UNITED DISTRICT DISTRIC-4.1T-.3 YORK VIRGINIA GIUFFRE,-5.8 agains4.8t GHISLAINE MAXWE-4.6LL Defendant Index No Civ ECF CASE MEMORANDUM IN OF NON-P-4.1A2.3RTY SHARO-7.3N CHURCH-7.3ER?S TO SUBPOE-3.1NA DAVIS WR-4.3IGHT TRE-5.5M-2.1AINE LLP Laura Handm8.3a-.7n Eric Feder Avenue of the Americas 21st Floor New York NY Telephone Facsim8.3ile laurahandman dwt.com ericfeder dwt.com8 Attorneys for Non-Pa rty Sharon Churcher Case Document Filed Page of i TABLE CONTENTS-3.1 Page PRELIMINARY STATEMENT FACTUAL BACKGROUND A Ms Churcher?s News Coverage of the Parties in this Case Defendant?s Attem8p.2t to Obtain Unpublished Newsgathering Material from7.9 Churc-6.1h.1er ARGUMENT I THE SUBP-4.8OENA DOCUMENT THAT ARE PRIVILEGED FROM DISCLOSURE BY THE NEW9 YORK SHIELD LAW A To the Extent the Subpo5.4ena Seeks In5.4for-6.6m8.2ation Received Pu5.4rsuant to Prom8.5ises Conf3.7identiality Such Inf8.7o.7rm8.5ation Is Absolutely Privileged U7.3nder the Shield Law All of the Infor-6.9m7.9ation Sought by the Subpoena Is At a Minimum7.9,.1 Protected by the Qualified Priv ilege Under the S6.6h.4ield Law7.6 The Inform8.1a-5.9tion Sought by Ms Maxwell Is Not Highly Material and Relevant to?Let Alon5.3e Critical Necessary to the Maintenance of??Any Claim or Defens-5.8e Ms Maxwell Has Not Exhausted Alternative Sources for the Inform7.9ation Sought by the Subpoena II THE SUBPOENA SHOULD ALSO BE QUAS-5HED UNDE-5.4R FOR FAILURE A REASON ABLE FOR COMPLIANCE AND IMPOSING AN UNDUE BURDEN CONCLUSI-7.1ON Case Document Filed Page of ii TABLE AUTHORI-6.3T1.5IES-4.3 Page Cases In re ABC Misc 2d N.Y.S.2d Sup Ct N.Y Cty In re Application to Quash Subpoena to NBC F.3d 2d Cir passim Baines Daily News N.Y Misc LEXIS Sup Ct N.Y Cty July Baker Goldman Sachs Co F.3d 2d Cir In re Behar Supp S.D.N.Y Brown Williamson To5.3bacco Corp Wigand No WL Sup Ct N.Y Cty Feb aff?d A.D.2d 1st Dep?t Brown Hendler No Civ RLE S.D.N.Y Jan In re CBS Vacco A.D.2d N.Y.S.2d 1st Dep?t Flynn NYP Holdings Inc A.D.2d N.Y.S.2d 3d Dep?t Giuffre Maxwell No Civ RW9S S.D.N.Y May Giuffre Maxwell No Civ RW9.4S S.D.N.Y Feb Gonzales NBC F.3d 2d Cir In re Grand Jury Subpoenas Served on NBC Misc 2d N.Y.S.2d Sup Ct N.Y Cty Henry Morgan?s Hotel Grp Inc No ER JLC WL S.D.N.Y Case Document Filed Page of i Holmes Winter N.E.3d N.Y.3d In re McCra5.5y-.7 Richardso5.5n Santana Wise Salaam Litig Supp 2d S.D.N.Y aff?d Supp 2d S.D.N.Y Night Hawk Ltd Briarpatch Ltd No Civ RW9.1S S.D.N.Y Dec O?Neill O7.9a.7kgrove Constr N.E.2d N.Y.2d passim In re Pan Am Corp B.R S.D.N.Y People Gr4.7iffin No Sup Ct N.Y Nov People Iannaccone Misc 2d N.Y.S.2d Sup Ct N.Y Cty Pugh Avis Rent A Car Sys Inc No S.D.N.Y Oct Reuters Ltd Dow Jones Telerate Inc A.D.2d N.Y.S.2d 1st Dep?t Schoolcraft City of N.Y No Civ RW9.4S S.D.N.Y Apr United States Burke F.2d 2d Cir United States Cuthbertson F.2d 3d Cir Velez Point Multi-S5.7e-.5rv Inc A.D.3d N.Y.S.2d 1st Dep?t Constitutio5.7n1.9al Provisio5.7n1.9s N.Y Const art I Statutes N.Y Civ Ri-7.3ghts Law passim Case Document Filed Page of iv Federal Rules Fed Civ Fed Civ passim Fed Evid Other Auth7.2orit4ies5.2 McKinney?s Session Laws Memorandum7.8 of State Executive Case Document Filed Page of Non-party S6.4h.2aron Churcher Churcher thr ough her counsel respectfully subm8.1its this Mem8.1o.3randum of in Support of her m8.1o.3tion under Fed Civ to quash the subpoena to testify at a deposition in a ci vil action and produce docum8.1ents he Subpoena in this case PRELIMINARY STAT-3.6EMENT-3.6 Sharon Churcher?s involvem8.1e-.9nt in this defam8.1a tion case entirely from the fact that in her capacity as a professional journalist she several news articles about the Plaintiff Virginia Giuffre referred to in the Subpoena as Virginia Roberts and hereinafter as Ms Roberts the Defendant Ghislaine Ma xwell who issued the Subpoena and Jeffrey Epstein Th5.5ese articles the Art icles were published over the course nearly ten years by num8.4e-.6rous publications including The Mail on Sunday the National Enquirer and Rad5.3a.3r Online and were written by Ms Churcher either as an employee of the publica tion or as freelance reporter See Declaration of Sharon Church er Churcher Decl and Exs The Subpoena served just twelve days be fore the date of compliance commands Churcher to sit for a deposition and produce a broad array of docum7.9ents including all docum8.1ents containing communicatio ns with th5.4e Plaintiff and all communications w7.8ith any agent for th5.7e Plain5.7tiff See Declaration of Laura Hand Handm7.9a-6n.1 Decl A Subpoena Churcher?s com)8m3unications ith Ms Roberts alone date back than years to6 the repo6rtin6g of4 artic4.8les that app6eare4.8d1 in The Mail on Sunday in March The Subpoena does not lim8.3it the dem8.3a-.7nd for these docum8.3e nts to any particular tim8.3e period or topic instead requ5.4iring Church5.4er to through a ecade?s worth comm8.2unic-5.8a-.8tions from8.2 multiple em8.7ail accounts with m8.7u.9ltiple em8.7ployers The Subpoena m8u.2st be quashed for two separate and independent reasons First a5.1ll the inform8.2ation sought in the Subpoena is protec ted from8 