United States District Court, S.D. New York
January 30, 2004.
MICHAEL CARTER, SAL CIVITILLO, MICHAEL DESTEFANO, VICTOR FIORELLA, MATTHEW JAMES, THOMAS MANLEY, SEAN NEALON, and MICHAEL TEERNEY, Plaintiffs -against- THE CITY OF NEW YORK; RUDOLPH GUILIANI, as Mayor of the City of New York BERNARD KERIK, as Commissioner of the Police Department of the City of New York; JOSEPH J. ESPOSITO, as Chief of Department, New York City Police Department; NEW YORK CITY POLICE DEPARTMENT; THOMAS VON ESSEN, as Commissioner of the Fire Department of the City of New York; POLICE OFFICER RAYMOND ALEXANDER, SHIELD #07652; POLICE OFFICER MICHAEL CUSUMANO, SHIELD #01406; POLICE OFFICER PATRICK DELLILO, SHIELD #10940; POLICE OFFICER BRIAN KAHN, SHIELD #10388; DET. DANIEL MASSANOVA, SHIELD #02342; POLICE OFFICER VARON SHEPARD, #07647, and DET. RICHARD STARK, SHIELD #06393, Defendants
The opinion of the court was delivered by: RICHARDS J. HOLWELL, District Judge
Memorandum Opinion and Order
This action was brought by firelighters for the New York City Fire
Department who allege that they were subjected to false arrest, malicious
prosecution, and various constitutional violations by police officers at
a November 2001 demonstration organized by the firefighters' union. At
the demonstration, which was organized to protest the
decision to reduce the FDNY labor force at "Ground Zero," the site
of the September 11, 2001 attack on the World Trade Center in lower
Manhattan, several firefighters were arrested and accused of, inter
alia, breaking through police barricades at Ground Zero. Plaintiff
firefighters contend that police moved the barriers for them, that their
conduct at the demonstration was peaceful, and that the legal action
taken against them was retaliatory and unlawful.
Defendants move to compel the deposition testimony of John Schiumo, a
reporter for the news channel NY1, regarding his observations at the
demonstration. Mr. Schiumo was present at the demonstration for the
express purpose of gathering information with "intent to disseminate to
the public," von Bulow by Auersperg v. von Bulow, 811 F.2d 136
(2d Cir. 1987) and, therefore, may avail himself of a journalist's
qualified privilege for non-confidential information obtained in the
newsgathering process. Gonzales v. National Broadcasting Co.,
194 F.3d 29 (2d Cir. 1999). In the present case, this information
included a videotape taken by Mr. Schiumo, his conversations with
participants at the demonstration, and his personal observation of the
events. Defendants appear to have withdrawn their request for testimony
regarding Mr. Schiumo's conversations with other observers of the
demonstration and have already received a copy of Mr. Schiumo's
videotape. Consequently, the only issue remaining is defendants' right to
depose him regarding his personal observation of the events at the
Defendants contend that the observations of a reporter at a public
event are not subject to a journalist privilege, and, therefore, that no
showing needs to be made under. Gonzales as to whether that qualified
privilege has been overcome. See Dillon v. City of San
Francisco, 748 F. Supp. 722 (N.D. Cal. 1990).
This court reads Gonzales as establishing a qualified
privilege as to all information gathered by a reporter whether through
electronic recordation, such as a videotape, or through direct
perception. Whether a reporter should be required to turn over a
videotape of an event or be deposed as to his direct perceptions of that
event would appear to raise the identical policy issues that the court in
Gonzales relied upon in finding that the qualified privilege for
journalists extended to non-confidential information.
Of course, the nature of the information, here a reporter's
observations at a large public event, is a factor to be considered in
determining whether the privilege has been overcome. In the present case,
however, defendants have made a particularly weak showing of need.
Defendants do not contend that the information sought is "not reasonably
obtainable from other sources" as required by the test enunciated in
Gonzales, 194 F.2d at 36. Instead, their sole contention is that
Mr. Schiumo is a "non-partisan" witness whose testimony would presumably
be more credible before a jury. The court, taking into account that the
journalist's videotape of the demonstration has already been produced
and, further, that there were scores of other witnesses to this large
public demonstration, concludes that defendants have not made a
sufficient showing to compel further testimony from this witness.
It is ORDERED, therefore, that defendants' motion to compel Mr.
Schiumo's deposition testimony is denied. It is further
ORDERED that defendants' request for an extension of time to file their
motion for summary judgment is granted, and that the deadline for filing
is hereby extended until
February 10, 2004. Opposition and reply papers are to be filed on
March 10, 2004. and March 19, 2004, respectively.
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