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Judges uphold reporter’s privilege

wricCiting a First Amendment reporter’s privilege, two Virginia circuit judges have blocked subpoenas seeking information gathered by a Richmond news reporter. One ruling includes written analysis in a two-page order.

Both judges held the company seeking the reporter’s information had to show a compelling interest to overcome the “qualified reporter privilege.” Marathon Resource Management Group – a Hanover County-based company – failed to meet the test, the judges ruled.

The rulings barred inquiries directed to WRIC-TV and its anchor and investigative reporter, Kerri O’Brien, who has been covering an ongoing public-relations war between Marathon and vendors who claimed they have not been paid for their work.

Marathon is a national property management firm providing landscaping, maintenance and other services at office buildings and apartment complexes. A number of Marathon vendors – many of them small businesses – have complained for months about unpaid bills. Marathon has sought to enforce a non-disparagement clause in its contracts. It has sued many of the complaining vendors.

Richmond Circuit Judge Joi J. Taylor wrote an opinion and order explaining her ruling. It is Marathon Resource Management Group LLP v. Fresh Cuts Lawn Care Inc. (VLW 020-8-013).

Vendors complain

Marathon came under fire last year from subcontractors it hired for jobs at properties nationwide. The subcontractors claimed Marathon was failing to pay on time, or at all. Some of them sued. Many complained openly, some with picket signs and some in online discussions.

Marathon went on the offensive, suing vendors for alleged violation of a contract term that forbids disparagement. In July, the Richmond Times-Dispatch counted 14 such lawsuits.

WRIC-TV covered the dispute in multiple reports by O’Brien. On July 1, the station reported that a Hanover County judge tossed out one of Marathon’s disparagement lawsuits.

Later an O’Brien report said dozens of disgruntled subcontractors appeared outside a courthouse wearing t-shirts saying “Marathon Owes Me Money.”

TV station targeted

Marathon sought to get information from WRIC. It issued a subpoena duces tecum to the station in a Hanover County case. Marathon apparently sought details of the station’s communications from complaining Marathon vendors.

Hanover County Circuit Judge John O. Harris ruled against Marathon on Feb. 14.

“[Y]ou’ve not established that you’re entitled to the materials that have been subpoenaed,” Harris said, according to a transcript. “The motion to quash is granted.”

That same day, Marathon obtained a witness subpoena for O’Brien to appear in the Richmond case at 10:30 on Feb. 24. Marathon apparently sought to show that the defendant vendor in that case had disparaged Marathon in communications with O’Brien.

O’Brien, represented by David B. Lacy of Richmond, filed a motion to quash the witness subpoena.

Subpoena quashed

Lacy argued the summons for O’Brien’s testimony was unnecessary because the defendants had admitted to the conduct – disparagement – that Marathon was seeking to enjoin. The real purpose of the subpoena likely was harassment of the reporter, Lacy said.

“Simply put, Marathon should not be permitted to use its subpoena authority to prevent a journalist from covering these proceedings by making her part of the proceedings,” Lacy wrote.

The judge found O’Brien was entitled to the qualified reporter privilege and quashed the subpoena.

She applied the three-part test cited in a 1986 Fourth Circuit opinion, looking at (1) whether the information is relevant, (2) whether the information can be obtained by alternative means and (3) whether there is a compelling interest in the information.

In court, Marathon offered only one specific reason for calling O’Brien to the witness stand, the judge said. Marathon said O’Brien had received a voicemail from the disgruntled defendant vendors.

Even if the voicemail would be relevant to show the publication element of a defamation claim, Taylor said Marathon failed to satisfy its burden as to the other two prongs of the privilege.

“Specifically, the information sought by the Plaintiff can be obtained by alternative means, namely the testimony of the Defendant,” Taylor wrote. The evidence sought is not “compelling” because publication can be established through other mechanisms, the judge continued.

In a later motion, Marathon contended that O’Brien’s testimony would confirm that the disgruntled vendors were the reason for a 2019 news broadcast blamed for causing a subcontractor to reject work with Marathon.

Both Lacy and Marathon General Counsel Stephen Moncrieffe declined to comment for the record because litigation and news coverage was ongoing.