Federal judge blocks New York City subpoena for Ken Burns's "Central Park Five" outtakes

Jack Komperda | Reporter's Privilege | News | February 20, 2013

Ken Burns and his production company, Florentine Films, overcame efforts by New York City officials to forcibly seek the release of outtakes and footage from his recent film about five men wrongly convicted in the attack and rape of a Central Park jogger.

Federal magistrate judge Ronald Ellis granted on Tuesday the request by the famed documentary filmmaker’s team to quash the city’s subpoena seeking the unpublished material from the film “The Central Park Five,” concluding that the documentarians had demonstrated the requisite independence to be considered journalists under the reporter’s privilege.

Judge Ellis also found that New York City officials were not able to overcome the privilege by showing that the information they sought involved a significant issue in this case that was unavailable by other means.

The film, which was released last November, depicts the experiences of five men convicted of the April 1989 attack on Trisha Meili. The men served full sentences before finally being exonerated after another person confessed to the attack. They have since filed a $250 million civil rights lawsuit against the city.

The City claimed it needed the unused portions of the film to help defend itself against the wrongful conviction claims in the decade-long pending suit filed by by Antron McCray, Yusef Salaam, Kharey Wise, Raymond Santana and Kevin Richardson.

Ellis rejected arguments by the city that Florentine Films and its filmmakers - Ken Burns, daughter Sarah Burns and son-in-law David McMahon - were not independent journalists entitled to reporter’s privilege.

New York City officials argued that Florentine Films could not rely on any reporter’s privilege claims, in part, because the filmmakers had a “longstanding sympathetic relationship” with their subjects and because of public statements made by Burns that suggested the purpose in making the film was to force a settlement of the civil litigation.

However, Judge Ellis said the city was “misleading” in its retelling of Burns’ statements.

“Burns does not indicate what the film’s ‘purpose’ is, and the quoted portion by [city attorneys] mischaracterizes the quote and Ken Burns’ position,” Ellis wrote.

Ellis also shot down claims that Sarah Burns compromised her journalistic independence because of work she had done as a paralegal for the firm of one of the attorneys representing the men, stating that the material sought by the subpoena was all gathered after she left the firm.

“In sum, [New York City has] failed to present this Court with a ‘concern so compelling as to override the precious rights of freedom of speech and the press’ the reporter’s privilege seeks to ensure,” Ellis wrote.