The opinion of the court was delivered by: WEINSTEIN
In this case of apparent first impression, Mr. Mario Brajuha a graduate student at the State University, Stoneybrook, Long Island, moves to quash a grand jury subpoena directing him to produce a journal he kept in preparation for his doctoral dissertation. Although a scholar does not have an absolute right to withhold a journal of his conversations with informants and of his impressions, he has a limited federal common law privilege to do so. Because the government has not shown any substantial need for the journal, the motion to quash must be granted.
Mr. Brajuha is a candidate for a doctorate. He is preparing a dissertation on "The sociology of the American restaurant." His research led him to work as a waiter in "Le Restaurant" on Long Island from July 1982 until March 1983. While so employed, he kept a record of his observations and comments. He promised confidentiality to those of his fellow workers who acted as informants.
In March 1983, a suspicious fire broke out at Le Restaurant. The federal grand jury, convened to investigate the incident and other matters, subpoenaed Mr. Brajuha to testify and to produce his journal. Mr. Brajuha apparently testified fully about his direct observations of events at the restaurant.The only issue before this court is whether he must produce the journal for grand jury inspection.
In Branzburg v. Hayes, 408 U.S. 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626 (1978), the Supreme Court held that a reporter does not have an absolute First Amendment right to refuse to appear before a grand jury. By analogy this ruling applies to any scholar collecting data with a view to publication. Nevertheless, as Justice Powell stated in his concurring opinion in Branzburg, the writer's needs should not be ignored, but must be balanced against those of the courts:
The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions.
Id. at 710, 92 S. Ct. at 2671.
Following Justice Powell's standard, lower courts have applied a balancing test and have held that journalists have a qualified privilege not to reveal documents or confidential sources. See, e.g., Baker v. F & F Investment, 470 F.2d 778, 780-83 (2d Cir. 1972), cert. denied, 411 U.S. 966, 93 S. Ct. 2147, 36 L. Ed. 2d 686 (1973); United States v. Burke, 700 F.2d 70, 76-77 (2d Cir.), cert. denied, 464 U.S. 816, 104 S. Ct. 72, 78 L. Ed. 2d 85 (1983); United States v. Cuthbertson, 630 F.2d 139, 146-49 (3d Cir. 1980), cert. denied, 449 U.S. 1126, 101 S. Ct. 945, 67 L. Ed. 2d 113 (1981); Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 436-38 (10th Cir. 1977). See also In re Roche, 448 U.S. 1312, 1315, 101 S. Ct. 4, 6, 65 L. Ed. 2d 1103 (Brennan, Circuit Justice 1980: "I do not believe that the court has foreclosed news reporters from resisting a subpoena on First Amemdnemtn grounds"). Cf. Apicella v. McNeil Laboratories, Inc., 66 F.R.D. 78 (E.D.N.Y. 1975) (policy protecting news reporter's sources supports limiting discovery in some cases). But see In re Farber, 78 N.J. 259, 394 A.2d 330, 334 (N.J. 1978), cert. denied, 439 U.S. 997, 99 S. Ct. 598, 58 L. Ed. 2d 670 (1978) (relying on Branzburg in holding that "no weighing or balancing of societal interests" is required to determine that a journalist has no privilege to withhold information from a grand jury); Brown v. Virginia, 214 Va. 755, 204 S.E. 2d 429, 431 (1974), cert. denied, 419 U.S. 966, 95 S. Ct. 229, 42 L. Ed. 2d 182 (1974) (journalist has privilege related to the First Amendment "which must yield to the government's right to investigate and indict by grand jury").
Some courts have relied exclusively on the First Amendment, see, e.g., United States v. Burke, 700 F.2d 70 (2d Cir. 1983), while others have relied on Rule 501 of the Federal Rules of Evidence, see, e.g., Riley v. City of Chester, 612 F.2d 708 (3d Cir. 1979); Lora v. Board of Education, 74 F.R.D. 565, 577 (E.D.N.Y. 1977), or state practice, see, e.g., Apicella v. McNeil Laboratories, Inc., 66 F.R.D. 78, 83-84 (E.D.N.Y. 1975). The results have been the same.
In each instance, the court balances the government's or opposing party's need for the material against the First Amendment and analogous interests implicated in the particular case. In the instant case the interests to be balanced are the public interest in affording a serious scholar the opportunity to maintain the confidentiality of his research notes against the interests of the government in having access to whatever information may be contained in those notes.
There is a strong public interest in fostering the confidentiality of a journalist's work materials and sources in order to mtaintain the free flow of information to the public. Cf., e.g., United States v. Burke, 700 F.2d 70, 76-77 (2d Cir. 1983) (reporter); United States v. Cuthbertson, 630 F.2d 139, 146-49 (3d Cir. 1980) ("the compelled production of a reporter's resource materials can constitute a significant intrusion into the news gathering and editorial process"); Baker v. F & F Investment, 470 F.2d 778, 782 (2d ...