January 27, 2001
Will Ask Court on Thursday
The American Humane Association is facing an uphill battle as it prepares to go to court Thursday morning to ask for an order that would, among other things, prohibit the Los Angeles Times from publishing information from an internal personnel report.
The association, which monitors treatment of animal actors, sued the Times Tuesday after discovering during a reporter's interview with its officers that the newspaper may have a copy of the report compiled by an attorney hired by the animal protection group.
''It is'' a prior restraint request, the association's attorney, Michael St. Denis, conceded in an interview Wednesday. U.S. courts are usually extremely reluctant to issue orders restraining the publication of news in advance. But St. Denis maintained that, because the report is covered by attorney-client privilege, the American Humane Association has the right to keep it from being published or having its contents disclosed publicly.
St. Denis said the association will ask the court for three things: a determination that the report is an attorney-client work product and therefore privileged, a finding that neither the association nor any of its representatives waived that privilege and an order prohibiting the Times from publishing the report or its contents.
''We are being very careful to make sure they understand that I'm not asking where they got it, how they got it...,'' St. Denis said. ''The only thing I want is that they don't publish the report itself.'' St. Denis said that if, through their ''own due diligence,'' the reporters find the same information from sources other than the report itself, he has no problem with them publishing that information.
An attorney for the Times did not immediately return a call on Wednesday. However, USC Constitutional Law Professor Erwin Chemerinsky noted that prior restraints on news publications are hard to come by. ''First, if the L.A. Times did nothing wrong in acquiring this, there is no basis for the action against the L.A. Times,'' Chemerinsky told Inside. ''Second, I don't think it justifies a prior restraint.'' The U.S. Supreme Court is currently considering a case that may determine whether radio stations had the right to play a recorded cell phone conversation between two union officials. Chemerinksy said that case, Bartnicki v. Vopper, differed from the association's complaint in that the Bartnicki case involved illegal wire-tapping, while it isn't known how the Times obtained the association report, if it in fact did.
St. Denis, however, said he plans to prove to the court that matters covered in the report are personnel issues which the employees involved and interviewed have a right to keep private. This argument will be butted up against the newspaper's right to free speech, St. Denis acknowledged. ''In the middle, there is the American Humane Association, that is under a duty and an obligation to protect the privacy rights of employees,'' St. Denis said.
Interestingly, St. Denis's firm -- Sheppard, Mullin, Richter & Hampton -- defended Playgirl in a lawsuit brought by Brad Pitt over the magazine's printing nude photos taken of Pitt while vacationing. In that case, the photos were printed before the magazine was sued, but a judge ordered that the issue featuring Pitt recalled -- after it sold out.
Neither St. Denis nor his suit described what was actually in the report. The report and its contents, however, play a part in a pending Colorado lawsuit filed against the American Humane Association by its ousted president in October 1999.
According to the Los Angeles Superior Court lawsuit, the association learned that the Times may have a copy of the report, which was completed in September 1999, after Times reporter Ralph Frammolino interviewed two association officers, purportedly about the filming of New Line's upcoming Lord of the Rings. However, Frammolino's line of questioning about conflicts of interest and other matters during interviews on Jan. 18 and 19 raised the association's suspicion that the Times not only had the report, but planned on publishing it. Neither Frammolino nor the Times' attorney would confirm or deny to the association that the newspaper had the report, the suit says.