McCullagh's motion to quash DoJ subpoena in Jim Bell trial
Declan McCullagh
declan at well.com
Fri Mar 30 07:26:39 PST 2001
I've put some relevant files at:
http://www.mccullagh.org/subpoena/
And I'll add to it throughout the day. This motion is at:
http://www.mccullagh.org/subpoena/motion.032901.html
Again, thanks to the many people who sent along messages of support.
The trial begins next Tuesday in federal district court in Tacoma,
Washington. Since the judge won't rule on my motion until that
morning, I'll have to be there.
-Declan
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http://www.mccullagh.org/subpoena/motion.032901.html
PETER SULLIVAN
TIMOTHY L. ALGER
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, California 90071-3197
Telephone: (213) 229-7000
Facsimile: (213) 229-7520
KELLY PATRICK CORR
CORR CRONIN LLP
1001 Fourth Avenue
Suite 3700
Seattle, Washington 98154-1135
Telephone: (206) 625-8600
Facsimile: (206) 625-0900
Attorneys for non-party witness
DECLAN McCULLAGH
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
UNITED STATES OF AMERICA,
Plaintiff,
v.
JAMES DALTON BELL,
Defendant.
CASE NO. CR 00-5731 JET
NOTICE OF MOTION AND MOTION FOR ORDER QUASHING SUBPOENA ON DECLAN
McCULLAGH, OR FOR PROTECTIVE ORDER; MEMORANDUM OF POINTS AND
AUTHORITIES; DECLARATION OF DECLAN McCULLAGH
Hearing date: April 3, 2001
Hearing time: 9:30 a.m.
Hearing place: Courtroom E
(Hon. Jack E. Tanner)
Trial date: April 3, 2001
TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that on April 3, 2001, at 9:30 a.m., in Department
E of the United States District Court for the Western District of
Washington, located at 1717 Pacific Avenue, Tacoma, Washington 98402,
Declan McCullagh ("McCullagh"), a reporter for Wired News, will and
hereby does move the Court for an order quashing a Subpoena in a
Criminal Case served by the Office of the United States Attorney. In
the alternative, McCullagh requests that the Court enter a protective
order limiting the testimony of McCullagh at the trial of James Dalton
Bell to matters that were published by Wired News.
McCullagh asks that the subpoena be quashed, or a protective order
entered, on the separate grounds that inquiry beyond those matters
that were published is (1) unreasonable and oppressive as defined by
Rule 17(c) of the Federal Rules of Criminal Procedure, and (2) would
violate the First Amendment's protection of unpublished information
gathered by journalists. Each of these grounds is amplified and
explained in the attached Memorandum of Points and Authorities.
This Motion is based on this Notice of Motion and Motion, the attached
Memorandum of Points and Authorities, the attached Declaration of
Declan McCullagh, the complete files and records in this action, and
on such argument and evidence as may be presented to the Court at the
hearing on this Motion.
DATED: March 29, 2001.
PETER SULLIVAN
TIMOTHY L. ALGER
GIBSON, DUNN & CRUTCHER LLP
KELLY PATRICK CORR
CORR CRONIN LLP
By: ________________________________
Kelly Patrick Corr
Attorneys for non-party witness DECLAN McCULLAGH
MEMORANDUM OF POINTS AND AUTHORITIES
1.
SUMMARY OF ARGUMENT
By this motion, non-party witness Declan McCullagh ("McCullagh"), a
reporter for Wired News, an online news magazine published by Lycos,
Inc., seeks to quash the trial subpoena served on him by the Office of
the United States Attorney. That subpoena requires him to testify for
the government at the trial of James Dalton Bell and produce copies of
two articles written by McCullagh and published by Wired News ("the
Articles"):
* "Crypto-Convict Won't Recant," published April 14, 2000; and
* "IRS Raids Cypherpunk's House," published November 11, 2000.
The prosecutor has informed counsel for McCullagh that McCullagh will
be asked only to verify the accuracy of statements by Bell that are
included in the Articles. Bell's counsel, however, has made clear that
cross-examination will not be limited to published information, and
Bell might seek testimony regarding a variety of areas that Bell
thinks will be helpful to his defense. In response to a proposal by
the government and McCullagh's counsel that the parties stipulate to
the accuracy of the published statements, Bell's counsel has referred
the question to Bell. Bell has not responded to correspondence from
McCullagh's counsel regarding a stipulation, and declined on Thursday,
March 29, 2001, to meet with McCullagh's counsel at the federal
penitentiary. It is unknown at this time whether Bell will sign the
stipulation, necessitating this motion.
