In this five-part series, we’ll look at some of the challenges that young business journalists face in today’s media landscape. A common theme running through all five installments is the recognition that avoiding errors is a journalist’s first responsibility. News moves faster, farther and wider than ever before, and given the ever-increasing volatility of markets, the effect of incorrect news reporting can have shattering consequences: not just on the share price or business prospects of the company being written about, but on the media organization that faces legal liability and the exorbitant cost of legal defense. The fourth installment is about how different policies and practices regarding reporters’ notes can have serious consequences.
After running libel training seminars for 12 years around the world, I am always mindful when the same questions come up, whether the reporter is in San Francisco, Sydney or Singapore. The question “how long should I keep my notes?” is probably at the top of the list. The answer isn’t simple, and will vary from newsroom to newsroom, but it’s useful to understand some of the legal doctrines that map out the landscape in order to come to some sort of policy decision.
The Value of String
Most good reporters have a little bit of “pack rat” in them, and I know many who value old interviews as string they can use later, especially when the notes come from an extensive interview with a hard-to-reach newsmaker. This is also good practice if you are covering the same beat for a long period of time, because if the newsmaker changes his or her public stance on an issue, you can query them about contrary statements they made earlier. In addition, many an editor made an obit sparkle by adding quotes from a reporter’s old interviews.
Getting It Right and Proving It
From a libel perspective, if you start out from the premise that you can’t publish what you can’t prove, then as a broad proposition, keeping notes (particularly of contentious quotes) can save the day. Not having notes to support that someone said something can be ruinous. In Murphy v. Boston Herald, Inc., two reporters worked on a story about Ernest Murphy, a state court judge who they implied was unfit for service and “soft” on crime. The lede of the story set the table pretty well:
“A wrist-slapping New Bedford Superior Court judge under fire for letting four accused rapists return to the streets in the past week has a pro-defendant stance and has heartlessly demeaned victims, according to records and sources.”
In particular, Murphy took great exception to an alleged exchange in chambers, where Murphy was reported to have said of a teenage rape victim, “She can’t go through life as a victim. She’s [fourteen]. She got raped. Tell her to get over it.”
Although this case is instructive on a lot of levels, for our purposes here it’s important to keep in mind that the reporter was not in the room when the “get over it” statement was allegedly made, and making things worse, everyone who was a possible source contradicted what the reporter had published. The reporter needed to prove that someone told him that the judge made the “get over it” remarks.
Here’s where the hammer drops: whether the source got cold feet or was instead misquoted, it turned out that within a few days of the judge demanding a retraction and threatening to sue, the reporter allegedly threw out his notes. The court slaughtered the publisher with this fact, holding that:
Perhaps most damaging…are the circumstances in which [the reporter] discarded the notebook in which he claims to have written the information as it was told to him…Although he testified that he usually discarded notes for articles “within a matter of days or [a] week” after publication, it is highly improbable that he would do so, as a routine matter, in this instance. When questioned, [the reporter] could not say when, or where, he discarded the notebook, just that it was sometime “after the story ran.” The jury were entitled to draw the negative inference that Wedge discarded his notebook in a deliberate effort to conceal what he knew were inaccuracies in his reporting.
Lincoln D. Bandlow is a media law specialist and partner in the Los Angeles office of Lathrop & Gage and advises and defends a wide variety of publishers, broadcasters and content creators. An experienced litigator, Bandlow is emphatic about the value of having quality notes with which to defend a case. The plaintiff’s lawyer has to do everything he can to create an issue of fact to avoid dismissal, Bandlow says, and “the lack of good, clear notes is a way that plaintiffs will try to raise suspicions about the reporter’s work ethic and honesty.”
While it’s true that having a stash of notes may become a juicy target for third-party subpoenas that treat reporters as research assistants, Bandlow reminds reporters that “getting the story right, and being able to prove that it is right is our first obligation” and that the risk of annoyance in being subpoenaed for old notes is far outweighed by the value of notes for confirming or disproving error.
So What’s the Rule?
There really isn’t one. The problem with a hard and fast rule newsroom rule, Bandlow points out, is that sooner or later, someone is going to make a mistake and break the rule. In that case, a plaintiff’s lawyer will have a field day, like in the Murphy case, and use that to discredit the reporter. David Schulz, a well-known media litigator and partner in Levine, Sullivan, Koch and Schulz’ New York office, has been defending reporters and news organizations for more than 30 years. Like Bandlow, Schulz is also leery about newsrooms establishing a “company-wide” policy.
“If the newsroom has a policy, reporters have to stick to it,” Schulz says, echoing that any evidence of a reporter breaking internal rules may damage a reporter’s credibility in a libel case. “The journalism has to rule the day,” says Schulz, who has had to litigate at least one libel case where a reporter quoted a police officer making a statement that the policeman later denied. The reporter had discarded or lost his notes, and the defense had to get affidavits from other people who (fortunately) heard the statement being made. Although the press won the day in that case, Schulz recalls, “there’s no doubt the litigation was made more complicated and risky because of the lack of notes in the first place.”
Given the value of notes as string, but considering the danger of having a company-wide policy, the best approach is for each reporter to establish his or her own routine and stick to it. Reviewing and discarding unneeded notes yearly is a common individual policy, Bandlow says, because most reporters are told that the average libel statute of limitations is a year. “That’s not a bad guideline,” Bandlow says, but “reporters often forget that other causes of action that may arise from a story, like breach of confidentiality, which have much longer statutes of limitations, in some cases 4 or 6 years.” Recognizing modern tools for reporting, Bandlow suggests reporters doing phone interviews type their notes directly into their computer and have the publisher’s IT archive the files, and that paper notes can be scanned into PDF and similarly stored for a length of time set by each reporter.
Both Schulz and Bandlow are adamant about one rule every reporter should establish for themselves: once a story has been challenged for accuracy or the subject of a demand for correction, do not dispose of the notes. Instead, archive a copy, or better yet, send a copy to your media lawyer and wait for the “all clear” from him or her to trash the notes.
CHECKLIST FOR MAINTAINING NOTES
• Never share or show your notes to anyone outside of the newsroom unless told to do so by your newsroom lawyer. Distributing notes outside the newsroom may strip any confidential protection they have, and can be used by a libel plaintiff to show that what didn’t go into the story is evidence of knowing falsity or even negligence.
• Make your notes clear and consistent in style. Using headers like “Phone Interview, September 10, 2013 with Senator Smith” adds clarity and credibility.
• Do not add mental impressions or random thoughts to your notes, because plaintiffs’ lawyers might use those to show you had doubts about the story. Stick to who said what and who did what when.
• Set your own time frame for discarding old notes of no value and stick to it.
• Never, ever, discard notes after your story has been challenged, and wait for permission from your media counsel to destroy them.
Charles J. Glasser, Jr. spent the last 12 years as Global Media Counsel to Bloomberg News, responsible for litigation, ethical newsroom issues and pre-publication review, and was responsible for handling the work of more than 2,100 journalists on a 24-hour basis. Prior to joining Bloomberg, he represented a wide variety of news organizations including The New York Post, Readers’ Digest and NBC News. Prior to becoming an attorney, he was a journalist for 16 years. He is the author of “The International Libel and Privacy Handbook” and is currently a consultant on media law and corporate communications issues, and can be reached at firstname.lastname@example.org or via www.charlesglasser.com.