The New York Times
August 31, 1999, By ALAN FINDER
Reversing itself, a Federal appeals court has ruled that journalists’ notes and other unpublished or unbroadcast materials are often protected from subpoenas in Federal lawsuits.
The decision, by the United States Court of Appeals for the Second Circuit in Manhattan, which was released on Friday, overturned a significant aspect of a ruling issued by the same court in the same case last September. A three-judge appeals panel had ruled then that Federal law recognized no privilege for journalists when people in civil suits sought unpublished or unbroadcast material that was gathered from nonconfidential sources.
NBC, the defendant in the case, had argued that a qualified privilege involving nonconfidential sources had long been recognized by the Second Circuit and by other Federal appeals courts. NBC, joined by several other television networks and many major newspapers, asked the appeals court last fall to reconsider its decision.
The court agreed in June to take up the issue again. In a 15-page decision released Friday, the judges agreed with NBC and the other news organizations that there had been a long series of decisions, dating back nearly 30 years, in which appeals judges in the Second Circuit had recognized the existence of a qualified privilege. Someone seeking to subpoena unbroadcast or unpublished materials gathered from nonconfidential sources can do so only if the material is likely to be relevant to his lawsuit and is obtainable nowhere else, the appeals panel said.
The judges did not explain their change of mind.
The decision does not affect a related Federal principle that protects news organizations from disclosing information from confidential sources. News organizations are also protected in New York State courts from disclosing unpublished material from both confidential and nonconfidential sources.
Nor does the latest decision affect the practical outcome of the case, because NBC must still turn over copies of unbroadcast videotapes that have been ruled essential to a civil rights lawsuit in Louisiana, on the ground that they have overcome the general privilege that the court recognized. In that case, a couple from Texas, Albert and Mary Gonzales, sued a Louisiana Deputy Sheriff, Darrell Pierce, saying that he had pulled them over on an interstate highway because they are Hispanic.
The couple had served a subpoena on NBC seeking the complete, unedited videotape from a segment of the show ”Dateline” that was broadcast in January 1997. The report examined whether law enforcement officers in Louisiana had pulled over drivers because of their race or nationality or because they were from out of state; it included videotape of Deputy Sheriff Pierce stopping a car with Colorado license plates that was driven by an NBC producer.
NBC challenged the subpoena, citing the qualified privilege. In September 1997, United States District Judge Harold Baer Jr. ruled that there was such a privilege for material gathered from nonconfidential sources but said that the Gonzaleses had met the tests for disclosure. The appellate court, in its first decision last September, said the couple was entitled to the unedited videotape because there was no general protection on nonconfidential material. The latest ruling generally agrees with Judge Baer’s analysis.
Susan E. Weiner, a lawyer for NBC, said the network was ”very pleased that the court has once again recognized that nonconfidential material is protected by a journalist’s privilege and that civil litigants can not have ready access to material.”
NBC is considering whether to appeal the decision that the Gonzaleses meet the test to overcome the privilege to protect unbroadcast material, and that it thus must turn over the videotape, Ms. Weiner said.
Perry R. Sanders Jr., the lawyer for the Gonzaleses, noted that, in its latest decision, the appeals panel had weakened somewhat the standard that must be met by someone seeking material from nonconfidential sources. The requested material must now be relevant to the court case; in the past it had to be essential.
”This does seem to be an appropriate compromise,” Mr. Sanders said.
Correction: September 1, 1999, Wednesday An article yesterday about a Federal appeals court ruling that journalists’ notes and other unpublished or unbroadcast materials are often protected from subpoena in Federal lawsuits — a reversal of an earlier decision by the same court — omitted the names of the judges who ruled. The panel in the Court of Appeals for the Second Circuit comprised Joseph M. McLaughlin, Arthur D. Spatt and Pierre N. Leval. Judge Fred I. Parker was on the appellate panel that ruled on the case last September, but he recused himself from the reconsideration of the case without explanation. He was succeeded by Judge Leval, who wrote the new decision.