Posted by BE on February 10th, 2011
I have received a menacing email from a Ms Sarah Bacon, a partner in the law firm Izard Weston. The firm acts for Fairfax New Zealand Limited, publisher of the Sunday Star Times.
The email refers to my recent post The Hotchin Affidavits – Four witnesses swear that Amanda Hotchin did not speak the damaging words attributed to her by the Sunday Star Times.
Paragraph 9 of Ms Bacon’s email reads: “Your blog and the comments that follow defame our client, the Editor of the Sunday Star Times and Mr Marshall. Our client will not tolerate these false and defamatory publications. Our client expects you to immediately remove the defamatory material from your website (along with any cached material) and to ensure that no further defamatory postings are published.”
Paragraph 10 reads: “We also put you on notice that our client will be minded to take action against you if you draw any adverse inference from the fact that our client is unwilling and unable to engage with you on this issue in a public forum.”
I have read and re-read the Hotchin Affidavits post and there is absolutely nothing in it defamatory of the Sunday Star Times, its editor or Jonathan Marshall.
The post begins with a factual summary of the material leading up to its publication. This included:
The publication of Reflections on Not Caring in Hawaii, posted by me on 16 May 2010. In it I quote from the original Jonathan Marshall story and am highly critical of Amanda Hotchin;
The publication of I Receive and respond to an email from Amanda Hotchin, posted by me on 8 January 2001. In her email Mrs Hotchin claims that she did not say the words attributed to her by Sunday Star Times reporter Jonathan Marshall – “We don’t have to justify where we get our money from or what it is spend on to anyone. I don’t care what anyone says.”
*I then state that Mrs Hotchin has sent me the four affidavits, the contents of which I may summarise on condition that I do not publish or release them to anyone else or publish the names of the signatories. I have agreed to those conditions.
*I go on to summarise the content of the four affidavits. The summary is totally factual and accurate.
*I then ask the rhetorical question: Did Amanda Hotchin say the words Jonathan Marshall quotes her as having said or did she not? I conclude:
If she did say these words:
Then some at least of the public criticism which was directed at her after publication of the SST story will have been justified;
She will have no grounds to complain about Marshall’s reporting;
All four signatories to the affidavits will be liable to prosecution since it is a criminal offence to knowingly swear or affirm a false affidavit.
If she did not say these words:
Then she is entitled to an apology and retraction from the Sunday Star Times or to seek redress through the courts;
Mr Marshall’s credibility as a journalist will be undermined as will the reliability of his reporting in this and other articles;
The reputation of the Sunday Star Times for fair and accurate reporting will also be called into question.
*Here, as in every previous post on this topic, I take no position on whether Mrs Hotchin did or did not say the words quoted by Jonathan Marshall. I make no accusation against or criticism of him, the Sunday Star Times or its editor. I merely canvass the options.
*I go on to say it would be “entirely irresponsible” for a journalist to cite verbatim in a report material that he had not “written down or electronically recorded at the time” and that “there appears to have been no opportunity” for Jonathan Marshall to do so.
*I conclude by saying that the matter could be quickly resolved if the Sunday Star Times can “produce either Marshall’s written notes of the exchange with Amanda Hotchin or his recording of that exchange, if it indeed exists.” And I invite the paper to do so.
Ms Bacon refers to this invitation in Paragraph 8 of her email to me:
“Our client will not be goaded into defending its production on your website. It is not an appropriate forum and would be detrimental to its interests in the event that Mrs Hotchin did issue proceedings.”
*Ironically, in view of Paragraph 10 of her email, in which she says that her client, “is unwilling and unable to engage with you on this issue in a public forum” , much of her email takes the form of argument about my handling of the issue. In Paragraph 4 of her email she writes:
“You complain in your blog about ‘bad journalism’ yet you have made no effort to assess the integrity of these documents and have apparently accepted them at face value. In our experience, before the veracity of ‘evidence’ is capable of being accepted it must be tested: a witness’ credibility must be assessed, his or her objectivity and motivations considered, and the evidence analysed.”
I entirely accept all of this, but a website is not a court of law. Nor can I ‘test’ what either Amanda Hotchin or Jonathan Marshall claim happened, since I was not present when the exchange between them took place.
*In a subsequent paragraph, Ms Bacon says: “The matter is what it has always been: a contest between Mrs Hotchin’s version of events and Mr Marshall’s version of events.”
Again, I entirely agree. But at the moment we have “evidence” for only one version of those events, Mrs Hotchin’s. Other than in his original story, we do not have Mr Marshall’s version of events, his “evidence”. The Sunday Star Times has already publicy stated that Mr Marshall has its ‘full support’ and that it stands by his story. But without access to his notes or any recording, that is a matter which we are asked to take on trust.
*Elsewhere Ms Bacon notes that Izard Weston have sighted the affidavits and expresses surprise that I did not “call into question the objectivity of the deponents.” Since, before sighting the affidavits, I had given an undertaking to Mrs Hotchin not to identify the deponents, I could not single out any one of them for comment.
I accept that this is not an ideal state of affairs and it has produced a great deal of debate in the comments on the blog. Should the Sunday Star Times wish to do so, it could presumably publish the names of the deponents itself. It may, like me, have very good reasons for not doing so.
*Finally, Ms Bacon says that, “The February Blog (like your blog of 8 January 2011) is sympathetic to Mrs Hotchin. It does not contain any apparent balance.”
I do have some personal sympathy for Mrs Hotchin. She has been vilified in the press, on radio, television and in blogs for circumstances which are not of her making. But that sympathy has not extended to my claiming that her version of what was said in her exchange with Jonathan Marshall is true or that his is not. Nowhere have I said that. As to balance, this is how I referred in Reflections on Not Caring in Hawaii, to Mrs Hotchin’s reported statement to Jonathan Marshall:
“It really is quite an extraordinary statement, exemplifying as it does all the characteristics of Level 1 moral development – absolute selfishness, lack of conscience and indifference to the welfare of others. I don’t doubt for a moment that these people love their children and are kind to animals. But the misery which their actions have brought to thousands of ‘mum and dad’ investors seems for them to fall into the category of ‘long-distance impersonal harm’, all the more distant from a lounger by the pool in Hawaii.”
A similar view was taken and continues to be taken in comments to the blog, an overwhelming majority of which are fiercely critical of Mrs Hotchin. If there is an overall imbalance on the site, it is massively to her disadvantage.
