439 F.Supp.3d 290
S.D.N.Y.2020Background
- Shervin Pishevar was briefly arrested in London in May 2017; an injunction initially prevented media identification. A purported City of London Police (COLP) report (the "Subject Police Report") circulated and was later determined to be fake.
- Marcus Baram, a Fast Company senior editor in New York, received the Subject Police Report from an unnamed Confidential Source and published a November 8, 2017 Fast Company article referencing the report; Fast Company later updated the article when COLP identified the report as false.
- Pishevar intends to pursue contemplated civil (libel/negligent misstatement) and criminal (forgery/fraud/malicious communications) proceedings in England against the Confidential Source, the distributor, and the creator(s) of the forged report; English counsel and Queen’s Counsel have been retained.
- Pishevar previously obtained a §1782 order to subpoena Fast Company and its owner Mansueto; they produced materials but refused to disclose the Confidential Source invoking the reporter’s privilege. He then sought a §1782 order directed to Baram seeking the source’s identity and location.
- Magistrate Judge Aaron found §1782 statutory prerequisites satisfied (Baram located in district; discovery for use in reasonably contemplated foreign proceedings; petitioner an interested person), but in exercising discretion under Intel the court denied the application because the reporter’s privilege had not been overcome and alternative sources were not shown exhausted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §1782 statutory requirements are met | Pishevar: Baram is in NY; discovery is for use in contemplated UK civil and criminal proceedings; Pishevar is an interested person | Baram: civil claims time‑barred or nonviable; no criminal prosecution reasonably contemplated | Court: Statutory requirements satisfied (de minimis showing of contemplated proceedings and petitioner is interested person) |
| Whether Intel discretionary factors favor relief | Pishevar: non‑party journalist; English courts receptive; limited request (name/location) not burdensome | Baram: reporter’s privilege and U.K./U.S. policies counsel denial; alternatives exist | Court: first two Intel factors favor Pishevar; third (privilege/policy) and fourth (concern over intrusion) weigh against; overall discretion to deny |
| Whether reporter’s privilege protects the source and has been overcome | Pishevar: source identity is highly material, necessary, and not obtainable elsewhere | Baram: qualified reporter’s privilege protects source; disclosure unnecessary and harmful to press | Court: identity is material but Pishevar failed to make the clear, specific showing that the source is unobtainable elsewhere; privilege not overcome |
| Whether §1782 would improperly circumvent foreign proof‑gathering or U.K. policies | Pishevar: English courts would admit evidence obtained via §1782 and would compel disclosure if necessary | Baram: §1782 would sidestep U.K. protections and reporter’s privilege; risk of compelled self‑incrimination asserted | Court: English receptivity shown (no authoritative proof of rejection), but U.S. public policy supporting reporter’s privilege weighs against granting relief |
Key Cases Cited
- Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (Sup. Ct. 2004) (sets discretionary factors courts must weigh in §1782 proceedings)
- Kiobel v. Cravath, Swaine & Moore LLP, 895 F.3d 238 (2d Cir. 2018) (statutory requirements for §1782 explained)
- Mees v. Buiter, 793 F.3d 291 (2d Cir. 2015) (contemplates discovery for proceedings "within reasonable contemplation")
- In re Metallgesellschaft AG, 121 F.3d 77 (2d Cir. 1997) (courts should avoid speculative inquiries into foreign privilege law when assessing §1782 requests)
- In re Accent Delight Int’l Ltd., 869 F.3d 121 (2d Cir. 2017) (applicant need only show practical ability to inject requested information in foreign proceeding)
- In re Petroleum Prod. Antitrust Litig., 680 F.2d 5 (2d Cir. 1982) (reporter’s privilege requires a clear and specific showing of materiality, necessity, and lack of alternative sources)
- Chevron Corp. v. Berlinger, 629 F.3d 297 (2d Cir. 2011) (recognizes qualified evidentiary privilege for journalists)