and has made no attempt to prove that any of the information is
confidential, the Church's extensive treatment of the
confidentiality issue is immaterial. (Reply Memo. in Support of
Motion at 4; Memo. in Opposition at 10-14).
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
Addressing the third prong of the test, the Church has failed
to demonstrate that the information sought from Mr. Behar is
"not obtainable from other sources". Before a reporter's
resources can be tapped by subpoena, the party seeking the
information must demonstrate that other available sources of
the information have been exhausted. See In re Petroleum
Products, 680 F.2d at 8-9, & n. 11. As to allegations regarding
alleged harassment of the government and others by the Church,
the Church is free to depose any
and all persons who claim to have been harassed. Likewise, the
Church's claim that the IRS has "fail[ed] to provide complete
and honest testimony as to its communications with Behar"
— referring to the deposition of Robert Hollohan — does not
foreclose the Plaintiff from inquiring directly of any other
IRS employees whom it alleges have engaged in such
communications. (Memo. in Opposition at 17.) Further, the
Church's remedies for alleged failures on the part of the IRS
to afford discovery required by the Federal Rules of Civil
Procedure are properly sought in the underlying action.
Finally, the Church has not shown that it has exhausted the
avenues open to it to investigate the events recounted by Mr.
Behar regarding the Church's claimed harassment of himself,
through interviewing its own agents, or seeking to depose all
of the persons identified in "The Scientologists and Me"
portion of the Time Article. The Church must exhaust these
alternative sources before any deposition of Mr. Behar would be
For the reasons cited above, the motion to quash the
deposition subpoena is granted.
Fed.R.Civ.P. 11 authorizes the imposition of disciplinary
sanctions to deter abuses by parties who act in bad faith in
instituting or conducting litigation. The Court does not find
the Church's subpoena for the deposition of Mr. Behar to have
been motivated by bad faith. Mr. Behar's motion for sanctions
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