Alternative Scenarios

Did Wen Ho Lee exhaust all sources of information before turning to reporters in his Privacy Act case?

From the Winter 2004 issue of The News Media & The Law, page 20.

By Kirsten Murphy

Lawyers for Wen Ho Lee, a former nuclear physicist at the Los Alamos National Laboratory in New Mexico, deposed 21 people in their client’s ongoing Privacy Act lawsuit against the U.S. government. To them, that’s exhaustive.

But to the five journalists fighting a court order that requires them to reveal confidential sources in their 1999 coverage of the government’s investigation of Lee, such an effort is barely breaking a sweat.

In order to determine who leaked information about Lee to the press, his attorneys sought a court order to compel the journalists to reveal their sources. On Oct. 9, Judge Thomas Penfield Jackson of the U.S. District Court in Washington, D.C., granted that order.

Jackson balanced the need for a reporter’s privilege against Lee’s need for evidence. In the end, he determined that there was “some doubt that a truly worthy First Amendment interest resides in protecting the identity of government personnel who disclose to the press information that the Privacy Act says they may not reveal.”

All five journalists — Josef Hebert of The Associated Press, Robert Drogin of the Los Angeles Times, Pierre Thomas of CNN (now with ABC) and James Risen and Jeff Gerth of The New York Times — appeared at their required depositions in January, but refused to reveal information about their confidential sources. That could lead to contempt proceedings, fines and even jail time.

It’s a standoff that could also make its way to the U.S. Supreme Court.

“A number of alternative sources came up during Dr. Lee’s discovery of the government, and they were never pursued in any way,” said attorney Chuck Tobin, who is representing Thomas.

The case of Lee v. U.S. Department of Justice may turn on whether Lee’s attorneys exhausted all alternative sources of information before turning to the reporters. Upon issuing his order to compel testimony, Jackson applied a two-part test: whether the information sought is of “central importance” to the plaintiff’s case, and whether the plaintiff has exhausted “every reasonable alternative source of information.”

Most federal appellate court decisions and state shield laws require a plaintiff to prove some measure of exhaustion of alternative sources before a court will compel a journalist to reveal confidential sources.

Lee’s attorneys deposed 21 government officers and agents. Whether or not that’s “exhaustive” is a matter of great debate.

Digging not-so-deep

In 1995, U.S. intelligence and law enforcement authorities secretly began investigating Lee, who had worked as a nuclear physicist at Los Alamos since the 1970s. A Chinese immigrant, Lee was suspected of sending America’s nuclear secrets to his native country.

In March 1999, The New York Times published a story about the investigation, including details of Lee’s employment history, finances and polygraph tests. More media coverage of Lee and the investigation soon followed.

The FBI charged Lee with 60 counts of felony espionage, but the government’s case against him fell apart. In the end, Lee pleaded guilty to just one felony count of copying classified documents onto computer tapes without authorization. All other charges were dropped.

Lee brought a lawsuit against the Department of Justice and the Department of Energy in 2000, alleging that government officials violated the Privacy Act by releasing private information about him to the press. The Privacy Act creates a civil cause of action for individuals against government agencies that release information from files about them without consent.

Jackson said Lee’s 21 depositions satisfied the exhaustion prong of the balancing test, even though the list of potential individuals who could be deposed numbers into the hundreds. That list includes members of Congress and congressional staffers; Lee’s Privacy Act claim would fail if the confidential sources were not members of an executive branch agency. Nonetheless, Jackson concluded that exhaustion “does not require proof positive that the knowledge exists nowhere else on earth but in the minds of the journalists and their anonymous confidants,” he said.

Although the U.S. Court of Appeals for the District of Columbia has not specifically discussed standards for what constitutes exhaustion, the court has given some hints.

In the 1974 case Carey v. Hume, the court suggested that as many as 60 depositions might be a reasonable prerequisite to compel disclosure of a confidential source. In that case, the court upheld a District Court order compelling a reporter to identify confidential sources in a civil libel case against a media defendant.

In Zerilli v. Smith, decided in 1981, the appellate court upheld a trial court’s dismissal of a Privacy Act case against the Department of Justice. The Zerilli plaintiffs served the government with interrogatory questions, but failed to conduct any depositions in the case before seeking information from the press.

The court held that although limits to the obligation to pursue alternative sources exist, the exhaustion obligation is “clearly very substantial.”

As a result, some attorneys, like Gregg Thomas, a partner at Holland & Knight in Tampa, Fla., often hire an investigator to locate alternative sources of information in civil cases in which the plaintiff claims exhaustion. In one such case Thomas litigated, Overstreet v. Neighbor, decided in 1983, a Florida state court held that as many as 117 individuals had to be deposed before the plaintiff could claim to have exhausted alternative sources.

Numbers aside, Tobin argues that Lee did not qualitatively exhaust the sources he did question. In a memo in support of the motion to quash compelled testimony, filed in September, Tobin pointed out that some of Lee’s deponents were not questioned as extensively as they could have been.

When John Collingwood, assistant director for public affairs at the FBI, told Lee’s attorneys that he was certain he spoke with Pierre Thomas regarding the case, that line of questioning came to a halt, Tobin said.

“Despite having elicited an admission from this high-level witness,” Tobin wrote in his memo, “counsel never asked a single follow-up question about CNN or the content of his discussion with Mr. Thomas.”

“They didn’t even fatigue some of them,” he later quipped.