No Secrets: Fighting for the Press’s Right to Know

From O.J. to Oklahoma City, Kelli Sager keeps the courts open

Published in 2005 Southern California Super Lawyers — February 2005

Lemons into lemonade. That’s Kelli Sager’s life story.

During her junior year at USC, for example, there was a scandal involving certain members of the football team claiming academic credit for being on the debate team, which they were not. It’s a long story, but it ended in a seeming perversion of justice, with the debate coaches getting fired and a number of students on the debate team losing their scholarships. Sager was on an academic scholarship, so she wasn’t immediately affected, but it was unclear for a while whether the debate program at USC would even continue.
 
“A number of us ended up transferring to other schools,” Sager recalls — herself included. She took off for the Southeast, to West Georgia College. Not exactly Harvard. Though it has changed somewhat in recent years, at that time law schools were known to value the prestige of where applicants had studied as undergraduates. West Georgia College was not high on the list of these colleges.
 
“I’m sure it affected my law school application,” Sager recollects, then with a chuckle: “I know my parents were a little disturbed.” She sits behind the desk in her crowded, L-shaped office at Davis Wright Tremaine in downtown Los Angeles. Sager is one of what is probably a very exclusive group of lawyers in Los Angeles — those with lava lamps in their offices (long story). Small only in stature, Sager’s wavy, brown hair and large, bright eyes peek through the mountains of papers (and jars of candy) on the desk before her.
 
Sager was more interested in debate, at the time, than with which law school she’d attend. She knew that debate did get some consideration with admissions departments. It had always been her dream to win the nationals, and West Georgia had a history of fielding competitive teams. Plus, Sager was a journalism major, and West Georgia had an internship program with an innovative businessman, new to the broadcast industry, named Ted Turner. “I convinced my parents that it was a good place for me because I might be able to go work for Turner’s ‘Superstation’ after college,” she says.
 
Sager and her partner placed fifth at the nationals, and she didn’t go to work for Turner. But she did fulfill the dream she’d had entering college, which was to debate at the highest level, despite the jarring experience of the USC fiasco. Lemons into lemonade.
 
She was still on the bubble about whether to pursue journalism or law when she learned there was actually an area of the law that dealt with the media, and, bingo, there it was — the Panglossian best of both worlds.
 
From the beginning, Sager says, she’s always been focused on media law. Her first summer internship during law school (she ended up at the University of Utah, where she was editor in chief of the law review), she worked for Parsons, Behle & Latimer in Salt Lake City. “They represented the local newspapers and TV stations,” Sager says, “so I got to do some media work right off the bat for them. I went to Gibson Dunn my second summer largely because they had the largest media practice in Los Angeles at that time. All the firms I chose between did a lot of media law.”
 
Sager was at Gibson Dunn for eight years — “a star” even as a junior associate, a co-worker told American Lawyer in 1995, and something of a mentor to the other women associates — when she came up for partner. She didn’t make it. Obviously a disappointment at the time, it’s been more than 10 years, and clearly Sager has moved on.
 
Lemons into lemonade again: So have some of Gibson Dunn’s clients, including the not insignificant New York Times Co. Even though it had lost a decision with Sager representing it back when she was an associate — to the tune of $7.5 million in damages — The New York Times Co. continued to have her represent it in a libel case brought by businessman Leonard Ross against its Santa Barbara News-Press, after Sager went straight to Davis Wright.
 
“I’ve always been impressed by her skills as a lawyer,” says New York Times Co. assistant general counsel George Freeman, who’s worked with Sager both on Ross and on the Communications Law Forum of the ABA. Freeman, then a deputy in the Times Co. counsel office, had recommended Sager for partner at Gibson Dunn, as did several other of her clients.
 
“She’s bright, quick, responsive,” he continues. “It’s particularly important to have a lawyer who can both cut through the biases people might have about the media, representing the facts of the law and arguing them squarely, and — most importantly — give a judge or jury a solid understanding as to why the First Amendment is the first amendment, and why its values are pre-eminent in almost any matter that comes before the court.”
 
Davis Wright’s media law department in Los Angeles was virtually nonexistent when Sager arrived, and that practice focused largely on trademarks and copyrights. Sager helped build the firm’s communications, media and IT group into a stable of 20 lawyers (in California alone) doing her kind of work, including Alonzo Wickers, who works with Sager on much of the Los Angeles Times matters; Jeff Blum, who along with Sager is representing a group of music publishers against the Internet-based file-sharing services; and Fred Mumm, who was house counsel for CBS before joining Davis Wright a few years ago.
 
Born in Ohio, Sager, along with her parents and her identical twin older sisters, moved to Wenatchee, Wash., when she was 7. She was involved in drama and sang with her sisters. “I wasn’t shy as a child,” Sager says, which isn’t hard to believe considering that, as an attorney, she seems utterly unflappable presenting critical arguments on a moment’s notice.
 
