Two court cases continued to dog The Cincinnati Enquirer and its owner, Gannett Co., in 2000 as they worked to put the Chiquita debacle behind them. Two and a half years after publication, however, the discredited investigative series remains the annoying guest who won't leave the party.
George Ventura's lawsuit against The Enquirer and Gannett has been at an impasse since the summer due to disagreements over Ventura's access to Gannett documents he feels are necessary to building his case. Ventura, an ex-Chiquita lawyer, is suing the paper and its parent company for their alleged roles in fingering him as the confidential source for Chiquita's internal voice mail codes, which were used in compiling the investigative stories.
In an effort to break the document impasse, Ventura has filed a motion to compel discovery against The Enquirer, Gannett and former Hamilton County Special Prosecutor Perry Ancona. A hearing on the motion will be held Thursday in U.S. District Court in Cincinnati.
The other case is former Editor Lawrence Beaupre's lawsuit filed in April against Gannett, two of its corporate officers and the company's law firm. Beaupre alleges that his employer of 32 years hung him out to dry when the Chiquita series fell apart, removing him from his job here as the result of a secret side deal with Chiquita and not backing him sufficiently in public or internally.
In October, a District of Columbia Superior Court judge denied Gannett motions by refusing to dismiss the lawsuit and ruling it would remain in her court and not be moved to Cincinnati. A hearing to set the lawsuit's future schedule will be held Jan. 26.
The main common thread between the two lawsuits is the Holy Grail of evidence they both seek: the 1998 settlement agreement between Gannett and Chiquita that resulted in front-page apologies in The Enquirer, a payment to Chiquita in excess of $10 million and the paper's renouncing its entire series, including work that had nothing to do with the stolen voice mails. Gannett's desire to keep that agreement from public scrutiny has brought the Ventura suit to a halt and likely will have the same effect on the Beaupre suit.
Even without the lawsuits, 2000 wasn't a banner year for The Enquirer. From the editorial department's brain drain to aborted expansion plans to flat circulation numbers to a lack of investigative work, the city's dominant media outlet clearly is struggling.
Harmful or embarrassing?
The year started with a dramatic story and a controversy.
The February issue of Brill's Content, a national media issues magazine, published Ventura's powerful first-person account of his decision to become an anonymous source for The Enquirer's Chiquita series and the aftermath in his life when ex-reporter Michael Gallagher identified him to the special prosecutor (see "George and His Jungle," issue of Jan. 13-19). They were Ventura's first extensive comments since he pleaded no contest to four misdemeanor charges in June 1999 and received two years probation.
The controversy popped up when a Brill's editor related how, while fact-checking Ventura's account, the magazine sent article synopses to the four key Enquirer people mentioned in it — Beaupre, Gallagher, Publisher Harry Whipple and ex-reporter Cameron McWhirter — for comments. Within hours, no later than the next morning, a Chiquita lawyer called Ventura's attorney, Marc Mezibov, to say the company was upset with plans for the Brill's article. (A synopsis also was being prepared for Chiquita officials at the time but wasn't yet ready.)
The Brill's editor spoke at length with reporters from both The Enquirer and The Cincinnati Post about the troubling question of how Chiquita officials might have so quickly discovered the article's existence. Both papers published stories about Ventura's magazine piece, but neither reported on the possibility of ongoing contact between Gannett employees and Chiquita officials (see "When a Non-Story Becomes the Story," Jan. 20-26, and "Is There a Source?," Jan. 27-Feb. 2).
That possibility points up the value — to Ventura's and Beaupre's lawsuits, to Enquirer readers and to the general public — of seeing the complete settlement agreement between Gannett and Chiquita. Who knows what really went on behind the scenes, or what still goes on between the companies? Speculation has run wild that the cash payment was more like $40 million to $50 million; that Gannett agreed to eventually transfer its ownership stake in the Reds to Chiquita CEO and Reds majority owner Carl Lindner; that Chiquita ran Beaupre out of town; that The Enquirer agreed to lay off future negative coverage of Lindner and Chiquita; and, as mentioned, that Gannett and Chiquita officials would maintain dialogue.
A key question Ventura has is whether or not the settlement agreement addressed the identity of the anonymous inside source who gave the Chiquita voice mail codes to The Enquirer. Gannett officials maintain that Gallagher alone fingered Ventura and did so only after he'd been fired from the paper for illegally accessing Chiquita's voice mail.
