Free Press reporter ordered, again, to testify in Privacy Act case

A federal judge in Detroit has denied Free Press reporter David Ashenfelter’s request for a protective order that would prevent him from testifying in a civil case involving former U.S. prosecutor Richard Convertino, the newspaper said.

Ashenfelter wrote a Free Press article in 2004 quoting anonymous Justice Department officials alleging that Convertino was being investigated for misconduct and withholding evidence in a Detroit terrorism case. Convertino filed a Privacy Act lawsuit against the department in federal court in Washington, D.C., and subpoenaed Ashenfelter in Detroit to testify about his sources.

In late August, federal District Judge Robert Cleland in Detroit ordered Ashenfelter to testify about his confidential sources.

In response, Ashenfelter’s attorney, Herschel Fink, filed a motion for a protective order, arguing that the reporter should be protected against having to testify. He also argued that the case should be moved to Washington, D.C., where Convertino’s underlying Privacy Act claim is pending. Fink argued that the merits of Convertino’s claim should be decided before a judge rules whether he has to testify.

But in Friday’s ruling, Cleland refused to grant Ashenfelter’s protective order. The Court held that it had already considered Ashenfelter’s arguments when it compelled Ashenfelter to testify back in August, the Detroit News reported.

Ashenfelter’s "attempt to relitigate the analysis of the motion to compel through a belated motion for protective order, while not necessarily amounting to bad faith, is at best unsubstantiated and untimely," Cleland wrote in an eight-page opinion.

The protective order filed in Washington, D.C., is still pending.