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VON BULOW v. VON BULOW

October 14, 1986

MARTHA VON BULOW, by her next friends Alexander Auersperg and Annie Laurie Auersperg Kneissl, Plaintiff,
v.
CLAUS VON BULOW, Defendant


Walker, District Judge.


The opinion of the court was delivered by: WALKER

WALKER, District Judge:

STATEMENT OF FACTS

 Plaintiffs have brought the instant action on behalf of Martha von Bulow, alleging, inter alia, that Defendant Claus von Bulow placed his wife into her current state of a permanent coma by surreptitiously injecting her with insulin and other drugs. Plaintiffs' complaint alleges claims sounding in common law tort, common law fraud, and the federal Racketeering Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq. ("RICO").

 Plaintiffs seek to compel discovery from Andrea Reynolds ("Reynolds"), a close acquaintance of Defendant Claus von Bulow and his steady companion during Rhode Island state criminal proceedings which resulted in his acquittal on charges of assault with intent to murder his wife. Specifically, plaintiffs seek a current draft of a book Reynolds is preparing on defendant's Rhode Island criminal trial, together with related notes submitted to this Court in camera. Reynolds, appearing pro se, has refused to comply with these discovery requests. She contends that the materials sought by plaintiffs are protected from discovery by the journalist's privilege. For the reasons set forth, this Court concludes that the privilege is not applicable and directs production of the materials in question.

 DISCUSSION

 Journalist's Privilege

 A journalist's privilege is recognized in the Second Circuit. *fn1" United States v. Burke, 700 F.2d 70 (2d Cir.), cert. denied, 464 U.S. 816, 78 L. Ed. 2d 85, 104 S. Ct. 72 (1983); Baker v. F & F Investment, 470 F.2d 778 (2d Cir. 1972), cert. denied, 411 U.S. 966, 93 S. Ct. 2147, 36 L. Ed. 2d 686 (1973). Other circuits have also recognized this privilege. See, e.g., Zerilli v. Smith, 211 U.S. App. D.C. 116, 656 F.2d 705 (D.C. Cir. 1981); United States v. Cuthbertson, 630 F.2d 139 (3d Cir. 1980), cert. denied, 449 U.S. 1126, 101 S. Ct. 945, 67 L. Ed. 2d 113 (1981).

 Plaintiffs do not challenge the existence of this privilege; *fn2" rather they contend that Reynolds has not made a sufficient showing that she is in the class of persons entitled to invoke the privilege. In other words, plaintiffs argue that Reynolds is not a "journalist." For the reasons set forth, this Court agrees.

 "We start with the primary assumption that there is a general duty to give what testimony one is capable of giving and any exceptions which exist are distinctly exceptional . . . ." 8 Wigmore on Evidence § 2192, at 70 (McNaughton ed. 1961). Moreover, "evidentiary privileges in litigation are not favored and even those rooted in the Constitution must give way in proper circumstances." Herbert v. Lando, 441 U.S. 153, 175, 60 L. Ed. 2d 115, 99 S. Ct. 1635 (1979); accord In re Horowitz, 482 F.2d 72, 81 (2d Cir.), cert. denied, 414 U.S. 867, 38 L. Ed. 2d 86, 94 S. Ct. 64 (1973).

 Is it true that "liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods" Branzburg v. Hayes, 408 U.S. 665, 704, 33 L. Ed. 2d 626, 92 S. Ct. 2646 (1972); however, not every potential witness may seek to avoid discovery by invoking the reporter's privilege. Unjustified assertions of the reporter's privilege impede the administration of justice without advancing any first amendment interests.

 The broad definitional approach suggested in Branzburg has received little elaboration in the federal courts. However, in Gravel v. United States, 408 U.S. 606, 33 L. Ed. 2d 583, 92 S. Ct. 2614 (1972), handed down the same day as Branzburg, the Court rejected the proposition that an individual not actively involved in the dissemination of topical information may withhold otherwise discoverable material. In Gravel, an aide to United States Senator Mike Gravel sought to quash a grand jury subpoena relating to the possibly criminal release of classified material on the Vietnam War, which eventually became known as the "Pentagon Papers." Although the opinion in Gravel focused primarily on the holding that the speech and debate clause of the United States Constitution, Article I, § 6, did not provide a basis for quashing the subpoena, the court also held that the aide could not refuse to provide otherwise discoverable material by invoking the journalist's privilege or any similar privilege. Id. at 627. Of particular relevance to the instant case, the Court found that work by the Senator and his aide on an upcoming book concerning the Pentagon Papers did not provide a basis for quashing the subpoena. See id. at 622-27.

 Federal cases allowing a potential witness to invoke the journalist's privilege have premised its availability upon some involvement of the witness in activities commonly associated with the gathering and dissemination of current or topical information in a timely fashion. Thus, cases have upheld assertions of privilege by persons, even though not regularly employed by a recognized news agency, if they were actively engaged in the reporting and editing of newsworthy information. For example, in United States v. Burke, 700 F.2d 70, 76-78 (2d Cir.), cert. denied, 464 U.S. 816, 78 L. Ed. 2d 85, 104 S. Ct. 72 (1983), the Court of Appeals held that a participant in a gambling fraud scheme who subsequently published an article on his illegal activities could properly invoke the journalist's privilege. Similarly, the Court of Appeals held that the journalist's privilege prevented discovery of confidential sources from a Columbia Journalism Review editor who had used those sources to write a Saturday Evening Post article on blockbusting. Baker v. F & F Investment, 470 F.2d 778, 780-81 (2d Cir. 1972), cert. denied, 411 U.S. 966, 93 S. Ct. 2147, 36 L. Ed. 2d 686 (1973). See also Apicella v. McNeil Laboratories, Inc., 66 F.R.D. 78, 84-85 (E.D.N.Y. 1975) (upholding assertion of privilege by the chief executive officer of The Medical Letter on Drugs and Therapeutics, a technical journal with a circulation of 70,000 readers).

 Although relatively few federal cases have attempted to delineate those individuals qualified to invoke the journalist's privilege, a number of states have formulated such definitions in "shield laws" which protect reporters from discovery. As of 1980, some 26 states had enacted such shield laws. Comment, The Newsman's Qualified Privilege: An Analytical Approach, 16 Cal. W.L. Rev. 331, 368 n.284 (1980). Since it is appropriate that federal courts refer to relevant state law in developing federal rules of privilege, Inmates of Unit 14 v. Rebideau, 102 F.R.D. 122, 127 (N.D.N.Y. 1984); United States v. King, 73 F.R.D. 103, 105 (E.D.N.Y. 1976), this Court takes note of the definitions of those grouped as journalists under state shield statutes.

 State legislatures typically have protected the confidential information possessed by individuals who are engaged in the gathering and dissemination of news. For example, the New York shield law allows invocation of a journalist's privilege by any individual "engaged in gathering, preparing, collecting, writing, editing, filming, taping or photographing of news for a newspaper, magazine, news agency, press association or wire service or other professional medium or agency" or "analyzing, commenting on or broadcasting, news by radio or television transmission." N.Y. Civ. Rights Law § 79-h(a)(6), h(a)(7) (McKinney Supp. 1986). California provides its journalist's privilege to those individuals who serve as "[a] publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, other periodical publication, or by a press association or wire service . . . ." Cal. Evid. Code § 1070 (West Supp. 1986). In New Jersey, this privilege may be invoked by "a person engaged in, connected with, or employed by news media for the purpose of gathering, procuring, transmitting, compiling, editing, or disseminating news for the general public . . . ...


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