Severe subpoena action

By: David Noack Calif. atty. general seeks copy of book contract, as well as notes, other documents from journalist

A California journalist, who is an outspoken critic of a state policy restricting media access to prisoners, has been ordered to turn over 10 years' worth of notes and other material in a case involving a civil lawsuit filed by an inmate against state prison officials.
Peter Y. Sussman, a freelance writer based in Berkeley, has received two subpoenas from the California state attorney general's office that not only seek his notes and other documents but a contract he has with Harper's Magazine for an upcoming article on media access to prisoners and public testimony that he's given in advocating prison media rights.
The attorney general's office is preparing to defend the California Department of Corrections (DOC) against a federal civil rights lawsuit filed in August 1996 on behalf of inmate Robert "Boston" Woodard. The case is pending in U.S. District Court for the Central District of California in Los Angeles. A trial is slated for August. Three telephone calls to the attorney general's office for comment were not returned at press time.
However, in an article on the Web site of the San Francisco Bay Guardian, a weekly alternative paper, a spokesman for the attorney general's office says he can not comment on a pending legal matter, but he defended the attorney general's role to protect the prison officials. He says the Sussman subpoena is not an attempt to scare off reporters from prison coverage.
A former president of the Northern California chapter of the Society of Professional Journalists (SPJ), Sussman has twice given depositions - in January and mid-March - amounting to 14 hours of testimony to state lawyers. He has balked, however, at producing many of the documents being sought. He has turned over some published material and public policy statements.
Since Sussman is refusing to release the documents, the state, on April 9, filed a motion to get court approval to subpoena postings and e-mail messages made by Sussman, as well as others, on a community online service called "The Well," which was recently purchased by Salon, the online magazine. At press time, officials at the Well could not be reached for comment, but the executive director of the online service told the Guardian they have not received a subpoena.
In court papers, deputy attorney general Jane Catherine Malich says, "'The Well'" is critical to the defense of this action. ... E-mail messages, message board postings, discussions, and other similar materials from 'The Well' are either directly admissible evidence or are reasonably calculated to lead to the discovery of admissible evidence because they discuss the subject matter of this litigation, discuss and describe facts and evidence, and may lead to the discovery of additional witnesses who have information bearing on this case."
The court has not ruled on granting a subpoena to the online service. Sussman says the state is seeking information that goes way beyond his former position as head of the journalists' organization, but to his role in testifying, lobbying, and advocating to overturn the ban on one-on-one media interviews with inmates.
"They want everything but the kitchen sink. It even broadens it to anything past my journalism to anything that I have advocated as president of SPJ or in any other capacity. You testify before the legislature, baby, and we're going to serve you with a subpoena," says Sussman.
He suspects his involvement in the case is caused by his advocacy of First Amendment rights for prison inmates and his drive to overturn the prison media policy. Just last week, a legislative committee passed a bill to overturn the interview policy.
"I think it's clear I've been a thorn in the side of the Department of Corrections in their increasing secrecy and their attempts to close out journalists from the prisons," says Sussman, a former editor of Sunday Punch, the San Francisco Chronicle's weekly features and commentary section.
The controversial case stems from a Woodard lawsuit against prison officials for allegedly violating his rights.
Woodard, then an inmate at the California Men's Colony in San Luis Obispo, wrote a letter to freelance writer Jon Sievert, who was acting as an intermediary to get another reporter from Drums and Drumming magazine to do a story about a prison band, which just happens to feature Jim Gordon, who was a member of Derrick and the Dominoes, Eric Clapton's former band. Gordon also co-wrote the hit song "Layla."
However, the prison policy, which was quietly adopted in late 1995, did not allow one-on-one interviews. In an effort to get around that restriction, Woodard suggested an interview with the entire band, in his letter to Sievert.
David Newdorf, an attorney with O'Melveny & Myers in San Francisco, who is representing Woodard, says his client was fired from his job as editor of the prison newsletter, The Communicator, and confined to quarters for five days. His lawsuit seeks damages and the reinstatement of his prior prison privileges.
Sussman says that the time all of this was happening, he did not know Woodard. He says his name appeared in the prison newsletter and in a letter. However, in bringing the case to the attention of Newdorf and providing him with information, David Durant, Sussman's attorney, says he doesn't know what the state is after.
"It appears what the defendants here [the Department of Corrections] are trying to establish is that Peter Sussman and the plaintiff in the civil action [Woodard] were engaged in some sort of conspiracy to 'circumvent prison policy.' We will be arguing, when given the opportunity, that a freelance journalist who has written extensively on this issue over the last 10 years that the subpoena is an unwarranted intrusion into his journalistic activities and political advocacy," says Durant.
Tim Graham, president of SPJ's Northern California chapter, calls the actions taken by the state against Sussman "a declaration of war against all California journalists and the growing number of Californians who exercise their rights of free expression on the Internet."
He says Sussman is being targeted because of his public opposition to the prison policy of restricting media access to inmates.
"While Kenneth Starr appeared to be obsessed with sex, the state attorney general's office seems determined to use its powers to prevent California citizens from learning what's going on behind prison walls," says Graham.
He questioned whether the state would have gone after Sussman if he had worked for an established news organization.

?(Editor & Publisher Web [Caption]
?(copyright: Editor & Publisher April 17, 1999) [Caption & Photo]


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