James Holmes v. Jana Winter Brief for Respondent-Appellant .pdf
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Transcript of James Holmes v. Jana Winter Brief for Respondent-Appellant .pdf
To Be Argued By:CHRISTOPHER T. HANDMAN
(of the bar of the District ofColumbia and State of Maryland)By permission of the Court.Time Requested: 15 Minutes
APL-2013-00239New York County Clerk’s Case No. 30037/13
Court of AppealsSTATE OF NEW YORK
In the Matter of the Application of JAMES HOLMES,
Petitioner-Respondent,
A Defendant in the State of Colorado for a Subpoena Directing Jana Winter to Appear as a Witness, etc.,
—against—
JANA WINTER,Respondent-Appellant.
BRIEF FOR RESPONDENT-APPELLANT
d
DORI ANN HANSWIRTH
THERESA M. HOUSE
NATHANIEL S. BOYER
BENJAMIN A. FLEMING
HOGAN LOVELLS US LLP875 Third AvenueNew York, New York 10022Telephone: (212) 918-3000Facsimile: (212) 918-3100
CHRISTOPHER T. HANDMAN
SEAN M. MAROTTA
HOGAN LOVELLS US LLP555 Thirteenth Street, N.W.Washington, D.C. 20004Telephone: (202) 637-5719Facsimile: (202) 637-5910
Attorneys for Respondent-AppellantSeptember 9, 2013
i
STATEMENT REGARDING THE STATUS OF RELATED LITIGATION
At the time this brief was filed, Appellant Jana Winter’s motion to quash and
for a protective order in the Colorado District Court remained pending. The
soonest that court will likely rule on the motion will be January 3, 2014. That is
because, in deference to this appeal, the Colorado District Court recently adjourned
its hearing on Winter’s motion to that early January date. The Colorado District
Court explained that “[g]iven the real possibility that Winter may face indefinite
jail time in this case as a remedial sanction for her refusal to disclose her
confidential sources, and given further the significant First Amendment interests of
Winter and the public, * * * Winter should be afforded the opportunity to exhaust
all avenues to obtain appellate relief.” Order Regarding Motion of Non-Party
Witness Jana Winter to Vacate the September 30, 2013 Hearing Date (C-53), at 3-4,
Colorado v. Holmes, No. 12CR1522 (Colo. Dist. Ct. Sept. 3, 2013).*
* Available at http://www.courts.state.co.us/userfiles/file/Court_Probation/18th_Judicial_District/18th_Courts/12CR1522/004/C-53%2009%2003%2013.pdf.
ii
TABLE OF CONTENTS
Page
STATEMENT REGARDING THE STATUS OFRELATED LITIGATION ..........................................................................................i
TABLE OF AUTHORITIES ................................................................................... iii
PRELIMINARY STATEMENT ...............................................................................1
QUESTIONS PRESENTED......................................................................................5
JURISDICTIONAL STATEMENT ..........................................................................5
NATURE OF THE CASE .........................................................................................6
ARGUMENT ...........................................................................................................19
I. THE SUBPOENA SHOULD BE QUASHED BECAUSECOMPELLING WINTER TO REVEAL HERCONFIDENTIAL SOURCES WOULD VIOLATENEW YORK’S PUBLIC POLICY. ..............................................................19
A. Another State’s Request Under CPL § 640.10(2) May NotBe Honored If Doing So Would Violate This State’sPublic Policy........................................................................................19
B. The Colorado District Court’s Request For Winter ToDivulge Her Confidential Sources Is Contrary To NewYork’s Strong Public Policy Of Absolute Protection ForReporters’ Confidential Sources .........................................................27
C. It Is Irrelevant That Winter’s Article Was Reported FromColorado ..............................................................................................39
II. THE APPELLATE DIVISION ERRED AS A MATTER OFLAW BY HOLDING THAT THE HARDSHIP WINTER WILLFACE IF REQUIRED TO BURN HER SOURCES ISIRRELEVANT TO CPL § 640.10(2)’s “UNDUE HARDSHIP”ANALYSIS....................................................................................................46
CONCLUSION........................................................................................................53
iii
TABLE OF AUTHORITIES
PageCASES:
Banco Nacional de Mexico, S.A. v. Societe Generale,34 A.D.3d 124 (1st Dep’t 2006) .........................................................................45
Barry E. (Anonymous) v. Ingraham,43 N.Y.2d 87 (1997) ...........................................................................................25
Bourdeaux v. State, Dep’t of Transp.,11 N.Y.3d 321 (2008) .........................................................................................23
Colorado v. Arellano-Avila,20 P.3d 1191 (Colo. 2001)..................................................................................20
Colorado v. Holmes,No. 12CR1522 (Colo. Dist. Ct. Sept. 3, 2013) .............................................38, 39
Colorado v. Jones,262 P.3d 982 (Colo. App. 2011).........................................................................38
Commercial Credit Co. v. Higbee,20 P.2d 543 (Colo. 1933)....................................................................................40
Crair v. Brookdale Hosp. Med. Ctr.,94 N.Y.2d 524 (2000) .........................................................................................26
Curtis, Mallet-Prevost, Colt & Mosle, LLP v. Garza-Morales,308 A.D.2d 261 (1st Dep’t 2003) .................................................................45, 46
Debra H. v. Janice R.,14 N.Y.3d 576 (2010) .........................................................................................23
DeRose v. N.J. Transit Rail Operations,165 A.D.2d 42 (3d Dep’t 1991)..........................................................................25
Ehrlich-Bober & Co. v. Univ. of Houston,49 N.Y.2d 574 (1980) ..................................................................................passim
F.A. Straus & Co. v. Canadian Pac. R. Co.,254 N.Y. 407 (1930) .....................................................................................24, 41
TABLE OF AUTHORITIES—ContinuedPage
iv
Farrginton v. Pinckney,1 N.Y.2d 74 (1956) .............................................................................................24
Gagnon v. District Court,632 P.2d 567 (Colo. 1981)..................................................................................29
In re Connecticut,179 Misc. 2d 628 (Nassau Cnty. Ct. 1999) ........................................................26
J. Zeevi & Sons, Ltd. v. Gridlays Bank (Uganda) Ltd.,37 N.Y.2d 220 (1975) .........................................................................................22
Kilberg v. Ne. Airlines,9 N.Y.2d 34 (1961) .................................................................................24, 42, 43
Knight-Ridder Broad., Inc. v. Greenberg,70 N.Y.2d 151 (1987) .........................................................................................28
Matter of Beach v. Shanley,62 N.Y.2d 241 (1984) .............................................................8, 27, 29, 34, 49, 51
Matter of Codey v. Capital Cities, Am. Broad. Corp.,183 A.D.2d 126 (1st Dep’t 1992) .......................................................................25
Matter of Codey v. Capital Cities, Am. Broad. Corp.,82 N.Y.2d 521 (1993) ..................................................................................passim
Matter of Farber,394 A.2d 330 (N.J. 1978) .............................................................................37, 38
Matter of Walker,64 N.Y.2d 354 (1985) ...................................................................................31, 32
Michigan v. Marcy,283 N.W.2d 754 (Mich. Ct. App. 1979).............................................................47
Milhoux v. Linder,902 P.2d 856 (Colo. Ct. App. 1995) ...................................................................40
TABLE OF AUTHORITIES—ContinuedPage
v
Morris v. Towers Fin. Corp.,916 P.2d 678 (Colo. Ct. App. 1996) .............................................................40, 41
Morrison v. Nat’l Australia Bank Ltd.,130 S. Ct. 2869 (2010)........................................................................................42
N.Y. City Transit Auth. v. Transp. Workers Union of Am.,99 N.Y.2d 1 (2002) .............................................................................................31
Nevada v. Hall,440 U.S. 410 (1979)......................................................................................40, 41
New York v. O’Neill,359 U.S. 1 (1959)................................................................................................20
People v. Hawkins,157 N.Y. 1 (1898) ...............................................................................................31
People v. McCartney,38 N.Y.2d 618 (1976) ...................................................................................19, 20
Russian Socialist Federated Soviet Republic v. Cibrario,235 N.Y. 255 (1923) .....................................................................................22, 23
Sachs v. Adeli,26 A.D.3d 52 (1st Dep’t 2005) ...........................................................................25
Superior Court v. Farber,94 Misc. 2d 886 (Sup. Ct. N.Y. Cnty. 1978) ......................................................37
Tran v. Kwok Bun Lee,29 A.D.3d 88 (1st Dep’t 2006) ...........................................................................47
Watts v. Swiss Bank Corp.,27 N.Y.2d 270 (1970) ...................................................................................26, 27
STATUTES:
Colo. Rev. Stat. § 13-90-119(3).........................................................................29, 35
TABLE OF AUTHORITIES—ContinuedPage
vi
Colo. Rev. Stat. § 16-9-203 .....................................................................................14
CPL § 640.10 ....................................................................................................passim
CPL § 640.10(2)................................................................................................passim
CPLR § 403(d) .........................................................................................................14
CPLR § 5601(a) .........................................................................................................5
Dom. Rel. §114 ........................................................................................................32
Md. Code Cts. & Jud. Proc. § 9-112(d)(2) ..............................................................43
N.J. Stat. Ann. § 2A:84A-21....................................................................................25
N.Y. Civ. Rights Law § 79-h ...................................................................................25
N.Y. Civ. Rights Law § 79-h(b) ..........................................................................8, 28
RULES:
Colo. R. Civ. P. 107(a)(2) ........................................................................................38
Colo. R. Civ. P. 107(b).............................................................................................38
Colo. R. Civ. P. 107(d)(2)........................................................................................39
CONSTITUTIONAL PROVISIONS:
U.S. Const. amend. I .........................................................................................passim
U.S. Const. amend. VI .............................................................................................20
LEGISLATIVE MATERIALS:
Approval Memorandum of Governor Cuomo,1990 N.Y. Legis. Ann. 2693...............................................................................28
Approval Memorandum of Governor Nelson A. Rockefeller,1970 N.Y. Legis. Ann. 508.............................................................................9, 28
TABLE OF AUTHORITIES—ContinuedPage
vii
OTHER AUTHORITIES:
Award Winners and Finalists Presented in 2008,Deadline Club (May 13, 2008) .......................................................................9, 10
Contact Us, The New York Times Company ............................................................7
Contact, The New York Post .....................................................................................7
David Corcoran, Theodore Trautwein, Judge in Landmark Press Case,Dies at 80, N.Y. Times, Sept. 2, 2000 ................................................................38
Robert W. Jones, The Law of Journalism(Washington Law Book Co. 1940).......................................................................7
Laura Kusisto, HuffPo Bloggers Will Soon Shop More at Trader Joe’s,The New York Observer, Jan. 18, 2011 ...............................................................7
McKinney’s Consol. Laws of N.Y. Ann.,80 CPL 620 to 709-Commentaries by Presier (book 11A, 2009)......................26
Restatement (Second) of Conflict of Laws (1971) ...................................................33
Steven Strauss et al., Media.NYC.2020 Final Report,New York State Economic Development Corp. (July 7, 2009) ...........................6
Working at Gawker Media, Gawker Media(Sept. 19, 2011, 10:31 PM)....................................................................................7
1
PRELIMINARY STATEMENT
New York has an undeniably strong public policy—the strongest in the
Nation, actually—of protecting its journalists from being forced to divulge their
confidential sources. Under New York’s Shield Law, no reporter can be
compelled to unmask her confidential sources—no matter how vital that
information may be to a criminal investigation.
