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Two Detroit News editors were issued subpoenas on Sept. 1, 2022, as part of ongoing litigation around the contamination of the water system in Flint, Michigan. The subpoenas, which ordered Editor and Publisher Gary Miles and Opinion Editor Brendan Clarey to turn over documents and sit for depositions, were subsequently quashed.
The Detroit News had published an opinion piece on Aug. 31 that criticized a lawsuit brought against two engineering firms for their alleged role in the water crisis. Earlier that month, a federal judge had declared a mistrial in the case.
The subpoenas, issued by the plaintiffs after the mistrial, sought all communications and newsgathering material related to the op-ed, which was written by the president of The American Tort Reform Association. The subpoenas also specifically sought information about the editorial process for the op-ed and whether one of the engineering firms was involved in placing the piece.
Editor and Publisher Miles told the U.S. Press Freedom Tracker that before the op-ed was published, a reporter at the newspaper had contacted the plaintiffs’ attorney for comment on a separate news story, which concerned a possible public relations campaign being waged by the defendants.
Miles said that, while he doesn’t know the rationale of the plaintiffs’ lawyers, it’s possible they feared or suspected the news organization was being co-opted by defendants, because the op-ed ran before the news story was published.
“They also might have simply seen the timing of the op-ed as another glaring example of the defendants trying to influence a prospective jury before it was seated for retrial,” he said.
Plaintiffs’ attorney Corey Stern issued the subpoenas and sent a letter to The Detroit News’ attorneys on Sept. 1, accusing the newspaper of publishing defamatory claims about him and of conspiring with the defendants in the suit.
An attorney representing Miles sent a letter to Stern on Sept. 27, stating that Miles would not comply with the subpoena and that they’d file a motion to quash the request if the plaintiffs refused to withdraw it.
“You are attempting to use the discovery process in an ongoing litigation to investigate your own meritless defamation claims,” the letter said. “This is an improper use of the discovery process, and we are confident the Court will not endorse this type of fishing expedition in the context of the ongoing Flint Water Litigation.”
Miles told the Tracker that at first they didn’t know that Opinion Editor Clarey had also been issued a subpoena, as he was on family leave. The Tracker has documented Clarey’s subpoena here.
The plaintiffs refused to withdraw their subpoenas, and attorneys for Clarey and Miles filed a motion to quash on Oct. 17.
“The burden on Mr. Miles and Mr. Clarey to attend depositions and produce documents is great, as it potentially requires them to produce confidential, unpublished material and communications,” the motion stated. “Allowing access to these materials and communications from a journalist will severely inhibit the flow of accurate information to the interested public.”
District Judge Judith Levy ruled in favor of the journalists on Nov. 17.
“While there are certainly some circumstances where it would be appropriate for a party to take third-party discovery from a media outlet,” Levy wrote in her ruling, “this is not one of them.”
Miles told the Tracker he was pleased with the judge’s ruling, and he hopes that it will set a precedent for protecting journalists from being targeted with similar fishing expeditions.
“Even though there’s an expense to fighting off a subpoena like this, I think that’s ultimately the reward,” Miles said. “You can’t use the media to do your discovery, because the media has to have some manner of independence from the discovery in civil lawsuits so we’re not seen as an arm of one side or another.”