The opinion of the court was delivered by: McKENNA, District Judge.
In this order, the Court decide a motion submitted on behalf
of Mr. Richard Behar to quash a deposition subpoena served on
him by the Church of Scientology Celebrity Center
International, the Plaintiff in the underlying action against
the Internal Revenue Service. In addition, Mr. Behar has moved
for sanctions pursuant to F.R.Civ.P. 11 and 26(a). For the
reasons set forth below, the deposition subpoena is quashed and
the motion for sanctions is denied.
Mr. Behar's motion involves a subpoena served by the Church
of Scientology Celebrity Center International ("the Church")
for the deposition of Mr. Behar, a journalist with Time
magazine. Mr. Behar recently wrote a cover story unfavorably
depicting the Church and its practices. In a subsection
entitled "The Scientologists and Me", he described his own
experience of being harassed by attorneys and private
investigators allegedly dispatched by the Church in retaliation
for the article.
The Church seeks the deposition of Mr. Behar in connection
with its lawsuit against the Internal Revenue Service ("the
IRS") under the Freedom of Information Act ("FOIA"), 5 U.S.C.A.
§ 552. In that action, the IRS has refused to disclose certain
materials under an FOIA exemption clause which shields
information compiled for law enforcement purposes if disclosure
"could reasonably be expected to endanger the life or physical
safety of any individual" under § 552(b)(7)(F). The IRS cites
the article written by Mr. Behar, along with 19 other
documents, in support of its claim that release of certain
information will place persons in danger of harm from the
To refute the IRS defense of exemption, the Church seeks to
depose Mr. Behar regarding the factual matters set forth in the
article (harassment of the government and others, including
himself, by the Church), details relating to Behar's
communications with the IRS (both as to information which Behar
allegedly provided to the IRS which may have given rise to the
exemption assertions, and as to the IRS' provision of
information to Behar), and the identities of IRS employees
which Mr. Behar spoke with in the course of his research. Mr.
Behar has moved to quash the deposition subpoena on the ground
that the information is protected by the reporter's privilege.
The reporter's privilege protects journalists from the
compelled disclosure of information acquired in the course of
gathering news. The Court of Appeals for the Second Circuit has
recognized and enforced the privilege under the First Amendment
of the United States Constitution. See e.g. 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); In re Petroleum Prods.
Antitrust Litig., 680 F.2d 5, 7-8 (2d Cir. 1982) (per curiam).
While the federal law of privilege controls, courts have also
considered the applicable state law in the jurisdiction where
the reporter's deposition was noticed. New York courts have
found the underlying policies served by the New York State
"Shield Law," N.Y.Civ. Rights Law § 79-h, and the federal
Constitution to be congruent. See von Bulow by Auersperg v. von
Bulow, 811 F.2d 136, 144 (2d Cir.), cert. denied,
481 U.S. 1015, 107 S.Ct. 1891, 95 L.Ed.2d 498 (1987).
The qualified reporter's privilege, accorded under the United
States Constitution, the New York State Constitution, and the
New York Shield Law, protects non-confidential as well as
confidential information. See United States v. Marcos, 1990 WL
74521, 17 Med.L.Rptr. 2005, 2007 (S.D.N.Y. 1990); O'Neill v.
Oakgrove Construction, Inc., 71 N.Y.2d 521, 521-22, 528
N YS.2d 1, 1-2, 523 N.E.2d 277, 277-78 (1988); N.Y.Civ. Rights
Law § 79-h(c) (McKinney Supp. 1991). The qualified privilege
can be overcome only upon a clear and specific showing by the
party seeking disclosure that the information is: (1) highly
material and relevant to its action; (2) necessary or critical
to the claim; and (3) not obtainable from other sources. Burke,
700 F.2d at 76-77.
In response to Mr. Behar's assertion of a qualified
privilege, the Church contends that Mr. Behar's deposition is
"highly material and relevant" to prove that the IRS exemption
defense is a "sham". Specifically, the Church seeks Mr. Behar's
deposition to show that "information was provided to Behar by
the IRS for inclusion in his article for the purpose of aiding
the IRS to support its claims to exemption to withhold agency
records." (Memo. in Opposition at 13-14.) This vague and wholly
unsupported allegation falls far short of the "clear and
specific showing" of materiality and relevance required of the
party seeking disclosure. Burke, 700 F.2d at 76-77. Moreover,
the alleged materiality of Mr. Behar's information is belied by
the Church's own admissions that "the Behar article is . . .
irrelevant to any FOIA issue," (Memo. in Opposition at 3) and
would be inadmissible hearsay if the IRS seeks to use it in the
underlying action. Id. at 4, 7, 8.
Secondly, the Church asserts that the information is
"necessary" to the maintenance of its claim, stating that "[a]s
a matter of law, the Church is entitled to challenge the IRS'
claims of exemption through discovery or whatever means in its
power to refute the government's claims." Id. at 16. In support
of this contention, the Church cites, without more, an extended
quote from Weiner v. FBI, Daily Journal D.A.R. 8697 (9th Cir.
1991), for the blanket proposition that discovery should be
allowed in Freedom of Information Act cases.
The facts of this case refute the Church's contention that
Mr. Behar's information is "necessary or critical" to the
Church's claim. When testimony sought from a reporter would be
cumulative of other evidence, it cannot be "necessary or
critical" to an action so as to override the First Amendment
privilege. See Burke, 700 F.2d at 78. The IRS has 18 other
pieces of evidence in support of its exemption claim. Moreover,
the IRS asserted the same FOIA exemptions in its answer to the
Church's complaint in the underlying action nine months prior
to publication of Mr. Behar's article. (Memo. in Support of
Motion at 16.) Finally, the Church itself admits that "it is
difficult to believe that the federal government must rely upon
a Time magazine article as the basis for the exemption claim
when the Church and the IRS have been in conflict for many
years." (Memo. in Opposition at 15.) Indeed, the Court also
finds it improbable that the article is the basis of the IRS'
claim so as to make the deposition of Mr. Behar is "necessary