Belfast Project: Pass the Popcorn

The Independent is reporting that Richard O’Rawe, one of the former IRA paramilitaries who was interviewed as part of the Belfast Project and whose interview was produced to the PSNI under the subpoenas, is suing Boston College in the High Court in Belfast. An alert reader brought to story to my attention and wondered what I thought about it.

For one thing, it’s too bad the case will be in Belfast instead of in Boston. It’s bad for me, because I won’t really be able to cover the proceedings. It may well be bad for O’Rawe, as it gives BC opportunities to raise defenses to the court’s jurisdiction, to the venue, to the convenience of the forum, etc. But issues of the proper forum aside, what is the case about? I suppose the claim will be for breach of contract insofar as the contract called for the interviews to be kept confidential. But—and I preface this by saying that I don’t know which law the Belfast court will apply to the contract, and that I don’t know what the law of Northern Ireland has to say on such issues—wouldn’t compliance with the subpoena be an absolute defense to the claim? I am thinking of cases such as Ventura v. Cincinnati Enquirer, 246 F. Supp. 2d 876 (S.D. Ohio 2003), aff’d, 396 F.3d 784 (6th Cir. 2005), where a reporter disclosed a source’s identity to a grand jury pursuant to a subpoena despite a promise of confidentiality. The court held (under Ohio law, which may or may not be the same on this point as Massachusetts law or Northern Ireland law) that the reporter was absolutely immune from civil liability, notwithstanding the source’s argument that the reporter should have done more to avoid revealing the source’s identity. That seems like the right rule to me.

Another objection: isn’t it an implied term in the contract that BC’s promise of confidentiality was subject to legal compulsion? Put another way, suppose the contract had said: “We promise never to disclose the interview, even if we receive a grand jury subpoena.” Would such an agreement be valid? I think not.

And anyway, what are O’Rawe’s damages? According to the Independent, O’Rawe claims “distress, stress, and serious inconvenience resulting from intimidation and reputational damage.” In essence, his claim is for emotional distress, it seems. (His reference to “reputational damage” can’t really be a reference to libel, can it?) It’s hard to know if this will fly. “Recovery for emotional disturbance will be excluded unless the breach [of contract] also caused bodily harm or the contract or the breach is of such a kind that serious emotional disturbance was a particularly likely result.” Restatement (Second) of Contracts § 353. On the other hand, Massachusetts law doesn’t bar emotional distress damages in all contract cases: “There is no seneral rule barring such items of damage in actions for breach of contract. It is all a question of the subject matter and background of the contract …” Sullivan v. O’Connor, 363 Mass. 579 (1973).

In short—this will be interesting.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

10 thoughts on “Belfast Project: Pass the Popcorn

  1. He signed his contract in Belfast, and was interviewed in Belfast, so that’s where he had his relationship with Boston College. Jurisdiction doesn’t seem like a problem.

    As this story says, BC agreed in writing to set up an oversight committee to manage the collection of interviews, but never did. That seems like clear negligence. As does this, from the same story:

    “Even so, the contracts with interviewees made no mention of legal limits on confidentiality. ‘I am working on the wording of the contract to be signed by the interview[ee], and I’ll run this by Tom [Hachey] and university counsel,’ Mr. O’Neill wrote to Mr. Moloney in early 2001, the day the journalist signed on as project director. Mr. O’Neill never did check with a lawyer about the wording.”

  2. Would Mr O’Rawe consider suing Ed Moloney for misrepresenting limitations on confidentiality regarding O’Rawe’s testimony? Did Moloney, as archive interviews director, receive a contract stating that confidentiality was limited to the extent that US law permitted, information not transmitted in personal contracts to participants (for whatever reason)?

    Perhaps Mr Moloney’s potential liability is included (implicitly?) in Mr O’Rawe’s suit.

    Also, how did Mr O’Rawe’s participation become public knowledge? We know of the participation of two deceased interviewees, Brendan Hughes and Dolores Price, due to Ed Moloney including some Hughes testimony in his book, Voices from the Grave, and because Price gave an interview to a Belfast newspaper, followed by Moloney taping her and putting that testimony in the Boston College archive. The PSNI presumably asked for and received that Price interview.

    How did O’Rawe come into the pubic domain in this context? Is it because Mr O’Rawe’s “solicitor Kevin Winters said the university had handed over a recording of Mr O’Rawe which did not discuss Mrs [Jean] McConville” (quote from report linked above). Is Mr O’Rawe therefore a self-declared participant in the project?

    Was O’Rawe’s testimony used by the PSNI in the attempt to gather information with which to charge Gerry Adams with IRA membership? Will a Belfast court construe Mr Rawe’s recorded memory of violent events, construed as criminal behavior by the British state, as information it was his legal duty to divulge in the first place?

    A mess, getting messier.

    1. Joel, thanks for your patience. In order to prevent spam, I manually approve each commenter’s first comment, which can take a while depending on my schedule. Once you’ve had a comment approved, you can publish comments without waiting for moderation, assuming you use the same email address.

  3. Joel, my understanding is Richard O’Rawe confirmed his participation in the project some time ago. Also Anthony McIntyre cited him as an example of a participant that supported the peace process fairly recently. The bigger question I had was how he (O’Rawe) knew the police had at least some of his account in their possession. The only explanation I have seen is that perhaps he requested (through his attorney) his tapes back from BC and was told that some were released to the PSNI, which is certainly plausible. Though if he did not mention Jean McConville case it raises the question as to what exactly the subpoena(s) requested as to the best of my knowledge the first one at least was sealed.

  4. Well let’s hope the popcorn comes with free refills. Breaking news that NBC has requested all materials handed over to the PSNI. No idea if the law they are quoting applies to this case and also see today that Ed Moloney is saying maybe no big deal as Judge does not have the material. Would be interested to see your legal opinion on this Ted. http://thebrokenelbow.com/2014/05/20/breaking-news-nbc-news-seeks-subpoenaed-interviews-from-boston-court/

    PS – your welcome Joel!

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