Baker v. Goldman Sachs & Co.
669 F.3d 105
2d Cir.2012Background
- Bakers appeal a district court order quashing a subpoena to former WSJ reporter Jesse Eisinger.
- The district court relied on New York’s journalists’ Shield Law, N.Y. Civ. Rights Law § 79-h, to grant the protection.
- Shield Law provides absolute privilege for confidential unpublished news; qualified privilege for unpublished news not obtained confidentially.
- Bakers sought to depose Eisinger about two WSJ articles concerning L&H's customers and related investigations.
- The district court found the requested testimony would reveal unpublished details of news gathering and could not overcome the privilege.
- Court affirms on appeal, applying NY Shield Law and limits on cross-examination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NY Shield Law applies to Eisinger | Bakers argue Eisinger’s testimony is discoverable to prove the claim. | Goldman contends the Shield Law privilege protects unpublished news gathered by journalists. | Shield Law protections apply to Eisinger. |
| Whether Bakers overcame the qualified privilege | Unpublished, material information from the articles is critical and not obtainable otherwise. | The information is not critical or necessary; the plaintiffs failed to show dependency on unpublished material. | Bakers did not overcome the privilege. |
| Scope of cross-examination versus privilege | Cross-examination could probe the accuracy of published information separate from unpublished methods. | Cross-examination would implicate unpublished news-gathering details and the shielded area. | Cross-examination within the privilege is not permitted to override the shield. |
| Whether allowing the questioning would subvert the statute | Limiting questions to non-privileged topics would avoid shield issues. | Even targeted questions risk eliciting unpublished processes and cross-examination would still invade protected areas. | Permitting such questions would undermine the Shield Law. |
Key Cases Cited
- In re Application to Quash Subpoena to Nat’l Broad. Co., 79 F.3d 346 (2d Cir. 1996) (unpublished news may be privileged; test for necessity)
- Arista Records, LLC v. Doe 3, 604 F.3d 110 (2d Cir. 2010) (protects journalists; scope of cross-examination)
- United States v. Treacy, 639 F.3d 32 (2d Cir. 2011) (Confrontation and privilege considerations in disclosure)
- In re von Bulow, 828 F.2d 94 (2d Cir. 1987) (cross-examination within privilege scope; completeness principle)
- Corp. of Lloyd's v. Lloyd's U.S., 831 F.2d 33 (2d Cir. 1987) (subpoena power and privilege interplay)
- New York Times Co. v. Gonzales, 459 F.3d 160 (2d Cir. 2006) (statutory privilege considerations in NY shield context)