According to Ventura's motion to compel discovery, Gannett rebuffed his full access to requested documents from March through mid-October. Designating much of the requested material confidential "by reason of the attorney-client and work product privileges," Gannett said it would release non-privileged material only after Ventura got Chiquita's written permission.
Gannett dropped that request but still said it wouldn't release sensitive material until it got a protective order to ensure the information wasn't made public. The protective order was never sought.
As for the key document, Gannett says it's "allowed Plaintiff to inspect complete copies of the settlement agreement and related documents (with only minor, expressly noted privilege based redactions). ... The issue here is not access to information, it is Plaintiff's proposed use of the information."
Ventura's reply to Gannett, filed Dec. 1, tells a different story: "After months of refusing to provide the document, Defendants eventually supplied Mr. Ventura with about two pages worth of unredacted language from the agreement. The rest of the agreement, consisting of approximately twelve pages, was entirely redacted. ... In fact, Mr. Ventura has not offered any 'proposed use' of the agreement beyond the scope of this litigation. And even if he did, absent a clear demonstration that Defendants or others will suffer serious harm, Defendants have no authority to dictate Mr. Ventura's use of the document."
Mezibov says Ventura will not agree to a protective order covering the settlement agreement and other sensitive documents "in any form."
"We don't think they've demonstrated why the material is privileged and how they'll be harmed if it's entered as evidence," Mezibov says. "They might be embarrassed, but not harmed. And you can't seal evidence just because it's embarrassing."
Because of the delay in gathering material from Gannett, Mezibov has deposed just two people in the case: Ancona, who Mezibov says also is withholding material, and Ventura. Mezibov says future depositions would be taken from Beaupre, Whipple, Gannett Senior Vice President for News Philip Currie, ex-Enquirer Metro Editor David Wells (now associate editorial page editor) and Lindner attorney Jim Evans.
Meanwhile, Ventura is doing free-lance legal work from a home office in Salt Lake City, according to Mezibov. The Utah State Bar filed a complaint against Ventura last week, charging him with unprofessional conduct for "committing a criminal act that reflects adversely on his honesty, trustworthiness or fitness as a lawyer."
The complaint requests "appropriate sanctions" against Ventura, which could range from disbarment to public reprimand.
Beaupre pushes lawsuit
Beaupre's nine-count lawsuit alleges that Chiquita and Lindner, as part of the settlement with Gannett, orchestrated his transfer to Gannett headquarters in November 1998. It also alleges Beaupre's corporate bosses and Gannett's lawyers conspired to put all the blame on him for Gallagher's misdeeds and the subsequent fallout.
The lawsuit provides a fascinating peek inside The Enquirer before and after the paper published its Chiquita series (see "Two Years and Counting," May 11-17). Among the suit's highlights:
· Chiquita first threatened to sue The Enquirer in August 1997, just three months after Beaupre had approved Gallagher, McWhirter and Wells to begin working on the series. After that, the lawsuit explains, "all decisions regarding the investigation of Chiquita and publication of the Chiquita series" were made in conjunction with Gannett's internal legal counsel and outside law firms.
· Gannett's two highest ranking news executives personally reviewed every word in The Enquirer's 18-page special section before it was published on May 3, 1998. Currie copy-edited every article, rewrote the special section's lead story and provided Beaupre with an outline of the front-page introductory story.
· A month after the series ran, Chiquita presented Gannett with a civil lawsuit it was prepared to file charging everyone involved with libel and illegally obtaining internal company voice mails.
· The settlement agreement included what the lawsuit calls an "unwritten side agreement between Gannett and Lindner and Chiquita" to remove Beaupre as Enquirer editor and transfer him outside Ohio, Kentucky and Indiana and "to make him an official executive scapegoat." Chiquita also demanded the paper fire Gallagher, which it did, and transfer McWhirter outside Ohio, Kentucky and Indiana. McWhirter voluntarily left Cincinnati at the end of 1998 to work for Gannett's Detroit News.
· In September 1998, the Hamilton County grand jury looking into criminal activity surrounding the voice mail thefts formally named Beaupre, Wells, McWhirter and The Enquirer as targets in its investigation. Gallagher, working out a plea bargain with Ancona, was preparing to testify Gannett lawyers "had been aware of his conduct and had orchestrated a cover-up."
