MEMORANDUM
Plаintiff, an attorney, contends that the defendant law firm and one of its partners fired him illegally because he is HIV positive. He brings this action under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., as well as under state law.
Before the court 1 are the motions of defendants to compel non-parties National Broadcasting Company (“NBC”), American Broadcasting Company (“ABC”) and CBS, Inc. (“CBS”) to produce, in discovery, un-broadcast portions of videotaped interviews with plaintiff. The media has objected to production. They assert that a journalist’s privilege arising under federal common law and the First Amendment to the Constitution 2 protects the unbrоadeast portions of the interviews known in the trade as “outtakes.”
The court has held the motion in abeyance pending compliance with its May 13, 1994 Order requiring the media to produce the videotapes for in camera inspection.
John Doe, Esquire v. Kohn, Nast & Graf, P.C., et al.,
As this court noted in its Memorandum accompanying its May 13, 1994 Order, the Court of Appeals of this circuit recognizes a qualified рrivilege for the press to protect confidential sources and other material including outtakes, such as those involved here.
Riley v. City of Chester,
First, the movant must demonstrate that he has made an effort to obtain the information from other sources. Second, he must demonstrate that the only access to the information sоught is through the journalist and her sources. Finally, the mov-ant must persuade the court that the information sought is crucial to the claim.
This court previously found that the information defendants sought is by its nature unavailable elsewhere. In Cuthbertson, the Court of Appeals exрlained that verbatim and substantially verbatim statements of witnesses are
*152 [b]y their very nature ... not obtainable from any other source. They are unique bits of evidence thаt are frozen at a particular place and time.
We must therefore determine whether “the information sought is crucial” to the defense of this action. In оrder to make this determination, we have read the pleadings and over 1,600 pаges of plaintiffs deposition, reviewed numerous deposition exhibits, and watchеd the unabridged ABC, CBS, and NBC interviews of plaintiff. 3 While plaintiff discussed matters relevant to the instаnt lawsuit in the interviews, his statements were consistent with each other and with his depositiоn testimony. Although, not surprisingly, his precise choice of words often differed on the various occasions he answered questions and told his story, the essence was thе same throughout. There were no material discrepancies. The tapes contain nothing which is likely to affect the outcome of the case and whiсh is presently unavailable to defendants.
We cannot foreclose the possibility, of course, that if the tapes were produced defendants might find utility in something plaintiff said. However, that is not the legal standard we must follow. The mere fact that sоme of plaintiffs videotaped remarks would be admissible does not alone wаrrant compelled production of unbroadcast outtakes. Otherwise, the qualified reporter’s privilege would be a mirage.
We have engaged in the balаncing test required by the Court of Appeals. Nothing on the tapes appears to be crucial to the defendants’ case so as to satisfy the requirement articulated in
Criden, supra. See also, Riley,
The motion of defendants to compel production of the videotaped interviews of plaintiff will be denied.
Notes
. This case has been reassigned from The Honorable Robert S. Gawthrop, III to the undersigned for the purpose of the presently pending motions only.
. The First Amendment provides that “Congress shall make no lаw ... abridging the freedom ... of the press.”
. Defendants did not produce a small portion of the deposition transcript and a segment of one exhibit which were designated as confidential and contain information regarding plaintiff’s personal life which is unrelated to the issues in this lawsuit.