While the government might intend only to elicit testimony regarding
published information - which McCullagh has offered to verify by
affidavit - the subpoena sets the stage for an inquiry into
McCullagh's newsgathering practices and his unpublished work product.
Based on the statements of Bell's counsel, it appears likely that Bell
will attempt to use McCullagh as his mouthpiece by compelling him to
repeat before the jury Bell's allegations of conspiracy and
persecution by federal prosecutors and agents, and by compelling
McCullagh to disclose information that he has gathered over the past
seven years while covering policy and technology - including the
"cypherpunk" phenomenon - for publications including Wired News and
Time magazine.
Such an intrusion into newsgathering is not permitted under Rule 17 of
the Federal Rules of Criminal Procedure or the First Amendment to the
United States Constitution. While the government might consider the
published statements of Bell to be relevant, a wide-ranging inquiry
into McCullagh's unpublished research as a journalist is unreasonable
and oppressive, and runs afoul of the First Amendment's protection of
newsgathering and the editorial process. This First Amendment-based
journalists' privilege reflects "the preferred position of the First
Amendment and the importance of a vigorous press." Zerilli v. Smith,
656 F.2d 705, 712 (D.C. Cir. 1981).
Requiring McCullagh to testify, even if it is very limited on direct
examination, creates an impermissible burden by necessarily exposing
McCullagh to the risk of an intrusive cross-examination that will
interfere with McCullagh's current and future newsgathering.
Accordingly, the Court should quash the subpoena or, in the
alternative, enter a protective order limiting McCullagh's testimony
to those matters that were published in the Articles.
2.
BACKGROUND
McCullagh is the Washington, D.C., bureau chief for Wired News. He has
been an on-line journalist since 1995, and has covered politics and
technology for numerous publications, both traditional and online.
Prior to joining Wired News, McCullagh was a reporter for Time
magazine and Time Digital Daily, and a correspondent for HotWired.
(Declaration of Declan McCullagh ¶ 2.)
McCullagh has been covering Bell's battles with the law since April
1997, and has written about six articles about Bell, including the two
articles regarding which the government now seeks McCullagh's
testimony. (Id. ¶ 5.) McCullagh continues to conduct interviews and
collect information about Bell and the "cypherpunk" movement, with the
intention of publishing additional articles. (Id. ¶ 6.) It has been
his intention to cover Bell's trial. (Id.)
Over the past several years, Bell and McCullagh have communicated
irregularly, mostly by telephone. Some of the information provided to
McCullagh by Bell has resulted in news stories; some has not, but
might be used in future stories. (Id. ¶ 7.) McCullagh carefully
retains information that he gathers as a journalist until it is useful
for published articles. (Id. ¶ 8.) It is McCullagh's belief that
sources speak to him and cooperate with his newsgathering efforts
because he is trustworthy and independent. (Id.)
Some of McCullagh's sources already have told him that they will stop
assisting him or providing him with information if he testifies in
Bell's trial. (Id. ¶ 9.) Of particular concern to McCullagh is the
likely loss of sources who respect him for his independence and who,
in some circumstances, are challenging the authorities on issues
relating to Internet freedom. (Id.) These sources, who have given
McCullagh information that was vital to covering all sides of Internet
issues, are likely to view McCullagh (erroneously) in the future as an
agent for the government if he is compelled to testify for the
prosecution in this trial. (Id..)
McCullagh also fears that testifying about unpublished information
will jeopardize his credibility as a journalist. (Id. ¶ 10.) Many
people who have provided McCullagh with information have done so on
the understanding that he was working as a reporter, and not gathering
information for litigants. (Id.) The information that he receives from
sources leads him to other sources and additional information;
disclosure of his newsgathering techniques and practices will put him
at a competitive disadvantage in the future. (Id.) McCullagh believes
that disclosure of his work product could compromise his reputation as
an impartial journalist and a communicator of news, and create the
false perception that McCullagh can be used by litigants as a
collector and presenter of information helpful to their causes. (Id.)
3.
