Reporter gets caught up in ‘Survivor’ litigation with CBS

From the Summer 2001 issue of The News Media & The Law, page 23.

CBS has backed down — at least temporarily — from a sweeping subpoena it issued to a freelance reporter after the network received negative press coverage and a pointed letter from the reporter’s attorney.

CBS attorneys issued a subpoena to freelance reporter Peter Lance on May 10 in connection with a lawsuit brought against the network and the producers of “Survivor” by an ousted participant from the 2000 season. But Lance refused to comply with the provisions of the subpoena and cited the California reporter’s privilege.

In a letter to CBS attorney Holly Sadlon, Lance’s attorney berated the network for infringing on Lance’s freedom of speech.

“CBS has a long and distinguished history of working to protect the First Amendment’s freedom of the press,” Jeff Feldman said in the letter. “It would be a sad day and a long-remembered moment in American journalism if the legacy of Edward R. Murrow, Fred Friendly, and Walter Cronkite is sullied by a short-sighted effort by the network to trample a journalist’s proper assertion of those same rights and freedoms.”

The show is co-produced by CBS’s entertainment division.

The Lance subpoena is just part of what is proving to be a difficult legal battle with several fronts and the integrity of the nation’s most popular television show at stake.

Stacey Stillman sued CBS, Survivor Entertainment Group and “Survivor” producer Mark Burnett in February for unlawful business practices, common law fraud and breach of contract. Stillman claimed that the show’s producers convinced other participants to vote her off the show instead of Rudy Boesch, a former Navy SEAL widely seen as more telegenic than Stillman.

CBS and SEG responded by filing a $5 million countersuit against Stillman accusing her of violating a confidentiality agreement she signed as a condition of appearing on the show. The defendants also claimed that Stillman defamed “Survivor” and SEG by claiming the show was rigged.

The countersuit complaint listed a quote Stillman gave to Lance in which she claimed to have information on “a nice federal offense they wouldn’t want disclosed and could undermine” the second season of “Survivor.”

Lance, who had written extensively about the television show on his Web site, thestingray.net, and in his book, The Stingray: Legal Tactics of the Sole Survivor, also became involved in the Stillman case when he asked a California court to unseal the deposition of Dirk Been, another show participant. When Been filed the document with the court in April, he asked for confidentiality. The Reporters Committee for Freedom of the Press filed a friend-of-the-court brief arguing for the deposition’s disclosure.

Los Angeles Superior Court Judge Ralph Dau determined that the deposition should not have been filed under seal and denied Been’s motion for a protective order. CBS later publicly released the deposition.

Shortly afterward, the defendants subpoenaed Lance, who said he would go to jail rather than reveal his confidential sources.

“It’s a matter of principle here,” Lance said on FoxNews on June 19. “If I turn those notes over, nobody’s going to call an investigative reporter again and trust them to keep them confidential, in terms of what they tell the press.”

Feldman, who represented Lance, said in response to the subpoena that Lance would testify only if “the inquiry at his deposition will be confined to what he reported and published.” In a letter to the CBS attorney, Feldman criticized the “breathtaking scope” of the subpoena and said the subpoena “seems designed in large part to harass” Lance. Feldman challenged nearly all of the 36 requests in the subpoena, charging that most were overbroad and sought information that was not relevant or calculated to lead to relevant information.

The network’s delay in addressing the subpoena issue may have been due to the negative reaction by the press. Articles about the subpoena appeared in the Tulsa World, the Washington Post, the New York Post and on Inside.com. Lance gave interviews to CourtTV, FoxNews and “Rivera Live.”

“If Dan Rather or Mike Wallace received such a subpoena, CBS would scream bloody murder, as well it should,” television columnist Eric Mink wrote on June 18 in the New York Daily News.

When Lance appeared on the Catherine Crier show on the CourtTV network, Crier promised to follow Lance to jail with a camera if he were ever sent.

On June 18, the network backed off from its earlier demands. A scant three hours after Crier promised to tag along with Lance to jail, Sadlon of CBS called Feldman and agreed to demands made in the response to the subpoena.

“Maybe the timing was just a coincidence, but it was hard to avoid drawing the conclusion that they decided to bury the story rather than continue to get beat up in the press over it,” Feldman said.

In a June 18 letter mentioning the conversation, Sadlon said that Feldman’s demands or modifications for more than half of the subpoena requests were acceptable. Sadlon said that the firm and its clients were “extremely sensitive to the First Amendment considerations of this case,” and “it was never our intention to violate Mr. Lance’s rights.”

“It’s good spin,” Feldman said, “but hard to take seriously having served the broad subpoena they did.”

Feldman said he does not expect that Lance will be deposed before the end of the year.

“After all the trouble CBS bought, I won’t be surprised if he’s never deposed,” Feldman said.