'Central Park Five' filmmakers not required to turn over outtakes

Cindy Gierhart | Reporter's Privilege | News | September 27, 2013

A federal district court judge agreed with a magistrate judge Monday that documentary filmmakers will not have to hand over outtakes from their film "The Central Park Five." The fact that one filmmaker had researched the subject matter for a college thesis did not mean the documentary several years later was lacking journalistic intent, said Judge Deborah A. Batts of the U.S. District Court for the Southern District of New York.

“Courts would undermine the purpose of the reporter’s privilege and severely curtail its applicability if the standard hinged on whether the reporter had previously researched the subject of the subpoena for a high school or college paper,” Judge Batts wrote.

There were two central issues in the case: whether the filmmakers could invoke a reporter’s privilege, which requires that they had an intent at the start of the newsgathering process to collect and disseminate information to the public, and whether the filmmakers would have to turn over the footage regardless because the interviews were not confidential. The judge ruled in favor of the filmmakers on both issues.

The first issue arose because one of the filmmakers, Sarah Burns, began gathering information on the subject matter of the film for her college thesis while she worked as a paralegal in 2003 for the law firm that represented the subjects of the documentary.

The film is about five black and Latino teenagers who, the film contends, were coerced by police in 1989 to confess to a violent sexual assault in New York’s Central Park. After they were convicted and served their sentences, another man confessed, and the five men’s convictions were overturned. They then sued the city of New York in 2003 in a case that is still ongoing.

Sarah Burns, along with her father, renowned documentarian Ken Burns, and her husband, David McMahon, starting gathering information for a documentary around 2008. The city’s lawyers in the “Central Park Five” case subpoenaed the filmmakers for the unedited footage. They argued that, since Sarah Burns had worked on the case as a paralegal and wrote about it in her thesis, she did not have journalistic intent at the start of the newsgathering process, and therefore they were not covered under a reporter’s privilege.

Both Magistrate Judge Ronald L. Ellis and Judge Batts of the U.S. District Court for the Southern District of New York disagreed. They said it doesn’t necessarily matter if a person had prior non-journalistic contact with the subject matter. Instead, what matters is that there was journalistic intent to disseminate the information the public at the time the information that is the subject of the subpoena was gathered. In this case, the filmmakers started making the documentary around 2008, and they had a journalistic intent at that time, which means they are covered by a reporter’s privilege.

Even though the filmmakers were covered by the privilege, their sources for the film were not promised confidentiality. When a party seeks non-confidential information in the Second Circuit, the bar is much lower than when the party seeks confidential information. The city needed only to show that the outtakes were likely relevant to a significant issue in the case and that the same information could not reasonably be obtained from other available sources.

The judge said the city did not offer any specific proof that the outtakes contained likely relevant information; instead, the city cast too broad a net, requesting all audio or video relating to anyone connected with the case (including the plaintiffs, their families, experts, and witnesses). In the ruling, Judge Batts wrote, “Courts should prevent litigants from ‘sift[ing] through press files in search of information supporting their claims.’”

The judge also said the city could likely obtain the same information elsewhere. For example, city attorneys could question, or depose, the plaintiffs rather than rely on plaintiffs’ statements in the documentary. Also, the city could use the edited footage shown in the documentary as evidence.

Interestingly, in an unrelated case decided just days before this case, the U.S. District Court in Washington, D.C., ordered the BBC to turn over unaired footage, primarily because the sources and information were not confidential. However, in the BBC case, the subjects of the documentary were unavailable for questions—unlike those in this case—and the scope of the request was narrower than the request in this case.

In November 2012, the Reporters Committee for Freedom of the Press filed a friend-of-the-court brief arguing that the filmmakers were protected by the reporters privilege.

Related Reporters Committee resources:

· News: Court orders BBC to hand over unaired documentary footage

· NM&L: Number of states with shield law climbs to 40

· Brief: Affidavit in support of Fox News reporter Jana Winter

· Dig.J.Leg.Gd.: The limits of promising confidentiality