compelled disclosure by the New York Case Document Filed Page of Reporters S6.3h.1ield Law N.Y Civ Ri-7.1ghts Law Section That statute which stem8.2s the Fir3.9s.1t Am8.7endm8.7ent and the clau5.9se the New York State con5.9s.1titu5.9tion I provides reporters with an absolute p5.4r-1.6ivilege ag5.4ainst disclosure of any inform8.4ation received in confidence includ5.8ing th5.8e iden tity of confidential sources and5.3 a qualified privilege for unpublished newsgathering m7.8a-1.2terial even when it is not otherwise confidential To overcom8e the qualified5.7 privilege th5.7e party seeking disclosure bears a heavy burden to clearly show that the inform8.4ation sought is so critical or n5.6ecessary to the case that the party?s claim8.3 or defense virtually rises or falls based on the infor-6.9m7.9ati on and that the party has exhausted all other available sources for the inform8.3ation In re Application to Q7.4uash Subpoena to NBC Graco F.3d 2d Cir i nternal citations om8.1itted See Section All of the infor-6.9m7.9ation sought by the Subpoena falls within eith er the absolute or qualif8.6ied privilege under the Shield Law A significan portion of the m8.5a-.5teri als en5.8com8.6p.8assed by the Subpoena?s docum8.1ent requests contain confiden tial comm7.9uni-7.1cations and infor-6.9m7.9ation and are theref4.1ore ab6.1solute4.9ly pr4.1iv6.1ileged disclosu5.9re But conf3.9identia4.8l or not all of the inform8.5ation described by the docum8.3ent requests com8.3p.5rise unpublished infor-6.9m7.9ati on about?or obtained during the course of?the newsga thering process Ms Maxwell has not any showing that her defense rises or falls based on the inform ation sought in the Subpoena which on its face is at ta4.9ngentia4.9lly re4.9lated to the dispute in th6is case And6 there are a5m4ple alte5rna5tive sou6.2r-.8ces for the inform7.9ation As a starting point in or der to obtain infor-6.8m8ation about payments to or contracts or communications wit Ms Roberts the obvious alte rnative source is Ms Roberts As 6disc7.4usse7.4d the New 6York Law app-4.7lies th-4.7is case 6Circu-4.7it also-4.7 6reco-4.7gn-4.7izes a fo5.5r and See Gonzales 6NBC F.3d Cir S-4.3c-.6hoo-4.3lcraft City N.Y 6Civ state are state 6Shield 6Law applies Case Document Filed Page of herself Cu)5.5mulative ev5.5idence that at bear on the general credibility of the Plaintiff does not satisfy the Shield Law See id Since the do5.6cum8.4e-.6nts requested are all protected under the Shield Law Churcher should not be required to sit for a depos ition that will presum8.3ably cover th sam8e-1 privileged topics As the New York Court of Appeals exp5.2l-2ained in it most recen5.4t decis4.6i-1.8on on the Shield Law where the entire focus of a reporter?s testimony woul be on privileged topi cs no legitim8.6ate purpose would be served by requiring th5.6e witn5.6ess to go th rough the form8.1ality of appearing to testify only to refuse to answer questions concerning the inform8.1ation sought Holmes Winter N.E.3d N.Y.3d citing Beach Shanley N.E.2d N.Y.2d Indeed 8.6com8.4pelling a re porter appear at a deposition to respond to a subpoena that seeks inform8.3ation that is clear ly cloaked with an abso lute privilege can itself be viewed as a significant incu rsion into the press autonom8.3y rec ognized in article I of the state constitution and the Shield Law Id Second even if the inform8ation sought in the Subpoena were not covered by the Shield Law the Subpoena m8u.2st be quashed under Rule of the Federal Rules of Civil Procedure Rule because it is unduly burd)5.4e-.8nsom8.2e and does not pro5.4v.4ide reasonable for com8.3p.5liance Twelve days is sim8.3p.5ly not sufficien to collect review and produce over years worth of4 communicatio6ns that sp6an multiple of4 em8.8ploym8.8ent and theref4ore m8.8u-4ltip6le em8.8ail servers and which indisputably include extens iv5.8e communication with c4.6onf3.8identia4.6l s5ources th5.8at would need to be redacted Mo reover given the lim8.3ited relevan ce and cu5.4mulative nature of the docum8.1ent requests and the fact that Ms Churcher is a non-party the br oad un-cabined scope of the docum8.2ent requests renders the Subpoena unduly burdensom8.2e Case Document Filed Page of FACT-3.5UAL BACKGROUND A Ms Churcher?s Coverage of the Parties in this Case Ms Churcher is a professional print journa list who has worked continuously in New York since Churcher Decl She is currently em8ployed by Am8e-6r-1.8ican Media Inc which publishes the National Enquirer the Enquirer and RadarOnline.com)8.1 Rada-5.9r where she has worked since N7.7ovem8.3b.5er Id From7.8 t-7.2h0rough October she was em8ployed as the New York-based Chief Am8erican Correspondent of The Mail on Sunday a publication owned by Associated Newspapers of London England During the interim she worked as a freelance reporte for publications including The Mail on Sunday the U.S operation of its digital the Mail Onlin6.3e and the Enquirer Id In her capacity as a journalist Ms C7.4hurcher has reported on the even ts that underlie this case going back to at least April wh en she