Citizens group seeks JOA arbitration evidence compiled by Times, Hearst

Making good on earlier threats, a citizens group filed court papers Thursday seeking all evidence produced so far in secret, quasi-judicial proceedings aimed at settling the legal war between Seattle's two daily newspapers.

The Committee for a Two-Newspaper Town (CTNT) asked The Seattle Times Co. and The Hearst Corp., owner of the Seattle Post-Intelligencer, to provide it with all documents and transcripts of depositions the companies have compiled since they agreed last spring to resolve their dispute through binding arbitration.

Hearst attorney Guy Michelson declined to comment. Times Vice President Jill Mackie said the company couldn't comment on the committee's request because it hadn't yet seen it.

But both companies almost certainly will resist it. Both had cited privacy as a major reason when they decided to arbitrate their dispute after years of expensive, very public litigation that showed no signs of ending quickly.

Arbitrator Larry Jordan's ruling, which cannot be appealed, is expected by May 31. It could decide the fate of one or both papers.

CTNT isn't a party in the arbitration; the newspapers specifically excluded it.

But the group is an intervenor in the dispute's underlying lawsuit, which remains alive, and has filed claims against both companies.

Kathy George, one of CTNT's lawyers, said that status gives the group a legal right to obtain information — including the secret evidence Hearst and The Times have produced in the arbitration proceedings — to help prepare its own case.

"We need that access," said George, a former P-I reporter and editor. "It's up to The Times and Hearst to make the case why we shouldn't get it."

Sensitive business information can be protected from public disclosure by court order, she added.

The Times and Hearst have 30 days to respond to the request, filed in King County Superior Court. But Michael Gendler, another CTNT lawyer, noted Hearst already has resisted an informal bid by CTNT to obtain some arbitration documents.

"They'll object — on the 30th day," he predicted. "They're stonewalling us."

The Times' Mackie said in an e-mail that the company faces severe financial challenges, and "CTNT's actions only add to our legal expenses and the precariousness of our circumstances."

The Times and Hearst are battling over the future of their 24-year-old joint operating agreement (JOA), under which The Times handles business and production functions for both papers in return for a larger share of the combined proceeds.

The Times says the JOA's economics no longer work, and that it has lost money under the arrangement since 2000. It moved in 2003 to trigger an escape clause in the JOA contract that could lead to the P-I's closure, dissolution of the JOA or both.

Hearst disputes The Times' losses. It also has said the P-I couldn't survive outside the JOA.

Since the case went to binding arbitration last May, the companies have been engaging in what lawyers call discovery — obtaining documents and deposing potential witnesses — to prepare for what amounts to a private trial before Jordan starting in April.

Those are the records CTNT wants. George said the group did not request them until now — more than eight months after the discovery process began — because it had to regroup after losing the support of the Pacific Northwest Newspaper Guild, its largest financial backer, last May.

CTNT's co-chairs, former state Supreme Court Justice Phil Talmadge and Seattle attorney Anne Bremner, starting talking publicly about going after the discovery documents in November.

Two legal experts offered differing views on whether CTNT is likely to prevail.

"It sounds like they have a legitimate request," said Kathleen McGinnis, who teaches civil procedure at the University of Washington's law school.

"They have an independent claim that they have a right to pursue, and the rules of discovery are very broad ... a private arbitration cannot trump the [court] rules of civil procedure," she said.

But Julie Shapiro, who teaches civil procedure at Seattle University's law school, said CTNT's bid is iffy, in part because the group didn't object last spring to Times and Hearst settling their dispute through arbitration, and in part because the companies have been proceeding for months on the presumption of confidentiality.

CTNT is entitled to demand and get documents from the companies in pursuing its own claims in court, Shapiro said, but "they can't just piggyback [on the arbitration] like that."

Eric Pryne: 206-464-2231 or epryne@seattletimes.com