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CARTER v. THE CITY OF NEW YORK

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 Page 2 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 demonstration.

  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). Page 3

  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 Page 4 February 10, 2004. Opposition and reply papers are to be filed on March 10, 2004. and March 19, 2004, respectively.

  SO ORDERED.

20040130

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