It may also be worth stating here that I have written highly critical posts about coverage of the Hotchins by TV3’s Campbell Live and the New Zealand Herald. Neither organisation has complained. I can actually find no criticism of the Sunday Star Times’ reporting of this issue anywhere on my site.
*Over the last 24 hours I have read everything I and contributors to the site have said about the Sunday Star Times, Jonathan Marshall and the Hotchins. Some commentators’ views are forcefully expressed, but none could be regarded as exceeding ‘fair comment’. If Ms Bacon can point to specific examples of defamation of her client, I will certainly take a second look.
*Finally, Ms Bacon’s email is headed “Not for publication. Confidential to the recipient.” I have chosen to ignore that advice. The Sunday Star Times is a national newspaper with a circulation massively bigger than my website. It has a large and powerful voice. If it is unhappy with what is said about its content or its writers, it has the opportunity, not available to the average citizen, to make a public response which will reach a large audience. Instead, in this case, it has chosen to send me a lawyer’s letter, marked “Not for Publication.” My response is that I am not prepared to be bullied or intimidated, and certainly not in secret.
All strength to your arm Brian. While I disagree with some of what you say, on this matter you have been spot on.
Why did you choose to honour Amanda Hotchin’s request for confidentiality but not Fairfax’s?
BE: Mrs Hotchin made this a condition of sending me the affidavits. I thought it important to know what what was in those affidavits if I was to write in an informed manner about the issue. Having given that undertaking I am morally obliged to honour it. This is rather different from making a threat of legal action, but requiring that the contents of the email in which that threat has been made not be published by the person you are threatening to sue.
*Finally, Ms Bacon’s email is headed “Not for publication. Confidential to the recipient.” I have chosen to ignore that advice. T
And quite rightly so. You are not bound by it.
Maybe Ms Bacon would like to open her mouth for a minute – just to change feet.
I’ve read everything you’ve posted on this matter on this blog and have found nothing but a balanced commentary. Something Mr Marshall might take a lesson from.
All I can say is dumb.
And to then claim confidentiality in an email sent to you, when none was agreed to, shows a total lack of understanding on NZ law – and this from a lawyer!
BTW, who else gets annoyed by those inane disclaimers at the bottom of emails?
Actually Russell, he is. Presumably the letter was clearly marked at the top as “confidential”. If Brian didn’t wish to abide by this condition he could have stopped reading then + there and returned the letter. He didn’t. Accordingly this publication is a breach of confidence.
BE: Rubbish! If you’ve read this post properly, you’ll see that the email was marked “confidential to the recipient”. That’s me. I choose not to keep it confidential.
BE: Thanks, but can’t publish this, Jonty. Highly defamatory.
Good job. I wonder why SST has wasted money trying to quash this? Surely this will only draw attention to their sloppy journalism.
“Methinks the lady doth protesteth too much.”
JC: Or even ‘doth protest too much’. Sorry, PJR, the pedant is on the rampage tonight.
This is very exciting. The next stage will be a writ issued by the noted UK libel lawyers, Carter Fuck, because your blog was read in the UK.
It is probably a try on but since Fairfax Media have rather deeper pockets than Brian Edwards Esq the whole businesss could end up costing you a great deal of money regardless of the merits of the case. And therein lies the reason for the communication. In the same way that commentators and scientists in the UK are bullied into silence by the threat of libel action incurring huge cost, so Fairfax is trying to intimidate you.
In turn I strongly recommend that if they proceed with this nonsense you take the case to Fair Go.
Poor SST – it’s almost as if they don’t have a public platform to defend themselves on…
Maybe you should explain to them about the Streisand Effect. http://en.wikipedia.org/wiki/Streisand_effect
They’ve clearly never heard of it, or Chris Mitchell. http://www.crikey.com.au/2010/11/26/the-torture-of-writing-about-climate-change-at-the-oz-one-journos-story/
at least it confirms who at least 2 of the affidavits are from!
BE: Does it?
Bravo. I’ll repeat here what I said to you on Twitter: We have our differences, and neither of us have been shy about voicing them. But this has done nothing to improve my already low opinion of the Sunday Star-Times and its proprietor.
Hotchin’s party up large in Fiji while Hanover goes under; invest tens of millions of dollars in a PAratai Dr mansion (inluding present room); pay themselves 10s of millions of dollars in dividends in the year Hanover goes under; take extended super high end holidays in Hawaii and Europe in the year Hanover goes belly up – need I go on? And we’re being diverted into a “he said, she said” scrap over whether or not Mrs Hotchin said “let them eat cake”?
Also I note that Brian acknowledges he’s read all the comments to the previous blog but still has not clarified if any of the 4 affidavits were provided by Mark and/or Amanda themselves? Don’t you think Brian that if the Hotchin’s want to score points they should publish their “sworn” affidavits? presumably the “4 people” (in addition to Jonathan and Amanda, in that crowded driveway [nice one Gen!])have nothing to hide? Brian, why aren’t you more critical and questioning of the conditions imposed on you? Why don’t they make you suspicious? Why do you think they are only communicating through your blog?
BE: Whatever you say, Ruth.
As much as I dislike La Hotchins and her rapacious husband ,equally do I dislike bullying legal firms, go get’em BE.
Brian, take a look at Stephen Price’s excellent summary of breach of confidence on Media Law Journal. These facts constitute such a breach.
BE: Thank you. I now know who you are and bow to your greater knowledge of the law. However, I am not going to let anyone threaten me and attempt to prevent me from revealing the fact. The distinction may be between what is law and what is fair and reasonable.
Well done Brian. I applaud your astute, even-handed judgment in your previous posts, and your guts to tell these bully boys where to go. Didn’t anyone ever give Ms Bacon, or the partners of Izard Weston the advice in law school: Don’t threaten an Irishman. It just makes them mad!
Seems they also didn’t pay attention in fourth form English class, when conditional clauses, introduced by the particle, “if”. were covered. He wasn’t saying you were liars, SST. He was simply outlining the implications IF you were!
So the poor put-upon newspaper considers it “false and defamatory”, and, we should not “draw any adverse inference from the fact that our client is unwilling and unable to engage with you on this issue in a public forum” – for what?! Simply inviting the SST to give the details of how recordings and notes that end up as stories in their rag are compiled?!
Dumb, dumb, dumb. We all have the right of recourse to legal advice and threat of action. But a newspaper?! Over the veracity of its story, when they could blow Amanada Hotchin out of the water by fronting with some transcripts, or an account of how notes were compiled to a reputable journalistic standard?!
