Thursday, December 20, 2018

Transparency update 2

Meanwhile, CNN is waging a legal battle in Florida in part to keep its internal news standards guide out of the public realm. That guide, it says in court documents, contains “privileged, confidential and proprietary information about CNN’s business practices.”

The tussle over the guide is part of a larger fight over a CNN investigative piece that dates to June 2015, claiming that the mortality rate for babies undergoing heart surgery at St. Mary’s Medical Center in West Palm Beach, Fla., was three times the national average. The hospital’s pediatric cardiac surgery program was terminated not long thereafter. Dr. Michael Black, who led the program, sued CNN, four employees and a source in 2016. “By suggesting that Dr. Black treated ‘[b]abies as sacrificial lambs’ and made ‘[a] total mess with newborn babies,’ and by claiming that Dr. Black’s surgical mortality rate was over three times the national average, the CNN Defendants have attributed to Dr. Black conduct unfit for a medical doctor or surgeon as well as conduct rising to the level of criminality,” reads the defamation complaint against CNN. A year ago, the judge in the case tossed out CNN’s attempt to secure the complaint’s dismissal.

Lawyers representing plaintiffs in media-law cases commonly seek out internal editorial guidance, the better to determine whether a piece of journalism complies with the company’s own rules. In the Black v. CNN et al. litigation, CNN claims that it has produced “all” parts of its guide that are relevant to information requests from lawyers for Black. However, it redacted the other parts on the rationale that they were, as stated above, “privileged, confidential and proprietary.”

As for parts of the guide that CNN has surrendered: They’re not a matter of public record at this point. According to a filing in the case, CNN has designated them as “Attorneys’ Eyes Only,” meaning that not even the plaintiff himself can view them. Those passages have been filed “provisionally under seal,” according to the court file. If it’s “needed,” CNN has agreed to present the whole, unredacted set of guidelines to special master Fred Hazouri, who was appointed in the case to hear disputes over discovery.

Circuit Court Judge G. Joseph Curley, Jr., on March 15 ruled against Black’s request for the unredacted version of the guide, noting that the request didn’t encompass that material. The next day, Black’s lawyers asked for all versions of the “CNN News Standards & Practices Policy Guide” that have been issued since 2013. A subsequent filing by CNN claims that this request was filed “[s]olely for the purposes of harassment.”

In an argument before the court, Thomas Clare*, an attorney for Black, said, “This goes to the heart of the case. If they do not follow their own standards and practices in preparing this statistical analysis, or other aspects of the story, or their treatment of confidential sources, or working with outsiders like Miss Robinson who held herself out as working with CNN even though she’s not, those sorts of things violate CNN’s practices.” (Robinson, a Florida resident, is named as a defendant in Black’s original complaint, which alleges that she assisted with CNN’s newsgathering activities and otherwise defamed the doctor).

That’s a lot of lawyering to protect documents that other news organizations put online for all to view. To buttress its argument on the guide, CNN has cited precedent: “Florida courts have been clear that discovery is ‘in no sense designed to afford a litigant an avenue to pry into his adversary’s business or go on a fishing expedition to uncover business methods, confidential relations, or other facts pertaining to the business,'” reads a portion of its argument on the matter.

Asked about the hubbub over the guide, a CNN spokesperson emailed the Erik Wemple Blog, “We have already produced the relevant portions under an agreed-to protective order. They want to see other parts we don’t think are relevant. The court will decide.”

Elizabeth Locke, another attorney representing Black, issued this statement: “It is disappointing that CNN, who prides itself on pushing others for openness and transparency—just like it did in its reporting on St. Mary’s Hospital and Dr. Black’s mortality rate—refuses to apply that same standard for openness and transparency to itself. CNN has repeatedly fought for public access to litigation discovery documents, including in cases related to its reporting on Dr. Black, yet here it is vigorously fighting to hide its own conduct by redacting documents and by putting them behind a protective order. Why don’t the rules that CNN applies to others apply equally to itself?”

Indeed: CNN successfully petitioned for intervention in a 2014 medical malpractice case against Black and opposed his attempt to seal his deposition in the case…

And so the Erik Wemple Blog hereby intervenes — strictly on a journalistic level, of course — in the ongoing Black v. CNN case to request that all portions of the CNN guide be made public through this proceeding. The way CNN wants things to go down, Special Master Fred Hazouri will enjoy the privilege of viewing the full, unredacted copy of the guide.



  1. Black v. Robinson

    A surgeon is suing CNN in Palm Beach County in one of two defamation suits over a report on St. Mary’s Medical Center in West Palm Beach that found mortality rates for infants undergoing open-heart surgery were much higher than the norm around the country.

    Dr. Michael Black, a surgeon who was brought from Stanford University Medical Center to run the pediatric heart surgery division, filed the defamation suit against the network and the reporters who worked on the story. So far, the trial judge has concluded that there is a factual issue as to whether or not Black is a public figure and said the issue should be decided by a jury.

    Julin said what makes the case interesting is that the plaintiff is represented by Tom Clare of Clare Locke LLP, who previously took on Rolling Stone over its article on an alleged gang rape on the University of Virginia campus that was later retracted fully and led to a $3 million jury verdict against the magazine.

    “This is a very dangerous case against CNN that could result in a substantial judgment if it goes to trial,” Julin said.

    The other suit over the CNN report is pending in Georgia, where ex-St. Mary’s CEO Davide Carbone filed his libel claims against the network for allegedly misrepresenting the mortality rate for pediatric surgery at the hospital. In December, the Eleventh Circuit said CNN cannot stand behind Georgia’s anti-SLAPP law in federal court and will have to face the suit.

    The case is Black v. Robinson, case number 2016-CA-001517, in the 15th Judicial Circuit Court of Florida.

  2. Plaintiff Michael D. Black, MD, MBA is a Florida citizen residing in Palm Beach County, Florida. A medical doctor for nearly 30 years and surgeon for nearly 25 years, Dr. Black has devoted his career to helping some of society’s sickest and most vulnerable children. He has previously served as the Chief of Cardiac Surgery at Stanford’s Lucile Packard Children’s Hospital, is a Fellow of The Royal College of Surgeons of Canada in both general and cardiac surgery and a Fellow of American College of Surgeons, and has been recognized throughout his career as one of North America’s preeminent pediatric cardiothoracic surgeons, earning, among other accolades, six Best Doctors in America awards, a Computerworld Medal of Honor Achievement in Medicine Award, a Best Thoracic Surgeon award, and, most recently, a Heroes in Medicine award and a 2015 Top Doctors award.