wrote an article published in The Ma6il on Sunday about the alleg5.6e4.4d ties b5.6e-.6tween Prince A7.8ndr ew the British royal and convicted sex offender Jeffrey Epstein See Id Ex T6.4he defendant Ms Maxw7.8ell was m8.4e-.6ntioned in that article Ms Churcher first reported about the plaintiff Ms Robe rts in March when she wrote a series of artic5les published The Mail on Sunday a4.7nd af3.9f3.9iliated newspapers contain5.9i-1.3ng extensive interviews with and photographs of Ms Roberts in which she agreed to waive her anonym8.4ity and tell for the first tim8.4e her deeply di sturbing story Church er Decl Ex at also Church5.5er Decl Ex Ms Churcher traveled to Aust ra4.5lia to m8.5eet and inte4.5rview Ms Roberts4.9 in person for those stories Churcher Decl In January Ms Churcher wrote a series of stories that appeared in several publications including The Mail on Sunday the E6.2nquirer and Radar containing extensive new details from8.1 Ms Roberts about her involvem8.1e-.9nt with Jeffrey Ep stein Ms Maxwell and Prince Case Document Filed Page of Andrew as well as ex5.4cerpts from a handwritten diary5.7 abo5.7u.7t those exp5.7e-.5rien5.7ces wh5.7ich appeared5.7 on Radar?s website See Churcher Decl Exs From8.1 t-6.9h.3rough the present day Ms Church er has communicated extensively with Ms Roberts4.6 or in certain instances,5.4 agents for Ms Churcher incl uding her attorneys exclusively in her capacity as a journalist comm8unicating with sour ces Churcher Decl Defendant?s Attempt to Obtain Unpub lished Ne-5.9w7.4s-.6gathering Material from Churcher On Saturday June Ms Churcher was served with the Subpoena by hand at her Churcher Decl The Subpoena comm8.1a nds Ms Churcher to app5.5ear at a depo5.5sition on June The Subpoena also commands Ms Chur cher to bring with her to the deposition several broad categories of docum8.3ents All Docum8.1e-.9nts containing comm8.1unications with Virginia Roberts All communications w7.5ith any for Virgin5.7ia Roberts including without lim8.1itation attorneys Bradley E6.1d.3wards Paul Cassell Boise sic Sigrid McCawley Meredith Schultz Stanely sic Pottinger E6.1llen Brockm8.1an Stephen Zach Brittany Henderson Bob Josefsberg Katherine Ezell Ederi All Docum7.9e-1.1nts containing comm7.9unications with Jason Richards All Docum8.1e-.9nts containing comm8.1unications with law enforcem8.4ent agency con5.6cerning Virg5.6inia Roberts.5.6 All Docum8.1e-.9nts reflecting any paym8.1ent of any money to Virginia Roberts All Docum8.4e-.6nts reflecting any contract concerning Virginia Roberts Handm8a-1n Decl Ex A at On January counsel for Ms Chur cher spoke by phone to counsel for Ms Maxwell and requested an extension of the to with the S6.8ubpoena Ms Maxwell?s counsel stated that she would agree to ad journ the date only if Ms Churcher was Case Document Filed Page of planning to com8p.2ly with the Subpoena and not move to quash Handm8.1a-.9n Decl Since Churcher intended to file this m8.1o.3tion the return date was not adjourned Id asked for m8o.2re specific details about what info r-6.8m8ation Ms Maxwell hoped to elicit from8 Ms Churcher Maxwell?s counsel stated that she could not share any further details in light of the pro6.1t-1.1ectiv6.1e order ente red in this case Id I THE SUB-4P-5.2OENA DOCUMENTS THAT ARE PRIVILEG-7.9ED FROM DISCLOS-4.6U-3.6RE BY TH-8E NEW YORK SHIELD Under Rule a i ii a court must quash a subpoena where it requires disclosure of privileged or other protected m8a-1tter The New York Shield or reporter?s priv ilege protects repor ters from com8.1p.3elled disclosure of both confidential inform7.9ation and sources as as non-confidential unpublished newsgathering m7.9a-1.1terials and inform7.9a-6.1tion which is precisely what Ms Maxwell seeks in her Subpoena While now codified in Section of the Civil Law the reporter?s privilege has its in the Ne4.5w York Constitu5.7tion5.7?-1.3s press which)5.7 provides the broadest possible protection to the sensitive role of gath ering and dissem7.9inating news of public events O?Neill Oakgrove Constr N.E.2d N.Y.2d quoting Beach N.Y.2d at Wachtler concurring Indeed New York public policy as em8bodied in the Constitution and our current st atutory schem8.4e-.6 provides a m8.4a-.6ntle of protection Th-4.4is alread-4.4y th-4.4at 6New 6York law so-4.9le case See Giuffre 6v Maxwell Feb 6Fede8.1ral3.8 ci3.8v il cas5.8e state law 6governs 6privilege6.6 re6.6garding a or defe7.7nse 6This ha6.9s 6furthe6.9r 6held beca6.9use case conce6.7r3.7ns a 6state law claim11.4 that is in fe6.7de6.7ral c6.7o-3urt 6becau of dive6.5rsity of citizensh and 6disc7.1ove7.1ry by5 Yo5rk5 See Giuffre 6v Maxwell at 6May in-4.7ter More7over a Ne6.7w 6York-based New 6York Reporters Law See Gr8ac8.8o at Sh-5.1ield ere sub-5poen-5a-1.3 in Massach-5u-5s3.9etts wrong-5fu-5l su-5it i4.1ssued4.7 Ne8.4w a Case Document Filed Page of for those who gather and report the news and th5.6eir confiden5.6tial sou5.6r-1.4ces that has been recognized as the strong5.7est in the na5.7tion Holmes N.Y.3d at em8phasis added Accor-6.3d.7ingly the York Shield Law provide-5.5s absolute