…and well done, Amanda Hotchin. Don’t particularly like what I hear about your husband, or how he made his money, or how he lost the money of others. But good on you for having the guts to take a stand, when you think you are being lied to. Far more effective than wasting your money on lawyers! Take note, SST!
BE: Sorry darcy, can’t publish what you’ve written – both offensive and defamatory. But thanks for your support.
…and Gen – apologies for my patronising advice in the last post about your lack of skill to sit on a jury. Reading between the lines, it is fairly obvious why you say you cannot. You let me down gently!
However, there are two courts in which matters such as this play out. One is the law courts, and the other is the court of public opinion. I’d suggest sometimes the advice lawyers such as Izard Weston give is perfectly wise and acceptable for the justice system. However, as is demonstrated in the example of the advice given to the SST, it can also be truly disastrous for public opinion.
You were previously asking why Amanda Hotchin hadn’t taken legal action against the SST. Good on her and Brian Edwards for knowing how and where the real battle was being fought.
Well done. If they sue, I’ll chip in to a fund. Time the SST found a new editor.
I think Judy meant ‘pedant’.
JC: You’re absolutely right! Typos can be so embarrassing! And you can’t see them when you’ve written them! I wilt.
“We don’t have to justify where we get our money from or what it is spend on to anyone. I don’t care what anyone says.”
That’s a mouthful. You can’t even transcribe it right. Is is spend or spent?
So was it taped, or is there some shaky teeline on the back of a cigarette package, or is this something the reporter thought Mrs H said, or though she kind of should have said, when he got back to the motel and thought about how to justify the trip? All legitimate questions Brian. What do lawyers know about the way we practice our craft anyway?
Go Brian! It makes me ashamed of having once worked for the SST. Not under its current editor of course, and I seriously doubt the great Michael Forbes would ever have contemplated this sort of bullying. No, he would have ensured the facts and evidence were published. Now, there’s a strategy for a newspaper…
You’ve got my support, Brian.
JC: Or even ‘doth protest too much’. Sorry, PJR, the pendant is on the rampage tonight.
A direct quote from the previous Hotchin thread.You still have my moral support.
JC: Embarrassing typo pointed out earlier in the thread. And thanks for the support.
Today’s Herald: “…Hotchin supplied Edwards with four affidavits…Two are from American workers..The other two are unidentified, beyond Edwards saying that they are adults”. The Herald should have added that Edwards and Mrs Hotchin have both created the strong impression, under threat of being called tricky minx by Kimbo, that none of the affidavits are from Mark or Amanda themselves but he has steadfastly refused to confirm that is the case for reasons unknown.
Brian, your trite and dismissive “Whatever you say” response to this issue is beneath you. The question is a reasonable one and you yourself, given your standards, must know that.
Insofar as the SST legal letter to you is concerned, I think that is over the top. They had nothing to fear in reality. The fact that the Hotchin’s are attacking them in such an indirect cowardly way, hiding the names and content of the affidavits and unsung you to publicise/sensationalise that they have “FOUR” affidavits says a lot. What you and Kimbo don’t get is that you are so fixated in applying a certain standard to the SST’s publication (fair enough to do that) that you are allowing your own standards to drop in what you are prepared to say or do, or how you’re prepared to be used, in doing so.
BE: Your comments are repetitious, Ruth. I’m happy to respond to anything new you have to say. Otherwise I won’t respond at all. The contents of the affidavits have not been hidden from the SST. I understand they have had them for some time. I responded to a question from John Drinnan as to whether the other two people who had signed affidavits were adults. I said that they were. I will abide by my undertaking to Amanda Hotchin not to reveal the identities of any of the four people.
Go Brian. Yet again all this can be boiled down to whether or not the Sunday Star Times can defend their reporter Jonathan Marshall. If he has tapes then he should defend his employer (who no doubt paid for him to fly to Hawaii)and push for them to be published.
If not… then the threat of legal action against you is no doubt a PR strategy to try and stop questions being asked about their credibility. This strategy of intimidation against you is unbelievable.
Who does the Sunday Star Times, its Editor and Jonathan Marshall think they are???
All power to you Brian.
Meanwhile, the Securities Commission say they are soon to announce whether or not they will lay criminal charges against Hotchin following a lengthy investigation…but why let a real story get in the way of a PR diversion? I congratualte th Hotchin’s for successfully diverting at least a few people’s attention from this, including mine, for a brief few moments. I wonder what all those grandmother’s who now have no savings to live off in retirement thanks to Hanover feel about all this?
Kimbo: Seems they also didn’t pay attention in fourth form English class, when conditional clauses, introduced by the particle, “if”.
Pedant (and Pendant) racing to the Finish Line, but being overtaken by Indignation. Eventual winner: Typos. ‘Participle’
Good on you Brian. Happy to chip in and help fund any defence that may be required.
Damn, up until now I thought the SST was the best of the Sunday papers. Bully boy tactics like this deserve to be publicised and punished.
No, No, Merv! I value that pedant/pendant title, and I will not relinquish it, without you prizing it out of my hands!
‘If’ is most certainly not a participle, which has the characteristics of both a noun/adjective and verb/adverb, e.g., ‘striking’ in the following sentence: “the picture of her in that ballgown, bore a striking resemblance to an iridescent lemon meringue”.
‘If’, unlike ‘strike/striking’, is uninflected. Therefore it is a particle. However, I may be drawing upon a grammatical understanding from non-English definitions. So scope for you yet for the title!
However, I did have a typo with a full stop, rather than a comma in my original effort.
I’m always wary of the court of public opinion. I prefer disputes to be settled in an actual court, with verifiable evidence, than in this other court … Seems like this court of public opinion could rather quickly start to resemble a benign dictatorship.
I’m ambivalent about both parties. I think it’s unlikely that Marshall has tapes (covertly taping the exchange would make him more unethical, not less so) and I don’t think the absence of such a recording should count against him. Let’s also remember that while he’s been in trouble for his invasive behaviour before, I don’t believe he’s ever been accused of fabricating a story? (correct me if I’m wrong). In my opinion, contemporaneous/near contemporaneous notes are at least as convincing as sworn affidavits. Sometimes affidavits don’t reflect the reality of what happen – rather they represent a lawyer’s drafted version of the most favourable version of events.
