Case Document Filed Page of Case Document Filed Page of UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK VIRGINIA GIUFFRE Plaintiff against GHISLAINE MAXWELL Defendant APPEARANCES Counsel for Plaintiff BOEIS SCHILLER FLEXNER LLP Civ SEALED OPINION East Las Olas Boulevard Suite Fort Lauderdale FL By Sigrid Mccawley Esq Meredith Schultz Esq Counsel for Defendant HADDON MORGAN AND FOREMAN P.C East Tenth Avenue Denver CO By Laura A Menninger Esq Jeffrey Pagliuca Esq Counsel for Respondent Sharon Churcher DAVIS WRIGHT TREMAINE LLP Avenue of the Americas st Floor New York NY By Eric Feder Pennsylvania Ave NW Suite Washington DC By Laura Handman Case Document Filed Page of Case Document Filed Page of Sweet D.J Non-party Sharon Churcher Churchern a professional journalist has moved under Federal Rule of Civil Procedure to quash the subpoena served upon her by Defendant Ghislaine Maxwell Maxwelln or the Defendant to testify at a deposition in this civil action and to produce documents the Subpoenan relying upon the New York Reporters Shield Law N.Y Civ Rights Law Section Upon the conclusions set forth below the motion of Churcher is granted and the Subpoena is quashed I Prior Proceedings On June Churcher was served with the Subpoena commanding her to appear at a deposition on June The Subpoena also commands Churcher to bring with her to the deposition several broad categories of documents All Documents containing communications with Virginia Roberts All communications with any agent for Virginia Roberts including without limitation attorneys Bradley Edwards Paul Cassell David Boise sic Sigrid Mccawley Meredith Schultz Stanely sic Pottinger Ellen Brockman Stephen Zac Brittany Henderson Bob Josefsberg Katherine Ezell Amy Ederi Case Document Filed Page of Case Document Filed Page of All Documents containing communications with Jason Richards All Documents containing communications with law enforcement agency concerning Virginia Roberts All Documents reflecting any payment of any money to Virginia Roberts All Documents reflecting any contract concerning Virginia Roberts II Facts Relating to Churcher and the Parties to this Action Churcher is a professional print journalist who has worked continuously in New York since Churcher Deel She is currently employed by American Media Inc which publishes the National Enquirer the Enquireru and RadarOnline.com Radar where she has worked since November Id II From through October she was employed as the New York-based Chief Americ a Correspondent of The Mail on Sunday a publication owned by Associated Newspapers of London England During the interim she worked as a freelance reporter for publications including The Mail on Sunday the operation of its digital arm the Mail Online and the Enquirer Id In her capacity as a journalist Churcher has reported on the events that underlie this case going back to at least April Case Document Filed Page of Case Document Filed Page of when she wrote an article published in The Mail on Sunday about the alleged ties between Prince Andrew the British royal and convicted sex offender Jeffrey Epstein Epstein See Id Ex Maxwell was mentioned in that article Churcher first reported about the plaintiff Virginia Giuffre Guiuffre or the Plaintiff then identified as Virginia Roberts in March when she wrote a series of articles published in The Mail on Sunday and affiliated newspapers containing extensive interviews with and photographs of Giuffre in which she agreed to waive her anonymity and tell for the first time her deeply disturbing story Churcher Deel Ex at see also Churcher Deel Ex Churcher traveled to Australia to meet and interview the Plaintiff in person for those stories Churcher Deel i In January Churcher wrote a series of stories that appeared in several publications including The Mail on Sunday the Enquirer and Radar containing extensive new details from the Plaintiff about her involvement with Epstein Maxwell and Prince Andrew as well as excerpts from a handwritten diary about those experiences which appeared on Radars website See Churcher Deel Exs Case Document Filed Page of Case Document Filed Page of From through the present day Churcher in her capacity has a journalist has communicated extensively with the Plaintiff and in certain instances agents for Churcher including her attorneys Churcher Deel i The and publications were authored by Churcher the Articles I The Applicable Standard Pursuant to Federal Rule of Civil Procedure A a court must quash or modify a subpoena that i requires disclosure of privileged or other protected matter if no exception or waiver applies or iv subjects a person to undue burden The party issuing the subpoena must demonstrate that the information sought is relevant and material to the allegations and claims at issue in the proceedings Night Hawk Ltd Briarpatch Ltd L.P No RWS WL at S.D.N.Y Dec citations omitted Once that initial burden has been met a party contending that a subpoena should be quashed pursuant to Rule A iv must demonstrate that compliance with the subpoena would be unduly burdensome Bridgeport Music Inc UMG Recordings Inc No Civ VM JCF WL at S.D.N.Y Dec Case Document Filed Page of Case Document Filed Page of IV The New York Shield Law Applies The New York Shield Law or reporters privilege protects reporters from compelled disclosure of both confidential information and sources as well as non-confidential unpublished newsgathering materials and information Under Federal Rule of Evidence in a civil case state law governs privilege regarding a claim or defense for which state law