Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Tuesday, August 14, 2007

Reporters Must Testify in Hatfill Lawsuit--Judge Walton

U. S. District Court Judge Reggie Walton has ruled that five reporters--Michael Isikoff, Daniel Klaidman, Allan Lengel, Toni Locy, and James Stewart--must testify in the lawsuit Dr. Steven Hatfill has brought against the U. S Department of Justice. But he quashed the subpoenas Dr. Hatfill brought against various members of the media, including ABC and the Washington Post. Comparing Dr. Hatfill's case to the Wen Ho Lee case, Judge Walton said in part, "...Lee issued subpoenas to the various journalists seeking their testimony and documents relating to the leaks, “reasoning that his other discovery attempts had produced and would continue to produce no results.” Id. The journalists moved to quash the subpoenas, and the District Court denied the motions and ordered the journalist to “appear for [] depositions and ‘truthfully answer questions as to the identity of any officer or agent of defendants, or any of them, who provided information directly about Wen Ho Lee, and as to the nature of the information so provided.’” Id. The District Court concluded “that Lee had met both of [the Zerilli] guidelines to overcome the journalists’ qualified privilege,” finding “that the information was clearly central to the case” and “that Lee had exhausted all reasonable alternatives.” Id. at 57. The Lee Court found that the second Zerilli guideline had been satisfied because the depositions Lee had already taken “showed a pattern of evasion and stonewalling” and because he had used the main discovery devices prescribed by the Federal Rules of Civil Procedure for obtaining the type of information he sought to acquire from the reporters. Id. As noted already, the journalists were required to “appear for depositions and ‘truthfully answer questions as to the identify of any officer or agent of defendants, or any of them, who provided information directly about [Lee], and as to the nature of the information so provided.” Id. at 56. However, “[a]fter the journalists were deposed and refused to answer certain questions, . . . [they] were held in contempt.” Id. at 57. Upon refusing “to reconsider on the privilege issue,” the District Court “fined each [journalist] $500 per day, [but] stayed the fines pending appeal.” Id. Ultimately, the Circuit Court affirmed the District Court’s ruling with respect to four of the five journalists." (footnotes omitted). He also rejected claims of federal common law reporter's privilege.

However, with regard to the media subpoenas, Judge Walton continued, "As to the media companies (and their reporters), from whom no discovery efforts have been directed – The New York Times, the Associated Press, and the Baltimore Sun – the Court has the same view concerning Dr. Hatfill’s failure to satisfy the exhaustion requirement as prescribed by Zerilli and Lee. Enforcing the Rule 30(b)(6) subpoenas served on these companies would, in and of themselves, not provide Dr. Hatfill with admissible evidence that he would be able to use at trial to prove the elements of his Privacy Act claims. Any information the corporate representatives of these entities provided through their depositions concerning the identities of the government sources would in all likelihood constitute inadmissible hearsay, as their knowledge would presumably be based on what they learned from someone other than the sources themselves."

Read the entire opinion here. Read Adam Liptak's article in today's New York Times here.

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