A federal judge has ruled that a famous lacrosse scandal author, KC Johnson, must turn over his records of communication and testify in an ongoing civil lawsuit led by former lacrosse players and their families against Duke.
Last month, the University filed a subpoena in federal court against Johnson, co-author of “Until Proven Innocent: Political Correctness and the Shameful Injustice of the Duke Lacrosse Rape Case,” a book criticizing Duke and Durham’s handling of the 2006 lacrosse scandal. The subpoena sought to force Johnson to surrender records of communication between himself, members of the lacrosse team and other parties involved with the case.
Johnson’s attorney, Patrick Strawbridge, attempted to defend the author by claiming that the motion to compel violated constitutional freedom of the press, noting in a previous interview that the First Amendment protects unpublished communications of a journalist.
This defense, however, proved fruitless. In his ruling, U.S. Magistrate Judge John Rich granted the motion to compel Johnson to surrender certain records to the University. Johnson must also testify in the civil lawsuit between Duke and the former lacrosse players, in which a group of 38 unindicted players and another group of three other unindicted players have separately sued the University for fraud and for providing poor legal counsel after three of their teammates were falsely accused of the rape and kidnapping of stripper Crystal Mangum in 2006.
Rich wrote in his Oct. 12 decision that, because the former lacrosse players and their families have brought suit, they must expect that their prior statements and conversations that are relevant to the accusations they are bringing against Duke cannot be hidden from the University. Johnson must also appear for deposition, a motion he unsuccessfully attempted to quash in the same case.
“People who bring suit must expect that their prior statements that are relevant to their claims cannot be hidden from those whom they are suing,” Rich said.
Johnson has since appealed the ruling Oct. 26.
There are two criteria that are considered when a defendant makes a motion to compel a third-party to produce records or conversations with parties involved with the case, Rich wrote.
First, the party bringing the subpoena—the movant party, which in this case is Duke—must prove it has sufficient need for such information and that this need is not frivolous, according to the decision. On the other side of the scale, the third party—in this case Johnson—must prove that the sources’ interest in confidentiality and the potential injury to open communication caused by the disclosure outweigh the needs of the movant party.
While authoring his book, Johnson, a professor of history at Brooklyn College, founded the blog “Durham-in-Wonderland,” which he continues to update with information from involved sources on the ongoing legal ramifications of the case.
“Duke’s need for such information is... apparent—Duke is defending itself against the claims of the same individuals who communicated with Dr. Johnson about the events at issue,” Rich noted. “I do not see how compelling [Johnson], under these circumstances, to reveal what the plaintiffs told him will chill his efforts to obtain information about the Duke lacrosse scandal from any other individuals.”
According to the ruling, Duke will only receive access to four categories of Johnson’s records: events dating from March 13, 2006 to March 28, 2006; the subpoena for DukeCard information served by the Durham Police Department, which was used to form proper alibis for the three accused lacrosse players; Duke’s prior release of DukeCard information to DPD; and any disciplinary action taken against a plaintiff in the ongoing civil lawsuit.
This includes records of meetings between lacrosse team leaders and some of Duke’s top administrators—President Richard Brodhead, Executive Vice President Tallman Trask and Dean of Students Sue Wasiolek. Brodhead, Wasoliek and other administrators have outstanding charges pressed against them in the ongoing civil lawsuit.
Because Johnson lives in Maine, the case was tried in the U.S. District Court of Portland, Maine. Both Maine and North Carolina have state statutes that shield journalists’ source material from disclosure in legal proceedings. However, there is no such federal statute, and because the case was brought to federal court, these protections did not apply.
Because the original subpoena against Johnson did not ask for his reporting conducted with the players’ parents, it is not covered by Rich’s ruling, the judge added, despite the fact that Duke has more recently expressed interest in accessing these records.
Since the ruling, Strawbridge could not be reached for comment despite multiple attempts. Tom Segars, an attorney from Duke’s lead outside counsel, the Raleigh-based law firm Ellis and Winters, declined to comment at this time.
Update 3/29/2012: This article has been updated to reflect new information about the appeal filed by KC Johnson and his attorney.