supplies the rule of decision Because this case concerns a state law claim that is in federal court because of diversity of citizenship evidentiary and discovery privileges are governed by New York law See Giuffre Maxwell No Civ WL at S.D.N.Y May citing inter alia Fed Evid Moreover Churcher is a New York-based journalist Churcher Deel Accordingly the New York Reporters Shield Law applies to the Subpoena See In re Application to Quash Subpoena to Nat Broad Co Inc F.3d 2d Cir applying New York Shield Law where subpoena in Massachusetts wrongful death suit issued out of Southern District of New York to a New York-based broadcaster While now codified in Section of the Civil Rights Law the reporters privilege has its origins in the New York Constitutions free press provision art I which Case Document Filed Page of Case Document Filed Page of provides the broadest possible protection to the sensitive role of gathering and disseminating news of public events ONeill Oakgrove Constr N.E.2d N.Y.2d quoting Matter of Beach Shanley N.Y.2d N.Y.S.2d N.E.2d Wachtler concurring see also In re Daily News L.P Misc 3d N.Y.S.2d Sup Ct The legislature enacted the statute now codified at Civil Rights Law Section and mooted any possible issues about the constitutional law conclusions of the Court of Appeals Indeed New York public policy as embodied in the Constitution and our current statutory scheme provides a mantle of protection for those who gather and report the news-and their confidential sources-that has been recognized as the strongest in the nation Holmes Winter N.Y.3d N.E.3d Accordingly the New York Shield Law provides protection of information obtained or received in confidence by a reporter as well as for the identity of a confidential source N.Y Civ Rights Law McKinney The statute also provides qualified protection for non-confidential newsgathering information which can be overcome only with a clear and specific showing that the information is highly material and relevant critical or necessary to the maintenance of a Case Document Filed Page of Case Document Filed Page of partys claimu and not obtainable from any alternative source.u Id The qualified privilege is a stringent one that imposes a very heavy burdenu on any party seeking to overcome it In re Am Broad Companies Inc Misc 2d N.Y.S.2d Sup Ct For confidential information the privilege can be overcome by the same showing as for non confidential information under the Shield Law See Gonzales Natl Broad Co F.3d 2d Cir For non confidential information the party seeking disclosure must show that that the materials at issue are of likely relevance to a significant issue in the case and the materials at issue are not reasonably obtainable from other available sources.u Schoolcraft City of New York No CIV RWS WL at S.D.N.Y Apr quoting Gonzales F.3d at A Information Received Pursuant to Promises of Confidentiality is Absolutely Privileged Under the Shield Law The Shield Law provides an absolute privilege against the compelled disclosure of news obtained or received in confidence or the identity of the source of such news N.Y Civ Rights Law McKinney The statute thus bars compelled Case Document Filed Page of Case Document Filed Page of disclosure of news or its source obtained in confidence Baines Daily News L.P Misc 3d N.Y.S.3d Sup Ct collecting citations Holmes Winter N.Y.3d N.E.3d The Shield Law prohibits a New York court from forcing a reporter to reveal a confidential source Flynn NYP Holdings Inc A.D.2d N.Y.S.2d if the requested documents were deemed confidential defendants would be afforded unqualified protection from having to divulge such sources or materials At a minimum the Shield Law would absolutely preclude any inquiry into the identity of confidential sources on which Churcher relied in reporting the Articles or any information that may reveal those sources identities On their face many of the Articles rely on confidential sources including law enforcement sources See e.g Churcher Deel Ex at a source id Ex at a law enforcement source id Ex at massage therapist who does not wish to be named id Ex at a legal expert a source familiar with the case Churcher has stated in her declaration that in reporting the Articles she relied extensively on information received in confidence as well as sources whose identities are confidential Churcher Deel To the extent any Case Document Filed Page Case Document Filed Page of communications with those sources fall within the categories of the document requests those communications are absolutely privileged from disclosure Moreover although the Plaintiff was plainly a non-confidential on-the-record source for several of the Articles to the extent she provided Churcher with any information on a confidential basis that information would also be absolutely privileged See Baker Goldman Sachs Co F.3d 2d Cir New Yorks Shield Law provides journalists an absolute privilege from testifying with regard to news obtained under a promise of confidentiality The Information Sought by the Subpoena is Protected by the Qualified Privilege I mportant interests beyond confidentiality are served by the reporters qualified privilege including the privacy of editorial processes and the pres independence in its selection of material for publication in accordance with the broader public policy of encouraging the free flow of information and avoiding a chill on the press Pugh Avis Rent A Car Sys Inc No WL at S.D.N.Y Oct The Privilege therefore protects the independence of the press and the need to allow the press to publish freely on topics of