Tuesday, August 26, 2008
A New York appellate court has upheld the limiting of a subpoena issued to a non-party author requiring her to answer questions concerning information already published in a book in which she discussed the petitioner, a defendant in a criminal proceeding. The petitioner had wished to obtain additional information, but a lower court had held that the author could claim a qualified privilege under New York's shield law.
Contrary to the petitioner's contention, he failed to satisfy the tripartite test set forth in Civil Rights Law §79-h(c). Even accepting that the information sought was “highly material and relevant,” the petitioner failed to establish that the information was “critical or necessary” to his defense in the pending criminal action (Civil Rights Law §79-h [c][i], [ii]). In order to show that information sought is “critical or necessary,” a petitioner cannot merely show that it would be useful, but rather that the defense could not be presented without it....The petitioner failed to make the required showing based on his vague assertions that the information sought might impact on the credibility of witnesses in the impending trial....Moreover, the petitioner failed to demonstrate that the information sought was not obtainable from another source....Accordingly, the Supreme Court properly held that the nonconfidential information requested by the petitioner was protected by a qualified privilege, and properly limited his inquiry to confirming information already published in the book.