Plaintiff loses bid to obtain videotapes in anticipation of trial

GEORGIA–Under the state shield law, a news organization does not have to turn over unaired videotape to a company that is merely gathering evidence in anticipation of a possible lawsuit, according to a Superior Court in Atlanta.

A judge refused to enforce a subpoena in late May served by CSX Transportation, Inc. on Gannett Company, Inc., Cox Broadcasting Inc., two news directors and two reporters after CSX tried unsuccessfully to obtain journalists’ videotape footage of the scene of an accident involving a CSX train.

An attorney for the media organizations said that CSX’s attempt to enforce the subpoena was unusual because CSX sued the news organizations for release of the tapes before any legal action had been brought against the company as a result of the accident.

The judge found that the material sought was protected under the qualified privilege created by Georgia’s shield law because it was obtained in the course of newsgathering.

CSX did not meet the three-part test necessary to overcome the privilege because it could not show that the tapes were relevant, unavailable through alternative means and “necessary to the proper preparation or presentation of the case of a party seeking the information,” according to the court.

CSX said that it wanted to obtain video of the accident scene and of an on-the-spot interview with the driver of the vehicle involved in the accident because the company’s own investigator arrived late to the scene and accidentally taped over part of the interviews he conducted himself. Both news stations have policies not to release material that was not broadcast. (CSX Transportation v. Cox Broadcasting; Media Counsel: James Kimmell, Jr., Atlanta)