Federal Judge Awards Daily Costs for Quashing Subpoena of Journalist

(Photo credit: The Library of Congress)

United States District Court for the District of Massachusetts Judge Richard G. Stearns last week in Louise Durand v. Massachusetts Department of Health et al. (Case No. 1:12-cv-10630) took the unusual step not only of quashing a defendant's subpoena of a journalist, but also of awarding the newspaper $8,200 in costs spent defending against the subpoena.

In a two-page ruling, Judge Stearns said Dr. Theresa Harpold, a defendant in a medical negligence claim, failed to show The (Brockton) Enterprise reporter Alex Bloom was the only possible source of specific  information allegedly important to her defense to warrant compelling Bloom to testify. To overcome a reporter's qualified privilege to preserve information provided by confidential sources, Judge Stearns wrote, "a party must show that the summons of a journalist to a deposition is not frivolous, that the information sought is critical to the merits of the claim at issue, and that other sources for the information are not available."

Dr. Harpold is one of several defendants in the malpractice suit brought by plaintiff Louise Durand, a nursing supervisor for the Commonwealth of Massachusetts Department of Public Health, who alleges Dr. Harpold abused her authority by signing an order that caused Durand to undergo an involuntary psychiatric evaluation that purportedly proved unnecessary. Relying on confidential sources, Bloom wrote an article in January 2013, about the Complaint in The Enterprise. Lawyers for Dr. Harpold sought Bloom's testimony to learn the identity of Bloom's source, whom they suspected was the plaintiff.

Kudos to the Reporters Committee for Freedom of the Press (www.rcfp.org) for keeping "TUOL" apprised of this case in our stomping grounds while our devoted staff was away on vacation last week.

UPDATE: NY Judge Approves Subpoena of Fox Reporter

Arapahoe County, Colorado (Photo credit: Wikipedia)

Bronx County (N.Y.) Criminal Court Justice Larry Stephen this week signed off on a subpoena of Fox News reporter Jana Winter, requiring her to testify before Arapahoe County (Colo.) Judge William Sylvester concerning the confidential source(s) who allegedly provided her with information about a notebook Aurora shooting suspect James Holmes purportedly sent to a University of Colorado psychiatrist that allegedly detailed his plans to commit a mass killing.

The Reporters Committee for Freedom of the Press Web site (www.rcfp.org) reported that Winter's New York counsel plans to appeal Judge Stephen's approval of the subpoena, along with the judge's decision to seal the court records of yesterday's hearing, which far exceed counsel's request merely to redact Winter's home address from the court file.

Judge Stephen's grant of the subpoena is grounded in New York criminal law that permits an out-of-state party, in this case, the State of Colorado, to request a New York judge to compel a Gotham State citizen to appear in a foreign court to deliver "material and necessary" testimony without subjecting the New York citizen to undue hardship. 

Among the issues before Judge Sylvester at a scheduled April 1 hearing is which shield law, as between
New York [N.Y. Civ. Rights Law Art. 7, Sec. 79-h] and Colorado [Colo. Stat. Sec. 13-90-113], if either, is relevant to Winter's assertion that she should not be required to divulge confidential sources to the court. (See "TUOL" post 2/5/13).

Fox News Journo Seeks to Quash Subpoena in Aurora Shooting Coverage

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Arapahoe County (Colo.) District Court Judge William Sylvester has scheduled a hearing for April 1, according to a Reuters wire service story, on whether New York-based Fox News journalist Jana Winter will have to testify pursuant to requests by attorneys for defendant James Holmes, the accused in the mass shooting last July at an Aurora theater screening of The Dark Knight Rises that left 12 dead and 58 wounded.

Prosecutors fear the start of the trial of Holmes will be delayed, but defense counsel contend Winter's coverage could taint the jury pool and interfere with their client's right to a fair trial by an impartial jury. Defense counsel want Winter to testify concerning the identities of anonymous law enforcement sources regarding her story about a notebook Holmes allegedly sent to Univ. of Colorado psychiatrist Lynne Fenton, the contents of which allegedly address plans for a mass killing, Reuters reported. Winter's story was reported after a gag order issued by Judge Sylvester took effect.

Winter is expected to challenge a subpoena to testify on First Amendment grounds, asserting reporter's privilege and looking to shield law protection from having to divulge confidential sources to authorities. Both New York [N.Y. Civ. Rights Law Art. 7, Sec. 79-h], where Winter is based, and Colorado [Colo. Stat. Sec. 13-90-113], where the trial will occur, boast shield laws that require authorities to show a compelling need for information that they are unable to obtain elsewhere before compelling journalists to testify.