If we are talking PR strategies, Amanda has definitely won this round. She’s denied the allegations and provided affidavits to which none of us can verify their credibility for ourselves (not to impugn your view Brian, but I’m a doubting Thomas and prefer to judge these things for myself). On the back of this, most of the well informed readers of this blog appear to believe the SST has a case to answer. All without (presumably) spending a dime. Well played, Mrs Hotchin!
FF’s letter, while I tend to agree with some aspects of it, was rather heavy handed in its treatment of the previous blog discussion. As you say Brian, most of it looked like fair comment & in any case there was some quite robust arguing from Ruth & I to keep it balanced (you should thank us really).
Adam – there are some lawyers who know a bit about your “craft”.
All very interesting and many thanks to Brian, Amanda and fairfax!
BE: Well, if that’s the law, Gen, it’s the law. But what the law would come down to in a case like this is that one person can write a threatening letter to another person, the threat presumably intended to prevent the other person either from referring to the threat, or making a certain statement, or taking a certain course of action, and nothing more is required than to type ‘Confidential’ or ‘Not for Publication’ at the top of the page and it’s all fine and dandy. Doesn’t seem like a very good law to me.
Of all the things Fairfax could be spending their money on…a scrap about the wife of a Finance Company director.
That about says it all.
I’m with Don.
I hate defamation used as gag. Good luck!
Colour me naive.
I don’t understand why Marshall doesn’t front on this? If he is able to prove that he wasn’t telling porkies then surely his account of the events will stand on their own.
Surely, if the quote attributed to Ms Hotchin is true he will be able to avoid the (expensive) litigious route – and defend his (according to Izard Weston/SST) ‘good’ name without the cloak and dagger act.
I am concerned that Mr Marshall’s integrity may be compromised (noting the Striesand Effect).
And for what it’s worth, I’d much rather read your blog than have to tread through the ‘stories’ in the SST.
All the best.
And we’re being diverted into a “he said, she said” scrap over whether or not Mrs Hotchin said “let them eat cake”?
Yes we are, Ruth. Things may have changed a lot since I went to journalism school, but I wasn’t taught two ethical codes – one for nice people I like and whose actions I approve of, and a looser one for the other bastards.
You might well regard Amanda Hotchin as the Marie Antoinette of Paratai Drive, but she’s entitled to exactly the same fair dealing from the media as you and I. Or Sharon Shipton, for that matter, who received this apology from the Herald on Sunday (rather unusually, AFAIK, signed by the then editor Shayne Currie), for attributing statements to her she didn’t actually make.
Brian, take a look at Stephen Price’s excellent summary of breach of confidence on Media Law Journal. These facts constitute such a breach.
Not nearly as comprehensively as you suggest, they don’t. Steven doesn’t even mention this particular scenario.
If Brian “stops reading” because the first line contains the word “confidential to the recipient”, he doesn’t know what the letter says.
I suggest you’re drawing a long bow.
Well obviously common law is never black and white, but this seems pretty unequivocal to me:
To bring a lawsuit for breach of confidence, a plaintiff has only to show:
1.the information is not in the public domain [it's not]
2.it is confidential – that is, it was passed on in circumstances that made it clear it was to be treated confidentially; [it was]
3.it was disclosed (or is about to be disclosed) without authorisation. [it was]
Yes, a bit annoying when you receive info you didn’t solicit (and of course who can help themselves from reading a letter) – but on a strict legal analysis it seems like these facts fit the requirements for BOC.
Brian, the NZ Bloggers Union, of which you are a member, is right behind you on this.
A handy tool, which I have used often, for publishing letters from flea lawyers is scribd.com
You can embed the letter so we can all laugh, it also saves a whole lot of typing.
BE: Thank you Cameron. We’ve had our differences in the pass and it’s gracious of you to offer support in this way. I appreciate it.
Amanda Hotchins 1. Sunday Star Times (thanks to Jonathan Marshall) 0.
Unlike you, Gen, I don’t necessarily think it unlikely Marshall taped the exchange. Also – no, I wouldn’t necessarily disregard his version of events if he only made notes. Just like I wouldn’t disregard the affidavits, even if they were sworn by members of the wider Hotchin clan.
But as far as being wary of the court of public opinion…That was where Amanda Hotchin was being tried all along. She was entitled to a result now, in the forum where the SST had initiated proceedings, and where they are supposedly master. Which is why they are wimps to listen to words of legal caution, and worse-case-scenarios from lawyers. Their primary domain, as well as their business, is in the court of public opinion.
Of course it can be a dictatorship, benign or otherwise. Just ask Amanda Hotchin. All the more reason for us all to hold participants to account. Which Amanda Hotchin and BE have done rather well. Do you really think the Ruth’s and Merv’s of this world would really care about the precise details and results of a court case, 2 years after the event? Gaudy lemon ballgown, trophy wife, opulent lifestyle, let ‘em cake. That was the ‘prosecution’ case, and that was the way the public was voting.
Sad, to see how this is all unraveling for the Hotchins’ benefit. For Amanda, it’s less “deus ex machina”, now, and more “godsend”. No better way is there to deflect your protagonists’ scrutiny from yourself than to see internecine warfare percolating away amongst themselves. Nicely. Just check out Jonathan Marshall’s comment in John Drinnan’s The Business Herald column.
For the SS-T to take a litigious stand, seems a very risky manoeuvre. I can’t see any material benefit accruing from this. It’s alienating. Rather than a show of strength through bluster, it connotes the polar opposite by attempting to stifle the discussion. In fairness, I can understand the SS-T’s reluctance to respond to ghost whisperers by way of the so-called “affidavits” and the unknown identities of the purported signatories. Why should they? Sort of like: “Don’t tell me, show me”. Which, in turn, is a close relative to: “Believe nothing that you hear and only half of what you read”. But a lawyer’s threat is not the way to go.
Similarly, BE is of the belief that any quote MUST be published verbatim. The Immutable Truth, so to speak. Being a media commentator, he can’t allow himself the luxury of straddling the divide that separates Truth from Allegation. Especially, when his original column — and his expressed sentiment — was predicated on a quote.
It is entirely reasonable — that he call into question as to what Amanda is reputed to have said to Jonathan Marshall, when he received her evidence of rebuttal. It’s his professional reputation, after all. (Mind you, I felt, he was being exceedingly generous towards her).
BE: I perhaps need to reiterate that the SST is not in the dark about the affidavits. It has them.
Gen – a plaintiff must also show detriment caused by the public release.
And any defendant is permitted to argue that there is a countervailing public interest in publication: free speech supporter seeks to shut down public discussion of journalistic practice – there could easily be a public interest there.
