New York rejects challenge to subpoena

NEW YORK — In late November the Court of Appeals in Albany, New York’s highest court, held 6-1 that journalists in New York generally cannot challenge subpoenas from other states in New York’s courts.

The case began when a New Jersey deputy attorney general, who was investigating an alleged college basketball point-shaving scheme at North Carolina State University, sought notes and tapes from ABC, which is based in New York.

ABC had broadcast three stories about the alleged scheme in early 1990.

Citing a reciprocal statute adopted by all states, the deputy attorney general asked a New York court to issue a subpoena ordering ABC to produce its material in New Jersey. ABC argued that the material was privileged under New Jersey’s press shield law, and asked the New York courts not to issue the requested subpoena.

The New York Court of Appeals ruled that the courts of the demanding state — not New York’s courts — should decide evidentiary questions regarding privileges.

In a footnote, however, the court said it was possible that in a future case with different facts, New York’s own public policy concerning privileges could lead to a different result. The court also said that in some cases, the media could claim that appearing in another state would cause “undue hardship.”

The ruling by the Court of Appeals will not affect the parties to this particular lawsuit, because the New Jersey grand jury that was seeking the information has ended its work.

In a sharp dissent, Judge Joseph W. Bellacosa said the court should not have taken the case because the matter was moot, and warned of the impact when “evidentiary anglers from other states troll in New York’s reservoir of media records and resources.”

(Codey v. Capital Cities, ABC, Inc.; Media Counsel: Gregory L. Diskant, New York)