CBS fails to end Rather suit; Redstone may testify

New York State Supreme Court Justice Ira Gammerman set a December 22 hearing in the case and directed that testimony be taken from witnesses including Sumner Redstone, the 86-year-old chairman of Viacom Inc, which once controlled CBS.

"Let's get this case moving," Gammerman said. "I would really like to get this case ready for trial."

Rather, 77, sued CBS in 2007 and has filed a separate fraud case against CBS Chief Executive Leslie Moonves and former CBS News President Andrew Heyward over his firing from the network, his home for more than four decades.

CBS has acknowledged it could not authenticate documents used in the September 8, 2004, report on Bush's National Guard service, which aired two months before Bush won a second term in the White House.

Rather accused the network in his lawsuit of breaching his contract in part by not giving him enough on-air assignments following his March 2005 removal as anchor of the "CBS Evening News," a job he held for 24 years.

"It was definitely a positive day for us," said Martin Gold, a partner at Sonnenschein Nath & Rosenthal LLP who represents Rather, after Monday's roughly 40-minute hearing.

"They saw their best interest was to abandon the story whether it was accurate or not and to get rid of Dan Rather," he said. "That's what this case is about."

James Quinn, who co-chairs Weil Gotshal & Manges LLP's litigation practice and represents CBS, said he had expected Gammerman to keep the case alive. "If we have to go to trial, we're ready," he said after the hearing.

CBS spokesman said the hearing constituted a "good day," for the company, noting that Gammerman agreed with its request that testimony from Redstone be limited to half a day.

Rather hopes to show Redstone wanted him fired. CBS lawyers argued that Redstone had no such recollection, and that deposing him would as a result accomplish nothing.

A representative for Redstone had no immediate comment.

A Manhattan appeals court is considering CBS' appeal of other rulings and its decision could moot the case.

Speaking outside the courthouse, Rather said the case puts "an important principle" at stake: "Are we going to let big corporations and big government decide what we hear and see on the news?"

He accused CBS of having "buried an important story to curry favor with and protect the powerful politicians who regulate them. That's a big part of this lawsuit."

In July, Gammerman reinstated a fraud claim against CBS after Rather's lawyer contended the network's decisions cost his client several million dollars. Rather sued Moonves and Heyward the following month.

"I don't think you can cloak this case in the noble cause of journalism," Heyward said after the hearing. "Underneath it all, it's a contract dispute."

Viacom split off CBS at the beginning of 2006.

Rather now produces a news program, "Dan Rather Reports," for HDNet, a high-definition television channel chaired and co-founded by Mark Cuban, the Internet entrepreneur and owner of the Dallas Mavericks basketball team.

The lawsuit is Rather v. CBS Corp, New York State Supreme Court (Manhattan), No. 603121/2007.

(Reporting by Jonathan Stempel; additional reporting by Phil Wahba; Editing by Andre Grenon and Steve Orlofsky)