Metropolitan News-Enterprise


Wednesday, October 1, 2008


Page 3


C.A. Tosses Order Preventing Newspaper From Reporting on Its Trial


By STEVEN M. ELLIS, Staff Writer


The Fourth District Court of Appeal has granted the Orange County Register’s request to vacate an order barring it from reporting on trial testimony in a $100 million wage-and-hour class action against the newspaper by its carriers.

Explaining in a per curiam opinion that the risk that witnesses might be influenced by reading reports of other witnesses’ testimony did not justify the censorship imposed, Div. Three on Monday directed Orange Superior Court Judge David C. Velasquez to vacate his order as an unconstitutional prior restraint.

Velasquez issued the order last week in the suit by some 6,000 carriers who deliver copies of the newspaper to homes and businesses in the morning who claim the newspaper improperly classified them as independent contractors and denied them meal breaks, overtime pay, minimum wage and other benefits to which they were entitled as employees.

With trial 10 days away, the plaintiffs sought an order prohibiting the Register from reporting on “anything concerning or relating to any aspect of this litigation,” including the newspaper’s “finances” or “financial difficulties,” or the economic challenges facing the “newspaper industry as a whole.”

The newspaper opposed on the grounds that the requested order was facially unconstitutional, overbroad and vague, and Velasquez issued his own sua sponte order enjoining the Register from reporting on the trial testimony of any witness. The injunction was part of a broader order barring all non-expert witnesses from the courtroom except during their testimony, and prohibiting them from observing or learning about other witnesses’ trial testimony

Velasquez explained at the hearing that the gag order against the newspaper, like the related measures, would prevent witnesses from being influenced by the testimony of others.

But Presiding Justice David G. Sills and Justices Richard M. Aronson and Raymond J. Ikola concluded on the Register’s emergency request “not only that the potential danger used to justify the prior restraint is not sufficiently compelling in light of a host of Supreme Court decisions overturning injunctions against publications that posed much graver threats to protected interests,” but that less restrictive alternatives were available to protect the plaintiffs’ fair trial rights without infringing on the Register’s First Amendment rights.

Noting that the trial court could admonish witnesses not to read press accounts of the trial, and that “such an admonishment would go farther in preventing the tainting of witness testimony” because Velasquez’s order applied only to the Register, and not other media, the justices ruled that the availability of an alternative, less intrusive measure rendered the prior restraint unconstitutional under both the federal and state constitutions.

The justices also amended their opinion yesterday to award costs to the Register. Plaintiffs’ counsel Daniel J. Callahan of Callahan & Blaine in Santa Ana said the move upheld sanctions issued by Velasquez that would instruct the jury that it could conclude emails the newspaper destroyed or deleted contained information favorable to the plaintiffs, and which imposed almost $24,000 in costs against the Register.

The newspaper claims that a number of emails from late 2003 to January of this year were deleted when it implemented an automated information retention system, but Velasquez ruled that the Register’s failure to preserve evidence requested in discovery was “intentional and willful” in that the newspaper was aware of the relevance of the emails, and aware its automatic deletion process would destroy them.

Callahan told the MetNews that his clients did not plan to appeal the decision on the gag order, and would go forward with trial. He said that Velasquez entered a new order yesterday addressing the Court of Appeal’s ruling with respect to witnesses, and that jury selection would likely begin today, with trial starting next week.

Los Angeles attorney Kelli L. Sager of Davis Wright Tremaine represented the newspaper on appeal, and said that her client was gratified by the Court of Appeal’s quick response to the gag order.

However, Freedom Communications Inc., the Register’s parent company, said in a statement yesterday that it believed the sanctions were “unwarranted and disproportionate” to its conduct, and noted that the ruling “was specifically and narrowly directed at a discovery dispute relating to the Register’s long-time, pre-existing automatic deletion feature in its email system.”

Commenting that it has produced over 10 million pages of documents in the action, including almost 130,000 emails, the company said that the matter was “not a situation where the court specifically had ordered the production of the emails and they later were deleted,” but was instead predicated on the company’s belief that its automatic deletion of particular emails would not have any impact on the case.

The company added that it took action regarding the deletion process once it became aware of the alleged relevance of the emails, and was confident that its case on the merits would show that the carriers are independent contractors.

The case is Freedom Communications, Inc. v. Superior Court (Gonzalez), 08 S.O.S. 5556.


Copyright 2008, Metropolitan News Company