Gannett officials, the lawsuit alleges, "engaged in intensive parallel negotiations with Lindner and the special prosecutor to have the investigation closed." After struggling with the perception of "criminal wrongdoing" his leaving would demonstrate, Beaupre agreed to be transferred to Gannett headquarters. No charges were ever filed against anyone at Gannett or The Enquirer, other than Gallagher, who later pleaded guilty to two felony charges.
Like Ventura, Beaupre is facing opposition from Gannett to turning over sensitive documents.
"During the hearings on the motion to dismiss, Gannett lawyers told the court they'll object to every request I make for documents," says Beaupre's Washington, D.C. lawyer, Samuel Seymour. "But they don't have the right to withhold evidence."
Asked if Gannett would try to settle Beaupre's lawsuit rather than turn over the Chiquita settlement agreement and other documents, Seymour says he thinks Gannett has gone too far in the legal process to settle.
"Big corporations have a hard time settling cases out of court," he says. "No one wants to make that sort of decision, especially in this case, where all the Gannett officials involved in approving the original stories and negotiating the settlement with Chiquita are still running the company. It's hard for them now to go to the board of directors and say, 'We think we have some legal exposure here and should settle.' They'll just string this process out as long as possible."
For his part, Seymour says, Beaupre is trying to rebuild his journalism reputation. He's been consulting for Times Shamrock, a group of about two dozen daily, weekly and shopper newspapers headquartered in Scranton, Pa., and is the main contact for hiring a managing editor for the chain's flagship papers.
Seymour says Beaupre commutes to Scranton during the week while maintaining his family's residence in Cincinnati.
The numbers don't lie
The Chiquita debacle doesn't resonate much at The Enquirer these days, except when people like me bring it up. With Wells' move to the editorial page this year, the four people directly responsible for the Chiquita series are gone from the paper's newsroom.
The people running the paper's news gathering, Editor Ward Bushee and Managing Editor Rosemary Goudreau, had nothing to do with the Chiquita mess and refuse to dwell on it internally. The $10 million settlement hit presumably has been digested in two years worth of Enquirer budgets.
Nonetheless, the morning paper has yet to pull out of its post-Chiquita funk. There's been just one major investigative series in The Enquirer since the Chiquita work — on Cincinnati Police shootings — and the reporter who did it is no longer with the paper.
Lucy May, who did The Enquirer's main reporting on stadium issues for several years, became the paper's top "enterprise," or investigative, reporter but left this year for the Business Courier. Her position, along with several newly created enterprise slots, wasn't filled, reportedly for budget reasons.
The Enquirer's ballyhooed redesign was introduced in April, with one of its centerpieces a stand-alone Sunday baseball section that Bushee told readers "fits a baseball-loving community revved up on the new Junior Griffey Era and the home to baseball's first pro team, the Cincinnati Reds."
The section was discontinued in early September, with the Reds and Griffey still in pennant contention.
Another move came in the fall when Sunday's Tempo/The Arts and Taste sections were combined. Leaders of local theater companies, led by Ensemble Theatre's D. Lynn Meyers, sent dozens of letters and e-mails to The Enquirer to complain about the paper's dwindling arts coverage. Later, artist Bill Seitz began collecting signatures on a petition he plans to send the paper's editors (see "Unsolicited Feedback," Dec. 7-13).
And then there are the circulation numbers, which show 2000 as a mixed bag at best. Enquirer circulation for Monday-Thursday, Friday and Saturday increased between March 1999 and March 2000 and then decreased between March and September 2000. Sunday circulation dropped in both periods.
The Enquirer reported Monday-Thursday circulation at 195,360 in September 2000, according to Audit Bureau of Circulations, compared to 196,135 in March 1999. Daily circulation in March 1990, by the way, was 196,883.
Sunday Enquirer circulation in September 2000 was 311,425, compared to 328,432 in March 1999 and 337,413 in March 1990.
And so, at the end of another year, enquiring minds find themselves asking the same question again about The Enquirer and its Chiquita series: Were the original stories true? Unfortunately, 2000 produced no new answers.
But for those wanting to rediscover the stories or sort them out for themselves, the entire 1998 series remains available online at http://bananas.agoranet.be/CSR_All.htm. ©