protection of obtained or received in confiden ce by a reporter as well-5.7 as for the identity of a confidential source Sect-5.8ion Th statute also provide-5.3s.1 quali-6.3fi ed protection non-confide-4.9n1.3tial news-5.1gatheri-6.5ng infor-6.3m3.5ati-6.5on whic-5.5h be overc-5.5ome only a clear-5.8 and speci-6fic showing that-6 the infor-5.5m4.3ati-5.7on is m9.3a.3terial and relevant 4.8c.2ritical or ne-4.8cessary to the of party?s clai-6.1m not obtainable-5.1 from any alte r-5.6n1.4ative Section privilege is a stringent that im8.2poses a very heavy burden on any party seeking to overcom8e it In re ABC Misc 2d N.Y.S.2d Sup Ct N.Y Cty Here a portion of the inform8.1ation that Ms Ma xw7.5ell seeks in the Subpoena is subject to absolute protection as confiden tial newsgathering inform8.1ation a nd the rest receives qualified protection as nonconfidential newsg5.4a-.8thering inf8.4o.4rm ation Because Ms Maxwell cannot the very heavy burden to overcom8.2e-.8 the privil ege the Subpoena must be quashed A To the Extent the Subpoena Seeks In formation Received Pursuant to Promises of Confidentiality Such In format3.4io5.4n Is Absolutely Pr4.2ivile4.2g.4ed Under the Shield Law The Shield Law provides an absolute priv5.9ilege a4.7g.9ainst the co5.9mpelled dis5.1c4.7losure n5.9ews obtained received in confidence or the iden5.5tity of the sourc4.4e-.7 of such news Sectio5.5n The statute thus bars compelled disclosure of news or its source obt ained in confidence Baines Daily News N.Y Misc LEXIS at Sup Ct N.Y The6.8 First comm11.5on law 6reporter?s 6recogn-4.8ized Seco-4.8nd Circu-4.8it is slightly less co-5.6nfid-5.6en-5.6tial non-5.6-confid-5.6en-5.6tial is 6For ca8n 6be 6ove8rc8om12.7e non-6 und-5.3er Sh-4ield-4 Law See Gonzales at 6Fo-5r th-5e seek-5ing-5 show 6?that the6.4 m11.1a.4terials at issue 6of likely releva6.4nce to a si gni8.2ficant issue6.5 in case and the materials at issue 6?are 6not reas5.4ona6.2bly obta 6at Case Document Filed Page of Cty July Holmes N.Y.3d at explaining that th statutory privile ge prohibits a New York court from8.2 forcing a report er to a conf4.1ide4.9n1.1tia4.9l Flynn NYP Holdings Inc A.D.2d N.Y.S.2d 3d De p?t explaining that w7.7h.5ere docum8.6ents are deem8.6ed confidentia a reporter is afforded unqualif ied protection from having to divulge such sources m9.3a.3terials?5.3 At a the Shield Law would absolutely preclude any inquiry in to the identity of confidential sources on which Ms Churcher relied in reporting the Articles or any infor-6.9m7.9ation that reveal tho6s.2e so6urces iden6tities5.2 On th5.5eir face of the Articles rely confidential sources including law enforcem8.2ent sources See e.g Churcher Decl at a source id Ex at a law enforcem8.3ent source id Ex at m7.7a-6.3ssage therapist who does not wish to be named id at le4.7gal a sourc4.7e-.3 with the case?4.7 And Churcher states in her decl ara4.9tio6.1n that in rep6.1o1.1rting the ticles she relied extensively on inf3.9o.9rm8.7ation rece4.7ived in c4.7onf3.9idence well as sou5.4r-1.6ces whose identitie are confidential.5.7 Churcher Decl To the extent any comm unications w7.5ith those sources fall within the catego5.8r-1.2ies the document requ5.8ests for exam8.6ple confidential law enforcem8ent sources who are quoted in the Articles or if a confidential source could arguably be considered an agent for Virginia Roberts those communi cations are ab6.1solute4.9ly pr4.1iv6.1ilege from8 disclosure Moreover although Ms Roberts was plainly a non-confidenti al on-the-record source for several of the Articles to the extent Ms Roberts provided hurcher with an5.4y inform ation on a confidential basis that infor-6.9m7.9ation would al so absolutely p5.4r-1.6ivileged See Baker Goldman Sachs Co F.3d 2d Cir New York?s Shie ld Law provides journalists an absolute privilege from testifying with regard to news obtai ned under a prom8.3ise of c-5.7onf identiality Case Document Filed Page of W9.2ithout knowing precisely what specif ic inform8.4ation Maxwell is attem8.4p.6ting to elicit with this Subpoena it is im8.1possible to de lineate which infor-6.7m8.1ati on is subject to the absolute privilege and which is protected by the qualified privilege but at least significant portion of the inform8.2ation falling within the scope of the Subpoena?s docum8.2ent requests is conf4.1identia4.9l inf4.1o1.1rm8.9ation that is abso6.1lutely p6.1r-.9otec4.9ted compelled All of the Information Sought by the Subpoena Is At a Minimum Protected by the Qualified Privilege Under the Shield Law7.3 Section of the Shield Law codifies the recogniti on by courts that the reporter?s privilege serves im8.2portant interests beyond confid entiality including the privacy of editorial processes the independence of the press and the need to allo the press to publish freely on topics of public interest wit hout harassm8.2ent and scrutiny by litigan ts seeking to conduct fishing expeditions into unpublished m8a-1terials in the ope that some relevant infor-7.1m7.7ation may turn up Pugh Avis Rent A Car Sys Inc No WL at S.D.N.Y Oct In O?Neill the New