That muscular public policy ensures that New York reporters can keep their
promises of anonymity to sources, and that sources can speak to reporters without
fear of reprisal. New York has long endorsed this public policy for an important
reason: By categorically protecting journalists from having to burn their
confidential sources, the State ensures that the public’s understanding of the news
will be shaped not by official sound bites and platitudes, but by useful and
revelatory fact. It is a public policy grounded firmly in democratic self-
governance; its fruits are groundbreaking stories like the Pentagon Papers and the
reports on the true extent of government surveillance.
The principal question in this case is whether New York’s robust public
policy of press freedom ends at the state line. Respondent James Holmes—known
colloquially as the “Batman killer”—is a suspected mass murderer awaiting trial in
Colorado. Upset about revelations contained in a story that Appellant Jana Winter
wrote for FoxNews.com, Holmes sought a subpoena from the Supreme Court
2
requiring Winter—a New York journalist working for a New York-based news
organization—to travel to Colorado, where she would be asked under oath to
reveal the confidential sources cited in her article. As Holmes sees it, any time a
litigant like him seeks a reporter’s confidential sources through the Uniform Act to
Secure the Attendance of Witnesses from Without the State in Criminal
Proceedings, the reporter is at the mercy of whatever protections the foreign state
chooses to provide. If the state chooses to provide less protection than New
York—or no protection at all—then the reporter is simply out of luck.
Below, Holmes rested his case entirely on Matter of Codey v. Capital Cities,
American Broadcasting Corp., 82 N.Y.2d 521 (1993). There, a New Jersey
prosecutor sought nonconfidential material from a New York news organization,
which challenged the subpoena on the grounds that the material was privileged
under New Jersey law. This Court held that, as a matter of comity and respect for
New Jersey’s judicial processes, it would not presume to tell New Jersey what was
privileged under New Jersey law and therefore refused to quash the subpoena. But
in holding that evidentiary privileges are generally not for New York courts to
decide in Uniform Act proceedings, the Court was careful to carve out a caveat. It
warned that its decision “should not be construed as foreclosing the possibility that
in some future case a strong public policy of this State, even one embodied in an
3
evidentiary privilege, might justify the refusal of relief under” the Uniform Act. Id.
at 530 n.3.
That caveat was a necessary one because for over 80 years this Court has
held that a well-established public policy of the State must always trump comity.
That rule is based on important principles of democratic governance and separation
of powers. After all, New York’s courts are bound to implement the State’s public
policy as expressed by the Legislature in its statutes. Comity, however, is no more
than a voluntarily decision to respect another state’s interests in a particular matter.
And if those foreign interests conflict with this State’s core public policies, then
courts in this State have no choice: public policy, not comity, controls.
That settled rule of New York jurisprudence resolves this case. In contrast
to New York’s absolute privilege, Colorado affords its journalists only a qualified
protection, one which can be pierced any time a reporter’s sources are material and
necessary to a proceeding and a balancing of the interests favors disclosure. That
difference is more than one of evidentiary technicalities; it goes to the heart of the
differing public policies underlying the two states’ statutes. New York’s
Legislature determined that reporters’ confidential sources should be protected
absolutely, regardless of the equities of any particular case. Colorado’s Legislature
was far less solicitous; it decided to leave the issue up to individual judges on a
case-by-case basis. Colorado was certainly entitled to adopt that policy for its
4
journalists, its news organizations, and its populace. But this Court need not—
indeed, should not—reflexively implement that peculiar policy here.
The Appellate Division though did just that. Even though all five justices
below recognized that New York does indeed have a robust public policy against
having its journalists divulge their confidential sources, a splintered 3-2 majority
dismissed this public-policy objection as an impermissible claim of privilege
barred by Codey. As Justice Saxe explained in a vigorous dissent, the majority’s
approach fundamentally undermines this State’s public policy. Especially in an era
when New York journalists report on matters of public concern all over the
nation—and around the world—the majority’s rule would essentially cabin the
protections afforded by New York’s public policy to reporters on the Metro desk.
This Court should reverse and quash the subpoena.
Separate and apart from conflicting with New York’s public policy, the
Appellate Division’s opinion erred by categorically refusing to consider the harm
to Winter’s career if she is forced to burn her sources. Under the Uniform Act, a
request for testimony from another state should be refused if it would impose an
“undue hardship” on the witness. Here, Winter’s affidavit explained—without
contradiction—that she relies on confidential sources for a living and that it would
destroy her career as an investigative journalist were she compelled to reveal them.
But the Appellate Division held that the Act is not concerned with such a real and
5
substantial harm; instead, it is concerned solely with trivial hardships like traveling
to Colorado. That gets things backwards. If travel can be a legitimate and relevant
hardship, then surely the imminent destruction of one’s livelihood can as well. In
miscomprehending the appropriate test for “undue hardship,” the Appellate
Division erred as a matter of law. This Court should therefore reverse.
QUESTIONS PRESENTED
1. Whether New York’s muscular public policy of categorically immunizing
reporters from having to reveal their confidential sources trumps the comity that
New York courts typically extend other states’ requests for testimony from New
York residents in criminal proceedings.
2. Whether it is relevant, when determining whether a New York journalist
will suffer an “undue hardship” if she is compelled to testify or produce her notes
in an out-of-state criminal proceeding, that the request for testimony and notes
would require her to reveal the identities of her confidential sources—and thus
destroy her career.
JURISDICTIONAL STATEMENT
The Appellate Division, First Department entered its decision and order on
August 20, 2013. A. 23. Winter served the Appellate Division’s order with notice
of entry and noticed her appeal to this Court the next day. A. 24-56. This Court
has jurisdiction under CPLR 5601(a) because two justices dissented from the
6
Appellate Division’s decision on questions of law—namely, whether issuing the
subpoena for Winter’s testimony and notes regarding her confidential sources was
contrary to New York’s public policy and whether the harm the subpoena would
inflict on Winter’s career could be considered an “undue hardship” under CPL
§ 640.10. See Codey, 82 N.Y.2d at 526-527 (CPL § 640.10 special proceeding is a
civil action subject to the CPLR’s appealability provisions).
Winter preserved these issues in the Supreme Court in her memorandum of
law in opposition to Holmes’ application, R. 835-845, and in her briefs to the
Appellate Division. Winter App. Div. Opening Br. 22-37, 49-50; Winter App. Div.
Reply Br. 4-11, 25-26.
NATURE OF THE CASE
New York’s Special Relationship with the Media. New York is the “the
media capital of the world, home to more than 17,000 media companies employing
more than 300,000 people” in New York City alone, including more than 20.4
percent of those employed by domestic magazine publishers and 15.4 percent of
those employed by domestic book publishers. Steven Strauss et al.,
Media.NYC.2020 Final Report, New York State Economic Development Corp. 5
(July 7, 2009); R. 752. Even limited to just journalism, New York is a hotspot for
news outlets of all sizes and all platforms. New York-based companies range from
new-comers like The Huffington Post and Gawker to historical mainstays like The
7
New York Times and the New York Post.1 New York is also at the forefront of
educating the next generation of reporters. The Columbia Graduate School of
Journalism, New York University’s Arthur L. Carter Journalism Institute, and
Syracuse University’s Newhouse School of Public Communications all teach
budding journalists about the standards and ethics of their chosen profession—
standards that hold the identity of a reporter’s confidential sources is sacrosanct
and cannot be revealed for any reason. See R. 357.
New York’s pride of place as the global leader in news is no accident; it
dates back to the colonial era. In 1735, publisher John Peter Zenger famously
refused to reveal an anonymous contributor’s name when he was charged with
seditious libel for publishing a series of anonymous articles critical of the royal
governor of the colony. Robert W. Jones, The Law of Journalism 23 (Washington
Law Book Co. 1940). His acquittal by a jury of New Yorkers has long been
recognized as the fountainhead of the State’s effort to protect newsgathering based
on confidential sources. Id. And New York’s historically strong relationship with
and protection for the media has continued to this day. As Judge Wachtler has
1 See Laura Kusisto, HuffPo Bloggers Will Soon Shop More at Trader Joe’s, TheNew York Observer, Jan. 18, 2011, available at http://observer.com/2011/01/huffpo-bloggers-will-soon-shop-more-at-trader-joes/; Working at Gawker Media,Gawker Media (Sept. 19, 2011, 10:31 PM) http://gawker.com/5784912/working-at-gawker-media; Contact Us, The New York Times Company,http://www.nytco.com/contact_us/ (last visited Sept. 8, 2013); Contact, The NewYork Post, http://www.nypost.com/contact/ (last visited Sept. 8, 2013).
