Friday, November 18, 2005
U. S. Attorney Patrick Fitzgerald has proceeded with indictments against now former director Conrad Black and other former directors of Hollinger International, which once owned many newspapers including the Chicago Sun-Times. The indictments allege that Black, formerly a Canadian who gave up his citizenship to sit in the House of Lords, and others concocted plans to describe what would have been taxable payments as non-taxable "non-compete" payments. Fitzgerald also charges that Black billed Hollinger for what should have been personal expenses such as most of the cost of one of his wife's birthday parties. A former associate, David Radler, has been assisting Fitzgerald in building the case against Black. Read more about the charges against Lord Black here in the Globe and Mail.
Thursday, November 17, 2005
Comments are flying through the blogosphere about Bob Woodward's late-in-the-game disclosure that he spoke with an "unnamed official" about Valerie Plame before Lewis Libby is supposed to have mentioned her to any reporter, and that Woodward, an assistant managing editor with the Washington Post, apparently did not discuss this information with Post Executive Editor Leonard Downie Jr. until October of this year, a situation which made Downie unhappy, and gave his deposition Monday to Patrick Fitzgerald. Woodward is a journalist who has successfully kept secrets before, but much of this week's discussion supports the view that he should have revealed the Plame matter to his own editor much earlier. Note that former Post Exec Editor Ben Bradlee defends Woodward. Several observers point out that the fact that Woodward made the rounds of the talk shows commenting on the woes of other journalists bound up in the Plame affair without revealing that he was also involved now makes him look somewhat less than candid. See comments from some blogs here and here. Read a Washington Post article by Jim Vanderhei and Carol Leonnig on Woodward's involvement here. See Woodward's own statement here.
We may not be seeing a reality series called "Mobile Court" any time soon. The judge who tested for it by filming a pilot episode in a strip club has been tossed off the bench by California's Commission on Judicial Performance. Not only did Los Angeles Superior Court judge Kevin Ross hear a case concerning a "Miss Wet on the Net" contest in the club, but he also mishandled a 2003 case in which a woman appearing before him was charged with not wearing a seatbelt. According to the Commission, he didn't tell her she could have an attorney, among other things. He concluded she was lying and he sentenced her to jail. Another judge, informed of the circumstances, let her go. Ross has apologized, but has said he has not decided whether he will appeal his dismissal. Read more here.
Tuesday, November 15, 2005
The Corporation for Public Broadcasting's Inspector General has published his Report of Review as requested by members of Congress, and has found "evidence that the Corporation for Public Broadcasting (CPB) former Chairman violated statutory provisions and the Director's Code of Ethics by dealing directly with one of the creators of a new public affairs program during negotiations with the Public Broadcasting Service (PBS) and the CPB over creating the show. Our review also found evidence that suggests that "political tests" were a major criteria used by the former Chairman in recruiting a President/Chief Executive Officer (CEO) for CPB, which violated statutory prohibitions against such practices." The former Chair, Kenneth Tomlinson, had been accused of threatening to withhold funds from PBS unless it "balanced its programming", investigating the politics of the guests on Bill Moyers' show "Now With Bill Moyers" , and seeking candidates for the presidency of CPB who were identifiably Republican. Complaints had gone on for some time before Tomlinson's resignation early in November. Read more here. Read the Inspector General's entire report here.
Monday, November 14, 2005
The Writers Guild of America and the Screen Actors Guild are both calling for a "code of conduct" that would let viewers know about product placement within television shows and movies, revealing what the unions call "hidden advertising." Alan Rosenberg, the current SAG President, said viewers have a right to what he called "truth in programming." But the Alliance of Motion Picture and Television Producers has previously resisted the unions' call for such disclosures. Read more here. Read the WGA's White Paper Report on the Runaway Use of Stealth Advertising in Television and Film and more on the proposed Code of Conduct here.
The Tenth Circuit has reversed a lower court's dismissal of Proctor & Gamble's lawsuit against an Amway distributor who alleged that the P&G President "worshipped Satan" and plowed profits from more than 40 P&G products into the "Church of Satan." P&G claimed that the distributor, Randy Haugen, sent messages to "thousands" of other Amway distributors saying that the "worship of Satan" statements had been made on the Phil Donahue talk show. The company sued Haugen under the Lanham Act for false representation. The lower court dismissed, deciding to exclude expert testimony, and sanctioning P&G for failing to preserve evidence.
On appeal, the 10th circuit wrote that "[t]he primary focus of P&G's appeal is on the district court's August 19, 2003 order dismissing the case. Although that order cited "three reasons" for dismissing the case, P&G argues, and we agree, that the order was actually grounded on two separate bases: (1) P&G's alleged wrongful conduct and the prejudice allegedly suffered by defendants as a result thereof, and (2) the purported inadmissibility of P&G's expert testimony. P&G challenges both. As outlined in greater detail below, we agree with P&G that neither of these bases justify dismissal and we therefore reverse the order of dismissal and remand the case to the district court for further proceedings."
