Friday, December 14, 2007
Follow My Voice: Executive Editor's Comments Likely Admissible In Guardian Lawsuit Against Village Voice Media
The San Francisco Bay Guardian has sued the SF Weekly and its parent company, Village Voice Media, claiming that the latter sold ads below cost in San Francisco in an effort to put the Guardian out of business. Things are currently heating up in the lawsuit as trial start date of January 7, 2008 is just around the corner.
During a December 6 case management conference, Village Voice Media's lawyers moved to preclude the Guardian from introducing into evidence statements allegedly made by Village Voice Media executive editor Mike Lacey in 1995 when New Times, the precursor to Village Voice Media, purchased SF Weekly. Allegedly, during a meeting with SF Weekly employees, Lacey told them that he wanted the paper to be "the only game in town," and made other statements which the Guardian has argued demonstrate an intent to harm competition.
Judge Richard Kramer did not rule on the admissibility of these alleged statements, but he did insist that he be able to hear the proferred testimony of the witnesses outside the presence of the jury so that he can rule on their admissibility. Assuming that the Guardian is correct about the substance of Lacey's statements, however, it seems very likely that they will be deemed admissible.
California Evidence Code Section 1222 indicates that "[e]vidence of a statement offered against a party is not made inadmissible by the hearsay rule if...the statement was made by a person authorized by the party to make a statement or statements for him concerning the subject matter of the statement;" and "[t]he evidence is offered either after admission of evidence sufficient to sustain a finding of such authority or, in the court's discretion as to the order of proof, subject to the admission of such evidence."
What this Rule means is that under certain circumstances, the statements of an employee can be admissible in a trial against the organization for which he works. California, however, has a "restrictive interpretation of what employee statements constitute admissions on the part of their organizational employer," and only imputes to the employer "the statements of high-ranking executives and spokespersons." Snider v. Superior Court, 113 Cal..App.4th 1187, 1206 (Cal.App. 4 Dist. 2003). Nonetheless, I would have to think that the executive editor, as the top editor, would meet this restrictive test, allowing his statements to bind Village Voice Media under California Evidence Code Section 1222.