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San Diego newspaper sued over accidental records release

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  1. Prior Restraint
A California judge denied earlier this week a hospital district's application for a temporary restraining order in connection with a…

A California judge denied earlier this week a hospital district's application for a temporary restraining order in connection with a lawsuit it filed against a San Diego newspaper over the healthcare provider's botched response to a public records request.

Tri-City Healthcare District filed a lawsuit against The San Diego Union-Tribune to bar the paper from "publishing, disclosing, disseminating, or otherwise using" communications that the healthcare provider claims it inadvertently disclosed, in violation of the attorney-client privilege, in response to a reporter's request for executive expense reports and receipts.

The complaint does not identify the nature of the communications, except to note they are "by and among the District's counsel." Tri-City alleges, however, that "information, thoughts, and mental impressions contained in the privileged communications" led the paper to file a public records request for all emails of the district's chief executive officer that mention or concern the Union-Tribune or its reporters, according to the complaint.

The district learned of its mistake five days later and immediately demanded that the paper return the privileged and confidential documents and destroy any copies it had made. The lawsuit, filed Sept. 15, alleges that the paper refused to do so, but the paper reported that it "reviewed the documents, decided they were not newsworthy at this time . . . returned them [on Sept. 19 and] . . . destroyed all copies."

Nonetheless, Tri-City proceeded with its cause of action, and on Tuesday, the judge, in a ruling from the bench, denied the district's application for a temporary restraining order prohibiting the paper's use of the material, and declined to prevent publication of the underlying information, according to the Union-Tribune's article. Temporary restraining orders are short-term remedies available to lawsuit parties who can convince a judge they will suffer immediate irreparable harm unless the court bars the harmful activity, in this case, according to the district, any use whatsoever by the Union-Tribune of the documents impermissibly provided to it.

"The effort to get a prior restraint was denied [during Tuesday's hearing] and any further effort to get a prior restraint we would also oppose as an unconstitutional limitation of the freedom of the press," said Jean-Paul Jassy, who represents the Union-Tribune.

The U.S. Supreme Court has repeatedly ruled that prior restraints, or official government restrictions of speech prior to publication, are presumptively unconstitutional, meaning they carry a heavy burden to sustain and are rarely upheld. In its 1931 landmark opinion, Nebraska Press Association v. Stuart, the high Court described prior restraints on speech and publication as "the most serious and the least tolerable infringement on First Amendment rights."

In addition to its request that the court prevent the Union-Tribune from any use of the privileged communications, the district is also seeking damages and punitive damages against the paper, alleging that its refusal to return the documents to the district despite multiple opportunities to do so demonstrates "willful, wanton, malicious, oppressive" conduct.

A hearing on the district's application for a preliminary injunction is scheduled for Oct. 21. Preliminary injunctions are temporary court orders prohibiting the allegedly harmful conduct pending the outcome of the lawsuit. Thus, in that hearing, Tri-City will try to convince the judge that it will suffer irreparable harm unless the court blocks the Union-Tribune's use of the documents until the court has made a decision about the relief ultimately sought — a permanent injunction, or final order of the court barring the activity permanently.

In the meantime, however, the Union-Tribune has pledged to give the healthcare provider reasonable notice if it chooses to publish any of the information in question.

Tri-City and its attorney, Robin Wofford, did not respond to requests for an interview.