CBS' "Requested Resignation" Strategy Backfires

This is a Repost of a Feb 15 2005 entry:
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CBS' "Requested Resignation" Strategy Backfires

How great if the senior insiders at CBS News begin lawsuits (and discovery) against CBS alleging that the Thornburgh Report was a gamed whitewash? What sweet angel deigned us worthy of this gift? All those manipulations under the "attorney client privilege" will get tested.

nb: The reason that interviews were memorialized with only handwritten notes (and not recordings)? Simple. A lawyer's handwritten notes are almost impossible to subpoena. The notes are protected by 2 privileges - the "work product privilege" (for which the client and the attorney's permission are typically required for disclosure) and the "attorney client privilege" (for which only the client's permission to disclose is required.)

The theory is that an attorney's subjective interpretations in deciding what notes to write, what to emphasis, etc., are so intertwined with any factual data included in the notes, that the protected "work product" of the attorney in making the notes cannot be unscrambled from any raw data that might otherwise be subject to subpoena/disclosure. In other words, the notes are deemed to be a strategic playbook, not a factual transcript, and the "other side" isn't entitled to view the strategic playbook of the attorney.

This typically renders the handwritten notes as "undiscoverable," as being inherently "attorney work product," and thus privileged from discovery and disclosure. (A nuance is that, even if CBS waives thework product privilege, Thornburgh's law firm may be able to refuse to turn over the notes, as some states have found that the attorney is a "co-holder of the privilege" and thus the attorney must consent to any turn-over. Compare this to reporter's who refuse to divulge a source, as being "bad for the reporter's reputation.")

Further, because the attorney's notes become integral to giving advice to the client, the "attorney-client privilege" typically applies to such notes.

Thus, contrast the attorney notes with a tape recording, which is much closer to pure evidence and thus easier to obtain via subpoena over "privilege" objections.

None of this is coincidence. Remember, Thornburgh's law firm is "expert" in preventing the raw data of their investigation from being released to third parties. As I've previously written:



Former U.S. Attorney General Richard Thornburgh is an attorney with Kirkpatrick & Lockhart ("K&L"). K&L has a practice specialty involving "internal investigations."

K&L's primary objective in the investigation is "to prevent criminal charges from being filed" against CBS..... K&L's second objective is to ensure that CBS and its executives are "acquitted of any charges."

To prevent indictment and assure an acquittal of CBS, K&L's expertise is to conduct the investigation "to maximize the ability to assert attorney-client and work product privileges over the materials compiled in any subsequent criminal or civil proceeding."

Rather's Mouthfoam

The good news is that all of the dirty laundry that was swept under the rug, will now become public record via discovery. This should be fun.

Dan Rather Files Lawsuit Against CBS

NEW YORK (AP) - Dan Rather filed a $70 million lawsuit Wednesday against CBS, alleging that the network made him a "scapegoat" for a discredited story about President Bush's National Guard service.

The 75-year-old Rather, whose final months were clouded by controversy over the report, says the complaint stems from "CBS' intentional mishandling" of the aftermath of the story.

The lawsuit, filed in State Supreme Court in Manhattan, also names CBS President and CEO Leslie Moonves, Viacom Inc. Chairman Sumner Redstone, and former CBS News President Andrew Heyward.

Rather is seeking $20 million in compensatory damages and $50 million in punitive damages.