8
summed up, New York has “long provided one of the most hospitable climates for
the free exchange of ideas,” traceable to the fact that “[i]n the 19th century a large
portion of the publishing industry was established in New York and the State
began to serve as a cultural center for the Nation.” Matter of Beach v. Shanley, 62
N.Y.2d 241, 255-256 (1984) (Wachtler, J., concurring). And it is a status New
York “still enjoys.” Id.
The State’s rich history of protecting media freedoms has also been
recognized in its positive law. Under the New York Shield Law, no professional
journalist can be held in contempt “for refusing or failing to disclose any news
obtained or received in confidence or the identity of the source of any such news,”
even when the “identity of a source of such material or related material gathered by
a [journalist] * * * is * * * highly relevant to a particular inquiry of government.”
N.Y. Civ. Rights Law § 79-h(b). In other words, New York protects a journalist’s
confidential sources unequivocally and absolutely. It is a protection grounded in
New York’s social, economic, and historic ties to the media. As Governor
Rockefeller explained when he signed the Shield Law, that bold initiative made
“New York State—the Nation’s principal center of news gathering and
dissemination—the only state that clearly protects the public’s right to know and
the First Amendment rights of all legitimate newspapermen, reporters and
9
television and radio broadcasters.” Approval Memorandum of Governor Nelson A.
Rockefeller, 1970 N.Y. Legis. Ann., at 508.
James Holmes, the Aurora Shootings, and Holmes’ Notebook. On July
20, 2012, James Holmes entered a midnight screening of The Dark Knight Rises at
a movie theater in Aurora, Colorado and opened fire, killing 12 and wounding over
70 others. R. 336-337. Holmes was apprehended at the scene and later charged
with the 12 killings and 144 other felonies. R. 74, 362. The Aurora shootings
shocked the nation and have generated widespread media attention. Between July
20 and July 30, 2012 alone, there were 7,891 articles in Westlaw’s “News, All”
database regarding Holmes and his crimes. R. 352.
In the wake of Holmes’ depravity, many were left asking “why?” This case
is about Jana Winter’s attempts to answer that question. Winter is a professional
journalist who lives and works in New York. R. 335. After working in India as a
freelance reporter and documentary filmmaker, Winter obtained her master’s
degree from Columbia University’s Graduate School of Journalism. Id. Winter
was then hired by the New York Post, where she received a Deadline Club Award
from the New York chapter of the Society of Professional Journalists, R. 335-336,
which “recognize[s] the best in New York area journalism.” Award Winners and
10
Finalists Presented in 2008, Deadline Club (May 13, 2008).2 After working at the
Post for two years, Winter was hired by Fox News as an investigative reporter for
FoxNews.com. R. 335-336.
At Fox News, Winter primarily covers the crime beat and has developed a
specialty in reporting on mass killings. R. 336. As all-too-recent history
demonstrates, the facts surrounding these terrible crimes, their underlying causes,
the ensuing criminal investigations, the scars that these tragedies leave on their
victims and local communities, and the policies that can and should be adopted to
prevent them, are matters of critical public concern. R. 351.
But neither the public nor policy makers can meaningfully discuss these
important issues unless they have the facts. And in cases like these, the facts often
only come out through the tireless efforts of investigative reporters like Winter. A
journalist’s ability to go beyond official press releases and uncover the facts that
authorities, corporations, or even just private individuals might prefer be kept
hidden—the very definition of an investigative reporter—depends almost entirely
on the journalist’s ability to cultivate and maintain relationships with sources. R.
346-348. And in many cases, a source will not come forward unless his or her
identity is protected. For this reason, journalists take as an article of faith that they
cannot disclose the identities of confidential sources. R. 336, 338, 357.
2 Available at http://www.deadlineclub.org/archives/105.
11
Winter is no different. During the course of her career, Winter’s ability to
gather news has hinged on her ability to earn a source’s trust—trust that she can
often earn only by promising the source confidentiality. R. 336. And Winter’s
promises to her sources have paid off. By using confidential sources—and keeping
them confidential—Winter has frequently been able to break news about important
public issues that would not come to light otherwise. Id.
As reports of the Aurora shootings broke, Fox News assigned Winter to
cover the story. R. 336-337. Following up on a tip, Winter learned that before the
massacre, Holmes had sent a package to a psychiatrist at the University of
Colorado. R. 159-160. Just after he was taken into custody, however, Holmes
asked to have the package returned. R. 160. Fearing that the package might be a
bomb, Colorado authorities conducted a massive search of the University of
Colorado campus on July 23, 2012 with multiple teams of first responders from
various jurisdictions and agencies. R. 225-226. Several hours into the search,
Holmes’ package was located in a campus mailroom, opened, and found to contain
a notebook. R. 125-128; 133-134.
As part of her coverage, Winter wrote an article—Movie Massacre Suspect
Sent Chilling Notebook to Psychiatrist Before Attack—which was published on
FoxNews.com on July 25, 2012. R. 341-343. Winter’s article quoted an
unidentified “law enforcement source” as stating that the notebook was “ ‘full of
12
details about how [Holmes] was going to kill people’ ” and included “ ‘drawings
and illustrations of the massacre.’ ” R. 342. That same source also suggested that
the package containing Holmes’ notebook had been in the University of Colorado
mailroom since July 12. Id. Winter’s article also cited a “second law enforcement
source” as stating that authorities obtained a warrant from a Colorado judge to
seize and open the package after it was discovered. Id. Winter was only able to
learn about the notebook’s contents and the circumstances surrounding its
discovery by promising her sources anonymity. R. 337.
The contents of Holmes’ notebook—and whether they may have been a
warning that, if discovered earlier and heeded, could have prevented the
massacre—were issues of significant public concern. R. 351. Winter was far from
the only journalist to report on the notebook and its contents. Indeed, she was far
from the only reporter to attribute information regarding the notebook to unnamed
sources. Winter’s competitors, starting on the same day as Winter’s article,
published dozens of news reports describing the recovery of Holmes’ package and
its contents and attributing their information to unnamed sources. R. 351-352; see
also R. 392-471 (stories from CBS, NBC, MNSBC, and CNN).
Colorado Proceedings Regarding the Notebook. On July 23, 2013, before
news of the notebook broke, the Colorado District Court entered an order
prohibiting law enforcement officials from making any extrajudicial statement if
13
the official knows or should know that the statement “will have a substantial
likelihood of prejudicing [the] criminal proceeding.” R. 867. Two days later—
after the notebook was discovered and the same day Winter’s story ran—Holmes
sought and obtained an order specifically limiting the extrajudicial statements law
enforcement could make about the notebook. R. 709-710, 715.
Two months after Winter’s article was published, Holmes moved for
unspecified sanctions. Holmes alleged that law enforcement had violated the
District Court’s pre-trial publicity orders by speaking to Winter about the notebook
and that those violations somehow “undermined Mr. Holmes’ rights to due process
and a fair trial by an impartial jury.” R. 372-374. Then, on December 10, the
Colorado court held an evidentiary hearing whose goal was to lay the necessary
foundation for Holmes to compel Winter to reveal her confidential sources’
identities. As Holmes’ counsel explained, “[a]ny inquiry into whether a reporter or
journalist privilege would be entertained in the state of Colorado would involve us
having to prove that we could not obtain this information by any other means.” R.
122-123. Holmes therefore used the hearing to call officers who he thought might
be Winter’s sources, “ask them what their contact with the package was, ask them
if they were the source of the leak or if they knew who the source of the leak was,
accept their sworn answers, and then decide how to proceed after that.” R. 123.
In total, Holmes called fourteen officers and submitted affidavits from six others.
14
R. 62. Each witness who took the stand testified that he or she was not Winter’s
source and did not know who was. Id.
Holmes Seeks Winter’s Testimony. Five weeks after the hearing, Holmes
sought a certificate under Colorado’s version of the Uniform Act to Secure the
Attendance of Witnesses from Without the State in Criminal Proceedings. Colo.
Rev. Stat. § 16-9-203. If granted, the certificate would allow Holmes to apply for a
New York subpoena to compel Winter to testify and to “produce to the Court her
notes from her conversations with the sources mentioned in her article.” R. 55-58.
The Colorado District Court issued the certificate the next day. R. 64-66. The
Colorado court concluded that there was no other way to discover the names of
Winter’s law enforcement sources and that Winter’s testimony was material to the
Colorado proceedings because Winter’s report “implicated [Holmes’]
constitutional rights to a fair trial, to a fair and impartial jury, and to due process.”
R. 65-66.3
Certificate in hand, Holmes commenced a special proceeding in the Supreme
Court by order to show cause on February 22, 2013. R. 69-70; see CPLR § 403(d).
In his application for a subpoena in New York—like in his motion for the
certificate in Colorado—Holmes sought to compel Winter’s testimony and
3 Winter strongly disagrees with these conclusions and is contesting them in theColorado proceedings. But the important point for present purposes is that theColorado court made the findings, not their accuracy. Infra 35-36.
15
production of “her notes from her conversations with the two law enforcement
sources mentioned in her article” regarding the notebook. R. 70.
In opposing Holmes’ application, Winter argued that issuing the requested
subpoena would contravene New York’s strong public policy of protecting
journalists’ confidential sources, R. 837-845, and would impose an undue hardship
on her. R. 835-836. In support, Winter submitted an affidavit from Mark
Feldstein, a veteran investigative reporter and professor of journalism at the
University of Maryland. R. 344-358.
Feldstein is an expert in both the methods for sourcing investigative news
and the harm caused by subpoenas seeking journalists’ confidential sources. R.
347-350. He explained that as an investigative journalist, Winter must rely on
confidential sources to “bring important facts to the public record, while at the
same time offering citizens a more meaningful understanding of how institutions
throughout society affect them.” R. 355. Indeed, “[m]ost investigative reporting
of any significance is impossible without the use of confidential sources.” R. 350.
