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ABC Aggressively Contests Suit Over Newsgathering

August 29, 1995

Even though Capital Cities-ABC Inc. last week settled a high-profile $10 billion libel suit brought by Philip Morris Cos., it is aggressively battling another lawsuit that seeks to lay bare some of the more controversial aspects of ABC News’ newsgathering process.

Food Lion Inc. sued the network in September 1992, two months before ABC’s ``PrimeTime Live″ aired a report alleging that the supermarket chain engaged in unsanitary food-handling methods and unfair labor practices. Food Lion’s earnings and stock price fell after the report, which relied heavily on hidden-camera video taken by two ABC reporters who were hired by Food Lion. The company originally sought unsuccessfully to keep the broadcast from airing.

Instead of following up with a straightforward libel suit, however, Food Lion has used a number of unusual legal arguments _ for example, charging that ABC fraudulently gained employment for the two reporters and that ABC relied heavily on help from an anti-Food Lion union _ designed to attack the way ABC got its story. Food Lion, in filings in federal court in Winston-Salem, N.C., also contends that the allegations against it are false.

If Food Lion prevails, the case could have far-reaching implications for television news organizations, which are increasingly under siege from companies determined to fight damaging reports with any number of high-powered tactics. Both ABC and Food Lion, based in Salisbury, N.C., declined to comment.

``There are more claims based on newsgathering issues today than we have ever seen before,″ said Sandra Baron, executive director of the Libel Defense Resource Center. Unlike print news organizations which rely on written notes, television organizations may be uniquely vulnerable if they have to turn over unaired videotape that shows ``all the glitches, the human aspects of reporting,″ says Ms. Baron.

Moreover, she adds, ``It seems that what plaintiffs are hoping for is that the public at large is not going to like some of the tools of the trade, such as hidden cameras and hidden mikes.″

Indeed, in its numerous legal filings in the convoluted case, Food Lion has accused ABC News of staging some of the events it depicted, fraudulently editing its tapes and concealing unaired videotape that exonerates Food Lion. Last week, for example, Food Lion contended in a court filing that it ``fortuitously learned″ that one of the videotapes turned over by ABC during the discovery process was missing four minutes. In the missing tape, Food Lion’s court filing claimed, ABC’s reporter ``conceded″ the undercover investigation couldn’t substantiate one of the show’s claims. Food Lion also contended that, when it reviewed ABC’s own copies of the tapes, it discovered nearly 90 minutes of footage shot inside a Food Lion deli.

In an earlier filing, ABC called the allegations of missing videotape ``scandalous and scurrilous.″ The network also pointed out that Food Lion could have seen the complete tapes if it had taken up an earlier offer from ABC to review all of ABC’s outtakes. ABC also decried Food Lion’s contention that the tapes had been manipulated for the broadcast.

In its battle against the network’s reporting techniques, Food Lion is casting a wide net: Food Lion attorneys won court approval to conduct discovery on about five years’ worth of ABC News undercover investigations. Using ``PrimeTime Live″ broadcasts only, Food Lion came up with a list of about 30 pieces using hidden cameras.

Most recently, the case has taken an even more unusual sidetrack into a battle over who owns the hidden-camera videotapes taken in Food Lion stores by ABC News employees. Food Lion filed a second complaint earlier this summer seeking the copyright to ABC’s 55 hours of outtakes and $100 million in damages.

Food Lion argues that because the ABC reporters were technically Food Lion employees at the time they took the tapes, the tapes belong to the grocery concern.

Conspicuously absent from Food Lion’s legal battle is a charge of libel, a fact which some ABC executives point to as evidence that Food Lion knows the report was true. In court papers, however, Food Lion says its failure to file a libel claim doesn’t mean that the ``broadcast was anything remotely resembling a truthful broadcast.″

Even if Food Lion is successful in its attack on ABC’s newsgathering techniques, some lawyers say it may have a hard time winning substantial monetary damages. In a March ruling, the court said Food Lion couldn’t recover damages for injury to its reputation, though it didn’t rule out other damages.

Still, in a footnote in its latest court filing, Food Lion contends that its discovery of the ``withheld″ outtakes is ``an awful embarrassment″ for ABC ``coming on the heels″ of its settlement with Philip Morris and R.J. Reynolds Tobacco Co., a unit of RJR Nabisco Holdings Corp.

In that settlement, ABC broadcast apologies for what it said was a mistake in a ``Day One″ report about tobacco companies’ manipulation of nicotine levels in cigarettes. The settlement came after lawyers for the network reviewed two million pages of cigarette-industry documents during pretrial fact-finding. According to people close to the network, the lawyers reached an unsettling conclusion: While the documents detailed ways in which Philip Morris alters the levels of nicotine smokers receive, they didn’t sufficiently support the broadcast’s most contested assertion about nicotine ``spiking.″

But some lawyers speculated that ABC settled, at least in part, to avoid scrutiny of its newsgathering techniques, something it may not be able to avoid in this case.

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