York Court of Appeals st ress4.8ed the n5.6eed for courts to exercise particular vigilance in safeguard ing the free pres4.7s agains4.7t un5.5due interference and preventing undue diversion of journalistic effort and disrupt ion of press functions N.Y.2d at See also Brown Williams on Tobacco Corp Wigand No at Sup Ct N.Y Cty Feb Attem8p.2ts to obtain evidence from8 reporters as nonparties would if unrestrained subject news organizations to enorm8.2ous depletions of tim8.1e and resources as well as seriou sly im8.4pede their ability to obtain m8.4a-.6terials from8.4 confidential sources a7.1ff?d A.D.2d 1st Dep?t Sim8.2ilarly in recognizing that the First reporter?s privilege also applies to non-confidential newsgathering inform7.9ation the econd Circuit has explaine that the reporter?s privilege reflects broader concerns beyond the onfidentiality of a reporter?s sources noting Case Document Filed Page of that the privilege is desig5.4n.4ed to pro5.4t-1.8ect agai nst the burdens that woul acc4.6rue it to becom8.6e-.4 standard oper3.8a-.4ting procedu5.8r3.8e those litiga4.6ting aga4.6i3.6nst an en5.8tity5.8 that had the subject of press attention to si ft through press files in search of infor-7m7.8ation supporting their claim8.9s.3 Gonzales F.3d at The court explained further that those harm8s include burdening the press w7.5ith heavy costs of subpoena com8.2p.4liance increased requests for anonym8.2ity from8.2 sources anxious to avoid being suc ked in5.7to litig5.7ation,5.7 and the sym8.5bolic harm8.5 of m8a-1king journalists appear to be an investigative arm7.8 of the udicial system the governm8.1e-.9nt or private parties Id And New York courts ha ve pointed out that th legislature?s exp5.5r3.5ess purpose in passing the Shield Law was to avoid pr oblem8.7atic4.7 incurs5.1ions into the integ5.9r-1.1ity the editorial process In re Grand Jury Subpoenas Served on NBC Misc 2d N.Y.S.2d Sup Ct N.Y Ct quoting McKinney?s S6.6e-.8ssion Laws Memorandum8.4 of State Execu tive Department See also United States Cuthbertson F.2d 3d Cir The co mpelled production of a reporter?s resourc4.9e-.1 can c4.9onstitu6.1te a signif4.1i-1.1cant in trusion in5.7to the newsgath5.7ering and processes These principles were recently reaffirm8ed by the Second Circuit applying the New York Shield Law in Baker Goldman Sachs F.3d There the plaintiffs sued their financial advisor over the alleged failure to accurately value a com8.3p.5any??L H??before it m8.3e-.7rged with the plaintiffs com8.2p.4any The Wall Street Journal had published stories que stioning the valuation of that sam8e-1 year and the plaintiffs sought to depose one of the reporters on the stories Jesse Eisinger in order to suppor their theory that their fina ncial advisor could and should have done the degree of investigati on into as the newspaper reporters See id at Eisinger to quash the de position subpoena and the district court granted the motion Case Document Filed Page of The plaintiffs had insisted that the prim7.8ary purpose of the deposition was to have Eisinger sim8.2p.4ly confirm8.2 the details contained in the publishe article But the district court found that the scope of questions co5.6uld not be confined to p5.1ublished info rm8.5ation because even the basic questions?such as who the calls and inte4.7rviewed5.9 the Korean com8.7p.9anies that allegedly custom8.2ers?were unpublished de tails of the newsgathering process Id at Moreover in seeking testim8.3ony to support their theory of the cas the plaintiffs inevitably would have to ask questions regarding he reporter?s techniques for conducting his investigation the backgrounds of Eisinger?s co-authors and the Wall Street Journal?s staff and whether he consulted with any expe rts or other sources in the course of the investigation?all inquiries into the newsgather ing process protected by the Shield Law Id internal qu5.5otation om8.3itted Although none of that in5.5for-6.5m8.3ation was confidential the court did not hesitate to hold that the unpublis hed details of the newsga thering process were neverth5.2e-1less protected the Shield Law a nd because th5.6e testim8.4ony was not critical or necessary to m8.5a-.5intain the plain5.7tiffs claim8.5s-.1 th district court granted the m8o.2tion to quash Id The Second Circuit affirm8.1ed quoting the dist rict court?s analysis at length and explaining that it was virtually self-evident that the Shie4.2ld Law woul protect E6.2i-1.8singer from8.2 com8.8p1elled testim8.8ony Id at emphasis added The principles apply here All of the inform8.2ation sought by the docum8.2ent requests in the Subpoena pertain to either inform7.9ation obtained in the course newsgathering or unpu blished details of the newsgathering process Id at And because Ms Maxwell canno5.5t ke the clear showin5.7g necessary to overcom8.5e the qualified5.8 privilege to access this u5.8npublis hed even if non-confid ential newsgathering inform8.1ation the Subpoena be quashed Case Document Filed Page of The Information Sought by Ms Maxw7.4ell Is Not Highly Material an6.4d Relevant to?Let Alone Critical