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Journalists who speak to prosecutors may waive privilege

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  1. Protecting Sources and Materials

NEWS MEDIA UPDATE   ·   NEW JERSEY   ·   Confidentiality/Privilege   ·   June 20, 2007

Journalists who speak to prosecutors may waive privilege

  • Reporters do not have total protection under the state shield law, the high court ruled in saying journalists may waive part of the privilege by answering questions outside the newsgathering process.

June 20, 2007  ·   The New Jersey Supreme Court ruled last week that once reporters speak about their articles outside the newsgathering process, they cannot later invoke the state’s shield protection to avoid revealing the same information in a connected legal proceeding.

“The Shield Law does not grant reporters the power to selectively and arbitrarily invoke the privilege after making disclosures outside the newsgathering and news reporting process,” Justice Barry T. Albin wrote for the unanimous court.

But the court emphasized that attorneys for a fired Leonia, N.J., police officer can only ask a reporter limited questions about his 2004 article in The (Hackensack, N.J.) Record that led the officer to sue the borough and its mayor for libel in January 2005.

“It makes it clear that authentication of a story is not a complete waiver,” said Louis Pashman, an attorney who argued the case for the Record‘s owner, the North Jersey Media Group. “You only waive to the extent of the information disclosed.”

The ruling originates out of an article Andrew Glazer, formerly a reporter for The Record, wrote for the paper in December 2004 citing Cherchi as saying probationary police officer Michael Venezia had been fired from his job because he “had been convicted of an undisclosed crime.”

In an article a week later, the paper reported that Cherchi claimed he was misquoted in the earlier article and his understanding was that “Venezia wasn’t convicted of anything,” according to court documents.

The Bergen County Prosecutor’s Office then began an investigation into whether Cherchi illegally divulged Venezia’s personnel file. As part of the investigation, the prosecutor’s office told the paper’s attorneys they planned to subpoena Glazer about his article, according to court documents.

But the paper’s attorneys struck a deal with the prosecutor’s office, which allowed the prosecutor’s office to depose Glazer instead of having him testify in front of a grand jury. Glazer only had to answer questions authenticating the article.

The ruling indicates that Leonia’s attorney also spoke with Glazer and said Glazer confirmed receiving the information from Cherchi and stood by the article.

That May, Venezia moved to depose Glazer and wanted access to Glazer’s notes and any recordings related to his interview with Cherchi. Glazer then invoked the reporter’s privilege in the state’s shield law, saying he would not comply with Venezia’s requests.

The high court said that Glazer cannot selectively invoke the privilege and can be deposed. The justices also said Glazer must turn over any notes showing whether Cherchi made the comments attributed to him.

“Once Glazer stepped from behind the privilege and spoke outside of the news gathering and reporting process about his conversation with Cherchi, he could not seek the refuge of the privilege to deny Venezia’s attorney what he already had told others,” the court stated.

But it added, “Glazer may be questioned only about specific information that he has already disclosed; this limited inquiry is not a license to conduct a fishing expedition.”

Venezia has also filed suit against the North Jersey Media Group and Glazer for libel and invasion of privacy.

Eight media organizations filed a friend-of-the-court brief in support of the newspaper.

(In re Verified Petition of Michael G. Venezia, Media Counsel: Louis Pashman, Pashman Stein, Hackensack, N.J.)NC

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