By: Randy Dotinga

Media Lawyers Have Mixed Answers

SAN DIEGO – A century ago, reporters were called
“scribblers” because pencil and paper made up the tools of the
trade. Nowadays, most reporters spend more time typing than
scribbling and their notes have found new homes on hard drives.

But to the law, technology means nothing. A reporter’s notes are
vulnerable to a subpoena regardless of whether they were taken on
a laptop, a legal pad, or a napkin.

Consider these recent brouhahas:

An Arizona grand jury demanded to see all the notes –
electronic or otherwise – of a newspaper reporter who
interviewed a man claiming to be an arsonist. In late February, a
local judge ruled in favor of the newspaper.

Also in February, a Washington state appellate court ruled that
a group of Arizona journalists pursuing a defamation suit could
not get their hands on the notes of a journalism professor who
had written a magazine article about them. The piece included an
inflammatory quote directed at the journalists.

These court cases raise age-old questions: Is it better to keep
old notes or throw them away? Which is more likely to keep a
reporter out of trouble?

Not surprisingly, media lawyers disagree. Here’s what they say:

Keep ’em: New York media lawyer Victor Kovner tells his
clients to keep their notes because they will usually help in
court. “They support the credibility of the reporter. They’re
definitely persuasive and helpful,” said Kovner, who represents
the New York Daily News, The Village Voice, and other

Because most reporters keep their notes, throwing them away could
be seen as suspicious, Kovner said. “In the minds of some judges
and jurors, failure to keep them might show a lack of care, an
effort to conceal contrary information.”

Don’t keep ’em: On the other hand, Hal Fuson, chief legal
adviser for Copley Press Inc. in La Jolla, Calif., said old notes
are “only a source of trouble.” Fuson recommends that reporters
create a system of throwing away notes. “Make a practice on a
periodic basis, every week or every month, of shoving everything
on your desk into a box,” he said. “Once the period goes by,
anything you haven’t retrieved from the box is thrown in the
trash.” The point is that all unnecessary notes vanish. “What’s
wonderful about it is that no judge could ever fault you for
hiding or selectively destroying anything,” Fuson said. “You can
always testify that you followed your practice.”

One problem with old notes, Fuson pointed out, is that they are
often impossible to understand even just a few days after they
are taken. “Reporters end up with boxes full of material that
will forever be useless to them and, at worst, confusing and
ambiguous to anyone who tries to interpret them.”

Though she doesn’t think lawyers should tell reporters what to
do, Jane Kirtley agreed that old notes can be a problem. “The
times when they are helpful are much fewer than when they hurt,”
said Kirtley, an attorney who is a media ethics professor at the
University of Minnesota and a former executive director of the
Reporters Committee for Freedom of the Press.

Be consistent: Whatever you do with your notes, media
lawyers agree on one thing: Make sure you always do the same
thing. “You shouldn’t worry about your notes,” said David Bralow,
senior counsel for the Tribune Co. in Chicago. “The only thing
you should do is maintain a policy and be consistent.”

If you think you’ll simply destroy your notes when a judge
demands them, think again. “It’s going to create the impression
that you’re trying to thwart the system,” Bralow said. In almost
any case, he added, “It’s the world’s worst thing to do.”

Randy Dotinga is a free-lancer based in San Diego.

Copyright 2001, Editor & Publisher.

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