In the Matter of the Application of Richard BEHAR to Quash a Deposition
Subpoena.
United States District Court Southern District of New York.
CHURCH OF SCIENTOLOGY CELEBRITY CENTER INTERNATIONAL, Plaintiff,
v.
INTERNAL REVENUE SERVICE, Defendant.
United States District Court Central District of California.
Index No. M8-85.
No. 90-3506 DWW (Ex).
United States District Court,
S.D. New York and
C.D. California.
Oct. 18, 1991.
Church brought action against Internal Revenue Service (IRS) to obtain
materials under Freedom of Information Act. Church sought to depose author of
article about church. Author moved to quash deposition subpoena. The District
Court, McKenna, J., held that qualified reporter's privilege was not overcome.
Motion granted.
[1] CONSTITUTIONAL LAW
"Reporter's privilege" under First Amendment protects journalists from
compelled disclosure of information acquired in course of gathering news.
U.S.C.A. Const.Amend. 1.
See publication Words and Phrases for other judicial constructions and
definitions.
[2] CONSTITUTIONAL LAW
"Qualified reporter's privilege" under First Amendment and New York law
protects nonconfidential as well as confidential information. U.S.C.A.
Const.Amend. 1; N.Y.McKinney's Civil Rights Law ss 79-h, 79-h(b, c).
See publication Words and Phrases for other judicial constructions and
definitions.
[3] CONSTITUTIONAL LAW
Qualified reporter's privilege under First Amendment and New York law can be
overcome only upon clear and specific showing by party seeking disclosure that
information is highly material and relevant to action, necessary or critical to
claim, and not obtainable from other sources. U.S.C.A. Const.Amend. 1;
N.Y.McKinney's Civil Rights Law ss 79-h, 79-h(b, c).
[4] RECORDS
Qualified reporter's privilege protecting against church's deposition of author
of article about church was not overcome in church's Freedom of Information Act
case against Internal Revenue Service (IRS) alleging reasonable danger to life
or physical safety if information were disclosed and relying on the article and
19 other documents; church admitted that article was irrelevant, was free to
depose any persons allegedly harassed, and could have investigated events
recounted by author, and IRS asserted same exemptions in answer to church's
complaint nine months prior to publication of article. 5 U.S.C.A. ss 552,
552(b)(7)(F); U.S.C.A. Const.Amend. 1; N.Y.McKinney's Civil Rights
Law ss 79-h, 79-h(b, c).
[5] CONSTITUTIONAL LAW
When testimony sought from reporter would be cumulative of other evidence, it
cannot be necessary or critical to action so as to override First Amendment
privilege. U.S.C.A. Const.Amend. 1.
[6] WITNESSES
Before reporter's resources can be tapped by subpoena, party seeking
information must demonstrate that other available sources of information have
been exhausted. U.S.C.A. Const.Amend. 1; N.Y.McKinney's Civil Rights
Law ss 79-h, 79-h(b, c).
*274 McKENNA, District Judge.
In this order, the Court decide a motion submitted on behalf of Mr.
Richard Behar to quash a deposition subpoena served on him by the Church of
Scientology Celebrity Center International, the Plaintiff in the underlying
action against the Internal Revenue Service. In addition, Mr. Behar has moved
for sanctions pursuant to F.R.Civ.P. 11 and 26(a). For the reasons set
forth below, the deposition subpoena is quashed and the motion for sanctions is
denied.
Facts:
Mr. Behar's motion involves a subpoena served by the Church of Scientology
Celebrity Center International ("the Church") for the deposition of Mr. Behar,
a journalist with Time magazine. Mr. Behar recently wrote a cover story
unfavorably depicting the Church and its practices. In a subsection entitled
"The Scientologists and Me", he described his own experience of being harassed
by attorneys and private investigators allegedly dispatched by the Church in
retaliation for the article.
The Church seeks the deposition of Mr. Behar in connection with its lawsuit
against the Internal Revenue Service ("the IRS") under the Freedom of
Information Act ("FOIA"), 5 U.S.C.A. s 552. In that action, the IRS has
refused to disclose certain materials under an FOIA exemption clause which
shields information compiled for law enforcement purposes if disclosure "could
reasonably be expected to endanger the life or physical safety of any
individual" under s 552(b)(7)(F). The IRS cites the article written by Mr.
Behar, along with 19 other documents, in support of its claim that release of
certain information will place persons in danger of harm from the Church.
To refute the IRS defense of exemption, the Church seeks to depose Mr. Behar
regarding the factual matters set forth in the article (harassment of the
government and others, including himself, by the Church), details relating to
Behar's communications with the IRS (both as to information which Behar
allegedly provided to the IRS which may have given rise to the exemption
assertions, and as to the IRS' provision of information to Behar), and the
identities of IRS employees which Mr. Behar spoke with in the course of his
research. Mr. Behar has moved to quash the deposition subpoena on the ground
that the information is protected by the reporter's privilege.
Discussion:
[1] The reporter's privilege protects journalists from the compelled
disclosure of information acquired in the course of gathering news. The Court
of Appeals for the Second Circuit has recognized and enforced the privilege
under the First Amendment of the United States Constitution. See e.g.
United States v. Burke, 700 F.2d 70, 76-77 (2d Cir.), cert. denied, 464
U.S. 816, 104 S.Ct. 72, 78 L.Ed.2d 85 (1983); In re Petroleum Prods.
Antitrust Litig., 680 F.2d 5, 7-8 (2d Cir.1982) (per curiam). While the
federal law of privilege controls, courts have also considered the applicable
state law in the jurisdiction where the reporter's deposition was noticed. New
York courts have found the underlying policies served by the New York State
"Shield Law," N.Y.Civ. Rights Law s 79-h, and the federal Constitution to be
congruent. See von Bulow by Auersperg v. von Bulow, 811 F.2d 136, 144 (2d
Cir.), cert. denied, 481 U.S. 1015, 107 S.Ct. 1891, 95 L.Ed.2d 498 (1987).
