Judge's Ruling Bars The Times From Using Sources' Information in Defense
Against Suit 

November 18, 2006
Judge's Ruling Bars The Times From Using Sources' Information in Defense
Against Suit 
By NEIL A. LEWIS
WASHINGTON, Nov. 17 - A federal magistrate judge ruled on Friday that The
New York Times may not rely in any way on information its columnist,
Nicholas D. Kristof, may have received from two Federal Bureau of
Investigation officials in its defense of a defamation suit brought by a
former government scientist.

The judge, Liam O'Grady, issued the ruling as a sanction against The Times
for refusing to disclose or force Mr. Kristof to disclose the identities of
the two confidential F.B.I. sources he used in writing a series of columns
about the investigation of the deadly anthrax mailings of 2001. 

Dr. Stephen J. Hatfill, a germ warfare specialist who once worked in the
Army laboratories at Fort Detrick, Md., has asserted in a lawsuit that the
columns defamed him because they suggested he was responsible for the
attacks. 

In its filings, The Times has suggested that Mr. Kristof had numerous
sources for the columns. Of those, Mr. Kristof initially refused to identify
five, saying he had promised them confidentiality. He has since disclosed
the identities of three, saying those sources recently released him from his
pledge. 

In issuing the ruling, Judge O'Grady rejected a series of harsher sanctions
sought by Mr. Hatfill's lawyers, including a request that the court impose a
$25,000-a-day fine on The Times until it named the two F.B.I. officials.

Judge O'Grady issued his ruling from the bench in Alexandria, Va., where he
sits and where the trial is scheduled to begin on Jan. 29. The ruling means
that when Mr. Kristof testifies during the trial on behalf of The Times, he
may not cite any information he may have received from the two confidential
sources as substantiation for the columns. 

How much of a setback the ruling is for The Times is unclear and probably
depends on how much other substantiation Mr. Kristof and the newspaper may
present to counter Dr. Hatfill's assertions. Five people died in the anthrax
attacks. Although federal authorities identified Dr. Hatfill as "a person of
interest" in the case, they have not charged him with any crimes. 

Mr. Kristof's columns were about a government scientist he initially
referred to as Mr. Z, someone he said had become the overwhelming focus of
the investigation. In August 2002, he wrote that Dr. Hatfill had
acknowledged he was Mr. Z at a news conference in which he said he had been
mistreated by the news media.

Because the lawsuit is a civil action, not a criminal one, there was no
consideration of anyone being ordered to jail as has happened in some recent
criminal investigations. Instead, the judge said he fashioned the remedy to
ensure that Dr. Hatfill was not disadvantaged by the use of information
obtained by The Times from sources it would not identify and thus subject to
examination. 

Judge O'Grady had written earlier that for Dr. Hatfill to meet his burden of
demonstrating he was defamed, he needed "an opportunity to question the
confidential sources and determine if Mr. Kristof accurately reported
information the sources provided." 

In preparation for the start of the trial, Dr. Hatfill was deposed Friday by
lawyers for The Times.

The lawsuit was originally dismissed by a federal judge in Virginia in 2004,
who ruled that the columns were not defamatory and only reported on the
existence of an investigation. A divided three-judge panel of the United
States Court of Appeals for the Fourth Circuit, in Richmond, Va., reinstated
the case, and the full appeals court, by a 6-to-6 vote, declined to overturn
that ruling. The Supreme Court declined to intervene last March. 


 <http://www.nytimes.com/2006/11/18/us/18hatfill.html?pagewanted=print>
http://www.nytimes.com/2006/11/18/us/18hatfill.html?pagewanted=print

 

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