In 1994, for instance, she received her first assignment on the O.J. Simpson case with 15 minutes advance warning. On the spur of the moment, she persuaded Judge Lance Ito to reverse his decision to ban the press from his courtroom. Six months later, she was reached by her clients (a list including the Los Angeles Times, CNN and the Associated Press) after hours — in Colorado — and told to get back to L.A., pronto: Judge Ito had made the rare demand that Sager — and Sager, specifically — stand before him at 8:30 the next morning and tell him why Court TV’s camera shouldn’t be shut down after it had inadvertently filmed an alternate juror during opening arguments. Sager hot-footed it back home, met with her clients at 6:30, and won the argument with Ito two hours later.
 
“Not only is she one of the most eloquent arguers that I’ve had the pleasure of representing us,” says Los Angeles Times vice president and deputy general counsel Karlene Goller, “her papers are always superb — she’s a fantastic writer. Utterly thorough. Supremely responsible. She’s probably the best First Amendment lawyer in the West, certainly in California, and one of the best in the country.” Floyd Abrams is the person who usually comes to mind when one thinks “First Amendment lawyer,” but Kelli Sager, at 44, is the new generation.
 
Much of Sager’s work involves access to the public and the press of court proceedings, deliberations and documents. She has presented motions in some of the most high-profile criminal and civil cases of the last decade, including the Simpson murder trial; Timothy McVeigh’s trial for the Oklahoma City bombing; the trial of Ennis Cosby’s murderer; the investigation into the Catholic archdiocese of Los Angeles; and the terrorist conspiracy trial of former Jewish Defense League activist Earl Krugel. She won a crucial ruling in a civil case involving Clint Eastwood and his ex-girlfriend, by a unanimous California Supreme Court, stating that the public had the right to attend civil cases.
 
While the particulars change and require considerable research specific to them, the argument Sager makes in many of these instances amounts to the same thing: the courts belong to the people, so the people have the right to view all that the courts do.
 
“With few exceptions,” she says with a frankness of tone that makes it seem obvious (which, to her — knowing as much as she does and believing in the values she does — it is), “what happens in a courtroom is really the public’s property: we have the right to know. Sometimes there’s information that the people involved don’t want people to know,” Sager continues. “And one side or the other has a vested interest in keeping that information secret. So the notion of the public having a right is that it shouldn’t come down to who has the dog in the fight in that particular instance, whether it’s [a defendant] wanting something to be secret, or the D.A. wanting it to be public. Or, in another instance, where motions are filed accusing the D.A. of improper conduct, the D.A. wants that to be kept secret. But the idea is, it really should all be public.”
 
She has argued variations on that point in courtrooms all across the country, on behalf of some of the biggest news organizations in the country, including CNN, Court TV, Tribune Co. — sometimes a coalition of up to 70 news organizations, banded together behind Sager’s voice before the judge — and her defamation and intellectual property work is “equally prominent,” in the estimation of the Los Angeles Daily Journal.
 
Much of Sager’s free-speech work comes down to a simple principle: the default position in the Constitution is that the public has the right of access, and courts or participants must have a very good reason to make it otherwise. Sager’s team argued, to condemnation from certain pundits, that the child custody proceedings of Illinois Republican senatorial candidate Jack Ryan be unsealed. Months later, she argued the same point in Pittsburgh, to get unsealed the probate records of the late Sen. John Heinz, whose widow is now married to John Kerry. “People with particular political views didn’t like” the arguments Sager and her team made in one case or the other, she says, but the arguments were based on the same principle.
 
At the time of this interview, Sager was hopscotching from L.A. to D.C., for depositions on an idea submissions case (“We’re seeing a lot of these lately,” Sager says, calling it a burgeoning area of media and entertainment law) in which she’s representing the Discovery Channel; to Pittsburgh; then to New Zealand for a lecture.
 
Recently, Sager was called upon to argue for a client, on extremely short notice, in the L.A. archdiocese investigation. The church was trying to get a prior restraint order against the Los Angeles Times for printing material from e-mail messages written by the archbishop — and had convinced the judge to come in at 10:30 at night to rule on the matter. Karlene Goller of the Times recalls:
 
“Kelli was magnificent, because her oration skills are so spectacular, even at 10:30 at night,” she says. Lucky for Sager and Goller, they had just been working together on a prior-restraint decision in another case. “Kelli had all the information at her fingertips, because she’d been working on it all day,” Goller tells. “The judge heard her argument, and theirs, which Kelli was able to refute handily,” and ruled in the Times’ favor.
 
A last-minute, 10:30 p.m. appointment with a judge, and Kelli Sager, once again, enjoys lemonade.

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