THE SUBPOENA SHOULD BE QUASHED BECAUSE IT IS UNREASONABLE AND
OPPRESSIVE
While the government has indicated its willingness to limit
McCullagh's testimony to verification of the accuracy of published
statements made by Bell, putting McCullagh on the witness stand
necessarily raises the possibility that Bell will challenge
McCullagh's testimony on direct by inquiring into unpublished matters.
Indeed, Bell's lawyer has informed counsel for McCullagh that Bell
will want to obtain testimony from McCullagh because Bell considers
McCullagh to be sympathetic to him. Bell apparently hopes to bring
before the jury Bell's allegations of government wrongdoing by asking
McCullagh to testify about Bell's conversations with McCullagh, and to
disclose any research McCullagh might have conducted relating to
Bell's theories and accusations.
Such testimony is irrelevant to the charges of interstate stalking for
which Bell is on trial. The government's need for Bell's published
statements is tenuous at best: the quotations in the Articles appear
to be rhetoric; they offer no evidence that Bell crossed a state line
with the intention of injuring or harassing alleged victims Mike
McNall and Jeff Gordon.
Further, the likely inquiry by Bell that follows from McCullagh's
verification of the quotations in the Articles is not relevant at all.
Rather, it merely distracts the jury from the charges at issue while
compelling McCullagh to describe his collection of information from
numerous sources, and his selection of material for publication. Put
simply, Bell's likely cross-examination of McCullagh will be a fishing
expedition in its purest form. The "mere hope" of obtaining
exculpatory evidence is not sufficient for enforcement of a Rule 17
subpoena. United States v. Cuthbertson, 630 F.2d 139, 146 (3d Cir.
1980), cert. denied, 449 U.S. 1126 (1981) ("Cuthbertson I").
Thus, an evaluation of the profound impact of the subpoena on
McCullagh establishes that the subpoena is unreasonable and
oppressive, in violation of Rule 17. The threatened intrusion into the
newsgathering process requires an order quashing the subpoena in its
entirety.
4.
THE SUBPOENA SHOULD BE QUASHED, OR A PROTECTIVE ORDER ENTERED,
BECAUSE UNPUBLISHED INFORMATION IS PROTECTED BY THE FIRST
AMENDMENT
A. The Burden Imposed By Subpoenas Such As The One At Issue Here
Has Caused The Courts To Extend The Privilege To Unpublished
Information
In Branzburg v. Hayes, 408 U.S. 665, 707 (1972), the United States
Supreme Court recognized that journalists' newsgathering activities
qualify for protection under the First Amendment to the United States
Constitution. The Court concluded that "without some protection for
seeking out the news, freedom of the press could be eviscerated." Id.
at 681. Justice Powell, in casting the deciding fifth vote, stated
that "[t]he Court does not hold that newsmen, subpoenaed to testify
before a grand jury, are without constitutional rights with respect to
the gathering of news or in the safeguarding of their sources." Id. at
709 (Powell, J., concurring). Although the Court did not permit the
reporters in the Branzburg case to refuse to appear and testify before
grand juries, federal courts have interpreted Branzburg as recognizing
a qualified privilege that protects information gathered by
journalists in preparation for new s reports, but which has not been
published. See, e.g., Cuthbertson I, 630 F.2d at 146-47; Von Bulow v.
Von Bulow, 811 F.2d 136, 143 (2d Cir. 1987); United States v. LaRouche
Campaign, 841 F.2d 1176, 1181-82 (1st Cir. 1988).
The United States Court of Appeals for the Ninth Circuit has
recognized this First Amendment privilege in the context of criminal
proceedings, Farr v. Pitchess, 522 F.2d 464, 467-68 (9th Cir. 1975),
cert. denied, 427 U.S. 912 (1976), and has held that the privilege
protects unpublished information, even if it is not obtained under an
agreement of confidentiality, Shoen v. Shoen, 5 F.3d 1289, 1295 (9th
Cir. 1993) ("Shoen I"). A court must weigh any claim of First
Amendment privilege against the need for disclosure and strike a
balance in favor of the "paramount interest." Farr, 522 F.2d at 468.