Feldstein also explained that if Winter was subpoenaed and revealed the identities
of her sources for her story about Holmes’ notebook, it “could mean the end of her
career as an investigative journalist.” R. 357. That was no hyperbole; Feldstein
explained that a journalist who burns a source is “highly unlikely to be trusted by
any other sources in the future, making it nearly impossible [for the journalist] to
16
continue to report the news effectively.” Id. And even beyond the subpoena’s
impact on Winter, Feldstein noted—based on his own experience and academic
studies—a subpoena seeking a reporter’s confidential sources “poison[s] the
atmosphere so as to make insightful, interpretive reporting more difficult” for all
news organizations, not just the one whose reporter has been subpoenaed. R. 356
(internal quotation marks and citation omitted).
The Orders Below. The Supreme Court (Larry Stephen, J.) heard
argument, R. 883-898, and granted Holmes’ application in a brief, oral opinion on
March 7, 2013. R. 890-892. The court concluded that “Winter’s testimony is
material and necessary to resolve the issues regarding the alleged violation of [the
Colorado District Court’s] protective order, which bans law enforcement officials
from leaking any information about the case that might be prejudicial to the
defendant, Mr. Holmes.” R. 890. The court also concluded—without
elaboration—that Winter’s appearance would not be an undue hardship on her
because Holmes had “agreed to pay all expenses” and because the court found
“that her appearance there would not be an undue hardship, including issues about
public policy.” R. 891. And only after prodding by Winter’s counsel did the court
add that it did not “think there is a public policy implication” created by the New
York Shield Law’s strong protections for journalists’ confidential sources. R. 892.
17
Winter appealed to the Appellate Division, R. 31-33, where a sharply
divided panel affirmed the Supreme Court’s decision to issue the subpoena in a 3-2
decision. All five justices agreed that New York has a strong public policy of
protecting reporters’ confidential sources. A. 6 (majority); A. 17-18 (dissent).
They disagreed, however, as to the relevance of that strong public policy to the
subpoena’s validity. The majority, in an opinion by Justice Clark, concluded that
Winter’s contentions regarding the Shield Law were matters of “privilege” that she
was required to raise in Colorado District Court. A. 4-5. The majority also
reasoned that New York’s public policy was not implicated because there was no
“absolute certainty” that Winter would be compelled to divulge her sources—the
Colorado court might always uphold Winter’s claim of privilege under Colorado’s
more limited protections for journalists. A. 6-7. Finally, the majority disagreed
that the harms to Winter’s career from her being compelled to reveal her sources
had any relevance to the “undue hardship” analysis under CPL § 640.10; “undue
hardship,” the majority asserted, “does not involve an analysis of the potential
consequences if [Winter] exercises privilege in” Colorado. A. 5.
Justice Saxe, joined by Justice Acosta, dissented. A. 10-23. Justice Saxe
explained that this Court’s statement in Codey that “a strong public policy of this
State, even one embodied in an evidentiary privilege, might justify the refusal of
relief under CPL 640.10” was tailor-made for this case, where New York’s public
18
policy—embodied in the Shield Law—is demonstrably more protective of
journalists’ rights than Colorado’s more porous conditional privilege. A. 17.
Justice Saxe therefore rejected the majority’s conclusion that the Shield Law’s
protections were merely an issue of privilege that Winter should be required to
raise in Colorado. A. 19.
Justice Saxe also disagreed with the majority’s assertion that the clash
between New York’s and Colorado’s public policy was not implicated in this case
because Winter may ultimately succeed in warding off Holmes’ request for her
testimony under Colorado’s qualified privilege. A. 19-20. As Justice Saxe
explained, the Colorado District Court had already concluded—in issuing the
certificate calling for Winter’s testimony—that it “considers [Winter’s]
identification of her confidential sources to be important, relevant and necessary
for the protection of [Holmes’] constitutional trial rights.” A. 20 (emphasis
omitted). The only way Winter could avoid revealing her sources, then, is if she
prevailed under Colorado’s nebulous balancing test—one that attempts to weigh
her First Amendment interests against Holmes’ constitutionally protected trial
rights as a defendant. Id. Justice Saxe thus concluded that the majority’s demand
for “absolute certainty” failed “to acknowledge the near certainty that the Colorado
court will reject [Winter’s] privilege claim and compel her to provide the identities
19
of her confidential sources, leaving her to face either a contempt order and
incarceration, or the loss of her reputation as a journalist.” Id.
Finally, Justice Saxe disagreed with the majority’s holding that the harms to
Winter’s career could not be an “undue hardship” warranting denial of relief. A.
22-23. “Nothing in CPL 640.10(2),” noted Justice Saxe, “limits the concept of
‘undue hardship’ to the unpleasantness or cost of travel.” A. 23. Justice Saxe
concluded that “the probable result of incarceration or the loss of [Winter’s]
livelihood is far more of a ‘hardship’ ” than the travel-related cost and investment
of time the majority artificially limited itself to and warranted quashing the
subpoena. Id.
This appeal followed. A. 24-25.
ARGUMENT
I. THE SUBPOENA SHOULD BE QUASHED BECAUSECOMPELLING WINTER TO REVEAL HER CONFIDENTIALSOURCES WOULD VIOLATE NEW YORK’S PUBLIC POLICY.
A. Another State’s Request Under CPL § 640.10(2) May Not BeHonored If Doing So Would Violate This State’s Public Policy.
CPL § 640.10 is New York’s enactment of the Uniform Act to Secure the
Attendance of Witnesses from Without the State in Criminal Proceedings. People
v. McCartney, 38 N.Y.2d 618, 619-620 (1976). Enacted by all 50 states, the
District of Columbia, Puerto Rico, and the Virgin Islands, the Act is a “reciprocal
statute” that “provides detailed * * * procedures whereby a party to a criminal
20
proceeding in one State can either obtain the presence of a witness residing in
another State or can compel the production of evidence located in another State.”
Codey, 82 N.Y.2d at 525-526; see also New York v. O’Neill, 359 U.S. 1, 4 (1959)
(detailing the history of the Uniform Act).
The process afforded by CPL § 640.10, however, is a matter of Legislative
grace, not constitutional right. Absent procedures like those in the Uniform Act,
criminal defendants have no ability—and states have no power—to compel non-
party, out-of-state citizens to testify in criminal proceedings. McCartney, 38
N.Y.2d at 621 (“[A] State is not constitutionally required by the Sixth Amendment
guarantee of compulsory process to compel the attendance of witnesses beyond its
jurisdiction over whom it has no subpoena power.”); Colorado v. Arellano-Avila,
20 P.3d 1191, 1193 (Colo. 2001) (“Without an explicit grant of authority * * * a
Colorado court may not procure the testimony of parties outside its jurisdiction.”).
This Court’s construction of CPL § 640.10 in this case, then, is not “a question of
constitutional dimension, but, rather, one of statutory construction.” McCartney,
38 N.Y.2d at 621.
This Court last interpreted CPL § 640.10 in Codey. There, a New Jersey
grand jury sought the American Broadcasting Company’s outtakes from its
interview with a basketball player involved in a point-shaving scheme. 82 N.Y.2d
at 524. Although the player’s identity was confidential when the report aired—
21
ABC showed the player in silhouette and disguised his voice—the player later
voluntarily testified before the grand jury, admitting that he was ABC’s
confidential source. Id. The player could not remember, however, everything he
had said to ABC’s reporter in their 30-minute interview. Id. The New Jersey
grand jury therefore sought ABC’s nonconfidential outtakes—the portions of the
interview ABC did not air—to obtain a full picture of what the player had
previously told others about the scheme. Id.
ABC resisted New Jersey’s CPL § 640.10 application for a subpoena,
arguing that the material was privileged under New Jersey’s qualified privilege for
nonconfidential, unpublished newsgathering material. Id. at 525. This Court held
that the question of whether the outtakes were privileged under New Jersey law
was irrelevant to whether the subpoena should issue. Id. at 530. It emphasized
that “the interests of comity and respect for a sister State’s investigative processes”
counseled against New York courts turning hearings on CPL § 640.10 applications
into mini-trials on issues of privilege that “will inevitably have to be litigated again
anyway during the course of the demanding State’s criminal proceeding[s].” Id. at
529-530. Furthermore, requiring a New York court to adjudicate whether ABC’s
outtakes were privileged under New Jersey’s shield law—as ABC had asked the
Supreme Court to do—would make little sense because “the courts of [New
Jersey] are better qualified” to make that determination, “both because of their
22
superior familiarity with local law and because of their direct access to the parties
or the facts in the underlying controversy.” Id. at 530. Thus, New York courts
should generally limit themselves to whether the evidence is “ ‘material and
necessary’ ” and whether compelling the witness to testify would impose an
“ ‘undue hardship’ ” on the witness, leaving issues of privilege to the demanding
state. Id. at 530-531.
But in reaching its holding, this Court was careful to carve out a caveat. The
Court cautioned that its decision “should not be construed as foreclosing the
possibility that in some future case a strong public policy of this State, even one
embodied in an evidentiary privilege, might justify the refusal of relief under CPL
§ 640.10 even if the ‘material and necessary’ test set forth in the statute is satisfied.”
Id. at 530 n.3.
That caveat was a wise and necessary one. For over 80 years this Court has
recognized a “rule that [this State’s] public policy must always prevail over comity”
of the sort that drove the decision in Codey. Russian Socialist Federated Soviet
Republic v. Cibrario, 235 N.Y. 255, 263 (1923). And it is a rule that this Court has
adhered to time and again: “where there is a conflict between [New York’s] public
policy and application of comity, [this State’s] own sense of justice and equity as
embodied in [its] public policy must prevail.” J. Zeevi & Sons, Ltd. v. Gridlays
Bank (Uganda) Ltd., 37 N.Y.2d 220, 228 (1975); accord Ehrlich-Bober & Co. v.
23
Univ. of Houston, 49 N.Y.2d 574, 580 (1980) (“Today in New York the
determination of whether effect is to be given foreign legislation is made by
comparing it to our own public policy; and our policy prevails in case of conflict.”).