or Necessa5.4ry to the Maintenance of??Any Claim or Defense Under Section the party seeking disc ov5.8ery from8.6 a reporter m8.6ake a clear and specific showing th5.6at the inform8.4ation she seek is highly m8.1a-.9terial or relevant and that the inform8.4ation is critical necess4.8a-.6ry to the m8.4a-.6intena nce of the defense or proof of an issue m8.1a-.9terial thereto These two prongs overlap to an extent but Ms Maxwell cannot establish either one What is and relevant is often inte rpreted broadly but a court must determ8.1i-1.9ne whether the m8.6a-.4terials sought are in fact relevant to a legitim8a-6te subject inquiry and not perm8.1it the subpoena power to be used as a tool of harassm8.3e-5.7n.5t or for the proverbial fishing expedition to ascertain the existence of evidence Reuters Dow Jones Telerate Inc A.D.2d N.Y.S.2d 1st Dep?t quashing non-party subpoena Subpoenas not si-7.2mply seek a va gue array of infor-6.8m8ation To the contrary where as here the subpoena is issued in the co ntext of a pending civil ac tion it is well settled that the purpose of a subpoena duces tecum8.1 is to com8.1p.3el the production of specific docum8.1e-.9nts that are relevant and m8.1a-.9terial to facts at issue in a pending judicial proceeding Velez Hunts Point Mu5.8lti-3.8S.8erv Ctr A.D.3d N.Y.S.2d 1st Dep?t Broad pronouncements that fail to iden tify a significant issue in the case that the subpoenaed m8.2a-.8terials potentially address are no sufficient to satisfy this prong In re McCray Richardson Santana Wise Salaa5.4m Litig Supp 2d S.D.N.Y aff?d Supp 2d S.D.N.Y a ba8.2r and4.5 case tenden-5.1c-1.4y co-5.1mmitted-5.1 Peop-5le 6Griffin Ct Cty th-5.1at Case Document Filed Page of The critical or necessary prong im8.2poses an even higher bar In order to find unpublished news to be critical or necessary wi thin the m8.4eaning of there be a finding that the claim8.1 which the infor-6.7m8.1ation is to be used virtually or falls w8.4ith th6.2e adm8.2i-1.8ssion or exclusion of th proffered evidence Graco F.3d at internal quotation and citation om8.7itte4.7d em8.7phasis added te is no5.8t m8.6e-.4rely the be helpf3.8u.8l or probative but whether or not the defense of the action m8a-1y be presented without it Baker F.3d at quoting In re ABC Misc 2d N.Y.S.2d Sup Ct N.Y Cty ellip5.5ses om8.3itted and te xt deleted from8.4 quotation resto5.6r-1.4ed s5.1ee also5.9 O?Neill N.Y.2d at the m8.1a-.9terial sought must be es sential to the m8.2a-.7intena nce of the litigant?s By definition evidence that is m8e-1rely cumu lative cannot be necessary or critical to an action so as to override th First A8m8.6endment privilege In re Behar Supp S.D.N.Y citing United States Burke F.2d 2d Cir It is not clear how the info r-6.4m8.4ation and testim8.4ony sought in the Subpoena is highly m8.1a-.9terial and relevant let alon critical or necessary to Maxwell?s defense This is a defam8.6a-.4tion case th5.8at tu5.8rns on whether Ms oberts accus4.7a-.7tions agai ns4.8t Ms Maxwell and Mr Epstein are true such that Ms Maxwell?s d5.5e-.7nials of those accus4.7a-.7tio5.5ns would be false See Giuffre W9L1 at Ms Churcher does not have any direct inform8.1ation that is relevant to the truth or falsity of those issues She reported ne ws stories about the E6.2p.4stein case based in part on interviews with Ms Roberts But there is no suggestion that Ms Churcher?s communications with Roberts her agen5.6ts with law enf3.5o.5rcem8.3ent will any 6of5 cl3.7ear speci9.7fi3.7c 6of ne8.3ws or 6nec8e2ssary4.3 6pr5on4.3g m12.7ean si3.8nce be and Case Document Filed Page of firsthand knowledge of what di or did not happen between Ms Roberts Ms Maxwell and Mr Epstein The Articles contain Ms Churche r?s reporting on the story Ms Roberts told but the witn6.1ess that is of course Ms Roberts herself who is a party in this case To the extent that Ms Maxwell argue that docum8.2e-.8nts reflecting any paym8.2ent of money to or contracts ith Ms R)7.5oberts would tend to affect Ms cr3.1edibility it is we3.9ll settled th6at evidence that goes to gen6eral cred6ib ility does not m8.2eet the critical or necessary test In re Misc 2d at N.Y.S.2d at Ms Maxwell?s case will not rise or fall based on whether she can show that Ms Rob5.5e-.7rts received5.5 a fina ncial benefit from the publication of her story In a ny event Ms Maxw7.4ell m8a-1y elicit testim8.3ony and obtain evidence on that issue directly from8 Ms Roberts herself from8.2 her bank records and other docum8.2ents Further evidence of paym8.1ents to Ms Roberts or contract that Ms Roberts en tered into if any would only be cum8.4u.6lative which undercuts any5.6 ar gum8.4ent that the inform8.4ation is necessary or critical See Burke F.2d at To the extent that Maxw7.5ell seeks Church er?s communications with and about Ms Roberts to find evidence that m8i-2ght contradi ct or otherwise impeach testimony Ms Roberts it well settled that ordinarily im8.4peachm8.4e-.6nt m8.4a-5.6terial is not critica4.6l-1.5 or necessary to the m8.2a-.8intenance or defense of a claim Graco F.3d at holding that while it is clear that