James Coe at Editing the Herald – a blog dedicated to pointing out bad grammar, inaccuracies and tabloidism in the NZ Herald, and now, alas, in abeyance – received a cease and desist letter from the NZ Herald’s lawyers. Rather than cease and desist, he published the whole exchange.
Outcome: the Herald looked like bullies and James was not sued. (But he did change his masthead.) Wish I could find the page for you but can’t as he doesn’t have a search function.
Congratulations on taking this stand, Brian. As a mainstream media organisation supposedly dedicated to concepts such as freedom of expression, informed public debate and the free flow of information in the public interest, the SST’s attempt to gag you by issuing legal threats is, frankly, outrageous.
I have found Amanda Hotchin’s arguments in the blog extremely compelling and cannot fault your analysis and commentary – after You have raised legitimate questions about the accuracy of an SST story, published evidence from one side of the debate and quite rightly sought balancing comment and/or evidence from the SST.
Its response is to threaten leagal action. This is plainly wrong and contrary to the spirit of journalism.
As an aside I will add that I was once interviewed by Jonathan Marshall when he worked for another paper. I was aghast when I read his “quotes” of me for, in my opinion, the “quotes” bore no relation to what I believed I had said.
I complained to his then editor but with little appreciable effect.
However, I reiterate, I believe Amanda and admire your efforts to apply scrutiny to this affair.
BE: Thank you, Bill. I particularly appreciate support from you and other fellow journos, columnists and bloggers.
Part of my post on the original blog was deleted (it was late – I may have over-stepped the mark). I don’t know how a newspaper can sue for defamation unless they can prove that what you have written has affected value of their company. Mr Marshall can – but nothing you have written has been anything but balanced.
BE: You’ll see that I have deleted part of your comment again. In different circumstances I’d be happy to print it.
Gen. So if I tell a policeman something in confidence and that later is used in evidence then the policeman can be sued for a breech of confidence.Interesting.
The whole issue is a fascinating debate on a principle. Journalism integrity might benefit from the outcome or at least the debate. Go Brian and fair play.
Actually JC, to do the full pedant: it’s “The lady doth protest too much, methinks” and it is (see http://en.wikipedia.org/wiki/Methinks_the_lady_doth_protest_too_much) one of the more egregiously misquoted and misinterpreted lines from Shakespeare (a close second to “Wherefore art thou Romeo”).
I would have thought the SST is less likely to sue than I am to win the Nobel Prize for Literature. They have done far more damage to themselves that BE did.
Makes for a sorta crise de conscience for us who don’t like Amanda Hotchins, Jonathan Tabloid Marshall, bullying newspaper proprietors and lawyers.
BE only one who comes out fairly clean
BE: Edited for potential defamation.
Loitering with intent in the public domain…
Not completely on topic, but pertaining to just what is considered private, or public, in the changing social media milieu…
…a recent ruling by the British Press Complaints Commission – http://www.wired.com/epicenter/2011/02/uk-tweets-are-public-info/ – “…has given British journalists the green-light to lift tweets from social networking site Twitter. The public nature of tweeting, PCC says, means quoting those 140 character outbursts in print or online does not “constitute a privacy intrusion.”
This may, hopefully, curb some of the snide asides to the cheap seats, that pass as clever tweets, or ripper ripostes.
It is too easy to say any old thing these days – people need to own their own words, for a civilised society to progress.
All power to you for standing up to this inept bullying. Example: “The matter is what it has always been: a contest between Mrs Hotchin’s version of events and Mr Marshall’s version of events.” Isn’t that an admission that there is no case to answer?
BE: Edited for potential defamation. Normally I wouldn’t be this picky, but..
Is there any precedent in New Zealand for a newspaper threatening defamation against somebody who raises concerns about the veracity of a story?
It was Churchill who said that “journalists are the semi literate cretins hired to fill the spaces between advertisements”. That was in the days when journalism was held in rather higher regard than it is today. I wonder what his view of modern day journalists would be.
The attitude of the SST will inevitably lead readers to draw their own conclusions on the veracity of claims made by both parties. At the moment the SST is losing the battle for ‘hearts and minds’. It could be said that Mrs Hotchin has it by the balls at the moment and unless that grip can be eased the SST is going to continue to lose.
Brian – I respect your response. My comments have been deliberately repetitive in an effort to highlight your inability to respond. I respect why you can’t (thank you for acknowledging that) and I trust that you will respect why readers of this blog will naturally draw the only logical inference (including you Kimbo) that Mark and/or Amanda themselves make up the affidavit count.
On the other hand, if SST have the affidavits and know that already then the suggestion that 4 consistent affidavits question the veracity of what their reporter said may in fact be defamatory against them. Would love to know the truth but being not privy to the special information either you or the SST have, it is difficult.
Craig Ranapaia – I agree that if someone mis-reports someone in a way that is damaging to the person being quoted reputation that the journo cop it. However, my point was:
- the Hotchin’s behaviour outside of the comment in question meant and means their bad reputation is well deserved
- the Hotchin’s absolutely have the means to keep the SST honest with a defamation suit
- the Hotchin’s instead run a PR campaign using Brian’s excellent brannd and standing yet in a forum where they cannot be questioned directly and where they impose conditions aroudn the counter-factual information they put forward
There seems to be a lot of hysteria directed at Jonathan Marshall. he may well deserve it. time will tell I expect. But what is not in doubt is that the Hotchin family took tens of millions , if not more, out of Hanover and let their investors standing, helpless and in man cases impoverished. Craig, I wasn’t dimishing the importance of keeping journo’s honest, I was simply trying to put it in context and perspective relative to the Hanover/Hotchin story.
BE: Very amusing, Top Bloke, but I can’t allow it.
Ruth’s comment seems reasonable to me.
Ianmac – depends on the circumstances in which you told the policeman something. Was he your best friend, off duty at a barbeque and you said “if I tell you this you have to swear not to breathe a word”? Or did you discose the info after you had your rights read to you in an interview room after being arrested?
In any case if the info was compelling enough there’d be a public interest defence. As there may be here. Still means the breach has been committed, just that there was a good reason for it.
I wonder if AH got a similar letter to BE? After all she is the one disputing the veracity of the story.
I don’t really care if Amanda Hotchin made these remarks or not. It will not change my opinion that the Hotchins are the worst kind of ‘nouveau riche’ and show absolutely no empathy for those investors who have lost so much.