Reporter Seeks to Quash Subpoena in Murder Probe

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The New York Daily News last week invoked the Empire State's shield law [New York Civil Rights Law Article 7 § 79-h] in a motion to quash a subpoena of reporter Kevin Deutsch, whose testimony is sought regarding the 2011  homicide of a decorated police officer, Capitalnewyork.com reported.

Prosecutor Kenneth Taub, whose office is pursuing the case against five suspects accused in the murder of Officer Peter Figoski, wants Deutsch to testify concerning a jailhouse interview he conducted with one of the suspects, alleged getaway driver Michael Velez, according to the Capitalnewyork.com post.  New York's shield law prevents authorities from requiring journalists to disclose confidential sources, unless it can be shown the information sought can't be obtained elsewhere. Taub contends he needs Deutsch's testimony to obtain Velez's conviction.

Journalists are fearful that incarcerated individuals would be loathe to grant confidential jailhouse interviews if they believed the information could be used against them by law enforcement officials.

UPDATE: Change of Heart--Ill. Judge Says Tech Blog Covered by Shield Law

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Six months after deciding that a consumer electronics blog was not covered by Illinois' shield law [75 Ill. Comp. Stat. secs 5/8-901 to 8-909] (see "TUOL" post 1/23/12), Cook County Circuit Judge Michael Panter has ruled that Calif.-based TechnoBuffalo.com does not have to disclose the identity of the anonymous source who gave the blog images and instructional data about Motorola's Droid bionic smartphone before the product was released.

TechnoBuffalo, a three-year-old blog that reviews products and reports tech news, filed a motion for reconsideration after Judge Panter held it was not a news medium engaged in reporting. Pursuant to Section 5/8-902(a) of Illinois' shield law, "any person regularly engaged in the business of collecting, writing or editing news for publication through a news medium on a full-time or part-time basis" is a reporter. A news medium, as defined bySection 5/8-902(b), is "any newspaper or other periodical issued at regular intervals, whether in print or electronic format, and having a general circulation."

Judge Panter, upon further review, said under the Act, TechnoBuffalo is a news medium and its employees, reporters. '"News is defined by www.merriam-webster.com as 'a report of recent events' and 'previously unknown information,"' Judge Panter wrote. " Similarly, Dictinary.com [sic] defines 'news' as 'a report of recent events.' Under the ordinary meaning of 'news,' the article at issue presented a report on recent events, namely the upcoming release of a new Motorola smartphone. It also supplied previously unknown information. As such, TechnoBuffalo's article falls under the broad, plain meaning of 'news,'" Judge Panter concluded.

Bay State Solons Taking Another Shot at a Shield Law

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"Cradle of Liberty" moniker notwithstanding, Massachusetts has repeatedly come up short in its efforts to enact a shield law to protect journalists  against having to disclose confidential sources (see "TUOL" post 2/19/10).

The Massachusetts General Court, however, is nothing if not persistent, as the Joint Committee on the Judiciary March 6 will conduct a hearing on Bill H.2255, the so-called Free Flow of Information Act ("FFIA"), sponsored by Rep. Alice Hanlon Peisch.

The proposed measure would amend Massachusetts General Laws ch. 233 and would shield "any person who is or has been an employee, agent, or independent contractor of any news media as defined here, who is or has been engaged in bona fide news gathering for such entity, and who obtained or prepared the news or information that is sought while serving in that capacity, or news media, or any parent, subsidiary, or affiliate of the news media as defined below to the extent that the subpoena or other compulsory process seeks news or information described in subsection (b) of this section."

Although shield laws enacted in states most recently tend to do so, it is unclear whether the FFIA would afford protection to bloggers.

Federal Appeals Court Says NY Shield Law Protects Former WSJ Reporter

Image via WikipediaIn a 12-page decision, a three-judge panel of the United States Circuit Court of Appeals for the Second Circuit last week ruled an ex-Wall Street Journal reporter was protected by New York's shield law from having to testify in a former client's civil suit against Goldman Sachs.

In Baker v. Goldman Sachs et al. (Case No. 11-cv-1591), the appellate court affirmed U.S. District Court for the Southern District of New York Judge Barbara Jones's quashing of a subpoena of former WSJ scribe Jesse Eisinger, whom the court held was  privileged against having to testify under New York Civil Rights Law sec. 79-h.

