Court orders BBC to hand over unaired documentary footage

A federal district court on Thursday ordered the BBC to turn over unseen footage from a 2003 documentary on Yasser Arafat. The U.S. District Court in Washington, D.C., said the importance of protecting journalists’ newsgathering function is “weaker” when the sources are not confidential.

The footage from the BBC documentary relates to a civil case brought by the family of Esther Klieman, an American who was shot and killed while riding a bus in Israel. Klieman’s family is suing the Palestinian Authority (PA) and Palestine Liberation Organization (PLO) under the Anti-Terrorism Act of 1991 and various other torts. But to hold the PA/PLO liable, the family must first prove that the Al-Aqsa Martyrs Brigades (the alleged shooters) were acting on behalf of the PA/PLO.

The BBC documentary featured interviews with Fatah leader Abu Rumaileh and Al-Aqsa Martyrs Brigade leader Zakaria Zubeidi, both of whom stated in the video that their organizations are essentially the same entity led by Palestinian leader Yasser Arafat.

Klieman’s family is hoping that, by requesting unseen footage and other documents from the BBC documentary, they can obtain further proof that PA/PLO can be held responsible for the acts of Al-Aqsa.

A magistrate judge had denied the family’s request, saying it couldn’t force a BBC employee living more than 100 miles from D.C. to appear in the nation's capital to testify. The district court on Thursday agreed that the court cannot force anyone living more than 100 miles away to testify in person but said the court can require the BBC to send documents along with a sworn statement saying they’re accurate and complete.

The district court recognized a reporter’s privilege in civil cases and analyzed whether the family’s interest in obtaining the information outweighed the BBC’s interest in protecting its sources and information. Because the sources agreed to speak on camera for the documentary and did not attempt to hide their identity, the court ultimately concluded that the BBC’s interest was minimal.

“[W]here the requested information is not confidential, as is in this case, ‘the risk of debilitating a journalist’s ability to gather information is considerably diminished,’” stated Judge Paul L. Friedman in his opinion.

Charles Tobin, a Washington attorney representing the BBC, told Legal Times that he was "examining the decision with the BBC and weighing the options." Tobin could not be reached for comment.