public interest without harassment Case Document Filed Page Case Document Filed Page of and scrutiny by litigants seeking to conduct fishing expeditions into unpublished materials in the hope that some relevant information may turn up Id at In ONeill the New York Court of Appeals stressed the need for courts to exercise particular vigilance in safeguarding the free press against undue interference and preventing undue diversion of journalistic effort and disruption of press functions N.Y.2d at discussing New York Constitution article I from which the Shield Law derives See also Brown Williamson Tobacco Corp Wigand No WL at N.Y Sup Ct Feb Attempts to obtain evidence from journalists as nonparties would if unrestrained subject news organizations to enormous depletions of time and resources as well as seriously impede their ability to obtain materials from confidential sources affd A.D.2d N.Y.S.2d st Dept Similarly in recognizing that the First Amendment reporters privilege also applies to non-confidential newsgathering information the Second Circuit has explained that the reporters privilege reflects broader concerns beyond the confidentiality of a reporters sources noting that the Case Document Filed Page Case Document Filed Page of privilege is designed to protect against the burdens that would accrue if it were to become standard operating procedure for those litigating against an entity that had been the subject of press attention to sift through press files in search of information supporting their claims Gonzales F.3d at The court explained further that those harms include burdening the press with heavy costs of subpoena compliance increased requests for anonymity from sources anxious to avoid being sucked into litigation and the symbolic harm of making journalists appear to be an investigative arm of the judicial system the government or private parties Id New York courts have pointed out that the legislatures express purpose in passing the Shield Law was to avoid problematic incursions into the integrity of the editorial process In re Grand Jury Subpoenas Served on Nat Broad Co Inc Misc 2d at quoting McKinneys Session Laws Memorandum of State Executive Department See also United States Cuthbertson F.2d 3d Cir The compelled production of a reporters resource materials can constitute a significant intrusion into the newsgathering and editorial processes Moreover in seeking testimony to support their theory of the case the plaintiffs inevitably would have to ask questions regarding the Case Document Filed Page Case Document Filed Page of reporters techniques for conducting his investigation the backgrounds of co-authors and the publications editorial staff and whether the author consulted with any experts or other sources in the course of the investigation-all inquiries into the newsgathering process protected by the Shield Law Baker F.3d at internal quotation marks omitted Although none of that information is confidential the unpublished details of the newsgathering process are nevertheless protected by the Shield Law and where the testimony is not critical or necessary to maintain the plaintiffs claims a motion to quash must be granted by the district court In re Eisinger No WL at S.D.N.Y Apr affd sub nom Baker Goldman Sachs Co F.3d 2d Cir In such circumstances it is virtually self-evident that the Shield Law would protect a journalist from compelled testimony Baker at In her Response Maxwell raises two arguments why the information she seeks is not protected from disclosure that the Shield Law does not apply at all because at some point Churcher ceased to be a reporter with respect to the Plaintiff and to the extent the Shield Law applies Maxwell has met Case Document Filed Page Case Document Filed Page of the three elements to overcome the qualified privilege for non confidential materials The Second Circuit in tructs that in determining whether the reporters privilege applies the Court should look to the nature of the primary relationship between the respective parties to determine whether it has as its basis the intent to disseminate the information to the public garnered from that relationship von Bulow by Auersperg von Bulow F.2d 2d Cir That intent must exist at the inception of the newsgathering process Id at Here the primary relationship between Churcher and Plaintiff was that of a professional reporter gathering information from a source for the Articles that were in fact subsequently published under Churchers byline over the next several years In von Bulow the court held that the reporters privilege did not apply to notes that a woman Andrea Reynolds took while watching the criminal trial of Claus von Bulow nor to investigative reports she had commissioned about von Bulows wifes children Reynolds an intimate friend of von Bulows had stated that her primary concern in commissioning the reports was vindicating Claus von Bulow and her own peace of mind Id at Even if she later decided to Case Document Filed Page Case Document Filed Page of collect the information and publish it in a book her intent at the time she gathered the information was not to publish it Subsequent decisions have concluded that the relevant time frame is not when any fact gathering for the subject of the subpoena began but when the information sought by the subpoena at issue was gathered In re McCray Richardson Santana Wise Salaam Litig Supp 2d S.D.N.Y emphasis and internal quotation marks removed Maxwell has failed to overcome the evidence establishing that Churcher was a professional journalist that her intent