Court reaffirms qualified reporter’s privilege for nonconfidential information

But panel lowers the standard parties must meet

In late August, a three-judge panel of the U.S. Court of Appeals in New York City (2d Cir.) decided to “explicitly reaffirm” the existence of a federal constitutional qualified privilege for reporters’ nonconfidential materials. Even though the panel recognized the existence of a qualified privilege, it ultimately found that the parties who subpoenaed the outtakes at issue overcame that privilege.

The court made it easier to overcome the qualified privilege when a subpoena is for nonconfidential materials, rather than for confidential materials. The stronger qualified privilege protecting confidential sources requires that the information be “highly material and relevant,” “necessary or critical” to the claims or defenses asserted, and unavailable from other sources before disclosure can be forced. The court held that the privilege protecting nonconfidential materials gives way when the materials sought are of “likely relevance to a significant issue in the case” and are not “reasonably obtainable from other available sources.”

A Louisiana deputy sheriff pulled over Albert and Mary Gonzales in November 1995 as they were traveling on an interstate. Subsequently, the Gonzaleses — who are Hispanic — brought a civil rights claim against the deputy sheriff, alleging he conducted the traffic stop based on their race.

In early January 1997, NBC aired a “Dateline” segment on the pervasiveness of unwarranted traffic stops by Louisiana law enforcement officers.

The Gonzaleses attempted to obtain the unaired hidden camera footage from the segment to submit as evidence in their civil rights case. They served NBC with a subpoena in August 1997, and the deputy sheriff served a similar subpoena on the network approximately one month later.

NBC objected to both subpoenas on the grounds that they sought materials protected by a federal qualified privilege.

In late September 1997, a federal trial court in New York City ordered NBC to turn over the outtakes, finding that while NBC did have a qualified privilege, it was overcome by the parties’ interest in pursuing the civil rights action. NBC did not comply with that order, and the trial court held the network in contempt in October 1997.

A panel of the U.S. Court of Appeals in New York City (2d Cir.), in late September 1998, affirmed the trial court on the ground that no qualified privilege existed for nonconfidential information. (See NM&L, Fall 1998)

Subsequently, the appellate panel agreed to reconsider the case. (See NM&L, Summer 1999)

NBC argued that the qualified privilege protecting press materials from disclosure applies to nonconfidential as well as to confidential materials.

The Gonzaleses argued that persons seeking to subpoena nonconfidential press materials need to make a less demanding showing than those seeking confidential press resources.

In late August 1999, the panel, which included two of the three judges who sat on the previous panel, reversed its prior ruling and decided to “explicitly reaffirm” the existence of a qualified privilege for reporters’ nonconfidential materials.

However, the panel agreed with the Gonzaleses, finding “when protection of confidentiality is not at stake, the privilege should be more easily overcome.”

According to the panel, the privilege protecting nonconfidential materials may be overcome where the materials are of “likely relevance to a significant issue in the case” and are not “reasonably obtainable from other available sources.”

In contrast, the qualified privilege protecting confidential sources requires that the information be “highly material and relevant,” “necessary or critical” to the claims or defenses asserted, and unavailable from other sources before disclosure can be forced.

The panel concluded that NBC’s outtakes are protected by a qualified reporters’ privilege, but the parties who subpoenaed the tapes overcame the privilege by showing they were relevant and that NBC was the only party that could reasonably be expected to provide them.

NBC decided not to appeal the panel’s decision. (Gonzales v. National Broadcasting Co., Inc.)