That this State’s public policy must always prevail over comity-based
respect for other states’ processes is inherent in the definition of comity. As this
Court has explained, “the doctrine of comity ‘does not of its own force compel a
particular course of action. Rather, it is an expression of one State’s entirely
voluntary decision to defer to the policy of another.’ ” Debra H. v. Janice R., 14
N.Y.3d 576, 600 (2010) (citation omitted); accord Bourdeaux v. State, Dep’t of
Transp., 11 N.Y.3d 321, 326 (2008). And there are often good reasons for New
York courts to make a voluntary decision to respect another State’s policy
prerogatives. Affording comity “may be perceived as promoting uniformity of
decision, as encouraging harmony among participants in a system of co-operative
federalism, or as merely an expression of hope for reciprocal advantage in some
future case.” Ehrlich-Bober, 49 N.Y.2d at 580. In other words, New York courts
may choose to “do justice that justice may be done in return.” Cibrario, 235 N.Y.
at 258.
In the typical CPL § 640.10 proceeding, the case for comity is usually clear.
As an explicitly reciprocal statute—the Uniform Act’s procedures are only
available if both the sending state and demanding state have adopted it, CPL
24
§ 640.10(2)—the Act counsels in favor of New York courts respecting other states’
requests for New York witnesses so that New York might have ready access to
other states’ citizens when New York is the requesting state. See Codey, 82
N.Y.2d at 530. Moreover, respect for other states’ judicial processes typically
means that New York courts should assume that other states will fairly adjudicate
claims of privilege asserted by New York citizens. See id.
But no matter how strong the case for comity may be in a given situation,
the practical benefits of comity cannot trump the public policy of this State. In
New York, “[t]he power to determine what the policy of the law shall be rests with
the Legislature within constitutional limitations, and when it has expressed its will
and established a * * * policy, courts are required to give [it] effect.” F.A. Straus
& Co. v. Canadian Pac. R. Co., 254 N.Y. 407, 413-414 (1930) (emphasis added);
accord Farrginton v. Pinckney, 1 N.Y.2d 74, 82 (1956). And in applying these
principles, this Court has refused to accord comity to all manner of acts from other
jurisdictions, including other states’ damages caps,4 other states’ governmental
immunities,5 and even foreign courts’ adoption decrees.6 In each case, the guiding
4 Kilberg v. Ne. Airlines, 9 N.Y.2d 34, 40 (1961) (declining to applyMassachusetts’ damages cap in New York tort suit because the cap was“completely contrary to our public policy”).5 Ehrlich-Bober, 49 N.Y.2d at 581 (declining to apply Texas’ limitation on venueswhere a Texas state agency may be sued because doing so would be contrary to
25
principle was the same: “In cases of conflict between foreign [public policy] and
New York public policy, New York public policy must prevail.” Sachs v. Adeli,
26 A.D.3d 52, 55 (1st Dep’t 2005).
In Codey, there was no conflict between New York and New Jersey’s public
policies because both states recognized a qualified privilege for a journalist’s
nonconfidential outtakes. Compare N.Y. Civ. Rights Law § 79-h, with N.J. Stat.
Ann. § 2A:84A-21; see also Matter of Codey v. Capital Cities, Am. Broad. Corp.,
183 A.D.2d 126, 133 (1st Dep’t 1992) (noting that New York and New Jersey’s
shield laws are substantially the same, “eliminating any issues of policy conflicts
between the two jurisdictions”). Although the two states’ privileges may have
differed in the details, see Codey, 82 N.Y.2d at 530, the public policies underlying
them were sufficiently similar such that there was no conflict requiring this Court
to refuse comity to the New Jersey certificate. See id. at 530 n.3.
New York’s “very strong public policy of assuring ready access to a forum ofredress of injuries arising out of transactions spawned here”); see also DeRose v.N.J. Transit Rail Operations, 165 A.D.2d 42, 44-45 (3d Dep’t 1991) (declining toapply New Jersey’s Tort Claims Act in New York tort suit because “New Jerseydoes not offer New York residents similar protection” as New York’s Court ofClaims Act).6 Barry E. (Anonymous) v. Ingraham, 43 N.Y.2d 87, 94-95 (1997) (refusing torecognize Mexican adoption decree because the Mexican court only engaged in a“perfunctory examination into the interests of the child,” contrary to “one of [NewYork’s] strongest public policies”—“the welfare of its children”).
26
This reading of Codey is not our invention. The practice commentaries
recognize that in Codey “the Court was not directly confronted with a situation
where evidence that would be privileged by statute under New York law would be
completely unprotected in the demanding state” because “it so happened that the
demanding state had a law similar to our[s] in that regard.” McKinney’s Consol.
Laws of N.Y. Ann., 80 CPL 620 to 709-Commentaries by Presier (book 11A, 2009).
One lower-court case, too, has held that Codey’s footnote 3 is meant to apply in
cases such as this, where “a demanding State does not recognize or have similar
safeguards to protect the integrity of a fundamental evidentiary privilege.” In re
Connecticut, 179 Misc. 2d 628, 628 (Nassau Cnty. Ct. 1999). And our reading of
Codey is in accord with this Court’s cases about the interplay between public
policy and comity. Where another state’s public policy is in accord with New
York’s in principle, but expressed in a different way, this Court will defer to the
other state’s implementation of the public policy, as it did in Codey. See Crair v.
Brookdale Hosp. Med. Ctr., 94 N.Y.2d 524, 530-531 (2000) (according comity to
the Virginia and Maryland tort claims acts because, although “New York has a
somewhat different procedure for suits against the State in our Court of Claims,
* * * a requirement of filing a notice of claim with a governmental entity as a
condition precedent to suit is not against New York’s public policy”); Watts v.
Swiss Bank Corp., 27 N.Y.2d 270, 279 (1970) (“Recognition [of a foreign
27
judgment] will not be withheld merely because the choice of law process in the
rendering jurisdiction applies a law at variance with that which would be applied
under New York choice of law principles.”).
In short, Codey does not hold that CPL § 640.10 proceedings are
categorically exempt from this Court’s universal rule that New York’s public
policy always trumps comity. Instead, as Codey’s footnote 3 recognizes, the
question simply did not arise on Codey’s facts. As a consequence, if the Colorado
District Court’s request for Winter to appear in Colorado with her notes, identify
her confidential sources, and give testimony regarding her conversations with them,
R. 64-66, is contrary to New York public policy, it cannot be honored. And that is
true no matter how strong the tug of comity is in other CPL § 640.10 cases.
B. The Colorado District Court’s Request For Winter To DivulgeHer Confidential Sources Is Contrary To New York’s StrongPublic Policy Of Absolute Protection For Reporters’ ConfidentialSources.
In the Appellate Division, all five justices agreed that New York’s Shield
Law “represents a strong public policy and the long history of vigilantly
safeguarding freedom of the press.” A. 6 (majority); A. 17-18 (dissent). That
conclusion was a sound one. This Court recognized in Beach that “[i]n enacting
the * * * ‘Shield Law,’ the Legislature expressed a policy according reporters
strong protection against compulsory disclosure of their sources or information
obtained in the news-gathering process.” 62 N.Y.2d at 245. And in expressing
28
that policy, “the Legislature * * * presumably debated the efficacy of granting
broad protections to the press, weighed the competing policy considerations, and
reached a formulation that in its view serves the best interest of the public,”
making the strong protections of the Shield Law a public policy of the State.
Knight-Ridder Broad., Inc. v. Greenberg, 70 N.Y.2d 151, 155 (1987).
Legislative history confirms that the Legislature understood the Shield Law
to reflect a public policy of the highest order. When Governor Rockefeller signed
the Shield Law, he made clear that the law protected public, as well as journalistic,
interests: “A representative democracy, such as ours, cannot exist unless there is a
free press both willing and able to keep the public informed of all the news.”
Approval Memorandum of Governor Nelson A. Rockefeller, 1970 N.Y. Legis.
Ann., at 508.
Indeed, the Legislature has remained actively involved in reasserting New
York’s public policy of absolute protection for journalists’ sources. Two decades
after the Shield Law’s passage, the Legislature amended subdivision (b) to clarify
that there is an “[a]sbolute protection for confidential news.” N.Y. Civ. Rights
Law § 79-h(b) (emphasis added). In his signing memorandum, Governor Cuomo
explained the amendment’s purpose was to respond to “decisions of the Court of
Appeals [that raised questions about] the scope of the Shield Law.” Approval
Memorandum of Governor Cuomo, 1990 N.Y. Legis. Ann., at 2693. And the
29
Legislature’s response was loud and clear. It would “resolve[] those questions in
favor of a free and unfettered press.” Id.; see also Beach, 64 N.Y.2d at 250 (noting
that the current version of the Shield Law “embodies the Legislature’s intent to
grant a broad protection”).
In contrast with New York’s strong public policy of absolutely protecting
journalists’ confidential sources, Colorado has taken a more equivocal approach.
For most of its history, Colorado recognized no protection for journalists, holding
that any time a confidential source’s identity is “relevant to the subject matter” in a
case, a reporter may be compelled to divulge it. Gagnon v. District Court, 632
P.2d 567, 569 (Colo. 1981). And when the Colorado Legislature acted in 1990, it
enacted only a qualified privilege for confidential sources, one that may be
abrogated any time the party seeking disclosure shows by a “preponderance of the
evidence” that (1) “the news information is directly relevant to a substantial issue
involved in the proceeding,” (2) “the news information cannot be obtained by other
reasonable means” and (3) “a strong interest of the party seeking to subpoena the
newsperson outweighs the interests under the first amendment to the United States
constitution of such newsperson in not responding to a subpoena and of the general
public in receiving news information.” Colo. Rev. Stat. § 13-90-119(3).