Wayne Cowley – well put – if only I could learn to be as succinct as you
Whale Oil is a Union Member?
Ruth, you seem determined to defend Jonathan Marshall despite the simple explanation that if he had a tape of the conversation why didn’t he run it with the article. It would have been a slam dunk.
You seem to be determined to continue the attack lines against Amanda and Mark Hotchin (and while everyone is entitled to their opinion) once again the issue here is about the credibility of two parties. One has presented affidavits while the other side has now threatened legal action if this post continues.
Seriously you’ve got to let it go. Bitterness will eat you up!
Gen, your comment
.it is confidential – that is, it was passed on in circumstances that made it clear it was to be treated confidentially
is totally incorrect. Information doesn’t magically become “confidential” just because someone made “makes it clear” it should be treated confidentially.
In a breach of confidence claim, the information itself must have the “necessary quality of confidentiallity” (which, of course, is a flexible judicial concept). In my view, I have no doubt that the letter from Ms Bacon does not remotely qualify. There was nothing inherently confidential about its contents. There is no doubt it would have been passed around various parties to review / approve the letter.
I suspect, BE, that you may have become just a little too giddy on exposure to the aura that surrounds those magical words “sworn in an affidavit”. From what has been disclosed to date, it appears the affidavits may not carry much weight. Three points.
First, AH places an undue emphasis on the independence of the two contractor deponents – “not known to me personally” – although from her email they did clearly know her husband at least on first name terms. They were also of course in the employ of the rental company for whom the Hotchins are apparently good customers. Put simply, the mere existence of an affidavit is meaningless unless its weight can be established.
Secondly, one needs to ask why AH has bound you not to reveal whether she is or is not one of the deponents of the affidavits. On one view, it could be inferred that such prudence is necessary in the event she has sworn an affidavit and the SST actually does have a recording of her making those statements. In that scenario, an admission on your blog that you are in possession of an affidavit by AH that is false would be sufficient for the SST to make complaint to the Police who might then execute a warrant to seize the affidavit (it being a crime punishable by up to three years imprisonment to ‘swear any statement that if given in Court would amount to perjury’).
In the event AH has not sworn an affidavit, the most obvious inference is that she is wisely not prepared to put herself in the jeopardy (noted above) that would result if the SST in fact has proof.
Given those possibilities, it becomes quite clear what game the SST is playing by not releasing notes/recordings and by utilising Court proceedings to (presumably) force your disclosure of what you may possess.
Thirdly, you may be a little too casual in your assertion there is nothing defamatory in your postings; if X publishes a statement saying they have seen an affidavit by Y which portrays Z as a liar (or unethical etc)then that may well be defamatory repetition by X of a defamatory affidavit by Y. Privilege only attaches to the affidavit if it is filed in proceedings, not if it is sent to media. This was all litigated in Peters v Simunovich.
My overall impression is that the Hotchins may have been too smart for their own good this time and the SST sees an opportunity to manoeuvre them (through their correspondence with you) into position for a king-hit. All will turn on what cards Marshall has left to play and of course how he plays it.
Thanks for the intrigue, I hope you don’t end up feeling like you had never gotten involved.
BE: I’m assuming (I apologise if I’m wrong) that you are an academic lawyer. I’m not sure how many lawyers that makes now commenting on this issue. Including the senior barrister who advised me, it probably comes to four or five. No two lawyers say the same thing. On the whole I think my own barrister and Steven Price of the Media Law Journal provided the best commentary, which can perhaps best be summarised as ‘much can be said on both sides’. Perhaps I can correct you on one important point while I’m at it. “…one needs to ask why AH has bound you not to reveal whether she is or is not one of the deponents of the affidavits” – one doesn’t. She never made such a request. While I’m grateful for your avuncular concern for my welfare, I can assure you that I am neither too giddy nor too casual about anything.
BE: Sorry, Falafulu, a bit too close to the bone for publication.
Of course there could be a longer game at play here. What if Marshall does have a tape recording of the conversation, and the SST is just handing out rope at the moment for a nice Gotcha! story plus legals?
It is extraordinarily stupid to attempt the gag – but its not hard to come up with a scenario where Amanda and her affidavit signatories are well and truly hung out to dry, in which case the gag attempt (classic head fake) could almost make sense.
much ado about nothing.Hotchin/Hanover were particularly litigous when Hanovers puffery was ever challenged.Even if Marshalls version is bs…does anyone then believe that the Hotchins would suddenly be viewed as wonderful ,compassionate human beings?A diversion ,nothing more.Wayne has it right.
Wonderful,Tort law and English Lit all on one site and no uni fees.
Steven Price has written an interesting piece on this debate in his Media Law Journal. Worth a look:
DLMMackie – I’ve tried to stay away from personalised remarks but your insistence that unless a reporter has a tape recording of a quote it must be false is ridiculous and makes you look ridiculous.
People who have lost their life savings to this lot are the ones rightly suffering from bitterness. I’m just doing some bidding for them because people like you seem more intent on looking after
the people who took their savings. Perhaps you’re part of Amanda’s fast-lane social set? How’s the commute to Mermaid Beach? It’s not quite Vomo is it?
BE: This is now worthless, especially in a comment that talks about staying away form personalised remarks. You’re testing my patience now, Ruth.
Ruth – “the suggestion that 4 consistent affidavits question the veracity of what their reporter said may in fact be defamatory against them”.
Stop being silly. Reporting that two parties disagree on a version of events is not defamation of anyone. Neither is drawing out the implications IF one or other of those parties has lied/mistakenly reported the events incorrectly – it is about the only two options when two parties disagree!
The SST effectively acknowledged as much when they said, “we stand behind our reporter”.
You asked me previously what inference could be drawn from the SST’s possible (now actual) silence. Not much, including the veracity or otherwise of Marshall, or the reliability of his record keeping.
However, when you are a newspaper, your credibility is your business. As a result of calling in the lawyers, when they could have front-footed this to their heart’s content on their front page, I conclude they are very dumb! If you are wary of a protracted legal battle with the Hotchins, why run the story in the first place?!
An interesting aspect to this is US wiretapping laws – is it legal in Hawaii to record a conversation without telling the other party? Could the SST have violated US law and what are the ramifications if they have?
BE: Journalists in New Zealand routinely record interviews on the phone and in the field. On the whole we think it’s a desirable practice. Better than note-taking for accurate quotation.
JC:Had Steven been an adviser to the SST it seems likely that he would have suggested that it would be unwise for them to take the direction that they did.
