Judge: Tom Scholz must produce documents
Thursday, July 22, 2010

By Jerry Kronenberg
Boston Herald

A judge has ordered Tom Scholz of the rock band Boston to turn over documents, including e-mails between him and key figures in the case, sought by Herald lawyers defending the paper against a libel suit brought by Scholz.

Suffolk Superior Court Judge John C. Cratsley has granted Herald motions compelling Scholz, his wife, his ex-wife and his accountants to produce within 30 days e-mails and other documents that they had previously withheld.

“All e-mail correspondence shall be produced in its entirety, including any preceding messages and attachments,” Cratsley ruled.

The court rejected Scholz’s bid to subject the material to a far-reaching confidentiality order that the Herald’s lawyers claimed would have let Scholz pick and choose which documents to seal from public view.

Scholz’s lawyers argued that such an order was needed to protect the musician’s personal and business information.

However, Cratsley ruled that Scholz can only mark medical records, tax returns, Social Security numbers and other personal identifying information as “confidential.”

Boston-based First Amendment lawyer Harvey Silverglate called that a big victory for the freedom of the press.

“I personally believe that the First Amendment requires openness, so given where I’m coming from, I think this is a good opinion,” Silverglate said.

Scholz sued the Herald in March over three 2007 columns published shortly after Boston lead singer Brad Delp committed suicide.

The pieces quoted Delp’s former wife and others as saying they thought that, at the time of his death, the singer felt caught in the middle of long-running feuds between Scholz and several ex-Boston members.

Scholz has been involved in lawsuits with several former Boston members, as well as with other individuals associated with the band.

Scholz claims the Herald’s piece misquoted Delp’s ex-wife and blamed him for the singer’s suicide. The newspaper denies those charges.

Earlier this month, the Herald argued in court that Scholz wanted to hide material detrimental to his case from the public by misapplying rules designed to keep trade secrets private during lawsuits.

Herald lawyers also argued this position violated Massachusetts courts’ “rigorous presumption of openness.”

And, they added, Scholz’s representatives had actively publicized the lawsuit.

But Scholz’s attorneys countered that the musician and witnesses he expects to call during the case fear unwarranted publicity.

“We’re not refusing to produce (documents) in this case,” Scholz lawyer Susan Stenger told Cratsley. “We’re just asking that the confidentiality be (determined) first and that (irrelevant material) not appear on the front page of the Herald.”

However, Cratsley ordered the musician and witnesses close to him to produce the materials the Herald has subpoenaed - particularly e-mails.

The Herald’s lawyers argued in court papers that key parts of an e-mail exchange Scholz had with Delp two months before his suicide appeared to have been “whited out.”

The paper’s attorneys also claimed the date of an e-mail the musician received from ex-Boston member Barry Goudreau on the day one of the Herald’s stories ran appeared to have been redacted.

A call to Stenger yesterday was not returned.


Related Article: All Scholz e-mails ordered disclosed

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