were guilty of various and nefarious unfair business practices, trademark violations, and copyright infringements. They also claimed-incorrectly-that I had gotten my hands on another News-Press article that never would see light of day, this one written by former reporter Vlad Kogan about former editor Jerry Roberts‘s massive arbitration dispute. Most of it was just plain silly and vindictive, and the federal judge who handled the case, Edward Rafeedie, said so. But when we ran the link to the Hadly piece without the NP‘s consent, Judge Rafeedie opined that we had, in fact, crossed the line.
The way I figured it, no harm, no foul. How many people actually accessed the Hadly link? And what real damage did that inflict? But at my deposition last summer, it quickly became clear what the real game was: Plain and simple, they were after my sources. Wendy wanted to know who of her employees were yakking. The lawsuit was intended to send a message that any employees who dared speak a discouraging word did so at their own peril. And to the extent they could dredge up anything damaging on Roberts-with whom they were embroiled in a $25 million arbitration battle-so much the better.
The deposition was conducted in one of those brand-new Santa Monica office buildings that thinks it’s a cathedral. If all the Lakers were to stand on each others’ shoulders, the one on top could not touch the lobby ceiling. We met in a conference room big enough to have its own zip code. On the other side of the table sat News-Press attorney Stanton “Larry” Stein-a gracious pro who manages to appear rugged and polished at the same time-his assistant, a court stenographer taking down my every “uh” and “ah,” and a court videographer recording my facial twitches.
I was represented by the very able and reassuring Robert Gutierrez, an attorney hired by our insurance company. I wasn’t sweating, but I was nervous. I had no interest in playing the hero, but neither was I giving up any sources. Robert E. Lee once said the best defense is a good offense. In my case, it was ignorance. To many of the questions I could honestly answer, “I don’t know,” or “I don’t remember.” Specifically, they wanted to know how I got a copy of the Hadly article. Luckily for me, I never knew who sent it. Actually, I had several copies. So, it seemed, did everyone in town. They just appeared everywhere at once. Understandably, Stein was more than a little incredulous. My ignorance on this point, he noted in a manner that bordered on the arch and ironic, was suspiciously convenient. Even I had to agree. But in this case, ignorance was indeed bliss. Throughout the course of the deposition, I declined to answer a sufficient number of questions-for fear of exposing sources-that Stein gave up and called for an early end to the session. In the meantime, he vowed, he’d get a judge to make me to talk.
The idea of a newspaper suing another newspaper to get at confidential sources is beyond weird. On the planet where I live, newspapers are supposed to protect sources. Only on Planet McCaw do newspaper owners actively seek to weaken confidentiality protections that are already plenty weak as it is. On the Hadly story, I felt secure in my ignorance. But the other story the News-Press wanted information about-the Kogan piece about the Roberts arbitration-was another matter. Although I never got a copy of the piece, I had confirmed it existed. I talked to people who corroborated this, and I definitely made efforts to get a copy. Even though Kogan himself issued a sworn statement saying he knew I never succeeded-as did his editor and the NP Information Technologies specialist-the News-Press attorneys persisted in their claims to the contrary. They demanded to know my sources. Judge Rafeedie was skeptical on this score, but he did allow them to make arguments-at some later date-why I should be forced to spill. I got all kinds of calls from lots people voicing their support. “Don’t worry,” they’d say, “the community will be there for you.” I wasn’t sure what that would actually mean if I were to be found in contempt of court for refusing to divulge sources.
Admittedly, the likelihood of that happening was exceedingly slim. The law-at least as it’s recognized in the law books-was on my side; so, it seemed, was reason and common sense. But I’ve covered enough trials to know the law isn’t what’s written in some book; it’s what a judge says it is. And some judges have been known to wake up with exceedingly wild hairs inserted into some mighty uncomfortable places. I didn’t pretend to know exactly how psychologically well-coiffed our judge was. And frankly, I wasn’t all that keen on finding out. Beyond that, the idea of spending five days in Los Angeles so the News-Press could have a jury trial over what at worst was the copyright equivalent of a fender-bender seemed a colossal waste of time and money.
Somehow, sanity struck, a deal was made, and the News-Press settled its beef with The Indy. I don’t know the terms. I almost don’t care. To me, the sanctity of the sources was always the issue. And none were given up. In the meantime, the News-Press has whittled down its workforce to such an extent that there are no more employees to scare anymore. But I’ve discovered there’s nothing quite so gorgeous as the flash of lightning, and no music so sweet as the sound of rolling thunder.