Thus, unlike the categorical protection in New York’s Shield Law, the
Colorado Shield Law is plagued by the hopeless indeterminacy that often
30
accompanies a qualified privilege. Under Colorado’s qualified privilege,
confidential sources and journalists alike cannot predict with meaningful certainty
whether a court, prodded by an aggressive litigant, will someday pry into their
exchanges. But an absolute privilege is just that—it provides both journalist and
source with absolute assurance that no court, under any circumstance, will invade
the sanctity of the confidential relationship. This fundamental difference yields
fundamentally different results in the real world. Where a State promises
journalists and sources absolute protection, the public is likely to hear more about
matters of profound public importance. R. 355-357. In other words, New York’s
legislature—but not Colorado’s—has specifically eliminated any chance of
hesitancy by sources, reporters, editors, or any other media participant by making
New York’s protections for journalists’ confidential sources absolute. Id.
Below, Winter argued that this stark difference between the two states’
shield laws was a fundamental difference in public policy—one where New York’s
public policy had to prevail. Winter App. Div. Opening Br. 31-37. But the
Appellate Division majority—like the Supreme Court before it—dismissed
Winter’s argument as merely an attempt to litigate in New York the question of
whether her sources were privileged. A. 4-6; R. 891.
That characterization was incorrect. In dismissing Winter’s contentions
about New York’s public policy as merely claims of privilege, the majority
31
conflated two related—but distinct—concepts: the specific legal rules in this
State’s statutes and the public policies of this State embodied in those legal rules
and statutes. It is inevitable, of course, that specific legal rules and the public
policy expressed by those rules are closely intertwined. This Court has held as far
back as the 19th century that when determining New York’s public policy, the
Court “must look to the law as expressed in statute.” Ehrlich-Bober, 49 N.Y.2d at
580 (emphasis added); see also N.Y. City Transit Auth. v. Transp. Workers Union
of Am., 99 N.Y.2d 1, 7 (2002) (observing that “ ‘public policy considerations [are]
embodied in statute or decisional law’ ”) (citation omitted); People v. Hawkins,
157 N.Y. 1, 12 (1898) (“[W]hen we speak of the public policy of the state, we
mean the law of the state, whether found in the Constitution, the statutes or judicial
records * * *.”). But the two are not the same thing. A request for relief can
violate New York’s public policy as expressed in its statutes even when it does not
violate any specific provision of those statutes.
Take, for instance, Matter of Walker, 64 N.Y.2d 354 (1985). There, a
decedent bequeathed all his “personal property” to his adopted children. Id. at 357.
Based on that provision, the decedent’s children argued they were entitled to their
adoption decrees, which were in the decedent’s possession at the time of his death
and which would reveal the identity of their birth mother. Id. at 356. This Court
concluded that the gift of all “personal property” encompassed the adoption
32
decrees the children demanded. Id. at 358. But the Court nonetheless refused to
honor the testamentary gift, citing New York’s strong public policy against
allowing access to adoption records except for extraordinary cause—a policy
embodied, in part, in Domestic Relations Law § 114. Id. at 360.
The Court freely admitted that Section 114 did not apply by its terms. After
all, Section 114 applies only to adoption records made and maintained by New
York courts, and the decrees at issue in Walker were issued by Illinois courts. Id.
Moreover, those decrees had issued long before Section 114 was even enacted. Id.
But the Court nonetheless emphasized that “[t]he policy underlying [Section 114]
is pertinent” because the adopted children had “called upon the New York courts to
define the rights of parties to this proceeding.” Id. at 361 (emphasis added). The
Court therefore “properly consider[ed] the social judgments embodied in our
statutes.” Id. And it held that because the decedent’s children’s request for their
adoption decrees contravened New York’s public policy of protecting the privacy
of those records, “the machinery of the courts [was] not available” to order the
transfer. Id. at 361.
Critical to the question now before this Court here, the Walker Court
rejected the dissent’s view that a testamentary gift was contrary to public policy
“only if it directly violates a statutory prohibition.” Id. at 359. Instead, public
policy would prevent the courts from ordering the transfer of a testamentary gift if
33
the gift is “contrary to the social judgment on the subject implemented by statute.”
Id.
Just so here. New York’s Shield Law does not operate extraterritorially to
tell a Colorado court what privileges it must and must not recognize. See
Restatement (Second) of Conflict of Laws § 139 (1971) (issues of privilege are
generally resolved according to the laws of the forum state). But the New York
Shield Law nonetheless embodies this State’s strong public policy of protecting
journalists from being forced to divulge their confidential sources—a policy in
sharp conflict with Colorado’s porous and equivocal privilege. Supra 29-30. And
because the Colorado District Court and Holmes ask the courts of this state to issue
a subpoena that will reveal Winter’s confidential sources—a subpoena that is
“contrary to the social judgment on the subject implemented by” the Shield Law—
“the machinery of [New York’s] courts is not available to them for that purpose.”
Walker, 64 N.Y.2d at 359, 361.
When the Appellate Division majority eventually addressed the clash
between New York and Colorado’s public policies, it dismissed the conflict on the
ground that “the facts presented on this record do not establish with absolute
certainty that the Colorado District Court will require the disclosure of [Winter’s]
confidential sources.” A. 6-7. Presumably, the majority believed that because
Winter may prevail on her motion to quash in the Colorado District Court under
34
Colorado’s more limited shield law, there was no need for New York’s courts to
step in. But the majority’s soothing assurance ignores that the Shield Law is meant
to protect reporters from even the possibility of their confidential sources being
revealed, misstates the record, and forgets New York’s dismal history with similar
assurances in the past.
Contrary to the majority’s belief, it violates New York’s public policy to
issue a subpoena that even threatens to require Winter to burn her confidential
sources. That, after all, is the point of an absolute privilege. It assures journalists
and their sources that no matter the facts in a particular case, a journalist will not
be required to divulge the identities of sources she has committed to keep secret
based on an individual trial judge’s subjective weighing of the equities. As this
Court has explained, “ ‘[t]he threat to a newsman of being charged with contempt
and of being imprisoned for failing to disclose his information or its sources can
significantly reduce his ability to gather vital information.’ ” Beach, 62 N.Y.2d at
249-250 (quoting N.Y. Legis. Ann. 1970, p. 508) (emphasis added); see also R.
356-357 (summarizing the chilling effects of subpoenas for confidential sources).
Regardless of whether Winter will prevail on her motion to quash in Colorado,
then, it is contrary to New York’s public policy for the Supreme Court to issue a
subpoena that threatens Winter with a contempt citation for failing to reveal her
35
confidential sources. And because it is contrary to New York’s public policy for
the Supreme Court to do so, it should not have. See supra 19-27.
In any event, even if the likelihood of Winter succeeding on her motion
mattered, the Appellate Division majority erred in focusing on whether it was
“absolute[ly] certain” that Winter will be forced to testify. A. 6-7. The majority
cited no case for its absolute-certainty standard. What’s more, the majority
ignored the “near certainty that the Colorado Court will reject [Winter’s] privilege
claim” and force her to reveal her confidential sources. A. 20 (Saxe, J., dissenting).
Recall that for the Colorado District Court to pierce Winter’s qualified
privilege under the Colorado Shield Law, it must conclude (1) Winter’s sources are
“directly relevant to a substantial issue involved in the proceeding,” (2) Winter’s
sources “cannot be obtained by other reasonable means,” and (3) Holmes’ interest
in seeking Winter’s testimony “outweighs the interests under the first amendment
to the United States constitution of [Winter] in not responding to a subpoena and of
the general public in receiving news information.” Colo. Rev. Stat. § 13-90-119(3).
The Colorado court already made the first two findings in its certificate calling for
Winter’s testimony. First, the certificate recites that it “is a serious issue” that
Winter’s sources possibility violated the District Court’s pre-trial publicity order
and “implicate[s] [Holmes’] constitutional rights to a fair trial, to a fair and
impartial jury, and to due process.” R. 83. Second, the certificate states that there
36
“is no other witness * * * nor any other documentation that could provide the
names of the law enforcement agents who may have provided information to Jana
Winter.” Id. This congruity between the certificate’s findings and the prongs of
the Colorado Shield Law’s test to pierce a reporter’s privilege is no accident.
Holmes’ counsel stated at the December 10 evidentiary hearing that its purpose
was to lay the groundwork for overcoming the Colorado reporters’ privilege that
Winter would likely—and did—assert. R. 122-123. Although Winter is contesting
these conclusions in the Colorado proceedings, they remain the operative
conclusions in the record on appeal before this Court. See CPL § 640.10(2) (the
facts stated in the requesting court’s certificate “shall be prima facie evidence of all
facts stated therein”).
The only thing standing between Winter and an order compelling her to
testify as to her sources, then, is a finding by the Colorado District Court that
Holmes’ interests outweigh Winter’s and the public’s. A. 20. And—at least on the
record before the Supreme Court—that finding is likely. As the dissent below
observed, having concluded that Winter’s “identification of her confidential
sources to be important, relevant and necessary for the protection of [Holmes’]
constitutional trial rights,” it is unlikely that the Colorado District Court will
“conclude that what it views as [Holmes’] strong interest in protecting his
37
constitutional rights is outweighed by” Winter’s First Amendment right and the
public’s interests in receiving news information. Id.
The majority’s supposedly comforting statement that Winter may prevail on
her claim of privilege in Colorado rings particularly hollow in light of New York’s
past history with similar pronouncements. In Superior Court v. Farber, 94 Misc.
2d 886, 888 (Sup. Ct. N.Y. Cnty. 1978), the Supreme Court rejected a New York
Times reporter’s claim that a New Jersey prosecutor’s CPL § 640.10 application
should be denied because New York’s absolute privilege for the identities of
reporters’ confidential sources was significantly broader than New Jersey’s
qualified one. The Supreme Court reasoned that it need not intervene because “no
substantive right, constitutional or statutory, would be forfeited were [the reporter]
to submit to New Jersey’s jurisdiction”; New Jersey would surely “protect the
statutory entitlements of New York citizens.” Id.
As it turned out, the Supreme Court’s trust was misplaced. When the
reporter appeared in New Jersey and was held in contempt for refusing to testify,
the New Jersey Supreme Court applied New Jersey law and held that the limited
protection provided by New Jersey’s shield law was subordinate to the New Jersey
Constitution’s provision calling for compulsory production of testimony and
documents in criminal trials. Matter of Farber, 394 A.2d 330, 337 (N.J. 1978).
