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Lonegan v. Hasty

January 1, 2008


The opinion of the court was delivered by: VIKTOR V. Pohorelsky United States Magistrate Judge


Before the court are two motions implicating the scope of the protection afforded by the journalist's privilege. The first is a motion to quash four subpoenas issued by the defendants David Rardin and John Osteen to the New York Times and one of its reporters, Nina Bernstein (hereinafter the "Times Motion"). The second is a motion made by the same defendants seeking to compel testimony and the production of documents by Amnesty International USA and one of its employees, Rachel Ward (hereinafter the "Amnesty Motion"). For the reasons below, the Times Motion is granted in part and denied in part and the Amnesty Motion is granted in part and denied in part.


The plaintiffs in this action are attorneys who represented various individuals detained at the Metropolitan Detention Center in Brooklyn (the "MDC") in the aftermath of the September 11 attacks at the World Trade Center. They bring this action to seek redress for surreptitious audio and video surveillance of their privileged conversations with their clients conducted by personnel at the MDC. That the surveillance occurred is not in dispute, as the Office of the Inspector General of the Department of Justice has issued a report cataloguing numerous instances of surveillance captured on videotapes. Among the factual matters in dispute, and the dispute that is at the center of the motions, is the time when the plaintiffs knew, or should have known, about the surveillance. Fixing that date may be important to determining whether some or all of the claims against the defendants Rardin and Osteen are time-barred.

Both the New York Times and Amnesty International USA have published reports touching on the surveillance at the heart of this action. In late June and early July of 2004, contemporaneous with the filing of this action, the Times published two articles authored by Bernstein. One of the articles mentioned the surveillance in passing, while the other described the instant lawsuit and the facts underlying it. One of the plaintiffs here, Olivia Cassin, was a source for the articles. Earlier, in March 2002, Amnesty International published a report on the status of post-September 11 detainees which mentioned that various attorneys for detainees were suspicious that their interviews with their client were being recorded. Ward was one of the investigators who conducted interviews and contributed writing for that report. Another of the plaintiffs here, Brian Lonegan, was one of the attorneys interviewed for the report.

Prompted by those publications, the defendants Rardin and Osteen each subpoenaed the Times, Amnesty, Bernstein and Ward.*fn1 The subpoenas served on the Times sought essentially all documents concerning any communications of any kind between Bernstein and various individuals, including the plaintiffs and employees or representatives of the Legal Aid Society, conceivably related to the articles Bernstein had written. The subpoenas served on Bernstein sought the same documents requested of the Times, and also sought her testimony at a deposition. The subpoenas to Amnesty likewise sought a broad range of documents concerning communications between Ward and a host of individuals as well as employees or representatives of the Legal Aid Society related to those sections of the Amnesty report that discussed video surveillance at the MDC. The subpoenas served on Ward sought the same documents, and, like the subpoenas served on Bernstein, her deposition testimony as well.

The Times and Bernstein responded to their subpoenas by making the instant motion to quash on the basis of the journalist's privilege. Amnesty and Ward, on the other hand, submitted formal objections to their subpoenas but nevertheless produced redacted documents accompanied by a privilege log asserting, among others, the journalist's privilege. In addition, Ward appeared for her deposition and testified for four hours, but declined to answer some of the questions posed on the basis of the journalist's privilege. The defendants then made the instant motion to compel Amnesty and Ward to provide the information they have withheld.


The parties all agree that journalists enjoy a qualified privilege that protects their newsgathering efforts. Gonzales v. National Broadcasting Co., 194 F.3d 29 (2nd Cir. 1999). The privilege protects not only confidential information, but non-confidential information as well, in recognition of the heavy burdens that would be placed on the press if litigants were free to rummage through journalists' files whenever a matter that had received attention in the press became the subject of litigation. Id., 194 F.3d at 35. The damage caused by the required revelation of confidential information is obvious: if sources fear that their identities will be readily subject to exposure, they will be less likely to provide information to journalists and the press's ability to perform its constitutionally protected function will be compromised. See, e.g., Baker v. F and F Investment, 470 F.2d 778, 782 (2nd Cir.1972). Where non-confidential information is involved, the damage is perhaps less obvious, but no less real. Requiring journalists and press organizations to respond to subpoenas on a regular basis, even when the requested documents and testimony concern non-confidential matters, imposes costs in time and money that would unnecessarily burden reporters and their employers. E.g., United States v. The LaRouche Campaign, 841 F.2d 1176, 1182 (1st Cir. 1988) ("frequency of subpoenas would not only preempt the otherwise productive time of journalists and other employees but measurably increase expenditures for legal fees"). Moreover, ready access by litigants to reporters and their resource materials intrudes on newsgathering and editorial processes, and thus interferes with the free low of information to the public. See, e.g., United States v. Cuthbertson, 630 F.2d 139, 147 (3rd Cir. 1980); see generally, LaRouche, 841 F.2d at 1182 (detailing other types of harm caused by affording litigants unfettered access to non-confidential press information).

Although the journalists' privilege protects both confidential and non-confidential information, the Second Circuit recognizes a distinction between the two when considering the showing that must be made to overcome the qualified privilege. Understandably, the showing for confidential information is the more stringent one. A party seeking such evidence must make a "clear and specific showing" that the material sought is "highly material and relevant, necessary or critical to the maintenance of the claim, and not obtainable from other available sources." E.g., United States v. Cutler, 6 F.3d 67, 71 (2nd Cir 1993); In re Petroleum Products Antitrust Litigation, 680 F.2d 5, 7 (2nd Cir. 1982); Gonzales, 194 F.3d at 33; In re Natural Gas Commodities Litigation, 235 F.R.D. 241, 244 (S.D.N.Y. 2006). As to non-confidential information, however, a party need only show that "the materials at issue are of likely relevance to a significant issue in the case, and are not reasonably obtainable from other available sources." Gonzales, 194 F.3d at 36 (emphasis added).

The movants do not dispute that the materials they seek are protected by the journalists' privilege. The court thus turns to whether they have made the necessary showings to overcome the privilege as to various items of information they seek.

The Times Motion

As noted above the subpoenas served on the New York Times and Bernstein are virtually identical. They each designate four categories of documents to be produced. The first category is the broadest, requiring production of all documents concerning all communications between Bernstein and any employee of the Legal Aid Society after December 1, 2003. The remaining three categories are actually subsets of the first, with each one seeking documents relating to certain types of communications between Bernstein and sixteen named individuals, all of whom are either plaintiffs or employees of the Legal Aid Society. Thus, one seeks all documents concerning conversations with the sixteen, another seeks all documents evidencing e-mail communications with the sixteen concerning any detainee, and the final one seeks e-mail communications with the sixteen concerning the video- or audiotaping of conversations between attorneys and detainees at the MDC.

Although the movants suggest that some of the information in the articles authored by Bernstein was obtained from sources who were promised confidentiality, they make no assertion that promises of confidentiality were made to any of the plaintiffs or employees of the Legal Aid Society with whom Bernstein may have communicated. The court therefore applies the less stringent test articulated in Gonzales applicable to non-confidential information which requires a showing (1) that the materials sought by the subpoenas are likely ...

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