CHARLOTTE, NC (WBTV) - Attorneys for Duke Energy have asked a federal judge to hold a hearing to determine who provided an Associated Press reporter with the deposition transcript for Dr. Ken Rudo.
Rudo is a toxicologist with the North Carolina Department of Health and Human Services at the center of a debate over the state's standard for hexavalent chromium in well water near Duke coal ash ponds.
NCDHHS and the North Carolina Department of Environment and Natural Resources, which has since been re-named the Department of Environmental Quality, issued letters in the summer of 2015 to more than 200 residents living near coal ash ponds across the state, including in Belmont, Salisbury and western Cleveland County, advising residents not to drink their water.
Nearly a year later, in March 2016, the same agencies sent another letter to the same residents telling them their water was safe to drink.
In the weeks following the March letters, top regulators at DHHS and DEQ claimed the wells near coal ash facilities contained the same levels of hexavalent chromium as public water systems across the state. An On Your Side Investigation found that claim to be false.
Duke sought to withhold transcript of Rudo's deposition
Debate over the public release of Rudo's transcript began in mid-July when attorneys for Duke Energy requested a federal judge seal the transcript of Rudo's testimony to date (his deposition has yet to be completed).
In a legal brief supporting its request for the protective order, attorneys for Duke argued that attorneys at the Southern Environmental Law Center, which represents several environmental groups suing Duke over its management of coal ash, "have sought to manipulate the media and the public, igniting fear and consternation in order to garner support for the extreme remedy Plaintiffs seek in these cases…"
Duke argued that release of Rudo's partial deposition transcript would prevent the energy giant from receiving a fair trial.
Attorneys for Duke filed selected excerpts of Rudo's testimony along with its brief.
Attorneys at the SELC responded to Duke's motion by filing a brief of its own opposing the request. Included in its reply was a larger portion of Rudo's testimony.
Included in the portion of Rudo's testimony included in SELC's reply brief were claims by Rudo that Governor Pat McCrory was involved in a meeting in which McCrory's aids sought to change wording of the 'do not drink' letter sent to homeowners advising of the elevated levels of hexavalent chromium found in their water.
Both McCrory and top aides have denied Rudo's claims and accused Rudo of lying in his deposition.
The Associated Press obtained a complete, un-redacted, version of Rudo's partial deposition testimony that was published around the same time as SELC's response to the motion from Duke's attorneys asking the transcript be subject to a protective order.
Duke's attorneys seek to determine the AP's source
In response to the AP's report, attorneys for Duke Energy filed a new brief on Friday accusing the SELC of leaking the full transcript.
"First, it appears that SELC has leaked the entire 220-page transcript to the press, contemporaneously with the filing of its response, in an attempt to deprive the Court of jurisdiction to resolve this dispute," the new brief reads. "Second, SELC's publication of Dr. Rudo's testimony, much of which Dr. Rudo based on news reports and other hearsay rather than first-hand information, has ignited a media frenzy painting Duke Energy in false light no reasonable juror could ignore."
As a result, Duke asks a judge to convene a hearing and conduct an inquiry into the circumstances surrounding the leak of Rudo's deposition transcript.
Such a request is entirely legal but does raise First Amendment question about the freedom of the press, according to Jonathan Jones, an attorney and executive director of the North Carolina Sunshine Center.
"Are they trying to use the court as a tool or a bludgeon to ferret out who the source is?" Jones asked.
Jones said a court inquiry into the AP's source would be time consuming and could be counter-productive but is allowed under the law since there is no federal shield law protecting reporters from being forced to divulge information about sources and reporting methods.
Such a law was among the things promised by Barack Obama in his first campaign for president. Despite that, efforts to pass a federal shield law have failed.
Many states across the country, including North Carolina, do have shield laws that protect reporters in state courts. The North Carolina law would not apply in this case since the case is in federal court.
"I think it's entirely objectionable," Jones said of Duke's request for a hearing to determine the AP's source. "I think Duke should be ashamed of itself for trying to use the courts to ferret out who the source was for the Associated Press."
But a spokeswoman for Duke Energy defended the company's request in a statement to On Your Side Investigates.
"Whether it's a half-finished deposition, outdated financial estimates or more, our ability to a fair, impartial jury is diminished as misinformation is spread through the media to the public, leak by leak," Duke spokeswoman Paige Sheehan said.
"We are simply asking the Court to put an end to this destructive behavior, and to hold accountable whoever is behind it," she continued. "This is a serious matter for anyone who cares about the integrity of the legal process in North Carolina."
SELC denies leaking Rudo deposition
Attorneys at the SELC responded to Duke's request for a hearing and accusation that the organization leaked the complete transcript of Rudo's partial deposition in a new legal brief filed late Monday.
In the new brief, attorneys at the SELC call the accusations baseless and false.
"Without a shred of evidence, Duke Energy and its counsel represent to the Court that counsel for the Conservation Groups, the Southern Environmental Law Center, provided a copy of the deposition of Dr. Kenneth Rudo, North Carolina's Toxicologist, to the Associated Press," the brief says.
The brief also points out that attorneys for Duke are asking a judge to hold a hearing to determine who leaked a deposition that is a public court record.
Attorneys at the SELC say attorneys for Duke never asked them if they were the AP's source but, had they been asked, they would have said they were not. The new brief includes a declaration to that effect.
A judge had yet to rule on the request for a hearing to determine the AP's source. A spokeswoman for the Associated Press did not immediately provide a comment when reached Tuesday afternoon.