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Emergency room footage not shielded by reporter’s privilege

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  1. Libel and Privacy

    NMU         NEW JERSEY         Privacy         Dec 31, 2002    

Emergency room footage not shielded by reporter’s privilege

  • A trial judge finds that New Jersey’s shield law, one of the strongest in the country, does not allow the media to withhold unbroadcast, nonconfidential video in a privacy suit.

Efforts by the New York Times Company to keep an emergency room videotape out of discovery in an invasion of privacy lawsuit were shot down Dec. 19 by a New Jersey trial court judge, who ruled that the state’s shield law did not protect the tape from compelled disclosure.

Monmouth County Judge Louis Locascio said the tape, which was shot in July 2001 for a television show produced by a New York Times Company subsidiary, must be turned over despite New Jersey’s strong shield law, which historically has prevented compelled disclosure in civil cases.

Film crews collecting footage for NYT Television’s show “Trauma, Life in the ER” taped the treatment of Joseph Kinsella in the emergency room of Jersey Shore Medical Center. Kinsella had fallen from the roof of a building he was spraying with insecticide.

The crew obtained Kinsella’s consent to tape his treatment, which included a tracheotomy and the wiring of his jaw, according to court papers. Kinsella says he was disoriented when he gave his consent.

The tape never aired, but Kinsella sued the Times for invasion of privacy and subpoenaed the videotape as evidence in the case.

The Times resisted the subpoena, relying on the strength of New Jersey’s shield law.

As a threshold matter, the court said in its opinion that the show “Trauma, Life in the ER” is a news program and, therefore, may be analyzed under the shield law. Kinsella had argued that the show, created for the Learning Channel, was merely entertainment programming.

The court then faced what it saw as a “conflict between New Jersey’s shield law and the plaintiff’s right to privacy.”

After analyzing both the shield law and constitutional privacy law, the court decided that Kinsella’s right to maintain a suit for invasion of privacy outweighed the media’s right under the shield law to avoid compelled disclosure of source materials.

“Because plaintiff’s motion does not seek confidential sources or information, just as New Jersey’s shield law must yield to a criminal defendant’s overriding constitutional right to the production of favorable evidence, so also does plaintiff’s same right and his constitutional right to privacy, in this civil action, take precedence over defendants’ statutory right to the protection afforded by the newsperson’s privilege,” the court said.

David McCraw, an in-house attorney at the Times, said he will appeal the ruling. He believes that New Jersey precedents support the Times’s position that the media’s shield law protection is absolute in civil cases.

McCraw said the New Jersey Press Association plans to submit a friend-of-the-court brief in the appeal.

(Kinsella v. Welch; Media counsel: Peter Banta, Winne, Banta, Rizzi, Hetherington & Basralian, Hackensack, NJ) WT

© 2002 The Reporters Committee for Freedom of the Press

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