Ken Burns team fights for shield law protection over Central Park jogger suit subpoena

Lilly Chapa | Reporter's Privilege | News | October 5, 2012

Documentary filmmakers are fighting a subpoena that would require them to hand over outtakes and notes, claiming that they are protected under New York's shield law.

New York City lawyers are requesting the materials from Ken Burns’ documentary, “The Central Park Five,” to aid in the defense of a nine-year-old lawsuit against the city. The city’s lawyers claim in a subpoena that the filmmakers are not protected under New York’s shield law because they are acting as advocates, not journalists.

“The city should not be deciding who is or isn’t a journalist,” Joe DePlasco, Florentine Films’ public relations manager, said in an interview today. “We do not think that Ken and the other producers advocated in any way in the making of the film. If you look at editorial boards, columnists or anyone who is clearly a journalist and advocate, they are protected under the shield law.”

The documentary follows the lives of five men who were convicted and later exonerated of the assault and rape of a Central Park jogger in 1989. The case garnered national attention and highlighted racial tensions in the area at the time. The men, who were teenagers at the time of the attack, confessed to the crime and later retracted their statements but were still charged with the crime. They had served their jail sentences when a serial rapist, Matias Reyes, confessed to the crime. Reyes’ DNA matched the DNA found at the crime scene, and the five men were exonerated. The men filed a lawsuit against the city in 2002, seeking $50 million in damages each.

DePlasco said the city served a subpoena Sept. 12 that was overbroad and “basically asked for everything -- all copies of audio, video and written materials, and the complete interviews with the five guys and everyone else who appeared in the film.”

The city withdrew the subpoena and issued a narrower one, seeking the outtakes of interviews of the wrongfully convicted men, as well as anyone who had represented them, including attorneys and family members.

John Siegal, Florentine Films’ lawyer, said in an interview that they are reviewing the narrower subpoena and are considering how to respond.

“We’re going to have discussions with the city about it and see how reasonable they’re going to be in scaling back the requests and whether they’re going to respect the journalists’ privilege, which is appropriate given that these are independent journalists operating under the New York shield law,” Siegal said.

Federal courts in New York recognize a qualified journalists' privilege, which protects journalists from contempt of court for refusing to comply with a subpoena for information gathered during the reporting process. In order for a court to require disclosure, the subpoenaed information must be highly relevant, critical or necessary to a party's case and unobtainable from any alternative source.

New York City lawyers wrote in a letter to Siegal that the filmmakers “cannot be fairly characterized as ‘independent press,’ which lessens, if not eradicates, the applicability of the qualified journalists’ privilege to the materials sought by the subpoena.”

“It’s of paramount importance to these filmmakers that the journalistic process not be inappropriately invaded by this subpoena,” Siegal said. “Whether we can reach a point where an appropriate arrangement can be reached with the city remains to be seen. It all depends on how aggressive and extensive the city is going to be and whether they’re going to respect that these are journalists that have worked on the film for many years, and they didn’t do it in order to provide discovery to the city in a pending civil case.”

Related Reporters Committee resources:

· New York - Privilege Compendium: A. Shield law statute

· 2nd Cir. - Privilege Compendium: II. Authority for and source of the right