03/28/2008 05:12 am ET Updated May 25, 2011

Oh, It's On : Dan Rather's Lawsuit Proceeds As Discovery Moves Forward

There's been some more movement in the matter of Dan Rather's lawsuit against CBS, after yesterday presiding judge Justice Ira Gammerman of the New York Supreme Court in Manhattan re-affirmed his statement in January regarding the CBS motion to dismiss wherein he indicated that the case would be moving forward, and greenlit the commencement of the discovery process. Here's a statement issued last night by Gary Meyerhoff, an attorney at Sonnenschein, Nath & Rosenthal representing Rather, following a hearing on Monday:

"Today, Judge Gammerman re-affirmed that Mr. Rather's lawsuit will not be dismissed, that he expects to issue a written opinion on defendants' motion to dismiss within the next few weeks, and that, accordingly, discovery will proceed. The Judge also heard brief argument on certain document disputes. Mr. Rather's counsel challenged CBS' assertion that certain of its communications with investigator Eric Rigler were privileged; CBS defended its position, and Judge Gammerman requested that the documents be delivered to the Court for its review. Mr. Rather's counsel also requested that defendants identify the names of employees whose documents were searched in response to Mr. Rather's requests and, after brief argument, the defendants agreed to do so. Defendants' counsel demanded to know when Mr. Rather would begin producing documents they had requested, and Mr. Rather's counsel responded that production would begin next week."

What does this mean? Well, it means that the case is definitely going forward, and the judge's written ruling will shortly be explaining why, count by count. The defendants moved to dismiss each legal claim in the 32-page complaint, and the opinion will lay out which claims will be going forward (presumably a number of them but not necessarily all).

As for the documents under dispute, a quickie lesson in attorney-client privilege: "Privilege" exists in law to keep certain documents from being admissable in lawsuits. It's a pretty slim category, and tough to make a case for, as Judy Miller has discovered. In the case of attorney-client privilege, however, the idea is to encourage full and honest communications between lawyer and client, so those communications are protected so clients can speak to their counsel without fear of reprisal. Of course, knowing that protection exists means that there is an envelope to be pushed, and that's why the legal department of many a company is cc'd on pretty much everything, just in case. Thus it becomes the job of the court to figure out what really IS privileged information between the client — in this case CBS — and their lawyers. So here, the question is whether the communications with the investigator, Eric Rigler, were legitimately privileged communications. That's about the most I can simplify it; from here it gets complicated as the case is made on either side. According to a representative from the Rather team, it may require the submission of separate legal briefs to Judge Gammerman on this point.

All of this is critical to the production of documents for discovery — which, as Dan Rather has said in the past, is what he's really looking forward to (and, as we've said in the past, CBS is likely less enthused about). The discovery process has commenced and CBS has turned over numerous boxes of documents, which the Rather team has already begun to examine; as the statement above sets out, the Rather team will begin production of their documents to the other side next week.

Recall that CBS' original motion to dismiss called the allegations "baseless" and "bizarre" and said the lawsuit was "wholly without merit." It also argued that the suit was a "thinly-disguised" defamation suit and as such was time-barred due to statutes of limitations. Obviously Judge Gammerman thought differently. We did, too, back in November when the motion to dismiss was filed, so if you're impatient to see Judge Gammerman's ruling you can sate yourself with ETP's armchair legal analysis (written by a lawyer who hasn't practiced in years).

Update: This piece has been edited and the headline has been changed to reflect the fact that the process of discovery has begun; the original headline was "Dan Rather's Lawsuit Heading To Discovery" which was inaccurate as documents have been delivered pursuant to requests for production. A CBS spokesperson declined to comment on Monday's proceeding. For a quickie primer on discovery see here.

Nice Try, CBS, But Rather's Lawsuit Has Merit [ETP]
Dan Rather Has Nothing To Lose [ETP]

Dan Rather v. CBS News et. al.
[via NYT]