any inc4.8onsisten6t-1.2 by the plaintiff would be re levant to Graco?s defense for im8.6peachm8.6e-.4nt purposes it is far from8.6 clear that th5.4ey would be necessary within the m8.4eaning of the Shie4.4ld Law See also In re AB6C Misc 2d at N.Y.S.2d at 8.2W4hen the Legislature speaks of unpublished news being critic al or necessary to th proof of a claim8.3 or i4n4.6fo4.6rm13at4i4on ab4.6out4 co4.6nt4ract4s 6be busi9.9n-1.5ess an4.5d Case Document Filed Page of defense it not have in general and ordinary im8.6peachm8.6e-.4nt m8.6a-.4terials m8.6a-.4tters which arguably bear on the assessm8.5ent credib5.7ility witne4.5sses The striking lack of specificity apparent on the face of the Subpoena further dem8.1onstrates Ms Maxwell?s failure m8.5eet the critical or necessary requ irem8.3ent She does not ask for communications on specific topics th5.3at would to im8.6peach particular statem8.6ents from8.6 Ms Roberts?she sim8.2p.4ly asks for all docum8.2e-5.8n ts containing communications with Virginia Roberts in the apparent hope that so5.4m8.2e-.8thing useful will come of it That is precisely the kind of fishing expedition into the work product of a reporter that the Shield Law is intended to prevent.6.1 People Iannaccone Misc 2d N.Y.S.2d Sup Ct N.Y Cty Ms Maxw7.9ell Has Not Exhausted Alternativ5.7e Sources for the Information Sought the Subpoena Under the S6.4h.2ield Law New York courts pe rm8.5it disclosure of non-confidential m8.5a-.4terial only as a last resort In re ABC Misc 2d at N.Y.S.2d Sup Ct N.Y Cty em8.2phasis in original See also N.Y.2d at to obtain evidence by subjecting the press to discovery as a nonparty would be widespread if not restricted on a routine basis Thus in order to overcom)8.2e th privilege4.3,.4 even if th critical or n5.6ecessary requirem8.4e-.6nt were the party seeking disclo su5.9re a clear and5.9 specific sho5.9w3.1ing that the inform8.1ation is not obtainable from8.1 a ny alternative source Section This requires the party to show not only that it attem8.2p.4ted to obtain the information from8.2 other sources but that it exhausted all othe available sources of infor-6.8m8ation Graco F.3d at See also In re CBS Vacco A.D.2d N.Y.S 2d 1st Dep?t Notwithstanding subpoenaing party?s excuses ffered to the contrary no clear and specific showing has been that the relevant m8.2a-.8terial was unavail able elsewh5.2ere Flynn Case Document Filed Page of A.D.2d at Other than stating that the m8a-1terial are not otherwise availa ble plaintiff has not detailed any efforts to obtain the reque sted docum8ents or the information contained therein As the court in In re Pan Am Corp B.R S.D.N.Y pointed out At the very5.6 leas4.8t a party seeki ng to overcom8e a constitutional pr ivilege on the basis of necessity must show that it has exhausted all other avai lable non-privileged sources for the inform8ation Here Pan Am has not even worked up a sweat much less exhausted itself Based on a review of the m8.1o.3tion practice in the d5.8o.8cket in this5 case it is apparent that Ms Maxwell has effort and perhaps even worked up a sweat to obtain discovery in this case but the4.8r-1e is no indica4.8tio6n that sh6e has exhausted all non-journalist sources for the inform8.1ation sought by the Subpoena As noted above inform8.3ation about paym8.3ents contracts and communications involving Ms oberts can be sought directly from8.1 Ms Roberts To the extent she seeks em8.5ail communicatio5.7ns between Ms Roberts and Ms Churcher even if Ms Roberts did not have or produce a com7.9p.1lete set of such comm8.1unications Ms Maxwell can also seek?and indeed apparently has sought?s uch docum8.2e-5.8n.4ts from8.2 the relevant internet service providers See Nos Motions to Quash Subpoenas to Apple Inc and Microsoft C7.3o.3rporation S6.5eeking Prod5.3uction of All of Ms Giuffre?s Sent an5.7d Received Em8.5ails She does not need a journalist to produce them And before Ms Maxwell can dem8a-1nd to open up a reporter?s files about comm7.9unic-6.1a-1.1tions with th various agents of Ms Roberts she nam7.9e-1s in the Subpoena she of course has the opti on of seeking discovery directly from7.9 those individuals See Pugh at quashing subpoena for non-confidential outtakes from television news program8 where subpoe naing party had not deposed all of the individuals interviewed by news program on the issue of statem8ents made to news program8 any other source Case Document Filed Page of As the Court of Appeals explained the au tonomy of the press would be jeopardized if to its r3.7e-.5source by litigants eek5.8in5.8g to utiliz4.6e the ne wsgathering efforts of journa4.8lis5.2ts f4o1r pr4iv6ate purpos5.2es5.2 were routin6ely perm8.8itte4.8d O?Neill N.Y.2d at In light of the lack of any showing that alternatives to seek5.6ing disc overy from a reporter have been exhausted the Subpoena be quashed Given that all of the docum8.3ents sought by th Subpoena are protected from disclosure under the Shield Law no legitim8.2ate purpose woul be served by requiring Ms Churcher to sit for a deposition only to object to every substantive