Journalists and newsroom lawyers sometimes disagree about whether reporters should keep or discard their notes. Reporters tend to be pack rats, hanging on to memos, audiotapes, rough drafts and the like long after their stories appear in print or on the air.
Some cherish the notion that copious notes will vindicate them if they are sued for libel. Unfortunately, in many cases, notes and drafts are at best ambiguous, and at worst damning. In the recent suit by a Texas bond firm against the Wall Street Journal, more than 200 pages of a reporter's notes were scrutinized. But that didn't forestall a verdict against the paper, including the largest damage award ever returned in a libel case.
What's more, it's clear that if you retain notes and outtakes, they could be subpoenaed someday in cases to which you're a party, and even in those you aren't. To avoid this, attorneys often advise their clients to discard unpublished materials as soon as they've served their purpose or, at the very least, to adopt and follow a consistent policy.
The word "consistent" is key. A judge or jury may believe that a journalist throws out all notes and drafts as company policy. But they will be skeptical if some materials are kept while others are discarded, especially if a reporter has detailed notes for every aspect of a contested story – except the part that is alleged to be false.
A recent Wisconsin Supreme Court decision drives this home. In 1993, the Milwaukee Journal published several articles about John W. Torgerson, an employee in the state's insurance commission office who was also an owner of a title insurance company. During his tenure, Torgerson asked commission staff to draft a rule change that would exempt companies like his from certain reporting requirements.
At Torgerson's request, the state Ethics Board wrote him two letters, both advising that it would be improper to use his regulatory position to benefit his business. The newspaper then reported that Torgerson's concurrent positions had led the Ethics Board to issue him two warnings to avoid a conflict of interest by staying out of title insurance regulation, but that Torgerson had nevertheless acted to eliminate the reporting rule. Torgerson's lawyer demanded a retraction. When the newspaper refused, he sued for libel.
Because Torgerson is a public figure, he had to prove that the newspaper acted with actual malice – knowledge of falsity or reckless disregard for the truth. The court rejected his claim that the reporter "mischaracterized" the Ethics Board letters, finding that the newspaper's interpretation of ambiguous language was a perfectly rational one.
But Torgerson's other allegation was not so easily dismissed. He argued that because the reporter had destroyed some, though not all, of his notes and documents relating to the story – before the libel suit was filed but after the letter demanding a retraction – a jury could infer that the missing notes would have provided evidence of actual malice.
The reporter claimed he had discarded dozens of files as part of a move to a new office with more limited filing space. But the court agreed with Torgerson, finding that destruction of some of the materials relevant to likely litigation was "inherently suspicious."
In this case, the court concluded that, based on other evidence in the record, it was unlikely the missing notes contained information that would undermine the newspaper's defense. Nevertheless, the court censured the reporter for the "intentional destruction" of his notes, adding that a veteran journalist should have known that this was "improper" and expressing surprise that the newspaper had allowed him to control materials that were "potentially relevant" to a "potential lawsuit."
That ruling is itself as surprising as it is troubling. Most lawyers would concede that, once litigation has begun, journalists no longer have any option – they may not destroy materials that could be relevant to the case. But until a lawsuit is filed, news organizations have the right to make their own determinations about what they will keep and what they will discard.
This decision suggests that the news media have an ethical and legal obligation to keep indefinitely any newsgathering materials that might be "potentially relevant" to lawsuits that may or may not be filed in the future. If they don't, juries will be empowered to draw the worst possible conclusion at trial.
That kind of rule might seem to serve the interests of the court. But it won't serve the interests of the First Amendment. Courts have no business requiring the press to be a repository for "potential" evidence. Imposing such a duty is an inexorable and impermissible erosion of the barrier that keeps the government out of the newsroom.