Eisinger was targeted for a deposition based on articles he wrote for the Journal on February 16, 2000, and in August 2000, concerning Belgian software company Lernout & Hauspie. Some of the company's executives were jailed for misrepresenting the company's revenues and the entity went bankrupt. Plaintiffs James and Janet Baker, whose company, Dragon Systems, produces Dragon Dictation voice-recognition software, sued Goldman Sachs for allegedly failing to exercise due diligence regarding Lernout & Hauspie, which merged with the Bakers in a stock deal. The L&H shares became worthless after the company went belly-up.

Eisinger's articles at issue concerned a Lehman Brothers analyst who raised doubts about L&H's stock valuation and revenues and quoted sources regarding L&H's Asian earnings, respectively. Under New York's shield law, reporters have a qualified privilege against having to disclose unpublished information not obtained under a promise of confidentiality, but are absolutely privileged when news is acquired under a promise of confidentiality.

The Second Circuit panel said the Baker case involved a qualified privilege, which the plaintiffs did not overcome, the Court held, because they failed to show a critical need for the information, that the information sought was material and relevant to their lawsuit and that the information in question was unavailable from an alternative source.

The case is reported on in depth by the Reporters Committee for Freedom of the Press Website (www.rcfp.org).

Illinois Judge Rules Tech Blogger Not Entitled to Shield Law Protection

Image via WikipediaTechnoBuffalo.com, a three-year-old, California-based consumer electronics blog that is a melange of gadget reviews and tech news, plans to appeal a ruling last week by Cook County (Ill.) Circuit Judge Michael Panter that the blog is not covered  under Illinois's shield law [75 Ill. Comp. Stat. secs. 5/8-901 to 8-909] from revealing its confidential sources.

Acknowledging that he was addressing "a fast-evolving issue (that) faces courts everywhere" and that the "scope and variety of electronic communication is a challenge in many areas of the law," Judge Panter concluded TechnoBuffalo did not satisfy the state shield law's definitions of reporter and news medium, and thus, must reveal the identity of the anonymous source who provided it with images and instructional information about Motorola's Droid Bionic smartphone before the company released the product.

Niles, Ill.-based Johns-Byrne Co., with whom Motorola contracted to print the smartphone's manual, sought a pre-litigation court order requiring TechnoBuffalo to divulge the name of the anonymous tipster who shared the Droid Bionic material as a precursor to a likely trade secret and breach of contract lawsuit against the unidentified source. The information at issue was leaked via Email to TechnoBuffalo, which published it last August 17.

"The content on TechnoBuffalo's website may inform viewers how to use certain devices or offer sneak peaks of upcoming technology," Judge Panter wrote, "...[but] [i]t does not 'encourage a well-informed citizenry' to protect the source and type of confidential information disseminated by TechnoBuffalo." TechnoBuffalo reportedly attracts more than a million viewers monthly, according to various news accounts of the ruling.

Under Section 5/8-902(a) of Illinois' shield law, a reporter is "any person regularly engaged in the business of collecting, writing or editing news for publication through a news medium on a full-time or part-time basis." Section 5/8-902(b) defines news medium as "any newspaper or other periodical issued at regular intervals, whether in print or electronic format, and having a general circulation."

Courts nationwide are all over the board on the issue of whether bloggers should be accorded a qualified reporter's privilege, depending on the language of the jurisdiction's shield law and other circumstances. An Oregon judge, for example, recently ruled self-described investigative blogger Crystal Cox could not benefit from Oregon's shield law [see "TUOL" post 12/6/11], while the New Hampshire Supreme Court in The Mortgage Specialists case preserved the confidentiality of anonymous bloggers [see "TUOL" post 5/10/10].

Federal Judge Rules Oregon Shield Law Won't Cover 'Investigative Blogger'

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The United States District Court for the District of Oregon last week in Obsidian Finance Group, LLC v. Cox (Case No. CV-11-57-HZ) ruled that a self-proclaimed "investigative blogger" could not avail herself of Oregon's shield law [ORS 44.510-44.540] to avoid disclosing the identity of confidential sources to the plaintiff in a defamation suit.

Obsidian sued Crystal Cox for allegedly false statements appearing on several Web sites, including her own obsidianfinancesucks.com (catchy). Among the purported defamatory content are allegations of tax fraud and fraud against the government. Cox, who is defending herself in the suit, sought protection under the shield law, contending she is a member of the media.

The federal court disagreed, noting that she is not affiliated with any print or broadcast medium. More to the point, the court cited a provision of Oregon's shield law that "do[es] not apply with respect to the content or source of allegedly defamatory information, in [a] civil action for defamation wherein the defendant asserts a defense based on the content or source of such information.” As the underlying claim in the lawsuit is defamation, the statute offers no shelter for Cox, the court ruled.

