293 F.R.D. 235
D.D.C.2013Background
- Plaintiffs (estate and heirs of Esther Klieman) sued the PA/PLO under the ATA and tort law for a 2002 bus shooting; liability theory depends on proving control/connection between PA/PLO, Fatah, and Al‑Aqsa Martyrs Brigades.
- Plaintiffs subpoenaed the BBC for an unedited copy of its 2003 documentary “Arafat Investigated,” related outtakes, and a Rule 30(b)(6) deposition to authenticate the recordings and their custody/storage.
- The BBC (a U.K. organization with a Washington bureau) refused; Magistrate Judge Facciola denied plaintiffs’ motion to compel and granted the BBC’s motion to quash, relying on Rule 45(c) travel limits because the only knowledgeable witnesses were in the U.K.
- Plaintiffs objected, arguing Rule 45’s 100‑mile deposition restriction does not bar document production and that the BBC must “create” a local 30(b)(6) witness; BBC argued privilege and inadmissibility as alternative bases to quash.
- District Court affirmed that the 30(b)(6) deposition portion must be quashed under Rule 45, but modified the magistrate’s order to require production of the documentary materials, subject to authenticating affidavits; the court also held plaintiffs overcame the reporter’s privilege as to nonconfidential broadcast material.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 45’s 100‑mile limit bars the Rule 30(b)(6) deposition of BBC personnel | BBC must produce or create a 30(b)(6) witness in D.C.; Rule 45 should not defeat Rule 30(b)(6) | The only knowledgeable witnesses are outside 100 miles; Rule 45 protects nonparty individuals from long travel | Quashed deposition request under Rule 45; court may not compel depositions outside district |
| Whether Rule 45 bars documentary production located abroad but controlled by a nonparty within the court’s jurisdiction | Rule 45’s travel limit does not apply to document production; documents should be produced | BBC argues Rule 45 and other protections should prevent production | Ordered production of documentary materials; Rule 45 travel limits do not bar document subpoenas |
| Whether the reporter’s privilege protects the requested outtakes and other materials | Plaintiffs: materials are nonconfidential broadcast material and essential to prove agency/control; privilege overcome | BBC: outtakes are protected by qualified reporter’s privilege | Privilege does not bar production of nonconfidential broadcast materials here; plaintiffs met the Zerilli balancing test |
| Whether the materials are discoverable given potential inadmissibility at trial | Plaintiffs: relevance for discovery is broader than admissibility; materials may lead to admissible evidence | BBC: materials would be inadmissible and thus not subject to discovery | Discovery allowed despite potential hearsay; Rule 26 permits discovery of non‑admissible matter if it may lead to admissible evidence |
Key Cases Cited
- Zerilli v. Smith, 656 F.2d 705 (D.C. Cir. 1981) (recognizes qualified reporter’s privilege and sets balancing test)
- Linder v. National Sec. Agency, 94 F.3d 693 (D.C. Cir. 1996) (district court’s discretion to quash or modify subpoenas; modification generally preferred)
- Hay Group, Inc. v. E.B.S. Acquisition Grp., 360 F.3d 404 (3d Cir. 2004) (document subpoenas may reach materials located outside the district when controlled by a subpoenaed person)
- Smith v. Schlesinger, 513 F.2d 462 (D.C. Cir. 1975) (discovery relevance standard is broader than trial admissibility)
- Carey v. Hume, 492 F.2d 631 (D.C. Cir. 1974) (discusses burdens of discovery and protections for journalists)
- In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141 (D.C. Cir. 2006) (distinguishes reporter’s privilege in criminal context)