By Andy Van De Voorde, Executive Associate Editor, Village Voice Media
Bay Guardian editor Tim Redmond didn’t bother to show up at Superior Court on McAllister Street last week to hear proceedings in his newspaper’s lawsuit against the Weekly. But the mere fact that he wasn’t there didn’t stop him from pontificating about last week’s hearings in a January 18 blog post.
Redmond framed his piece as a response to my story of the same day and said he was writing to “correct the record.”
But interestingly, he mentioned only one of Judge Marla J. Miller’s rulings from the previous week — her decision that the Guardian’s expert witness, accountant Clifford Kupperberg, would be allowed to testify about how much he thought the Guardian might have lost because of the Weekly’s cheaper ads.
Redmond described this as a “big victory.”
Of course, there were plenty of rulings to choose from last week.
Take, for instance, the fact that Judge Miller refused to grant the Guardian’s own motion to exclude testimony from the Weekly’s chief financial expert. (By Redmond’s definition, then, the Weekly apparently had a “big victory” too. Who knew?)
Also missing from Redmond’s article was any mention of Miller’s refusal to buy into the Guardian’s attempt to prevent the Weekly from raising facts at trial that could be embarrassing to Guardian owner Bruce Brugmann. Redmond apparently did not see fit to respond to the various examples of rank hypocrisy that have been detailed as part of that discussion, such as the fact that the Guardian has hammered daily newspaper publisher Dean Singleton in print without revealing the fact it did business with him, and still owes him hundreds of thousands of dollars in printing debts. (Though the hypocrisy may be rank, it is not new: In the past, the Guardian has lashed out at the Weekly for running ads from the Clear Channel concert promotion firm — without mentioning that it has taken hundreds of thousands of dollars from Clear Channel itself.)
But back to the issue of Kupperberg and the Guardian’s big win. Redmond suggested that my story took “a clear legal defeat and tried to turn it into a victory.”
My story did not claim a legal “victory” for the Weekly. In fact, it made it quite clear that Kupperberg would be allowed to testify -- despite the fact that he, in the judge’s words, had “changed his mind” about his damage theories. In layman’s terms, this means the Guardian’s expert is using a whole new set of facts and numbers that didn’t appear anywhere in the report he initially filed with the court.
Nobody is suggesting that Kupperberg won’t come into court and cite some figure or another about how much his client supposedly lost at the hands of the Weekly — after all, that’s what he’s getting paid $500 per hour for. (By the way, Mr. Singleton: If you’re wondering why the Guardian hasn’t paid its printing bill in full yet, this might just provide a clue.)
And keep in mind that Kupperberg will not be called to offer any testimony about whether or not the Weekly is actually guilty of any alleged misdeeds. He’s simply the man with the calculator.
Still, it is undeniable that Kupperberg is changing his theories at the last minute — a fact that was made clear in Redmond’s own story, which noted that Kupperberg had “added data” from two other Bay Area alternative weeklies as well as local retail sales statistics to his arguments.
What some call “adding data,” others might call throwing a curveball at your longtime ideological adversary after dragging him through court for more than three years. What Redmond didn’t point out -- again, perhaps, because he wasn’t in court and therefore couldn’t have heard it — was that Kupperberg added those new sources to his calculations only after the Weekly’s own financial expert criticized his earlier report for not including local retail sales statistics. Kupperberg added the other Bay Area weeklies to his calculations to help make up for what he described as his earlier “error” in relying upon the AAN data to calculate lost customer revenues.
Any way you spin it, what you have is the chief witness on the Guardian’s alleged damages revising his claims on the eve of trial. That’s precisely why Judge Miller gave the Weekly’s attorneys more time to respond -- in part because Kupperberg will now have to give a new deposition in the case.
After all, as the Weekly’s H. Sinclair Kerr Jr. told Miller, his client has already spent tens of thousands of dollars responding to Kupperberg’s earlier arguments, and now faces the prospect of countering a slew of new damage claims at the last minute.
That’s why the trial may be postponed. And it again underscores one of the most remarkable aspects of the Guardian’s cynical shakedown: the fact that, in a case that is all about advertising, it apparently does not intend to call a single advertiser to the stand to testify on its behalf.