Minus reporter's privilege, judge still tosses subpoena

A Tennessee reporter does not have to testify in an affirmative action lawsuit against the Nashville Police Department, a Tennessee court  ruled late last month.

The federal court in Nashville did not recognize a federal reporter’s privilege to protect Tennessean reporter Christian Bottorff from being deposed. Instead, it held that his testimony was unneeded and burdensome based on a procedural rule that limits discovery in civil cases.

“It is clear that the Sixth Circuit has not recognized a constitutional qualified privilege for news reporters in civil cases,” Judge John S. Bryant wrote. “Instead the court will conduct a balancing of plaintiffs’ need for the requested discovery against Mr. Bottorff and The Tennessean’s need for protection.”

Bottorff was subpoenaed after an article he wrote in April 2007 about the policy used by the Metropolitan Nashville Police Department to promote officers. He interviewed a police department spokesperson who was quoted saying the police department looked at diversity when offering promotions, Bottorff’s lawyer Alan Johnson said.

A group of police officers sued the city and the department, alleging that the policy was unconstitutional. The plaintiffs wanted to depose Bottorff and ask him about his interview with the police department spokesperson.

Johnson said he knew he had a “tough road ahead” when it came to arguing that a reporter’s privilege would protect Bottorff, since courts in the Sixth Circuit are unlikely to recognize a federal privilege.

So he decided to try a different tactic, arguing that the subpoena should be quashed under Rule 26 of the Federal Rules of Civil Procedure. It requires courts to balance whether the testimony can be obtained somewhere else; whether the party seeking the testimony has had ample opportunity to obtain that information; and whether the burden of the testimony outweighs the benefit. Rule 26 applies to the amount of discovery that can be taken in civil cases.

“He found no federal reporter’s privilege in the Sixth Circuit, but he liked our argument that you still have to take it into account when you are balancing need,” Johnson said. “I got the sense that carried some weight with him.”

In balancing the Rule 26 factors, the court ruled that the need for the plaintiffs to obtain Bottorff’s testimony was low because the plaintiffs had already deposed the police department spokesman about his diversity comments. Additionally, the burden on the news media to testify is high, the court held.

“The collective burden on news reporters and their employers if they were routinely called upon to produce investigative files regarding matters in litigation would be considerable, and would jeopardize their ability to perform the valuable public function of gathering and reporting the news,” Bryant wrote.

The Tennessee court isn’t the first to quash a subpoena under Rule 26. Other courts have also made similar findings.

In a 2003 case, In re DaimlerChrysler AG Litigation, a federal court in Michigan quashed a subpoena that was sent to several book authors by using the Rule 26 balancing test. In that case, the court emphasized the “important role that newsgathering plays in a free society.”

Attorneys for news media parties often use the rule while attempting to quash subpoenas, particularly when a reporter’s privilege or shield law is not available, although they are not always successful. The rule is also useful to nontraditional journalists, including bloggers, who may not be covered by a shield law.