It continued, "P&G argues that the district court's order of dismissal must, at a minimum, be reversed due to the district court's failure to address on the record any of the Ehrenhaus factors. We agree. As we have said in the past under similar circumstances, the district court's failure to provide "a detailed evaluation of these factors on the record" makes "it . . . impossible for us to "engag[e] in any meaningful review of the trial court's decision." .... Although defendants assert that the district court's order of dismissal incorporated by reference the arguments asserted in their motion for sanction, which in turn addressed the Ehrenhaus factors, it is unclear from the record whether the district court agreed with the defendants' assessment of each of those factors. Moreover, as discussed in greater detail below, our independent review of the record refutes many of the arguments made by defendants in their motion. Thus, "we must hold" that the district court's failure to address the Ehrenhaus factors on the record "amounts to an abuse of discretion."
Further, the 10th circuit continued, "P&G argues that, even aside from the district court's failure to address the Ehrenhaus factors on the record, the sanction of dismissal was inappropriate because there was no basis for concluding that it acted willfully, in bad faith, or with culpability. More specifically, P&G argues that the only action it conceivably failed to take was "to create a computerized database out of all the online IRI data that ever had been available to [it] from 1995 through 1998, even though [it] never actually had accessed, much less downloaded, the vast majority of the data, which were being deleted and replaced continuously by IRI." ...Our independent review of the record on appeal persuades us that P&G was indeed faced with a dilemma regarding preservation and production of the IRI data. As noted, P&G did not possess nor own that data. Rather, the record indicates that the data was compiled, possessed, and owned by IRI.... Although the district court's order of dismissal makes reference to P&G "fail[ing] to preserve relevant electronic data," the district court offered no explanation of what it meant by "relevant electronic data," and what steps it believed P&G could and should have taken to preserve such data. .... Moreover, at no time during the litigation did the district court or the magistrate judge ever address either of these issues....Similarly, the district court expressly addressed the IRI data on only one occasion before entertaining defendants' motion for sanctions and dismissing P&G's case. Specifically, on February 26, 2003, after hearing oral arguments regarding defendants' motion to compel damage-related evidence, the district court simply directed P&G to ensure that it had produced all IRI-related data in its possession. In other words, the district court did not order P&G to purchase any additional archival data from IRI for defendants' benefit. Given these circumstances, it is simply unclear what the district court considered P&G's duties to have been regarding preservation and production of the IRI-related data. In turn, it is impossible to conclude that P&G acted with the requisite culpability to justify the sanction of dismissal. In its order of dismissal, the district court found "that it would be basically impossible for Defendants to defend this case without the electronic data that has not been produced and apparently is no longer available." App. at 1058. More specifically, the district court stated: "Defendants would need access to all relevant IRI data to determine whether the Satanism message produced lost sales with respect to all the products included in said Satanism message." ...P&G challenges this finding as "groundless." ... In the instant case, P&G notes, defendants "have received all of the information, documents and materials in the possession, custody, or control of P&G and its experts," and defendants also had the opportunity to "purchase directly from IRI any additional data they believed was necessary . . . ."....We conclude, after examining the record on appeal, that the district court's finding of prejudice, unsupported by any detailed explanation, is clearly erroneous.... When this litigation began, P&G initially attempted to use the IRI data available to it online for purposes of assessing the damages, if any, that resulted from the Satanism rumors. According to P&G, however, the online data was not organized in a way that allowed for such analysis. Accordingly, its sole remaining expert on damages, Dr. Rosen, requested that P&G purchase archival data from IRI that was formatted in a different fashion than the online data, i.e., by zip code. P&G complied with this request, and Dr. Rosen in turn based his damages analysis on the archival data. Although defendants now assert that it was necessary for them to have had access to all of the IRI online data in order to rebut Dr. Rosen's testimony, this assertion is supported by little, if any, evidence in the record on appeal. In other words, although it certainly would have been preferable if defendants had somehow been afforded access to the IRI data, it is far from clear that such data would have been useful for rebutting Dr. Rosen's testimony, since it was formatted in a different fashion than the data utilized by Dr. Rosen. Thus, we conclude that genuine issues of material fact remain concerning whether defendants were in fact prejudiced by their lack of access to all the IRI-related data, and if so, how much they were prejudiced. In summary, we conclude the district court's order of dismissal, to the extent it was intended as a sanction for P&G's alleged failure to preserve electronic data and the alleged resulting prejudice, was improper and must be reversed."
P&G's request for a reassignment of the case to another judge was denied. Read the entire opinion here.
The Prince of Wales is threatening to go to court over an eight year old memo he wrote concerning the behavior of members of the People's Republic of China's government, copies of which ended up in the possession of the Daily Mail. The heir to the British throne wrote the memo after he represented the Queen when Hong Kong became part of the PRC in 1997. The Daily Mail defends its actions by saying it came by the copies legally. Read more in the Media Guardian here.