Equality, Information and the Courts Redux: The Dan Rather Report

Dan Rather's lawsuit against CBS isback in the news*. The gist of the suit is Rather's claim that the network allowed political considerations (over his reporting on President Bush's military service) to influence their pressuring him to resign. Readers may recall I've previously commented on this lawsuit under the title "Courts and the Information Order."

The reporter on the story makes an important initial point, Rather's status as plaintiff permits him to access information that his status as reporter, employee or concerned citizen would never have given him access to.

"Using tools unavailable to him as a reporter — including the power of subpoena and the threat of punishment against witnesses who lie under oath — he has unearthed evidence that would seem to support his assertion that CBS intended its investigation, at least in part, to quell Republican criticism of the network."

This nicely highlights several "layers" of social information access. We ordinary members of the public are reading about this in the newspaper. Rather, as a reporter, could not access this information. Rather as a member of a bureaucratic organization was clearly kept out of certain loops. But Rather the plaintiff is formally, if temporarily, informationally equal to his adversaries. The two parties' "equality before the law" is partly enacted by the fact that one can say "you have to tell me" and the other one is compelled – by all of us – to tell him.

While the defendant (CBS) maintains that the case is "meritless" and that they will, in the end, prevail, Rather has already achieved a part of what he set out to do:

"One of Mr. Rather’s initial goals was to compel depositions of many of his former bosses and colleagues under oath. Thus far, in addition to Mr. Heyward and Ms. Mason, his lawyers have questioned Leslie Moonves, the chief executive of CBS; Gil Schwartz, executive vice president of communications for CBS; Sandra Genelius, a former CBS News spokeswoman; and Michael J. Missal, who helped oversee the panel report on behalf of Mr. Thornburgh."

The judge has not yet ruled on a motion "to gain access to several thousand documents that were used by the investigative panel to compile its report, including notes from interviews and e-mail messages from top executives."
Defendant lawyers claim it's just a "fishing expedition" and that information is privileged and something about which CBS should be able to say "you can't see it." Plaintiff lawyers say it is relevant to the issue at hand and as such it is something that an equal party should have access to it.

*NYT 16 November 2008, Jacques Steinberg: "Rather’s Lawsuit Shows Role of G.O.P. in Inquiry"