Court, extending recent appellate decision, finds no privilege

SECOND CIRCUIT–A federal district judge in New York City in mid- December ordered the Wall Street Journal to comply with demands for non-confidential but unpublished information made by a Massachusetts company defending a securities class action in a federal district court in Boston.

Judge Peter K. Leisure cited the recent decision of the U.S. Court of Appeals in New York City (2nd Cir.) in Gonzales v. NBC — which held ‘there is no journalistic privilege for non-confidential information’ — in rejecting the newspaper’s arguments that a First Amendment privilege should protect the subpoenaed reporter’s notes, whether confidential or not.

Leisure noted that, unlike in Gonzales, the newspaper had submitted empirical evidence of the burden such subpoenas place on the press through affidavits of media counsel and of ABC and New York Times representatives, as well as a report by The Reporters Committee for Freedom of the Press on the incidence of subpoenas served on the news media in 1993.

Nonetheless, Leisure found no basis for recognizing a privilege rejected by the three-judge panel in Gonzales, and stated that ‘the administrative difficulty of responding to subpoenas cannot trump the overarching goal of . . . the search for evidence, and thus truth.’

Leisure concluded journalists must rely on general discovery rules that prohibit burdensome, cumulative, or irrelevant discovery requests to protect them from subpoenas. In this case, he determined that the request for notes was not unduly burdensome, despite the fact that the subpoena was issued in New York City for information held by a reporter in Boston. Leisure also found the subpoenaed notes relevant to the underlying securities litigation.

Centennial Technologies, a Billerica, Mass., company, and certain Centennial employees stand accused of violating the Securities and Exchange Act and negligently misrepresenting the company’s financial condition.

At issue in the securities litigation are statements made by company executives to Reuters and Wall Street Journal reporters regarding the financial condition of Centennial Technologies. Published articles contain quotes from the Centennial executives, but the subpoenas demanded unpublished notes. (In re Application of Dow Jones & Co., Inc. to Quash a Subpoena Duces Tecum; Media Counsel: Jack Weiss, New York)