Corporate public relations are almost ubiquitous in this day and age, but the industry and its corporate clients would apparently prefer we remain oblivious to their efforts to actively create public perceptions and, instead, simply accept their creative embellishments as unadorned “reality,” as if untouched by professional hands.
Back in September, I wrote a column describing the public relations plan put in place by Haseko as it managed the transformation of its 20-year old development, formerly known as the Ewa Marina, into the Hoakalei Resort. The point of the endeavor was to drop the former centerpiece, a private marina with slips for hundreds of boats, in favor of a less expensive, publicly-accessible recreational lagoon.
The column relied on insider documents, including reports, notes, plans, ghost-written newspaper columns, and internal emails between the company and its public relations consultants. The documents were among thousands that were turned over to attorneys representing unhappy Ewa homeowners who have brought a class-action lawsuit against Haseko over the sudden and dramatic change in direction.
The column drew an immediate response. Just five days after it was published, attorneys representing several related Haseko entities requested a court order prohibiting disclosure of documents produced through legal “discovery” from being turned over to any third parties not related to the case. Meaning, of course, “stop letting reporters see our documents.”
The companies, represented by the law firm of Imanaka Asato LLLC, claimed their legal rights had already been compromised, and would be further trampled by a failure to block additional disclosures. The motion claimed a protective order was needed to protect the companies from “annoyance, embarrassment, oppression, or undue burden or expense.”
Haseko accused the plaintiffs’ lawyers of “flagrantly disclosing sensitive information to an internet news source,” and in the process “misusing information,” violating the companies’ “constitutional right to privacy,” and threatening their right to a fair trial by tainting potential jurors with published information prejudicial to Haseko’s case. They cited a single article — my column — as triggering this cascade of negative legal effects.
When Civil Beat then reported on this request for a protective order, Haseko added the article by editor Patti Epler to the short list of offending media.
In support of its claims, Haseko relied on Seattle Times Co. v. Rhinehart, a case that had gone all the way to the U.S. Supreme Court in 1984. In its decision, the Supreme Court found that there was no First Amendment right to information gleaned in discovery, the legal process where parties in civil litigation gain court-supervised access to requested documents or obtain sworn statements from possible witnesses in order to “discover” potential evidence.
The court upheld the imposition of a protective order as a means to limit disclosure of information that “if publicly released could be damaging to reputation and privacy.” All these considerations apply to the Haseko lawsuit documents, the company argued.
But lawyers for home buyers who thought they would eventually be living near and guaranteed access to an upscale private marina responded with a sharp attack of their own.
The plaintiffs’ lawyers argued Haseko was simply trying to have the court ignore its own extensive public relations program while squelching any disclosures contrary to the corporate PR line.
Attorneys for the homeowners—Michael Jay Green, William Shipley, Jr., Terry Revere, Malia Nickison-Beazley, and P. Kyle Smith — responded in an almost mocking tone. They dismissed the company’s privacy concerns by contrasting them to the company’s own alleged privacy violations, citing an internal corporate email directing a Haseko employee to send a “spy” to observe a homeowners meeting where the case would be discussed. And they belittled the idea that revealing “that Haseko is trying to manipulate the public is somehow bad and needs to be prohibited via a prior restraint upon speech,” countering that “there is no ‘don’t-show-the-public-we-are-trying-to-manipulate-them’ privilege.”
More substantively, the plaintiffs’ lawyers argued Haseko was simply trying to have the court ignore its own extensive public relations program while squelching any disclosures contrary to the corporate PR line.
“Haseko isn’t in a position to complain when it avails itself of the public forum through every means of communication possible, including paying huge fees for ads in the only daily newspaper left in town,” they argued. “Haseko did not agree to turn off its giant PR/legal machine. It just wants a unilateral ability to influence the public uninfluenced by documents showing the truth.”
And that Seattle Times case that appeared to give a stamp of approval to such protective orders? The case provides “no refuge for Haseko,” according to the homeowners’ reply.
In that case, the leader of a religious group, the Aquarian Foundation, sued the newspaper and others for defamation and invasion of privacy. During the course of the lawsuit, the court ordered the group to disclose a list of its members and information that would support its claim that the newspaper reporting had cut its membership and income. But it then blocked further disclosure of the information after affadavits were submitted by individual members, citing incidents of threats, harassment, and reprisals against those associated with the group, and arguing they would be similarly targeted if publicly identified.
“We’re just asking that when we turn things over in discovery, that they don’t become fodder for some smear article.” — Jeanine Cornwell, attorney representing Haseko
Haseko, however, has not alleged that the Civil Beat articles were in any way false or defamatory, nor that there had been anything like threats or intimidation against any individuals involved. So the case, which in Haseko’s telling had seemed relevant, really misses the point of the current case, the opposing brief argued.
Finally, they argued that to obtain a protective order, Haseko would have to identify individual documents and the specific harm each could reasonably be expected to create. Haseko failed to do either, and therefore simply hadn’t made their own legal case for protection.
The two sides argued their positions in a hearing held by telephone conference before retired Judge Victoria Marks, the court-appointed discovery master in the case, on Oct. 27.
Jeanine Cornwell, representing Haseko, said the company isn’t attempting to limit discovery or make documents difficult for the plaintiffs to obtain.
“We’re just asking that when we turn things over in discovery, that they don’t become fodder for some smear article,” she said, according to a transcript of the hearing. “That is where the good cause is shown, in saying that our good faith effort, we have produced tens of thousands of documents and we’re asking that they not be put into published articles that are on the internet and in newspapers.”
Marks asked a question. In the Seattle Times case, she noted that the defamation lawsuit claimed the stories were “fictitious and untruthful.”
“But what’s the harm to Haseko? The harm is the negative light?” —Judge Victoria Marks
“There’s nothing like that here, right?”
Cornwell referred back to the original Civil Beat column. “That is a very negative article saying very defamatory things about—not defamatory, but saying very negative things about Haseko. And even though Haseko is a corporation, Haseko is too entitled not to be embarrassed or harassed by the Plaintiffs.”
“But what’s the harm to Haseko?” Marks asked. “The harm is the negative light?”
“That it’s embarrassing and annoying to have the articles come out where they’re using information that we gave them and misconstruing the facts and taking things out of context to show Haseko in a negative light,” Cornwell replied. “It’s embarrassing. It’s annoying to Haseko, when Haseko hasn’t done anything like that.”
As to Haseko’s claim it would be hard to find a jury that hadn’t seen the “negative” articles about the company, Marks commented based on her years of experience.
“If you can find a fair jury with murder cases that have had massive publication, I think you ought to be able to find a fair jury in a civil case,” Marks said.
In an oral ruling made at the end of the hearing, Marks indicated that she was denying Haseko’s plea for protection.
“I don’t think there’s been an adequate showing of specific prejudice or harm, that basically what is alleged is that, so far, two articles have put Haseko in a negative light. And I don’t think that’s an adequate showing.”
In a six-page decision that followed, Marks noted that even if Haseko managed to identify some specific harm, which it hadn’t yet done, she would then have to balance that against the public benefits of disclosure, including the public’s interest in seeing various and potentially conflicting viewpoints. The implication was that Haseko would be unlikely to come out ahead in the balancing of interests.
The window for Haseko to appeal Marks’ decision ended last week. So for now, at least, Haseko will have to live with the bitter experience of being unable to control 100 percent of what is said publicly about the company and its Hoakalei Resort, formerly known as the Ewa Marina.