As others have said, it is over to the SST to put up….
Surely Nadis’s proposition would not be true. Be even more damaging to SST!
“Poor SST – it’s almost as if they don’t have a public platform to defend themselves on… ”
Heh, yeah. Astonishing really. I don’t like our defamation laws as they stand. But even a supporter of those laws would surely agree that this is an ill-thought-out decision by the SST.
Kimbo – fair enough on the defamation point. Where do you now sit on your possible “tricky minx” allegation?
Reporting that two parties disagree on a version of events is not defamation of anyone. BUT, in my view, calling a journalist’s quote “pure fabrication” is – it impugns the journalist’s professional integrity (unless of course you can prove he did fabricate; here I doubt you could prove anything either way). Amanda said this and Brian publishes it on his blog, so either would be liable. If it went to court. Which in the absence of solid evidence I doubt it would.
When people say they don’t like defamation laws, I wonder what they would suggest as an alternative? My experience is that they generally work pretty well when all parties adhere to them (i.e. possible legal issues are considered prior to publication). If any law is used as an ambulance at the bottom of a cliff, the damage has been done and the only people who win through a fight in court are the lawyers.
BE: The “pure fabrication” comment originally appeared in Amanda Hochin’s email to me on January 8 of this year, just over a month ago. The SST has had some time to consider it.
…I sit the same on that as I do on the veracity or otherwise of Marshall’s version of events, and any recordings and/or notes he may or may not have made.
I’m suspending speculation and judgment for the moment, and watching and waiting as events develop according to a yet to be determined timetable. Far more interesting things to concentrate on at the moment – like whether the SST this weekend will bluff and bluster, go all coy and legal, or if they will front foot it with some solid, relevant, and verifiable new facts, like a good, bold investigative newspaper should.
“Brian, take a look at Stephen Price’s excellent summary of breach of confidence on Media Law Journal. These facts constitute such a breach.”
Steven Price, on whether it constituted such a breach:
“Well, it’s arguable. … it would be an interesting question for a court, but it would be a foolish lawyer who advised a client that asserting confidentiality like this is (a) legally watertight and (b) sure to be respected by the recipient. Some lawyers I’ve discussed this with admit that it’s a bit of a try-on.”
So, whether or not it even counts as such a breach is arguable, and even if so the ‘public interest’ defence may apply.
Brian appears grumpy at me presumably for potentially embarrassing him regarding the “I have four affidavits” headline. He shouldn’t be because my observation is that he is decent, ethical and well meaning and if anything, he may simply have been played by some people who have gamed the system for a long time i.e Team Hotchin. Rather than ‘test his patience’ further I’ll gracefully withdraw from the discussion at this point. Gen – keep up the good work. Kimbo – be true to the standards you claim you stand for. Mark/Amanda – give the money back please. Fun debate. Over and out.
“When people say they don’t like defamation laws, I wonder what they would suggest as an alternative?”
Doing away with defamation laws.
I used to think it was a radical position, but I’m increasingly of the view that the ubiquity of the internet and the changes in people’s attitudes in the modern environment make dispensing with defamation laws more sensible.
I’ve been following this with interest, amusement and faint concern in a couple of blogs and the Herald.
Before going further I must assert my bona fides of pedantry – Kimbo you lose the title by default when you state: “…without you prizing it out of my hands!” The more correct word is prising, and I now claim the title.
Three matters concern me and I’d really like you to clear them up if you can and will.
1. You state in response to Inna Spin that AH never bound you not to reveal whether she was one of the deponents. While she may not have made that specific request, hasn’t she achieved exactly that outcome by binding you not to reveal who the deponents are? If so, I wonder why you deny it.
2. I understand that you have stated that you do not represent Amanda Hotchin in any capacity. Do you represent Mark Hotchin in any capacity?
3. AH has stated, and backed up with sworn affadavits, that “she did not use those words.” It’s possible that she used similar words that gave the same effect; to your knowledge has she stated what words she did use, given that a conversation did take place?
This episode has the faint but unmistakable whiff of sophistry. If AH is simply saying “I did not use those words” and fails to state what words she did use, she invites observers to infer that the general meaning of the conversation was not dissimilar to what was reported. It doesn’t excuse Marshall his obligation to report accurately and faithfully, and to record the conversation in a timely manner, but in the absence of any evidence from AH about what WAS said, rather than what WASN’T, speculation will continue.
BE: I’ve got to say it’s really tiresome having to answer the same questions I’ve already answered several times. Please read the posts and the comments carefully.
Mrs Hotchin did not ask me not to name her. She asked me not to name any of the signatories. Whether or not she is one of the signatories is for her, the SST and me to know and others, in due course possibly, to find out.
No, for the nth time, I have no relationship of any sort with Mark Hotchin, have never met him or spoken to him.
The affidavits claim that she did not say these words or anything similar.
You cares what Ms Hotchin said or did not say, the fact is the Hotchins have run away to Australia, they are not prepared to stand up and face the music; if they truly ‘cared’ they would be here in New Zealand. Nothing can detract from the fact that the Hotchins are extremely selfish and greedy and are clearly not prepared to sacrifice their lavish lifestyle. Reap and sow!
A lot of interesting stuff here. I am a bit surprised (probably shouldn’t be) at the number of people who are challenged by the correct placement of an apostrophe. I lost count of the number of times Hotchins and Hotchin’s were used incorrectly. Come on commenters. Too easy to say “it doesn’t matter” It DOES bloody matter!!
This isnt about the Hotchins it is about SST threatening and bullying a fellow blogger. The SST have made this the story.
Brian will be supported by fellow bloggers through the NZ Bloggers Union (compulsory membership).
BE: Thanks Cactus Kate
Brian, When I get a letter like that, I return it with a note saying: Dear Madam, I think you should know that some asshole is writing stupid letters under your name.
BE: Or: Dear Sir, five minutes ago your letter was before me; now it is behind me.
I agree that if someone mis-reports someone in a way that is damaging to the person being quoted reputation that the journo cop it. However, my point was:…
Ruth: I may largely agree with you, but the Hotchins are no less entitled to ethical treatment by the media than anyone else. Fabricating quotes is not only totally unacceptable, it is a fundamental breech of the trust that should exist beween journalists and their readers. It’s only as hard as you choose to make it.
