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by John J. Kerr A South Carolina state circuit court judge dismissed a lawsuit against two weekly newspapers filed by the deputy county supervisor who accused the newspapers of falsely reporting a story that county workers were performing landscaping work at his private residence. Robert William Metts. v. Judy Mims, Berkeley Independent Publishing Company, Inc. d/b/a The Berkeley Independent and Summerville Communications, Inc. d/b/a The Goose Creek Gazette, 3-CP-08-2177 (S.C. C. P. Order granting SJ June 20, 2005). In granting the newspapers’ motion for summary judgment, the 9th Circuit Court judge found the plaintiff was a public figure; and that he failed to present evidence that The Berkeley Independent and Goose Creek Gazette had acted with constitutional actual malice in reporting the story. The court also dismissed a claim for false light invasion of privacy on grounds that it has not been recognized as a viable action in South Carolina. Background The source for the statement that county employees were working at the deputy county supervisor’s home was the co-defendant, an elected member of the county council. Although there was confusion among some of its members, the county supervisor testified at his deposition that the council had approved a policy where county employees could work on private property at a rate to be charged by the county. The supervisor said the policy was needed because citizens living in remote areas of the county were having trouble finding private contractors willing to do small jobs, most having to do with drainage issues. The work policy was met with skepticism by private contractors, some members of council who claimed they knew nothing about the policy and others in the community who thought it wrong for public employees to compete with private contractors. On the day the newspapers had a scheduled press run at their parent newspaper’s press; co-defendant council member came to one of the newspapers to place an advertisement for her private business. While in the offices, the council member talked with the reporter who was doing a story on the county’s work policy. It was during the interview that the council member made the statement about county workers being seen in the deputy county supervisor’s yard. The exact quote, “. . . but Mims reports that a constituent called to tell her about seeing county trucks in Robbie Mett’s driveway in Pinopolis, and employees cutting limbs from trees in his yard.” When the reporter asked the county council member if she was willing to be quoted, the council member indicated she could be quoted because her constituents had reported the incident to her. The reporter learned of a list of people who had contracted for work to be performed on their private property. The reporter called the county offices and asked for the list. The list arrived at approximately 4:30 in the afternoon, a short time before the deadline to send the newspaper to press. The reporter admitted that she did not see the deputy county supervisor’s name on the list and neither contacted him for comment, nor did she revise the article with the statement about the deputy supervisor because of multiple duties for the newspapers and the approaching deadline. The plaintiff contended that publication, when the deputy county supervisor’s name was missing from the list, amounted to a reckless disregard and a purposeful avoidance of the truth. The circuit court disagreed, finding that it was “insufficient to show that the Defendant made an editorial choice or simply failed to investigate or verify information; there must be evidence at least that the Defendant purposely avoided the truth.” The court held that the evidence in the record fell far short of the clear and convincing standard necessary to ask a fact finder to infer that the reporter’s actions were done to purposely avoid the truth. After the plaintiff’s motion for consideration was summarily denied, he filed an appeal. Contempt This was the second appeal filed in the case. During discovery and before any depositions were taken, the plaintiff asked the newspapers to produce financial information including all income statements, statements of cash flow, etc. The newspapers declined, and at the hearing on a motion to compel production, the newspapers tried to explain to an ill informed judge that the newspapers’ financial information was a confidential matter; that it was relevant only for an argument on punitive damages; and that plaintiff had to prove constitutional malice by clear and convincing evidence to have a charge on punitive damages, even if he was classified a private figure. At the hearing, the plaintiff offered no evidence on relevance. His argument was basically, “I asked for it and they refused to give it to me.” Without requiring plaintiff to offer any evidence of constitutional actual malice, the judge ordered the newspapers to produce all the requested financial information. On a motion to reconsider, the newspapers pointed out the absence of logic in the ruling. Basically, a competitor could sue another competitor and get the competitor’s financial statements without any showing of a valid entitlement to such sensitive and confidential information. The judge refused to change the ruling. Normally, a discovery order is interlocutory. However, an order of contempt is not interlocutory. Newspapers continued its refusal to give up its financial records. When plaintiff filed a motion to hold the newspapers in contempt and impose “harsh” sanctions for their “willful disobedience,” the hearing was before another, more experienced judge. The newspapers pointed out their dilemma. They could comply with what they considered an illogical and unlawful order and waive any right to challenge it on appeal, or refuse to comply with the order, be cited for contempt, and appeal. The newspapers chose the latter option and asked the judge to hold them in contempt. The judge agreed to hold the newspapers in contempt so they could appeal the discovery order, but imposed no sanctions. The newspapers filed an appeal of the contempt order (and the underlying discovery order). Both appeals should be decided by early 2007 John J. Kerr of the Charleston, South Carolina law firm of Buist Moore Smythe McGee PA represented the newspapers. E. Paul Gibson of the Riesen Law Firm in North Charleston, South Carolina and Steve F. DeAntonio of DeAntonio Law Firm of Charleston, South Carolina represented the Defendant. |
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