The Ninth Circuit explained in Shoen I that "the privilege is a
recognition that society's interest in protecting the integrity of the
newsgathering process, and in ensuring the free flow of information to
the public, is an interest `of sufficient social importance to justify
some incidental sacrifice of sources of facts needed in the
administration of justice.'" 5 F.3d at 1292 (quoting Herbert v. Lando,
441 U.S. 153, 183 (Brennan, J., dissenting).). Protection of
unpublished information is critical to freedom of speech, even where
it is not gained under a promise of confidentiality, because routine
demands for such information in court will interfere with journalists'
work and independence. The Ninth Circuit stated:
"The . . . four interests named are the threat of administrative and
judicial intrusion into the newsgathering and editorial process;
the disadvantage of a journalist appearing to be an investigative
arm of the judicial system or a research tool of government or of
a private party; the disincentive to compile and preserve
non-broadcast material; and the burden on journalists' time and
resources in responding to subpoenas." . . .
To the extent that compelled disclosure becomes commonplace, it
seems likely indeed that internal policies of destruction of
materials may be devised and choices as to subject matter made,
which could be keyed to avoiding disclosure requests or compliance
therewith rather than to the basic function of providing news and
comment. In addition, frequency of subpoenas would not only
preempt the otherwise productive time of journalists and other
employees but measurably increase expenditures for legal fees.
Id.
at 1294-95 (quoting LaRouche Campaign, 841 F.2d at 1182).
The Ninth Circuit concluded that requiring journalists to testify
impedes their ability to collect information, and thereby chills
speech.
"It is their independent status that often enables reporters to gain
access, without a pledge of confidentiality, to meetings or places
where a policeman or a politician would not be welcome. If
perceived as an adjunct of the police or of the courts,
journalists might well be shunned by persons who might otherwise
give them information without a promise of confidentiality, barred
from meetings which they would otherwise be free to attend and to
describe, or even physically harassed if, for example, observed
taking notes or photographs at a public rally.
Id.
at 1295 (quoting Duane D. Morse & John W. Zucker, The Journalist's
Privilege in Testimonial Privileges (Scott N. Stone & Ronald S.
Liebman eds., 1983), at 474-75).
The Third Circuit reached the same conclusion in Cuthbertson, a
criminal case:
We do not think that the privilege can be limited solely to protection
of sources. The compelled production of a reporter's resource
materials can constitute a significant intrusion into the
newsgathering and editorial processes. See Loadholtz v. Fields,
389 F. Supp. 1299, 1303 (M.D. Fla. 1975). Like the compelled
disclosure of confidential sources, it may substantially undercut
the public policy favoring the free flow of information to the
public that is the foundation for the privilege. See Riley v. City
of Chester, [612 F.2d 708, 716 (3d Cir. 1979)]. Therefore, we hold
that the privilege extends to unpublished materials in the
possession of CBS. See Altemose Construction Co. v. Building &
Construction Trades Council, 443 F. Supp. 489, 491 (E.D. Pa. 1977)
("this qualified privilege can even apply when the news source
and, perhaps, a portion of the withheld writing, are not
confidential").
Cuthbertson,
630 F.2d at 147.
Democracy's keystone is the dissemination of information to the
public, permitting it to make informed choices. This dissemination
depends on journalists who are successful in gathering facts, and
that, in turn, depends on sources who will not disclose information
unless they believe they are dealing with professionals who are
trustworthy and objective. By compelling a journalist to disclose work
product whenever a litigant views it as helpful to his or her case, a
court sacrifices the very First Amendment freedoms that keep our
nation informed and our government accountable.
B. The First Amendment Privilege Can Be Overcome In Only The
Most Limited Of Circumstances
Recognizing the threat that compulsory disclosure of work product
posed to the uninhibited flow of information, the Ninth Circuit
adopted a three-part test that courts must apply whenever a journalist
withholds unpublished information that was not gained under a promise
of confidentiality. The test's purpose, the court explained, was to
"ensure that compelled disclosure is the exception, not the rule."
Shoen v. Shoen, 48 F.3d 412 (9th Cir. 1995) ("Shoen II").
We . . . hold that where information sought is not confidential, a
civil litigant is entitled to requested discovery notwithstanding
a valid assertion of the journalist's privilege by a nonparty only
upon a showing that the requested material is: (1) unavailable
despite exhaustion of all reasonable alternative sources;
(2) noncumulative; and (3) clearly relevant to an important issue
in the case. We note that there must be a showing of actual
relevance; a showing of potential relevance will not suffice.
Id.