And you know something else, if the media want to set themselves as critics and consciences of society they need to harden up. Really. Instead of getting the lawyers to try and itimidate Brian, the SST could have followed the example of Fran O’Sullivan when Winston Peters accused her of making shit up and threatened to sue. She promptly issued a statement saying she had a tape recording of the disputed statements, stood by the story she wrote, and would vigorously defend any actual libel or Press Council action.
Edited for possible defamation.
I’d be the last person to come to the aid of a failed finance company but being quoted wrongly can be harmful and hurtful.
There’s really no way to prove it unless it’s in print.
The Hotchin saga is becoming so drawn out, and quite frankly boring. Who cares who said what – the fact remains actions speak louder than words, it’s quite apparent how greedy they are.
Put Mark in court and let them decide his fate.
Time to consider wearing high street clothing Amanda, oh how terrible.
I still don’t understand why if investors wanted the Hotchins to sell all their assets and go live in the street, they invested in Hanover. If you want a personal guarantee, go invest in a company that gives one.
@ Kiwibacon: “The Hotchin saga is becoming so drawn out, and quite frankly boring. Who cares who said what – the fact remains actions speak louder than words, it’s quite apparent how greedy they are.”
You nailed it! Someone tell the Hotchins to take up residence in Aitkin Tce., Kingsland; behind, where your proud namesake once stood.
BE: You’re probably right, Michael, but at the moment I can’t publish your comment for reasons of potential defamation.
Robyn…investors’ do not understand what 1st ranking debentures are.A former news reader Richard Long reassured them ,along with the rest of the glossy advertising.By offering only a margin above the trading banks the cunning ‘entrepreneurs’ gave the illusion of being concrete and low risk.If the full disclosure of related party loans, and the deals done when developers went bust ever become public information….well ,the contempt held for Hotchin and co atm would pale into insignificance.Was the best game in town,with the least consequences.Perception and reality.
lanmac – i have no idea how likely the proposition i made up is. But i dont think it would be damaging to the SST – lets face it, the Hotchins have lost comprehensively and irreversibly in the court of public opinion, so there’d be no backlash there. In fact anything from gentle chiding to full scale harassment will be cheered on by almost everyone in NZ who understands the difference between legality and morality. And the brouhaha with this blogsite will all be completely forgotten if the SST ends up suing the Hotchins for defamation or facilitating a prosecution for making false affidavits.
It boils down to something really simple – does a recording exist? If it exists, Amanda is screwed.
I am skeptical that Amanda is not taking legal action. If she is correct, this is an easy slam dunk. The Hotchins are not without assets despite what they claim. Even if they were, for a slam dunk defamation case they could get financing.
Stop the presses. I think the real story here is that Cactus Kate is a member of a union.
“Mrs Hotchin did not ask me not to name her. She asked me not to name any of the signatories. Whether or not she is one of the signatories is for her, the SST and me to know and others, in due course possibly, to find out.
No, for the nth time, I have no relationship of any sort with Mark Hotchin, have never met him or spoken to him.
The affidavits claim that she did not say these words or anything similar.”
Great – thanks for clearing it up for me, and sorry for being so pedantic and missing some of the intent from earlier posts, of which there certainly have been a large number.
You have my support and evidently that of a large number of others. Go well and good luck.
I’m going to be a spanner in the works and question the merit of taking Amanda Hotchin for her word and then publishing it on your blog. Mrs Hotchin is a person who is allied in marriage to someone whose word and trust is worth increasingly less and less as we find out more and more about what happened to the lost Hanover millions.
The Hotchins have grown accustomed over the years to paying people to do what they want them to do including the now widely known $30 million mansion in Auckland. While Mrs Hotchin did not play a part in extracting money from people she certainly played a part in spending it. Although their NZ assets are frozen, it is quite likely that they still have access to unknown millions held in overseas assets.
Mrs Hotchin has supplied you with affidavits which support her cause, and asked you not to publish them. You have clearly, either wisely or not, taken them and her story at face value. I would like to ask how much, if any, further research you have done on the merits of her story?
While you choose to publish most of the contents of the letter from Izard Weston despite a request not do so, you have chosen to adhere to Mrs Hotchin’s similar request. That is your choice, but represents an imbalance.
While not totally unrelated, Mark Bryers from Blue Chip is apparently back to his old tricks: http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10705757 . Mrs Hotchin may be the wife of an “investment adviser” but she lives amongst people who can be extremely convincing and persuasive and has no doubt learnt a few tricks herself.
I doubt if SST will sue for defamation because it is likely they do not have a recording and only have Marshall’s testimony to go on. I agree that the media has been rather too harsh on the Hotchins and some people have gone overboard, but I don’t think that means treating the Hotchins with the trust and reverence they don’t deserve.
BE: I have not taken anyone’s word for what happened – that’s the entire point. On the other hand, I’m not prepared as you are, to judge a woman by the activities of her husband.
I have not taken the affidavits at face value. Four people claim she did not say the words quoted. The SST says she did. I’ve merely asked for some supportive evidence of that.
I adhered to an undertaking I had given Mrs Hotchin before seeing the affidavits. You want me to break my promise.
Some exercises in close reading might be a good idea.
This entire debate, and all the SST’s unjournalistic threats against you, would be brought arrestingly to an end if only the “journalist” at the centre of it all could produce any evidence at all that Amanda Hotchin said those words.
Where is that evidence? Why hasn’t the SST put it before you?
Or was the newspaper too enamoured of its own scoop to both to verify it?
The opportunist who panders to the baser instints of the mob is seldom asked by the mob for any proof of his claims. But you have asked for it. And it is beholden upon the SST to provide it, or explain why they can’t.
No matter who the mouth belongs to, and no matter how low our opionion of them may be, it is not the job of journalists to go putting words in them.
The slight irony is that both Hanover and the SST, appear to have relied upon their ability to say whatever they liked, regardless of its veracity.
The people who once believed in the business prowess of Mark Hotchin, now believe that Amanda Hotchin is fit for the guillotine. I would respectfully suggest that, on both occasions, they may have been mislead.
Going for the nuclear option early is a sure sign you’ve got nothing else to bring to the table.
This is just another example of a failure of a large organisation to sit back for a few minutes before they unleash their lawyers that the law and courts often matter less than the other (often more important) ‘court’: the court of public opinion.
No matter the specifics/truth of what Amanda Hotchin said, the blunt involvement of a law company is merely a diversion to the issue – that of one party has tried to back up their version of events and the other has not.
“Stop the presses. I think the real story here is that Cactus Kate is a member of a union”.