And the New Jersey Supreme Court did not so much as mention the New York
38
Supreme Court’s assurance that the New Jersey courts would implement the public
policy underlying the New York Shield Law. Ultimately, the New York Supreme
Court’s miscalculation cost the reporter 40 days in county jail and his employer,
The New York Times, $285,000 in fines. See David Corcoran, Theodore Trautwein,
Judge in Landmark Press Case, Dies at 80, N.Y. Times, Sept. 2, 2000.
The same threat looms here. If Winter is compelled to testify in Colorado, it
is nearly certain the Colorado District Court will apply Colorado’s less protective
shield law to Winter’s testimony and find that Holmes’ constitutionally protected
trial rights trump Winter’s First Amendment interest in not testifying. See Farber,
394 A.2d at 337. And if that occurs, it will be “too late for this Court to address
whether [Winter] is protected by [New York’s] Shield Law.” A. 20 (Saxe, J.,
dissenting). Under Colorado law, if the District Court denies her motion to quash
and for a protective order, it will order her to answer Holmes’ questions about the
identities of her law enforcement sources. If Winter refuses, she can be held in
direct contempt, see Colo. R. Civ. P. 107(a)(2), and summarily punished without
further proceedings. See Colo. R. Civ. P. 107(b); Colorado v. Jones, 262 P.3d 982,
988 (Colo. App. 2011). As for what the punishment will be, the Colorado District
Court just recently observed that Winter faces indefinite jail time; so long as she
refuses to divulge her confidential sources, she risks remaining incarcerated in
Colorado. Order Regarding Motion of Non-Party Witness Jana Winter to Vacate
39
the September 30, 2013 Hearing Date (C-53), at 4 n.1, Colorado v. Holmes, No.
12CR1522 (Colo. Dist. Ct. Sept. 3, 2013)7; see also Colo. R. Crim. P. 107(d)(2).
In short, Winter is at the point of no return in Colorado. If the orders below
are affirmed and Winter’s motion in Colorado is denied, Winter will either have to
divulge her sources and destroy her reputation as an investigative reporter or
disobey the Colorado court’s order and go to jail. New York’s public policy will
go unvindicated and there will be nothing that this Court will be able to do about it.
The Court should act now and quash the subpoena.
C. It Is Irrelevant That Winter’s Article Was Reported FromColorado.
Holmes argued below that New York’s rule of applying its own public
policy when it conflicts with that of other states should not govern here because it
would “allow journalists to ensconce themselves in New York to intentionally
elude legal process even in the states from which they directly obtain information,
the states in which they directly report information, and the states from which they
profit, both personally, professionally, and financially.” Holmes App. Div. Br. 20.
Holmes’ parade of horribles, however, ignores the ubiquity of refusing to accord
comity to requests by other states that violate the forum state’s public policy, the
7 Available at http://www.courts.state.co.us/userfiles/file/Court_Probation/18th_Judicial_District/18th_Courts/12CR1522/004/C-53%2009%2003%2013.pdf.
40
realities of national news reporting in a 24-hour news cycle, and New York’s
special relationship with the media.
Past practice confirms that Holmes’ breathless concerns are more imagined
than real. Since the Founding, states have universally refused to accord comity to
out-of-state requests that violate their strong public policies without creating the
lawless havens Holmes fears. Indeed, Colorado, like New York, will not accord
comity to another state’s policies in a Colorado action where they are “contrary to
the settled public policy of Colorado.” Commercial Credit Co. v. Higbee, 20 P.2d
543, 544 (Colo. 1933); accord Milhoux v. Linder, 902 P.2d 856, 861 (Colo. Ct.
App. 1995). In fact, Colorado has refused to accord comity to a New York venue
provision in a contract between a New York company and its Colorado employee,
concluding that the venue clause “contravene[d] the strong public policy embodied
in the Colorado Wage Claim Act.” Morris v. Towers Fin. Corp., 916 P.2d 678,
679 (Colo. Ct. App. 1996). But Colorado’s rejection of the contract clause in
Morris has caused no great upheaval in New York-Colorado relations, nor did it
make Colorado a haven for lawless employees seeking to shirk their contractual
obligations with New York companies.
There is a reason for that. Each state understands that in our federal system
of co-equal sovereigns, comity for one another’s laws is the default presumption,
but “ ‘when (as without doubt must occasionally happen) the interest or policy of
41
any state requires it to restrict the rule, it has but to declare its will, and the legal
presumption is at once at an end.’ ” Nevada v. Hall, 440 U.S. 410, 426 (1979)
(citation omitted). Such an allowance respects the sovereign policy prerogatives of
both New York and Colorado. The people of Colorado have “consented to a
system in which their State is” willing to sacrifice the rights of reporters and the
public to the orderly operation of the judicial process. See id. “But the people of
[New York], who have had no voice in [Colorado’s] decision, have adopted a
different system.” Id. Each is valid. But this Court has no power to subject
Winter—its citizen—to the public policy of Colorado, in which Winter had no say,
any more than the Colorado court had the ability to subject the employee in Morris
to the public policy of New York, in which the employee had no say.
Far from causing chaos, a decision upholding New York’s strong public
policy of protecting reporters’ confidential sources will further the fundamental
truth that “[i]n this Nation each sovereign governs only with the consent of the
governed.” Id. at 426. This Court—like the courts of Colorado—must hew to the
public policy expressed by the governed’s elected representatives first, and accord
comity to the laws of other states second. See F.A. Straus & Co., 254 N.Y. at 413-
414. Although that rule may cause some interstate friction in a handful of cases,
our democratic system tolerates no other result.
42
Moreover, the mere fact that Winter reported her article from Colorado
cannot be enough to strip her of New York’s public policy protections. In every
case presenting a conflict between comity and public policy, there is necessarily
some interest asserted by another jurisdiction—otherwise there would be no
conflict to resolve. But New York’s public policy would be a “craven watchdog
indeed if it retreated to its kennel whenever some [other state’s interest] is involved
in the case.” Morrison v. Nat’l Australia Bank Ltd., 130 S. Ct. 2869, 2884 (2010).
That is particularly true when it comes to protecting reporters’ sources. Being part
of the contemporary national news media necessarily entails reporting on events
that take place outside the State and relying on non-New York sources. As a result,
unless they aspire to only the Metro section, New York journalists like Winter
must engage in on-the-ground reporting in states like Colorado. If a New York
reporter can be stripped of her protections under New York’s public policy simply
because the reporter crossed state lines, New York’s robust public policy in favor
of confidential sourcing will become a dead letter for all but the most parochial
stories.
Thankfully, this Court rejected that result over 50 years ago. In Kilberg v.
Northeast Airlines, this Court refused to apply Massachusetts’ draconian damage
caps to a suit by a New York resident’s estate alleging negligence in a
Massachusetts air disaster. 9 N.Y.2d at 39. The Court explained that “[m]odern
43
conditions make it unjust and anomalous to subject the traveling citizen of this
State to the varying laws of other States through and over which they move.” Id.
After all, a New Yorker traveling by air may find himself in a state “he never
intended to cross into” as a result of “entirely fortuitous” events. Id. As a
consequence, New York’s courts “should if possible provide protection for our
own State’s people against unfair and anachronistic treatment” by the laws of other
states. Id.
New York-based reporters’ movements, like those of the air traveler in
Kilberg, are necessarily dictated by forces outside their control. It is happenstance
that Winter ended up in Colorado—with its qualified privilege—to report on
Holmes’ killing spree. Had Holmes massacred 12 and wounded over 70 in a
movie theater in Maryland—which coincidentally has a Shield Law that provides
an absolute protection for reporters’ confidential sources8—Winter would have
reported from Maryland. To hold that New York’s public policy of protecting
reporters from having to reveal their confidential sources gives way every time a
story happens to break in a state with less protection for the media is to abdicate
this Court’s obligation to ensure that New Yorkers enjoy the benefits of New
York’s public policies when they travel and work outside the state. See Kilberg, 9
N.Y.2d at 39.
8 See Md. Code Cts. & Jud. Proc. § 9-112(d)(2).
44
The need to protect New York’s public policy in favor of confidential
sourcing is particularly acute here, given New York’s special relationship with the
media. As we have explained, New York is the media capital of the world and a
hub for national reporting on issues of profound public importance. Supra 6-9. If
New York is to maintain that status, New York courts must vigilantly protect New
York’s public policy of protecting its reporters’ confidential sources. Otherwise,
New York may find its media companies decamp to more protective states or—
worse—cut back their reporting on topics of national interest.
New York courts have recognized before that the need to maintain New
York as a hospitable forum for national industries justifies robust enforcement of
New York’s public policy, even when doing so denies comity to other states. In
Ehrlich-Bober, this Court refused—on public policy grounds—to extend comity to
a Texas statute limiting the venues where a Texas university could be sued on
contracts. “New York’s recognized interest in maintaining and fostering its
undisputed status as the preeminent commercial and financial nerve center of the
Nation and the world” justified “a very strong policy of assuring ready access to a
forum for redress of injuries arising out of transactions spawned here.” 49 N.Y.2d
at 581. The Court emphasized that New York’s status as “a convenient forum
which dispassionately administers a known, stable, and commercially sophisticated
body of law may be considered as much an attraction to conducting business in
45
New York as its unique financial and communications resources.” Id. And if New
York were to sacrifice its status as the preeminent forum for the resolution of
commercial disputes in the name of comity, that “would impose an intolerable
burden on the major financial institutions which make their homes in New York
and which provide services to State and local governments nationwide as well as to
many foreign countries.” Id. at 582.
