Massachusetts newspaper wins legal fees after getting reporter subpoena quashed

A federal district court handed a Massachusetts newspaper an unusually robust victory in a reporter’s privilege case last week, not only quashing a subpoena but allowing the organization to recover its legal costs.

Dr. Theresa Harpold, one of the defendants in a lawsuit alleging medical malpractice, will have to pay $8,200 to The Enterprise of Brockton to cover the local daily newspaper’s expenses in fending off a subpoena to its reporter Alex Bloom.

“I think the interesting part of the decision is that it adds to what to this point in time has been just a handful of cases in which federal courts have authorized a fee recovery by a news organization confronted with defending a subpoena to a reporter that blatantly lacks merit in being unable to overcome the rigorous showing of the reporter’s privilege,” said Enterprise lawyer Michael J. Grygiel in an interview.

Grygiel said that in researching the topic, he found only two other examples of federal courts awarding legal fees in reporter’s privilege cases in the past three decades. Now, he said, journalists faced with meritless subpoenas can cite The Enterprise’s case as precedent to support their arguments for recovery of legal costs.

Louise Durand, a nursing supervisor at the state Department of Health, filed the malpractice lawsuit last year, alleging that Harpold abused her power when she signed an order that forced Durand into a hospital for an involuntary psychiatric evaluation that turned out to be unnecessary. Durand also sued the state, the department and a colleague who allegedly persuaded Harpold to sign the order. Bloom learned about the complaint from a confidential source and wrote about it in January for The Enterprise.

Harpold’s attorney served the newspaper with a subpoena, demanding that Bloom testify in the case because of suspicion that the plaintiff was the source of Bloom’s information. Lawyers for the Enterprise wrote back, arguing that the subpoena was frivolous and asking Harpold to withdraw it voluntarily. When the subpoena was not dropped, the newspaper asked the federal court to quash it.

District Judge Richard G. Stearns granted The Enterprise’s motion in a two-page opinion released May 28.

“It is well established (as both parties acknowledge) that a journalist’s confidential sources are protected by a qualified privilege," the judge wrote. "To overcome that privilege, a party must show that the summons of a journalist to a deposition is not frivolous, that the information sought is critical to the merits of the claim at issue, and that other sources for the information are not available.”

Stearns found that Harpold had failed to demonstrate that Bloom was the only possible source of the information she wanted, or that this information was critical to the case. He added that the argument in favor of the subpoena was “certainly not of enough heft to warrant a casual trenching upon First Amendment concerns,” and invited the newspaper to apply for legal costs.

The newspaper then moved for a recovery of $8,200, which the judge granted.

Grygiel suggested that for news organizations fighting subpoenas and hoping to recover their legal fees, “it certainly doesn’t hurt” to take the extra step of writing to the source of the subpoena before filing a motion to quash, as The Enterprise did.

He also said that he did not know whether Harpold would appeal the judge’s order. Harpold’s lawyer was not immediately available for comment.

Related Reporters Committee resources:

· 1st Cir. – Privilege Compendium