Peers Criticize Lawyer's Cease And Desist Letter To Blogger

, The Connecticut Law Tribune

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Mark Boughton is the mayor of Danbury and, in 2010, was the Republican nominee for lieutenant governor. He’s also considered a likely candidate for governor in 2014 and has already formed an exploratory campaign committee.


But he has a potentially embarrassing problem. A former mayoral assistant and longtime friend, Wendy DaCosta, has filed a federal lawsuit over her firing. She claims that she was terminated after sexual harassment complaints were brought against her, but that Boughton and others in city government weren’t punished for similar behavior.


Boughton has steadfastly denied any such behavior. Whether DaCosta’s claim has any merit is up to the courts to decide. But what is clear is that her case has prompted a freedom of information flap in the Hat City, as well as bringing some unflattering attention to a law firm that represents the mayor.


The most recent skirmish started this fall when members of the media asked the city for transcripts of DaCosta case depositions from Boughton and other city officials under the state’s Freedom of Information Act. They were told that the documents had to first be reviewed by the city’s legal department. “If it were up to me we’d release the documents tomorrow but the legal department needs to complete its review,” Boughton said in late October.


Ridgefield attorney Lisa Maurer, who represents DaCosta, viewed these as stalling tactics, and said she wasn’t surprised, given Boughton’s aspirations for higher office. To successfully run for governor, Maurer told the Law Tribune, Boughton “has to have the city look like it is well managed. There is a lot of information that could lead a voter to think otherwise if it was freely available. What is in these depositions is only the tip of the iceberg.”


So Maurer, on her own, released transcripts of the depositions to a Danbury newspaper reporter and a Danbury blogger. The Hat City Blog, authored by Al Robinson, published some of the depositions and concluded that Boughton was “infatuated” with a former personnel director and warped by power.


The Hartford firm of Rose Kaller is representing Boughton and the city. After Robinson commented on the depositions, he received a cease and desist letter from Johanna Zelman, a lawyer at the firm. The letter read, in part: “The City of Danbury hereby orders you to CEASE AND DESIST publication and/or comment on the deposition transcripts from the matter of DaCosta v. Danbury on www.HatCityBLOG.blogspot.com and/or any other Internet and/or social media site, including Twitter and Facebook that are currently in your possession, custody and control…”


The letter concludes: “The intent of this cease and desist order is not to impinge on your First Amendment right to Free Speech … ”

‘Absolutely Groundless’

Robinson and others saw the letter attempting to do just that. Andy Thibault, a veteran Connecticut journalist who now writes a column for the Torrington Register-Citizen as well as the Cool Justice blog, has written several scathing columns taking Zelman and Boughton to task for trying to suppress the depositions. “What were they thinking trying to put the arm on blogger Al Robinson?” Thibault wrote.
Beyond his own opinions, Thibault quoted a half dozen prominent Connecticut lawyers who also were critical of the cease and desist letter.


“The statement in the Rose Kallor letter that publication of the transcripts violates various laws is absolutely groundless,” said Dan Klau, who practices First Amendment and appellate law at McElvoy, Deutsch, Mulvaney and Carpenter in Hartford. “It is a naked attempt to intimidate a journalist from publishing information on matters of legitimate public concern.”


Jon Schoenhorn, a civil rights and personal injury attorney in Hartford, was even more critical, telling Thibault: “Unless it involves privileged material, not only is there no basis to keep [the depositions] from being published, the lawyer trying to stop it should be sanctioned.”


Zelman acknowledged to the Law Tribune that she and Danbury officials are taking a lot of criticism for the entire episode.


Her position is that the city is not violating the First Amendment, but merely protecting privacy interests. Zelman said that Maurer was obligated to discuss with Zelman portions of the transcripts that were marked confidential, but that Maurer did not do so. Zelman said the copies that the Danbury blogger put online contained medical information and other private data that should have been redacted before being released to the public.


At a federal court hearing on Nov. 21, Zelman argued that the unredacted versions of the depositions should be suppressed. As of late last week, no ruling had been made on her request.


“What the papers are not reporting and the lawyers [quoted by Thibault] don’t know is that the plaintiff’s counsel in the matter released their transcripts without redacting them,” Zelman said. She added that the city of Danbury had every intention of releasing redacted versions of the depositions. The author of the Hat City Blog “is free to produce the redacted version if he chooses.”


New Haven lawyer David Rosen, who was critical of Zelman in Thibault’s column, indicated that he might have had a different reaction if he knew about the redaction issue. Courts and lawyers, he said, take redaction seriously, “but it all depends on the reason for redaction.”


“If redaction was just someone’s preference, that’s one thing,” he said. “If it was required by the court or the law, it’s quite another.”


Maurer said the deposition in question was that of Danbury’s current human resources director. She acknowledges that her opposing counsel wanted to keep portions of it confidential. In Maurer’s view, the city feared that she and her client would disseminate “personal and salacious information about third parties” and try to embarrass Boughton during the governor’s race.


Maurer said following the release of the deposition transcripts, the city has called for her to be sanctioned by the court. But, Maurer said, she never agreed to any deal to keep portions of the deposition confidential.


“Attorney Zelman had requested certain areas of inquiry be marked confidential when the first question regarding a city employee was asked,” Maurer said. “Many of the questions that followed were not of a confidential nature or were based on documents acquired under” the Freedom of Information Act.

 

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