In other words, Ehrlich-Bober recognized that refusing to enforce New
York’s public policy in the name of comity would do a disservice not only to New
York’s financial industries, but also the clients they served throughout the nation
and throughout the world. And Ehrlich-Bober was no one-off statement. The
Appellate Division has routinely invoked its teachings to refuse to accord comity
to other states’ more-restrictive commercial practices.9
9 See Curtis, Mallet-Prevost, Colt & Mosle, LLP v. Garza-Morales, 308 A.D.2d261, 270 (1st Dep’t 2003) (refusing to “throw into doubt the extent to which anarbitration agreement will be enforced whenever the transaction or the parties havesome connection to a foreign country” and “reaffirm[ing] New York’s long-settledlaw and public policy favoring arbitration, thereby helping to maintain New York’scentral role in the economy of the nation and the world”); Banco Nacional deMexico, S.A. v. Societe Generale, 34 A.D.3d 124, 130 (1st Dep’t 2006) (holdingthat “[a]s a primary financial center and a clearinghouse of internationaltransactions, the State of New York has a strong interest in maintaining itspreeminent financial position in protecting the justifiable expectation of the partieswho choose New York law as the governing law of a letter of credit” and refusingto accord comity to a Mexican injunction).
46
The same concerns are present here. New York’s media companies do not
congregate in New York merely because of New York’s unique location and
communications capabilities. Instead, those companies recognize that New York
has a settled, uniquely protective public policy that respects and protects journalists’
confidential sources. If that public policy can be discarded anytime a New York-
based journalist reports on a story outside of New York’s borders, New York will
find its role as the media capital of the world threatened. In this age of fast and
reliable Internet communications, a news room can operate as effectively out of
Washington, D.C. as it does New York City. This Court should therefore reaffirm
that New York’s strong public policy of protecting journalists’ confidential sources
will not yield “whenever * * * the parties have some connection to” another
jurisdiction, and quash the subpoena. Curtis, 308 A.D.2d at 270.
II. THE APPELLATE DIVISION ERRED AS A MATTER OF LAW BYHOLDING THAT THE HARDSHIP WINTER WILL FACE IFREQUIRED TO BURN HER SOURCES IS IRRELEVANT TO CPL§ 640.10(2)’s “UNDUE HARDSHIP” ANALYSIS.
Separate and apart from the fact that it violates New York’s public policy,
the subpoena should be quashed because it imposes an undue hardship on Winter.
Under CPL § 640.10(2), even if a witness’s testimony is “material” and “necessary”
to an out-of-state criminal proceeding, a subpoena may still be denied if it would
cause “undue hardship to the witness to be compelled to attend and testify in the
prosecution or a grand jury investigation in the other state.” And although the
47
“undue hardship” analysis ultimately depends on the facts of each case, see Codey,
82 N.Y.2d at 530-531, the Appellate Division has held that it may include “any
familial, monetary, or job-related hardships.” Tran v. Kwok Bun Lee, 29 A.D.3d
88, 93 (1st Dep’t 2006). The majority below recognized as much. A. 5-6. But it
then asserted—without explanation—that “undue hardship does not involve an
analysis of the potential consequences if [Winter] exercises privilege in” Colorado.
A. 5. That was an error of law that warrants reversal.
The majority cited no case for its categorical refusal to consider the harm to
Winter’s career if she were forced to reveal her confidential sources. But there is
one to the contrary. In Michigan v. Marcy, 283 N.W.2d 754, 755-756 (Mich. Ct.
App. 1979), the Delaware Attorney General sought testimony under the Uniform
Act from a Michigan-licensed polygraph examiner regarding a confession he
allegedly obtained from a client. The Michigan Court of Appeals observed that the
polygraph examiner’s testimony was privileged under Michigan’s unique
polygrapher-privilege statute, which “represent[ed] a declaration by the Legislature
of the policy of the State of Michigan, a policy which the courts of this state have a
duty to enforce.” Id. at 757. Moreover, the Michigan court recognized that
granting the requested subpoena would put the polygrapher in the “unenviable
position” of “los[ing] his polygrapher’s license” if he testified or being “subject to
a contempt charge if he refused.” Id. at 757 n.3. Requiring the polygrapher to
48
decide “whether to lose his liberty or to risk losing his livelihood” therefore
“would most certainly work a hardship upon him, a factor which militate[d] against
granting the petition.” Id.
Winter faces the exact same dilemma as the polygrapher in Marcy. Her
Supreme Court affidavit stated—without contradiction—that she relies on
confidential sources for her livelihood and that revealing her sources would destroy
her career as an investigative journalist. R. 336, 339. And Winter’s fears about the
effect revealing her sources would have on her career was supported by the
similarly uncontradicted affidavit of Mark Feldstein, a professor of investigative
journalism with over 20 years in the field. R. 347-348, 357. Requiring Winter to
decide whether to face a contempt sanction and lose her liberty or reveal her
sources and lose her livelihood is undoubtedly a hardship on her. And regardless
of whether Winter will ultimately be forced to testify, just being targeted by an
active subpoena for confidential sources imposes a significant hardship on her. As
Feldstein explained, the mere existence of subpoenas like those allowed by the
orders below deters would-be sources from coming forward and sharing news of
great significance and sensitivity. R. 357. The Appellate Division erred by
categorically refusing to consider these hardships in its analysis.
The best that can be said for the opinion below is that it assumes that Winter
is being compelled only to testify, not burn her sources. A. 5-6. But that is wrong
49
twice over. First, in focusing only on the requirement that Winter testify, the
Appellate Division majority forgot that the subpoena also calls for Winter to
produce her notes from her conversations with her confidential sources. R. 878.
Thus, even if the majority could assume—against all the evidence—that Winter
might not have to testify about her confidential sources, it would still need to take
into account the hardship caused by Winter producing the notes of her
conversations with her confidential sources.
And even restricted to Winter’s anticipated testimony, the only testimony
from Winter that might conceivably be “material” or “necessary” to any topic in
the Colorado proceedings is the identity of her confidential sources. A. 15, 20-21;
see also R. 65 (identifying the “source of the information in Jana Winter’s article”
as the reason Winter “has become a material and necessary witness in this case”).
Holmes cannot use Winter’s ability to identify her confidential sources to satisfy
the “material” and “necessary” prongs of CPL § 640.10(2) and then dismiss the
consequences of Winter doing just that when it comes to the “undue hardship”
prong of the same statute.
Indeed, this Court rejected similar arguments in Beach. There, like here, the
party seeking the reporter’s testimony claimed that the reporter’s motion to quash a
grand jury subpoena pursuant to the Shield Law was premature because the
reporter had yet to testify and had yet to produce his notes from his conversations
50
with those sources. 62 N.Y.2d at 247. This Court disagreed. First, it held that the
motion to quash was “not premature insofar as the subpoena demanded that [the
reporter] produce his notes, records, and other physical materials that may be
privileged under the Shield Law.” Id. at 248. Second, the Court held that although
a motion to quash a grand jury subpoena is usually premature before the witness
has been asked a question that calls for privileged information, the motion was not
premature in the reporter’s case, because—like here—the “entire focus of the
Grand Jury’s inquiry would be on the identity of [the reporter’s] confidential
source and other information that [the reporter] obtained in the course of his
journalistic activities.” Id. There was no need for the reporter to “go through the
formality of appearing before the Grand Jury” before the Court ruled on the
privilege’s applicability. Id. at 248-249.
The same is true here. Compelling Winter to appear before the Colorado
District Court and turn over notes of her conversations with her sources imposes a
hardship on her, regardless of whether Winter is forced to testify about the same
topics. See id. at 248. Moreover, because the only reason Winter has been asked
to testify in Colorado is to reveal her sources, there would be no point to forcing
her to appear merely to give her “name, address, and occupation before refusing to
answer any questions.” Id. at 248-249. Indeed, the harm to Winter here would be
even greater than the harm to the reporter in Beach. In Beach, the requesting
51
party’s arguments went only to the timing of when the court would resolve the
reporter’s objections. The District Attorney claimed the Shield Law analysis
should take place after the reporter was asked a question calling for privileged
information, whereas the reporter claimed that would be a pointless process given
that the only thing of substance the prosecutor intended to ask was who the
reporter’s source was. This Court resolved that procedural question in favor of the
reporter in Beach. Here, far more is at stake. Unless this Court passes on Winter’s
claims regarding public policy now, it never will. Once Winter is compelled to
travel to Colorado and testify, “it will be too late for this Court to address whether
[Winter] is protected by the Shield Law” and the public policy embodied in it. A.
20 (Saxe, J., dissenting); see also supra 38-39.
But the majority’s refusal to consider the burden on Winter if she is forced
burn her sources conflicts with more than just precedent; it upsets common sense
as well. The Appellate Division majority seems to have accepted that if Fox News
had threatened to fire Winter for being away from work to testify in Colorado, that
would qualify as an undue hardship. A. 5. But the majority categorically refused
to consider that forcing Winter to testify about her confidential sources would
destroy her reputation and thus her career as an investigative journalist—a more
severe hardship than just being fired for absenteeism. If, as the majority appeared
to agree, “undue hardship” includes “any * * * job-related hardships,” A. 5, surely
52
the end of Winter’s career as a journalist qualifies. As the dissent below accurately
observed, “[n]othing in CPL § 640.10(2) limits the concept of ‘undue hardship’ to
the unpleasantness or costs of travel.” A. 23. In artificially narrowing the relevant
burdens, the Appellate Division majority erred as a matter of law.
CONCLUSION
For the foregoing reasons, the Appellate Division's order should be reversed
and the subpoena quashed. In the alternative, the Appellate Division's order
should be reversed and the case remitted for proper consideration of whether the
subpoena imposes an "undue hardship" on Winter.
By:
Dated: September 9,2013
53
Respectfully submitted,
HOGAN LOVELLS US LLP
CHRISTOPHER T. HANDMAN*
SEAN MAROTTA
555 Thirteenth Street, N.W. Washington, D.C. 20004 (202) 637-5791 [email protected]
DORI ANN HANS WIRTH
THERESA M. HOUSE
NATHANIEL S. BOYER
BENJAMIN A. FLEMING
875 Third Avenue New York, New York 10022 (212) 918-3000 [email protected]
Counsel for Respondent-Appellant Jana Winter
* Admitted pro hac vice