Tip of the hat to Chicago attorney Evan Brown's Internetcases.com blog for picking up on this case.

UPDATE: Too Much Media, Not Enough Journalist, NJ High Court Concludes

Image via WikipediaIn a 42-page decision this week, the N.J. Supreme Court in Too Much Media LLC et al. v. Shellee Hale (Case No. A-7-10, 066074) unanimously upheld earlier rulings by two N.J courts (see "TUOL" posts 4/23/10 & 7/8/09) that a Washington-based online message board poster was not protected from plaintiffs' defamation claim by the Garden State's shield law covering journalists [N.J. Stat. sec. 2A:84A-21].

Supreme Court Chief Justice Stuart Rabner said Hale would have to be more akin to a traditional journalist to be able to invoke the state's broad shield law that protects reporters from having to disclose their confidential sources. In April 2010, the N.J. Superior Court Appellate Division found Hale was not a journalist, as she contends, because she was not connected to any media organization or engaged in journalistic functions, such as fact-checking, or subject to editorial review. New Jersey's recognition of a reporter's privilege dates back to 1933.

The plaintiffs, who have characterized the defendant's message board postings as online conversations, rather than a journalistic endeavor, are expected to proceed with discovery in their defamation lawsuit.

West Virginia High Court Waylays Judge's Order that Newspaper Reveal Sources

Image via WikipediaThe West Virginia Supreme Court of Appeals this week in State of West Virginia ex rel. The Lincoln Journal, Inc. et al. v. Hon. F. Jane Hustead (Case No. 35734) granted a writ of petition preventing enforcement of Cabell County Circuit Judge Jane Hustead's order compelling The Lincoln Journal to reveal confidential sources used in 11 articles that underlie defamation lawsuits brought against the daily by Bobby Adkins and Timothy Butcher in December 2008.

As reported by The State Journal and Associated Press, the High Court determined Judge Hustead exceeded her authority when she ordered The Lincoln Journal to divulge its sources to plaintiffs Butcher and Adkins. The two men sued for defamation, invasion of privacy, false light and emotional distress based on a series of articles published by the defendant in April and May 2008, regarding a county prosecutor's probe into alleged campaign violations during the 2008 primary involving individuals who allegedly funneled or  received thousands of dollars to back candidates purportedly endorsed by Butcher. The articles in question were replete with references to "courthouse sources", "unnamed sources" and other anonymous monikers.

The West Virginia Supreme Court faulted Judge Hustead for not applying the test set forth in the state's seminal reporter's privilege case, Hudok v. Henry, 182 W. Va. 500, 389 S.E.2d 188 (1989), holding that a journalist's sources and notes could not be compelled absent a showing that the information sought is highly material and relevant, critical to maintaining a legal claim and unavailable from other sources.

The High Court said Judge Hustead must apply the Hudok factors and "separately identify each alleged defamatory article with specificity, identify each source therein that the respondents seek, and thereupon conduct a separate Hudok analysis for each."

Further complicating the case is that the West Virginia legislature passed  H.B. 2159, a reporter's privilege law, on March 12, 2011, that takes effect 90 days from its passage (see "TUOL" post 4/7/11). When Judge Hustead conducts the hearing ordered by the Supreme Court could raise the issue of whether the state's new shield law is controlling.

Fed Judge Quashes Street Performer's Subpoena of Globe Journo

Image via WikipediaIn Bruce Peck v. City of Boston(Civil Action No. 09-10606-JGD (D. Mass)), In re Subpoena to Donovan Slack (Misc. Case No. 11-00073(BAH)), U.S. District Court for the District of Columbia Judge Beryl A. Howell this week quashed a subpoena of Boston Globe reporter Donovan Slack by the plaintiff, a street performer, who alleges the City of Boston has violated his First Amendment rights.

As reported by Suits & Sentences, a legal blog by media conglomerate the McClatchy Co., Peck sought Slack's testimony based on an article she wrote in August 2008, entitled A Rhythmic, Rocking Cradle of Liberty No More, City Corrals Street Artists at Faneuil Hall, that detailed restrictions imposed by the Hub on street performers that confined them to a small space where they could display their talents to the tourists who flood the shops, restaurants and bars at Faneuil Hall.

Slack invoked reporter's privilege when she received the subpoena, and Judge Howell, in a 14-page decision, ruled that Peck failed to show that he attempted to secure the information he believed Slack possessed from alternative sources before resorting to the extraordinary remedy of subpoenaing Slack. Judge Howell voiced First Amendment concerns in noting that reporters' testimony should be compelled as a last resort, and chided the plaintiff for not detailing his efforts to obtain the information before pursuing Slack.