question on privilege grounds Holmes N.Y.3d at Indeed that would be precisely the undue diversi on of journalistic effort and disruption of press functions that both the Court of Appeals and the Second Circuit have warned agains5t O?Neill N.Y.2d at see also Gonzales F.3d at expre ssing concern with the poten5.3tial to burden the press with heavy co sts of subpoena com8.4p.6liance that could5.6 im8.4p.6air the press?s ability to perform8.1 its duties Accordingly the Subpoena should be quashed in its entirety und5.6er the Sh5.6ield5.6 Law II THE SUB-4P-5.2OENA SH-8.2OULD BE QUASHED UNDER RUL-4E FOR FAILURE TO ALLO-8.4W A RE-4.2AS-5ONABL-4.2E TIME FOR COMPLIANCE AND IMPOSING AN UNDUE B-3.3URDEN Setting aside the substantive reasons why the Subpoena be quashed under the New York Shield Law the Subpoena also be quashed under Rule because it does not allow a reasonable tim8.2e for com8.2p-4.6liance and is unduly burdensom7.9e Fed Civ A i iv Ms Churcher was served with the S6.3ubpoena in person on S6.3a-1.1turday June 2016?twelve days nine business days before the scheduled deposition and production date The S6.2ubpoena not only commands Ms Churcher to appear for a deposition it also dem8.1a-.9nds a broad range of Case Document Filed Page of docum8.2ents including all docum8.2ents containing comm7.9unications with Virginia Roberts and with any agent for Ms Roberts See Subpoena Docum8e-1nts to be Produced The Subpoena does not lim8.2it these dem8.2a-.8nds to a particular tim8e-1 period or topic instead simply asking for all com8.4m3.4unications Ms Churcher?s reporter-source relationship with Ms Roberts dates back more than five years and spans Ms Churcher?s em8.4ploym8.4e-.6nt with two separate news organizations and as a freelancer using m)8.4u.6ltiple different em8.4ail accounts See Churcher Decl Moreover as discussed above of Ms Churcher?s co mmunications with and about Ms Roberts involved inform7.9ation that Ms Church er received in confidence Even if those communications were not protected as a whole the Shield Law which they are at a all of these communications would need to be carefully reviewed to ensure that docum8.4ents revealing the identities of confidential sources or any inf4o1rm8.8ation that was rece4.9ived based on a conf3.8identia4.6lity5.8 was or withhe4.6ld It is sim8.6p.8ly not f3.8easib5.8le to expect than five years worth comm unic-5.8a-.8tions from8.2 multiple accounts to be collected reviewed and appropriately redact ed in a week an5.4d a half Although Rule does not define what is a reasonable tim8.4e to com8.4p.6ly courts have generally found that at least fourteen days from8 the date of service whi ch is the deadline for serving objections to doc um8.6ent requests is pres)5u-4.2m8.6p.8tively reasonable.5.8 Brown Hendler No Civ RLE at S.D.N.Y Jan citing In re Rule Subpoena Issued to Cablevision Sys Corp Regarding IP Address No MISC ARR MDG at E.D.N.Y Feb collecting cases Federal courts have found compliance tim8.2es of eight and seven days not to be reasonable Ms Churche6.4r-2.6 6doe6.4s 6not retain full acces5.6s to 6her em10.8ail a-5.9ccounts at 6her em10.8(ployer Ma-6.5il Churche6.5r-2.5 Decl Case Document Filed Page of Id holding that nine days was not reasonable u5.7nder the circum8.5stance But even fourteen days would be unreasonable here given the breadth of the docum8.2ents dem8.2a-.8nded and the efforts necessary to review and produce those docum8.2ents Finally the broad scope of the docum8.3ents requested?with no lim8.5itation on tim8.5e period or topic?is unduly burdensom7.9e given the at be st tangential relevanc of Ms Churcher?s testim8.2ony A non-party?and partic ularly a non-party journalist should not be burdened with review of years worth of comm7.8unic-6.2a-1.2tions based on little showing of any relevance or m8.7a-.3teriality See Night Ltd Briarpatch Ltd L.P No Civ RW9.3S at S.D.N.Y Dec explaining that undue burden depends upon such factors as relevance th5.5e need of the party fo the docum8.1ents the breadth of the docum8.1ent the tim8.5e period covered by it the pa rticu5.9l-1.3ar3.9ity with w8.1h.9ich the are and5.9 the burden im8.4posed 3.6c-.6itation om8.4itted And asking essentially all communications related to Ms Roberts am7.9ong other things is hardly propo rtional to the needs of the case Fed Civ See Henry Morgan?s Hotel Grp Inc No ER JLC at S.D.N.Y Jan granting mo tion to quash where subpoenaing party had not satisfied the Court that he production of the records ought is proportional to the needs of the case Thus the Subpoena should be quashed under Rule i and iv Case Document Filed Page of CONCL-4.1US-4.9ION For the foregoing reasons Ms Churcher resp ectfully requests that her m7.8o0tion to quash Ms Maxwell?s Subpoena be granted Dated York New York-5.4 June Respectf3.9u.9lly5.9 subm8.7itted DAVIS WR-4.3IGHT TRE-5.5M-2.1AINE LLP By Er3.7ic Feder3.7 Laura Handm8.3a-.7n Eric Feder Avenue of the Americas 21st Floor New York New York Tel Fax laurahandman dwt.com ericfeder dwt.com Attorneys for Non-Party Sharon Churcher Case Document Filed Page of
