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Panel recognizes qualified privilege for nonconfidential materials

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  1. Protecting Sources and Materials

    NMU         SECOND CIRCUIT         Confidentiality/Privilege         Sep 20, 1999    

Panel recognizes qualified privilege for nonconfidential materials

  • The Second Circuit overturned its own decision on the standard for disclosure of nonpublished information, but decided NBC still had to release “Dateline” videotapes subpoenaed in a civil suit.

A three-judge panel of the U.S. Court of Appeals in New York City (2d Cir.) reversed a prior panel ruling in late August and decided to “explicitly reaffirm” the existence of a qualified privilege for reporters’ nonconfidential materials.

According to the panel, the privilege protecting nonconfidential materials may be overcome where the materials are of “likely relevance to a significant issue in the case”and are not “reasonably obtainable from other available sources.” The stronger qualified privilege protecting confidential sources requires that the information be “highly material and relevant,” “necessary or critical” to the claims or defenses asserted, and unavailable from other sources.

The case involved a subpoena issued against NBC in a civil rights lawsuit to which the network is not a party.

The materials at issue were outtakes from a 1997 “Dateline” program in which NBC reported that Louisiana law enforcement officers allegedly were conducting unwarranted stops of motorists. Albert and Mary Gonzales filed a civil rights action against Darrell Pierce, a Louisiana Deputy Sheriff, for a similar stop. After the airing of the Dateline program, the Gonzaleses and Pierce served NBC with subpoenas seeking original, unedited footage of Pierce’s stop of another motorist.

A federal trial court in New York City entered an order in late September 1997 requiring NBC to turn over the outtakes and finding that while NBC did have a qualified privilege, it was overcome by the parties’ interest in pursuing their civil rights action. NBC did not comply with that order, and the trial court entered an order in late October 1997 holding the network in contempt. In late September 1998, a federal appellate court affirmed the trial court on the ground that no qualified privilege existed for nonconfidential information. However, in early June, the court agreed to revisit the matter, leading to the late August decision.

The panel explained, “We believe that when protection of confidentiality is not at stake, the privilege should be more easily overcome. . . . While nonconfidential press materials are protected by a qualified privilege, the showing needed to overcome the privilege is less demanding than the showing required where confidential materials are sought.”

The panel concluded that NBC’s outtakes are protected by a qualified reporters’ privilege, but the parties who subpoenaed the tapes overcame the privilege by showing they were relevant and that NBC was the only party that could reasonably be expected to provide them.

(Gonzales v. National Broadcasting Co., Inc.; Media Counsel: Susan E. Weiner, New York City)

© 1999 The Reporters Committee for Freedom of the Press

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