from the very beginning of her relationship with the Plaintiff was to gather information to publish news stories or that she did in fact publish many news stories based on the information she learned from Plaintiff and other sources over the next several years The primary relationship between them has always had as its basis the intent to disseminate the information to the public garnered from that relationship von Bulow F.2d at Successful journalists must cultivate extensive networks of sources and communicate with them regularly on a variety of topics See e.g United States Marcos No CR JFK WL at S.O.N.Y June The underpinning of the reporters privilege lies in the Case Document Filed Page Case Document Filed Page of recognition that effective gathering of newsworthy information in great measure relies upon the reporters ability to secure the trust of news sources Indeed frequent often informal communication with sources even if not for the immediate purpose of gathering information for a specific article is an integral part of the overall newsgathering process Accordingly the Shield Law does not narrowly apply only to the specific exchanges where the source conveys news As the Second Circuit has held the Shield law protects journalists from inquiries into the newsgathering process as a whole Baker Goldman Sachs Co F.3d 2d Cir affirming holding that Shield Law applied to unpublished details of the newsgathering process such as who made calls and interviewed particular sources techniques for the reporters investigation and the backgrounds of the coauthors and editorial staff In any event the e-mails that Maxwell submits to demonstrate that Churcher was not acting as a journalist in fact show that even as she was consulting with the Plaintiff on seemingly separate topics her overarching intent remained newsgathering Case Document Filed Page Case Document Filed Page of Because Churcher has established that she was and is a journalist using Plaintiff as a source the Subpoena is quashed as a consequence of the protections of the Shield Law Maxwells conclusory assertion that none of the communications between Churcher and Plaintiffs attorneys/agents or law enforcement are in a newsgathering capacity Response at is contradicted by Churchers statements to the contrary and by the fact that individuals in those categories are quoted in the articles themselves both by Case Document Filed Page Case Document Filed Page of name and anonymously as sources See Churcher Deel and Exs Maxwell Has Not Overcome the Protections of the Shield Law Maxwell argues that the information sought from Churcher is highly material in proving that each time Plaintiffs story is told new salacious detail are added Resp at see also id at arguing that the information is critical to establishing that fact But Churchers newsgathering materials and testimony are not needed to prove an assertion about the allegedly changing nature of a public story Similarly to the extent that the Joinder Motion is inconsistent with published articles by Churcher that would be apparent from the face of the Articles themselves and would not justify invading the Shield Law-protected newsgathering process Maxwell has contended that Churchers testimony is critical or necessary to her truth defense because it is relevant to Plaintiffs credibility which is the central issue in the case Id at However in almost any civil lawsuit the credibility of a party or witness will be a central issue"-all the more so in a defamation case where truth or falsity of the underlying statements is at issue zthis Case Document Filed Page Case Document Filed Page of makes Churchers materials no more critical than any other evidence in this case Maxwell has not cited any authority for a wholesale libel exception or a plaintiffs credibility exception to the Shield Law Cf In re Am Broad Companies Inc Misc 2d N.Y.S.2d Sup Ct The privilege may yield only when the party seeking the material can define the specific issue other than general credibility as to which the sought-after interview provides truly necessary proof citing J.S Burke F.2d 2d Cir Finally even if the information sought were as critical as Maxwell contends she has not yet established that she has turned to Churcher only as a last resort In re Grand Jury Subpoenas Served on Nat Broad Co Inc Misc 2d at Section established the qualified privilege in both civil and criminal cases by requiring disclosure of nonconfidential material only as a last resort Maxwell seeks to reopen Plaintiffs deposition a motion which has been granted and is still awaiting further production from Plaintiff See 0kt Nos Minute Entry June Epsteins motion to quash has been denied 0kt No and Cassells motion to quash has been denied in part And all that Maxwell has done to exhaust law enforcement sources Case Document Filed Page Case Document Filed Page of apparently is to file a single FOIA request Resp at There thus remain numerous alternative sources for the information Maxwell seeks She may not conscript Churcher as her investigative arm in the meantime Gonzales F.3d at Case Document Filed Page Case Document Filed Page of VI Conclusion Upon the conclusions set forth above the motion of Churcher is granted and the Subpoena is quashed The parties are directed to jointly file a proposed redacted version of this Opinion consistent with the Protective Order or notify the Court that none are necessary within two weeks of the date of receipt of this Opinion It is so ordered New York NY September U.S.D.J
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