Calif. newspaper fined $23K for destroying evidence

Thursday, September 25, 2008

LOS ANGELES — A state judge has fined The Orange County Register's parent company $23,792.50 for deleting e-mail messages in a class-action lawsuit brought by newspaper carriers over their pay and unreimbursed costs.

Orange County Superior Court Judge David Velasquez wrote in his Sept. 23 order in Gonzalez v. Freedom Communications, Inc. that the newspaper “willfully and intentionally suppressed evidence requested of it by destroying or deleting e-mails” from December 2003 to January 2008.

This week’s ruling follows a Sept. 19 order from Velasquez barring the newspaper from reporting witness testimony in the trial.

The Sept. 19 order was roundly criticized by the newspaper’s parent company and free-press experts.

Yesterday the Arlington, Va.-based Reporters Committee for Freedom of the Press condemned the Sept. 19 order as “an unprecedented and unconstitutional prior restraint on the press.”

“The United States and California supreme courts are both unequivocal on this point — gag orders are the most serious and least tolerable infringement on First Amendment rights, and they are impermissible in all but the direst of circumstances,” said Lucy Dalglish, executive director of the Reporters Committee, in a news release.

Erwin Chemerinsky, dean of the University of California-Irvine School of Law, told the Register that the order was “clearly and blatantly unconstitutional.”

“Even in a criminal murder case, never can the press be excluded from reporting on what's going on,” Chemerinsky said in the newspaper's Sept. 23 editions. “It's not a close call.”

Peter Scheer, executive director of the California First Amendment Coalition, told the newspaper: “That order is, on its face, a violation of the First Amendment, and clearly invalid.”

The newspaper’s parent company, Freedom Communications, said it would challenge the Sept. 19 order as an “unlawful prior restraint.”

The company also said it would appeal the Sept. 23 ruling.

The newspaper had turned over more than 10 million documents and 130,000 e-mails and did not know the e-mails in question were relevant before its computers automatically deleted them, the company said in a Sept. 23 statement.

“The Register did not believe that its automatic deletion of these particular e-mails would have any impact on the case,” it said.

Jury selection in the case is to begin Sept. 29.

The carriers are seeking millions of dollars in compensation because the company classified them as independent contractors, thus allegedly denying them overtime pay and mileage and making them pay costs and fines they incurred on the job.

Daniel Callahan, the carriers' lead lawyer, also alleges the newspaper trains carriers to drive on the wrong side of the street to save time in the early morning, a practice he said has resulted in accidents and injuries.

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