Texas Judge Quashes Subpoena--Reporter Won't Testify in Murder Trial

Image via WikipediaDenton (Texas) Record-Chronicle Reporter Donna Fielder will not have to testify in the trial of Charles Stobaugh, who is accused of murdering his estranged wife Kathy Stobaugh, after 362nd Judicial District Judge Bruce McFarling ruled she was shielded by the 2009 Texas Free Flow of Information Act ("TFFIA") [H.B. 670], the Texas daily reports.

Judge McFarling quashed the subpoena by defense counsel to compel Fielder's testimony, ruling it was overbroad and noncompliant with statutory requirements, such as the required signature of District Attorney Paul Johnson. Defense counsel argued that Stobaugh's Sixth Amendment right to a fair trial trumped any claim of reporter's privilege, further asserting that Fielder had access to information that could refute investigators' testimony against their client.

Kathy Stobaugh disappeared Dec. 29, 2004, after leaving behind her two teen-aged children in their rental home to discuss divorce terms with the defendant at the family farm. Her body has never been recovered.

Under TFFIA, a journalist has absolute privilege against having to reveal confidential sources in a criminal case unless the reporter witnesses a felony, receives a confession or probable cause exists that a source committed a felony. Before a reporter may be compelled to testify or produce information, the party issuing the subpoena must demonstrate that the material or testimony is relevant and material to the case, essential to the claim of the person requesting it, and that all reasonable efforts to obtain the information elsewhere have been exhausted.

Judge McFarling also rejected defense counsel's efforts to bar Fielder from covering the trial under the "sworn witness" rule.

Canadian Judge Orders Reporter to ID Anonymous Source in Libel Suit

Image via WikipediaCiting the Supreme Court of Canada's decision last Fall in Globe and Mail v. Atty. General of Canada that failed to create a blanket shield law to protect journalists (See "TUOL" post 10/28/10), British Columbia Supreme Court Judge Paul Williamson this week ordered Vancouver Province reporter Elaine O'Connor to reveal a confidential source in a defamation suit involving Green party Member of Parliament Bill Lougheed, according to a story in the Winnipeg Free Press.

The defamation case arises from inter-familial warfare between Kelly Wilson, spouse of former Vancouver-area MP Blair Wilson, and Lougheed, her stepfather. A Province article alleged Lougheed claimed Wilson was unfit to serve in public office and quoted an anonymous letter suggesting that Wilson purportedly had engaged in profligate campaign spending. The letter triggered a probe by Elections Canada that found most of the letter's claims to be unsubstantiated, though Wilson owned up to a failure to disclose $9,000 in campaign expenses.

The plaintiff asked the court to compel O'Connor to identify the author of the anonymous letter. The Province plans to appeal Judge Williamson's decision and will seek to stay his order. Wilson's libel suit is presently in pre-discovery. Judge Williamson wrote that he could not determine whether protecting the anonymous source at issue would be in the public interest until he knows the identity and motive of the letter-writer.

Across the border, in the conflict between reporter's privilege and the right of a plaintiff to prove his or her defamation case in court, judges have often sided with the plaintiff, dating back to Garland v. Torre, 259 F.2d 545 (2d. Cir. 1958), in which the court held the disclosure of relevant information that went to the heart of Garland's libel claim outweighed the First Amendment argument for preserving the confidentiality of the source.

Still, count "TUOL" among the U.S. and Canadian journalists wondering: "What's going on with those Canadian courts, eh?"



 

Canada High Court Fails to Create Shield Law; Gives Nod to Reporter's Privilege

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In Globe and Mail v. Attorney General of Canada, the Supreme Court of Canada this week fell short of creating a shield law for journalists, but conceded "some form of legal protection for the confidential relationship between journalists and their anonymous sources is required."


According to an account in The Globe and Mail, the High Court recognized a reporter's right to conceal the identity of a source if protection of the confidential source advances the public interest.  A Quebec Superior Court Judge two years ago ordered Globe and Mail reporter Daniel Leblanc to divulge the identity of  his anonymous source, dubbed MaChouette, to Le Groupe Polygone Editeurs, Inc., a Montreal media firm embroiled in a $35 million federal lawsuit seeking recovery of monies paid by a former Liberal government.


The Supreme Court of Canada upheld that reporter's privilege matters be evaluated on a case-by-case basis and declined to accord a constitutional shield to journalists to protect confidential sources. Nevertheless, the High Court did frown on subpoenaing reporters to gather information that may be available elsewhere, and suggested disclosure of confidential sources should be confined to situations in which the source's identity is vital to the administration of justice.