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Court rejects motion to modify subpoena of publisher

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  1. Protecting Sources and Materials
NEWS MEDIA UPDATE   ·   WASHINGTON, D.C.   ·   Confidentiality/Privilege   ·   Dec. 19, 2005

NEWS MEDIA UPDATE   ·   WASHINGTON, D.C.   ·   Confidentiality/Privilege   ·   Dec. 19, 2005


Court rejects motion to modify subpoena of publisher

  • A publisher’s motion to clarify a subpoena seeking information protected under reporter’s privilege was denied by a federal court which found the motion was not timely.

Dec. 19, 2005  ·   The U.S. District Court in Washington, D.C., declined to reconsider its Oct. 4 ruling that although the reporter’s privilege applies to publisher McGraw-Hill, the privilege was overcome and McGraw-Hill must comply with a subpoena.

The subpoena, from the Commodity Futures Trading Commission, calls on Platts, a division of McGraw-Hill that publishes daily and biweekly indices and prices ranges for the energy market, to turn over all information and documents relating to an energy marketing company’s submission of trade data. The commission alleges that the energy company attempted to affect natural gas prices by reporting false data to Platts.

Following the October order, McGraw-Hill filed a motion asking the court to reconsider the subpoena and alleging the court did not narrow the subpoena enough to protect McGraw-Hill’s reporter’s privilege.

Under the Federal Rules of Civil Procedure, the court may grant a motion for reconsideration if there is an “intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” However, the motion cannot be used to “argue theories that were or could have been presented in the initial answer,” Judge Royce C. Lamberth wrote in the Dec. 2 opinion.

The court found no change in controlling law or new evidence and therefore found the subpoena “is consistent with the investigatory needs of the CFTC” and does not need amending, Lamberth wrote.

The court also found that “much of McGraw’s present motion reiterates arguments already made and ruled upon by this Court,” Lamberth wrote. The court ruled that McGraw-Hill should have presented its idea for complying with the subpoena in its original motions opposing the subpoena when the court thought it would have been in a better position to “deliberate in light of each party’s position as to all of the issues under review.” Since the publisher did not do so, the court ruled that McGraw-Hill could not, at this time, attempt to modify the subpoena.

Finally, the court found that “the public interest in truthful news reporting and in the timely progression of the CFTC’s investigation is strong. Since McGraw-Hill has not shown good cause for further delay, the investigation should be allowed to continue.”

(Commodity Futures Trading Commission v. The McGraw-Hill Companies; Media Counsel: Richard L. Cys, Davis, Wright & Tremaine, Washington, D.C.)CM

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