991 F. Supp. 2d 464
S.D.N.Y.2013Background
- Defendants subpoenaed Florentine Films for outtakes (raw audio/video) of interviews used in the documentary The Central Park Five.
- Florentine moved to quash the subpoena, invoking the reporter’s privilege for materials gathered for a public documentary.
- Magistrate Judge Ellis recommended granting the motion to quash; defendants filed timely objections. The District Judge reviewed for clear error.
- Key dispute: whether the reporter’s privilege applies (and if so, the correct standard for non-confidential materials) given director Sarah Burns’ prior research and prior contact with plaintiffs while a paralegal and student.
- Court concluded the privilege applies to the outtakes and that defendants failed to satisfy the Gonzales standard for obtaining non-confidential press materials (relevance and reasonable unavailability). The motion to quash was granted.
Issues
| Issue | Plaintiff's Argument (Florentine) | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of reporter’s privilege to the subpoenaed outtakes | Burns gathered interview material for a public film; privilege protects newsgathering aimed at public dissemination | Burns’ early research and paralegal work show no intent to disseminate at inception; privilege should not protect outtakes | Privilege applies: relevant inquiry is intent when the subpoenaed information was gathered (for the film), not earlier academic/paralegal research |
| Standard to overcome privilege for non-confidential materials | Apply Gonzales test (less demanding): must show likely relevance to a significant issue and not reasonably obtainable elsewhere | Defendants argued court misapplied law and relied on more stringent confidential standard (In re Petroleum) | Court applied Gonzales and found defendants failed both prongs; quash granted |
| Likelihood of relevance of outtakes | Edited film and outtakes may contain impeaching or substantive statements relevant to claims/damages | Defendants pointed to possible candid statements and contradictions in outtakes | Held not sufficiently particularized; edited film already provides impeachment material and request was overbroad |
| Reasonable obtainability from other sources | Outtakes capture candid statements not duplicable in deposition; thus not reasonably obtainable | Plaintiffs and counsel are available for deposition; edited film already accessible; any outtake statements would be cumulative | Held obtainable via deposition and existing edited film; defendants did not show unique, unimpeachably objective evidence in outtakes |
Key Cases Cited
- von Bulow v. von Bulow, 811 F.2d 136 (2d Cir. 1987) (establishes reporter’s privilege test focusing on intent to disseminate public information)
- Chevron Corp. v. Berlinger, 629 F.3d 297 (2d Cir. 2011) (frames privilege as protecting public interest in an independent press)
- Gonzales v. Nat’l Broad. Co., Inc., 194 F.3d 29 (2d Cir. 1999) (lowered standard for overcoming privilege for non-confidential materials: likely relevance and not reasonably obtainable elsewhere)
- In re Petroleum Prods. Antitrust Litig., 680 F.2d 5 (2d Cir. 1982) (sets stricter test for confidential source disclosure: highly material, necessary, and unavailable elsewhere)
- United States v. Burke, 700 F.2d 70 (2d Cir. 1983) (discusses reporter privilege and discovery limits)
- Baker v. F & F Inv., 470 F.2d 778 (2d Cir. 1972) (early articulation of public interest in shielding press materials)