In its Memorandum in Opposition to Mr. Behar's motion to quash, the
Church focuses much of its argument on showing that Mr. Behar's communications
were not confidential, and thus not eligible for the absolute privilege
accorded to information from confidential sources under s 79-h(b) of the New
York Shield Law. However, because Mr. Behar claims only a qualified privilege
*275 and has made no attempt to prove that any of the information is
confidential, the Church's extensive treatment of the confidentiality issue is
immaterial. (Reply Memo. in Support of Motion at 4; Memo. in Opposition at
10-14).
[2][3] The qualified reporter's privilege, accorded under the United States
Constitution, the New York State Constitution, and the New York Shield Law,
protects non-confidential as well as confidential information. See United
States v. Marcos, 1990 WL 74521, 17 Med.L.Rptr. 2005, 2007 (S.D.N.Y.1990);
O'Neill v. Oakgrove Construction, Inc., 71 N.Y.2d 521, 521-22, 528 N.Y.S.2d
1, 1-2, 523 N.E.2d 277, 277-78 (1988); N.Y.Civ. Rights Law s 79-
h(c) (McKinney Supp.1991). The qualified privilege can be overcome only upon a
clear and specific showing by the party seeking disclosure that the information
is: (1) highly material and relevant to its action; (2) necessary or critical
to the claim; and (3) not obtainable from other sources. Burke, 700 F.2d
at 76-77.
[4] In response to Mr. Behar's assertion of a qualified privilege, the
Church contends that Mr. Behar's deposition is "highly material and relevant"
to prove that the IRS exemption defense is a "sham". Specifically, the Church
seeks Mr. Behar's deposition to show that "information was provided to Behar by
the IRS for inclusion in his article for the purpose of aiding the IRS to
support its claims to exemption to withhold agency records." (Memo. in
Opposition at 13-14.) This vague and wholly unsupported allegation falls far
short of the "clear and specific showing" of materiality and relevance required
of the party seeking disclosure. Burke, 700 F.2d at 76-77. Moreover, the
alleged materiality of Mr. Behar's information is belied by the Church's own
admissions that "the Behar article is ... irrelevant to any FOIA issue," (Memo.
in Opposition at 3) and would be inadmissible hearsay if the IRS seeks to use
it in the underlying action. Id. at 4, 7, 8.
Secondly, the Church asserts that the information is "necessary" to the
maintenance of its claim, stating that "[a]s a matter of law, the Church is
entitled to challenge the IRS' claims of exemption through discovery or
whatever means in its power to refute the government's claims." Id. at 16.
In support of this contention, the Church cites, without more, an extended
quote from Weiner v. FBI, Daily Journal D.A.R. 8697 (9th Cir.1991), for the
blanket proposition that discovery should be allowed in Freedom of Information
Act cases.
[5] The facts of this case refute the Church's contention that Mr. Behar's
information is "necessary or critical" to the Church's claim. When testimony
sought from a reporter would be cumulative of other evidence, it cannot be
"necessary or critical" to an action so as to override the First Amendment
privilege. See Burke, 700 F.2d at 78. The IRS has 18 other pieces of
evidence in support of its exemption claim. Moreover, the IRS asserted the
same FOIA exemptions in its answer to the Church's complaint in the underlying
action nine months prior to publication of Mr. Behar's article. (Memo. in
Support of Motion at 16.) Finally, the Church itself admits that "it is
difficult to believe that the federal government must rely upon a Time magazine
article as the basis for the exemption claim when the Church and the IRS have
been in conflict for many years." (Memo. in Opposition at 15.) Indeed, the
Court also finds it improbable that the article is the basis of the IRS' claim
so as to make the deposition of Mr. Behar is "necessary or critical".
[6] Addressing the third prong of the test, the Church has failed to
demonstrate that the information sought from Mr. Behar is "not obtainable from
other sources". Before a reporter's resources can be tapped by subpoena, the
party seeking the information must demonstrate that other available sources of
the information have been exhausted. See In re Petroleum Products, 680 F.2d
at 8-9, & n. 11. As to allegations regarding alleged harassment of the
government and others by the Church, the Church is free to depose any
*276 and all persons who claim to have been harassed. Likewise, the
Church's claim that the IRS has "fail[ed] to provide complete and honest
testimony as to its communications with Behar"--referring to the deposition of
Robert Hollohan--does not foreclose the Plaintiff from inquiring directly of
any other IRS employees whom it alleges have engaged in such communications.
(Memo. in Opposition at 17.) Further, the Church's remedies for alleged
failures on the part of the IRS to afford discovery required by the Federal
Rules of Civil Procedure are properly sought in the underlying action.
Finally, the Church has not shown that it has exhausted the avenues open to it
to investigate the events recounted by Mr. Behar regarding the Church's claimed
harassment of himself, through interviewing its own agents, or seeking to
depose all of the persons identified in "The Scientologists and Me" portion of
the Time Article. The Church must exhaust these alternative sources before any
deposition of Mr. Behar would be warranted.
For the reasons cited above, the motion to quash the deposition subpoena is
granted.
Fed.R.Civ.P. 11 authorizes the imposition of disciplinary sanctions to
deter abuses by parties who act in bad faith in instituting or conducting
litigation. The Court does not find the Church's subpoena for the deposition
of Mr. Behar to have been motivated by bad faith. Mr. Behar's motion for
sanctions is denied.
SO ORDERED.