NBC wins subpoena challenge over videotape in wrongful death suit

NBC wins subpoena challenge over videotape in wrongful death suit

04/22/96

NEW YORK–The U.S. Court of Appeals in New York (2nd Cir.) in early April quashed a subpoena served on NBC by Graco Children’s Products, Inc., holding that Graco failed to show that its defense to a wrongful death suit “virtually rises or falls” by evidence contained in the outtakes from two “Dateline” interviews.

The court, relying on the New York shield law, overturned an order by the federal District Court in New York that held NBC in contempt for refusing to turn over the videotapes and would have fined the network $5,000 a day until it complied.

Although the outtakes Graco sought were relevant to its case, Graco had not shown that they were critical or necessary to its case or that the same information was not available from alternative sources, the court ruled.

To meet the “critical or necessary” requirement, Graco had to show that its defense “virtually rises or falls with the admission or exclusion” of the outtakes, the court stated.

The court rejected Graco’s argument that the outtakes would show that Ruth Marden, who is suing Graco for the wrongful death of her infant, had made statements that conflicted with her deposition testimony. Even if Marden had made inconsistent statements, “it is far from clear that they would be necessary within the meaning of the Shield Law,” the court observed.

The court also rebuffed Graco’s contention that the material contained in the outtakes was not available from any other source. “It cannot be said that pertinent material is not obtainable elsewhere just because it is included in some outtakes,” the court stated.

In late May 1995, “Dateline” aired a report about infant deaths that occurred in baby swings manufactured by Graco. The news program included an interview with Marden and others who sued Graco after their infants died in Graco swings.

“Dateline” also interviewed Marden’s attorney, but did not include any portion of the interview in its program. The appellate court held that Graco had no right to the unaired interview with Marden’s lawyer because no part of the interview was broadcast and Graco had no idea what the attorney said during the interview. Therefore, Graco could not show that the interview was “critical or necessary” for its defense.

NBC had contended that the material was protected by the New York shield law, the New York constitution and the First Amendment. (In Re: Application to Quash Subpoena to National Broadcasting Co., Inc.; Media Counsel: Susan Weiner, New York)