March 1, 2016

Judge: Journo’s records out of bounds in Gov. Martinez email case

Andy Lyman

Federal Courthouse in Albuquerque

A witness in a federal civil trial regarding leaked emails from Gov. Susana Martinez will not have to hand over emails she exchanged with a local news reporter.

Photo Credit: Joe Gratz cc

Joe Gratz

Photo Credit: Joe Gratz cc

United States Magistrate Judge Stephan M. Vidmar ruled Monday that emails between Santa Fe New Mexican reporter Justin Horwath and former Martinez aide Anissa Ford will not be part of the legal discovery process in a civil case*. Individuals with connections to Martinez accused four individuals of illegally intercepting and disseminating emails from personal email accounts of Martinez staffers.

At the hearing, Pat Rogers, a Republican lobbyist and one of the lawyers for the plaintiffs, asked the court to order email communications between Horwath and Ford be made available to him and his legal team.

Rogers is a Republican National Committeeman in the state and has close ties to the governor. His website says he represented “the New Mexico George Bush Presidential Campaigns, presidential candidate Ralph Nadar [sic], the New Mexico Republican Party, and Susana Martinez for Governor Committee.“ He also has clashed with Horwath in the past.

The civil case comes after the criminal conviction of Jamie Estrada, a former campaign manager for Martinez, for intercepting emails from a 2010 campaign website for the future governor. Estrada served nine months in prison for his role in obtaining emails to and from Martinez.

The civil matter focuses on the emails and Estrada, but also names three other defendants— former state Democratic Party Chairman Sam Bregman, private investigator and former head of an anti-Martinez political action committee Michael Corwin and Bruce Wetherbee, who worked for Corwin’s PAC.

The plaintiffs, Crystal Amaya, Brad Cates, Brian Moore and Kim Ronquillo filed suit alleging the defendants stole and disseminated emails in which the plaintiffs were all named in.

The suit also originally named Jason Loera, a former state Democratic party operative, and Ford as defendants in the civil suit. Loera and Ford were eventually dropped from the case and are now both listed as witnesses. Prosecutors charged Loera with possession of child pornography.

In a hearing last week, Vidmar heard oral arguments from attorneys of both the defense and plaintiffs attorneys regarding which documents should be made available for discovery.

Rogers, a one-time First Amendment lawyer who served on the board of the New Mexico Foundation for Open Government, appeared in dozens of the emails in question when they first were leaked to the media outlets in 2012.

The emails showed a communications network between governor’s office staffers and lobbyists like Rogers that discussed state contracts and potential business on non-government accounts. Critics said the governor’s email network was an attempt to skirt the state public records law.

Rogers resigned both from FOG and eventually his role as vice president of Modrall Sperling law firm after scrutiny over a joke he wrote in one of his leaked emails about Martinez dishonoring Gen. George Armstrong Custer by attending a tribal leader summit.

Martinez ordered all staff to use state email accounts for state business through an executive order after emails news leaked.

Horwath is one of many local reporters who wrote news stories about Rogers’ emails.

In the courtroom, Rogers argued the emails may lead to admissible evidence.

“We won’t know until we see them,” Rogers told Vidmar.

Last year, Rogers filed a subpoena for a number of records, including emails to and from Ford and Horwath. After Ford objected, citing her First Amendment rights, the plaintiffs countered with arguments for why Ford should give up her records.

They cited case law and said in order to obtain records from a reporter, they must also attempt to get the same information from other places. Lawyers for the plaintiffs argued that Horwath is the only other source for obtaining the emails and they could not obtain them from him as he would likely cite First Amendment rights protecting reporters’ rights to keep their sources confidential.

“It is likely that the only other source of the information Ms. Ford shared with Mr. Horwath regarding the @susana2010 domain emails is Mr. Horwath himself,” the defense’s objection reads. “If Plaintiffs sought the requested information from Mr. Horwath, he undoubtedly would assert the newsperson’s privilege recognized in Branzburg and Silkwood and tell Plaintiffs they had to first seek the information from Ms. Ford.”

The two cited cases  dealt with what type of information reporters are required to give up in court. In the Supreme Court case Branzburg v. Hayes the country’s high court determined that reporters who witness a criminal act can be forced to testify and are not necessarily protected from revealing sources under the First Amendment.

The other case mentioned was Silkwood v. Kerr–McGee Corp., in which a documentary film crew investigated the death of famous whistleblower Karen Silkwood and lawyers compelled the crew to reveal some of their sources in a related civil rights case. A United States Court of Appeals judge later determined that the film crew did not have to reveal their sources. The Silkwood case sets a precedent that sources and information can be revealed if it is pertinent to the issue at hand.

Vidmar personally reviewed a packet of email messages between Horwath and Ford before making his decision to keep them confidential on Monday.

Vidmar deemed the emails  unrelated to the case at hand.

“Having reviewed the documents in question, the Court finds that they are not relevant to any material issue in this lawsuit,” the decision read.

Rogers did not respond to an email and phone message for this story before press time. Both Horwath and Jerry Todd Wertheim, Ford’s attorney declined to comment on Monday’s ruling.

*Rogers’ original subpoena also asked for emails between Ford and numerous other local journalists who wrote about the email scandal, including Joey Peters, who works at NM Political Report. Rogers also sought emails between Ford and Pat Davis, the executive director of ProgressNow NM, which helps fund NM Political Report.