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Federal judge narrows order for deposing reporters

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  1. Protecting Sources and Materials
NEWS MEDIA UPDATE   ·   PENNSYLVANIA   ·   Confidentiality/Privilege   ·   Sep. 15, 2005

NEWS MEDIA UPDATE   ·   PENNSYLVANIA   ·   Confidentiality/Privilege   ·   Sep. 15, 2005

Federal judge narrows order for deposing reporters

  • A revised federal court order prevents reporters from being questioned in depositions about their impressions of school board meetings discussing “intelligent design.”

Sep. 15, 2005  ·   Depositions of two reporters can focus only on what they saw and heard at controversial Dover, Pa., public school board meetings, according to a revised federal court order issued Monday. U.S. District Judge John E. Jones III narrowed an Aug. 2 order to clarify questions Joseph Maldonado of the York Daily Record and Heidi Bernhard-Bubb of The York Dispatch can be asked about what they witnessed at meetings discussing intelligent design — the idea that life on Earth is so complex that it must have been guided by a creator.

Jones’ revised order bars questioning the reporters about their “motivation(s), bias, mental impressions, or other inquiry which involves matter extrinsic” to what they saw and heard at the Dover Area School District meetings last fall. “The Reporters may be deposed strictly with regard to what they saw and heard at the public Board meetings,” Jones wrote.

Jones’ earlier order, which was issued in response to a motion to quash the subpoenas, appeared to allow the reporters to be questioned about their opinions of the meeting. The revised ruling is an improvement, but still not what the reporters’ lawyer, Niles S. Benn, sought.

“In the best of all worlds, we’d prefer that the reporters didn’t have to testify,” Benn said. “But this does protect their confidential sources and prevents questioning outside what they saw and heard.”

The court said it attempted to balance the reporter’s privilege — the right to refuse to testify — against the rights of the parties to full discovery.

“We believe that the relatively unfettered question of fact witnesses which would normally be allowed in discovery must here be tempered in recognition of the Reporter’s Privilege,” Jones wrote. The revised order “represent[s] what we believe to be the most fair and equitable reconciliation of the inherent tension which arises when the Privilege is asserted in order to either truncate or fully bar discovery depositions of disclosed fact witnesses who are also reporters.”

The original order allowed the reporters to be “deposed with regard to what they perceived, saw and heard at the Dover Area School District public meetings.” Although Benn asked for a reconsideration of the entire order, Jones focused his change on the word “perceived,” which Benn argued could allow for questions about the reporters’ thoughts and mental impressions of the meetings. Jones amended the original order to delete that “problematic word.”

The case arose out of a dispute between the Dover School Board and a group of parents after the school board altered its science standards to include intelligent design. The parents sued contending that the new standards violate the Establishment Clause of the First Amendment. The parents subpoenaed the reporters for their testimony regarding the school board meetings they covered. The reporters refused to testify, instead submitting affidavits attesting their stories were accurate as printed. That satisfied the parents, but the school board wanted to ask more detailed questions. Jones’ original ruling allowed the reporters to keep from disclosing their confidential sources, but they still had to testify “with regard to what they perceived, saw and heard,” Jones wrote.

Benn said the court did not go far enough in protecting the reporters’ privilege. “When others are present, they should be deposed before any reporters,” he said.

(Kitzmiller v. Dover Area School District, Niles S. Benn, Benn Law Firm, York, Pa.)CM

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