Quashing of '60 Minutes' tobacco subpoenas upheld

NEW YORK–The tobacco company Brown & Williamson failed to show that outtakes and notes from a “60 Minutes” interview and depositions of eight CBS employees, including correspondents Mike Wallace and Morley Safer, were “critical or necessary” to its lawsuit against former B&W Vice President Jeffrey Wigand, a four-judge panel of the Supreme Court, Appellate Division in New York City unanimously held in early June.

The court affirmed the trial court’s decision to quash the B&W subpoenas after applying a three-part test under the New York shield law. The tobacco company was required to demonstrate that the information it sought was highly material and relevant, critical or necessary to its claims against Wigand, and not available from any alternative source.

The court found that the interview was highly material and relevant to B&W’s claims of breach of contract, fraud and theft against Wigand. But the tobacco company failed to show that the information it sought was “critical or necessary” to litigating the claims, the court held. The court stated that B&W had “ample proof” for its claims in the publicly available tapes of the interview that was actually broadcast on “60 Minutes.”

The tobacco company alleges that Wigand breached his confidentiality agreement with B&W by disclosing proprietary information to “60 Minutes” and several newspapers.

In mid-November 1995, CBS spiked its “60 Minutes” interview with Wigand, in which Wigand was to appear in silhouette, out of concern that the network would be liable for tortious interference with the confidentiality agreement between Wigand and B&W. After much of Wigand’s grand jury testimony was published in The Wall Street Journal, CBS aired the “60 Minutes” interview in early February. (In re Application of Brown & Williamson Tobacco Corp.; Media Counsel: Robert Sugarman, New York)