Judge quashes subpoena of opinion editor as part of Flint water suit

Two Detroit News editors were issued subpoenas on Sept. 1, 2022, as part of ongoing litigation around the contamination of the water system in Flint, Michigan. The subpoenas, which ordered Opinion Editor Brendan Clarey and Editor and Publisher Gary Miles to turn over documents and sit for depositions, were subsequently quashed.

The Detroit News had published an opinion piece on Aug. 31 that criticized a lawsuit brought against two engineering firms for their alleged role in the water crisis. Earlier that month, a federal judge had declared a mistrial in the case.

The subpoenas, issued by the plaintiff’s after the mistrial, sought all communications and newsgathering material related to the op-ed, which was written by the president of The American Tort Reform Association. The subpoenas also specifically sought information about the editorial process for the op-ed and whether one of the engineering firms was involved in placing the piece.

Miles, who responded to the U.S. Press Freedom Tracker’s request for comment, said that at first they didn’t know that Clarey had also been issued a subpoena because he was on family leave. The Tracker has documented Miles’ subpoena here.

Miles said that before the op-ed was published, a reporter at the newspaper had contacted the plaintiffs’ attorney for comment on a separate news story, which concerned a possible public relations campaign being waged by the defendants.

Miles said that, while he doesn’t know the rationale of the plaintiffs’ lawyers, it’s possible they feared or suspected the news organization was being co-opted by defendants, because the op-ed ran before the news story was published.

Plaintiffs’ attorney Corey Stern issued the subpoenas and sent a letter to The Detroit News’ attorneys on Sept. 1, accusing the newspaper of publishing defamatory claims about him and of conspiring with the defendants in the suit.

Attorneys for Clarey and Miles filed a motion to quash on Oct. 17.

“The burden on Mr. Miles and Mr. Clarey to attend depositions and produce documents is great, as it potentially requires them to produce confidential, unpublished material and communications,” the motion stated. “Allowing access to these materials and communications from a journalist will severely inhibit the flow of accurate information to the interested public.”

District Judge Judith Levy ruled in favor of the journalists on Nov. 17.

“While there are certainly some circumstances where it would be appropriate for a party to take third-party discovery from a media outlet,” Levy wrote in her ruling, “this is not one of them.”