The Work

November 17, 2008 1:25 PM

Dan Rather is Enjoying His Subpoena Power

Posted by Brian Baxter

Most journalists have an intrinsic love of information and are always on the lookout for new ways to obtain it. According to a story in today's New York Times, perhaps it's no surprise that longtime CBS newsman Dan Rather is having a field day with the discovery process in his $70 million suit against his former employer.

Pushed out by the network because of a purportedly biased report about President Bush's National Guard service, Rather retained Sonnenschein Nath & Rosenthal's Martin Gold for the suit he filed in New York State Supreme Court in September 2007. James Quinn, the cochair of the litigation practice at Weil, Gotshal & Manges, is representing CBS.

The Times reports that Rather has already spent more than $2 million of his own money to press claims that CBS violated his contract and conducted a compromised investigation of his September 2004 report on 60 Minutes about President Bush's service in the Texas Air National Guard.

Delivered in January 2005, CBS's final report on Rather's story found no evidence of liberal bias on the part of the veteran anchor or other CBS news staffers, but cited a breakdown in newsroom standards and described the story that aired as flawed.

The Times reports that Rather--through subpoena power and depositions of high-ranking CBS executives--has uncovered evidence that CBS sought to "mollify" Republican critics by choosing GOP-sanctioned individuals for its internal investigation.

According to the Times and court records, former U.S. Attorney General Dick Thornburgh, currently of counsel with K&L Gates in Washington, D.C., was named to the panel because CBS executives said he scored "high marks from [the] GOP." (Thornburgh is a former Republican governor of Pennsylvania and served in the Reagan administration.)

In court filings, Gold and other Sonnenschein lawyers claim that CBS sought to use the internal investigation to have Rather removed from the anchor's chair. The Times reports that Gold has asked Judge Ira Gammerman to grant him access to thousands of documents used by the CBS panel, including interview notes and e-mail messages.

At least some of those materials are considered protected under attorney-client privilege by K&L Gates. The Times reports that Michael Missal, the head of K&L Gates's policy and regulatory practice, helped Thornburgh draft his portion of the panel report.

While Judge Gammerman has yet to rule on Gold's motion, in April he dismissed fraud claims against CBS as well as similar claims against three individual defendants: Viacom chairman Sumner Redstone, CBS chief executive Leslie Moonves, and former CBS News president Andrew Heyward. Left in place were Rather's breach of contract and fiduciary duty claims against CBS.

The judge has reassured lawyers in the case that he's no stranger to high-profile media trials, having previously adjudicated cases involving Woody Allen and Rosie O'Donnell. Trial in the Rather suit is tentatively scheduled for early next year.

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