Although the Ninth Circuit has not had the opportunity to apply the
three-part test of Shoen II in a criminal case, the Third Circuit has
adopted a nearly identical test and applied it to a criminal subpoena
that sought unpublished, nonconfidential information:
"First, the movant must demonstrate that he has made an effort to
obtain the information from other sources. Second, he must
demonstrate that the only access to the information sought is
through the journalist and her sources. Finally, the movant must
persuade the Court that the information sought is crucial to the
claim."
United States v. Cuthbertson,
651 F.2d 189, 195-96 (3d Cir.) ("Cuthbertson II") (quoting United
States v. Criden, 633 F.2d 346, 358-59 (3d Cir. 1980), cert. denied,
449 U.S. 113 (1981)), cert. denied, 454 U.S. 1056 (1981).
Application of the First Amendment privilege in a criminal proceeding
is just as important as in a civil context. As the Second Circuit held
in United States v. Burke, 700 F.2d 70, 76 (2d Cir.), cert. denied,
464 U.S. 816 (1983): "[T]he important social interests in the free
flow of information that are protected by the reporter's qualified
privilege are particularly compelling in criminal cases. Reporters are
to be encouraged to investigate and expose, free from unnecessary
government intrusion, evidence of criminal wrongdoing."
C. The Privilege Protects Unpublished Information In McCullagh's
Possession,
And Cannot Be Overcome By Bell
If Bell attempts to cross-examine McCullagh regarding unpublished
information, he cannot satisfy any of the Shoen requirements, let
alone all three of them. Only by meeting all of the requirements can
Bell establish the kind of "compelling need" that overcomes the First
Amendment privilege. Shoen I, 5 F.3d at 1196.
First
, Bell cannot establish that he exhausted all alternative sources for
the information he might hope to obtain from McCullagh. Testimony
about Bell's conversations with McCullagh can be provided by Bell
himself. See, e.g., Shoen I, 5 F.3d at 1296 (refusing to order author
to produce notes of interview with party because the party was an
alternative source for the information); Carushka, Inc. v. Premiere
Products, Inc., 1989 U.S. Dist. Lexis 17487, *8, 17 Media L. Rep. 2001
(C.D. Cal 1989) (refusing to order magazine publisher to produce
unpublished materials; "as the information sought was either provided
by or adopted by plaintiff, defendants may elicit the relevant
testimony from plaintiff herself").
Even assuming that testimony by McCullagh about his conversations with
people other than Bell is admissible, that information is available
from the other participants in the conversations. For example, if Bell
contends that McCullagh obtained information from federal agents, Bell
can obtain that testimony from the federal agents. Indeed, it is
difficult to fathom what information McCullagh might have gathered
that is even remotely relevant to this trial that is not readily
available from other witnesses who will be called by the government or
who are subject to subpoena by the defense. See Cuthbertson II, 651
F.2d at 196 (privilege does not yield unless "the only practical
access to the information sought is through the media source). Bell's
inability to meet this requirement of exhaustion, on its own, dooms
any effort to pierce the First Amendment privilege. See Shoen I, 5
F.3d at 1296 ("At a minimum, [the requesting party must make] a
showing that the information sought is not obtainable from another
resource."); accord Carey v. Hume, 492 F.2d 631, 639 (D.C. Cir. 1974)
(compelled disclosure from a journalist must be a "last resort after
pursuit of other opportunities has failed"), cert. dismissed, 417 U.S.
938 (1974).
Second
, the information that Bell might seek from McCullagh is cumulative.
Bell will have the opportunity to cross-examine the government's
witnesses, and to call his own witnesses, in an effort to establish
that he was unfairly targeted by the government or the victim of a
conspiracy. Simply put, whatever Bell told McCullagh, and whatever
information McCullagh gathered as a result of Bell's statements to
McCullagh, is evidence that Bell will present through other witnesses,
including himself if he takes the stand. Any intrusion on McCullagh's
newsgathering and Wired News' editorial decisions is unjustified,
given the cumulative nature of the evidence Bell is likely to seek
from McCullagh. See, e.g., United States v. Hubbard, 493 F. Supp. 202,
205 (D.D.C. 1979) (quashing subpoena by criminal defendant on ground
that other witnesses were available for same facts, making reporters'
testimony "merely cumulative").
Third
, the unpublished information Bell is likely to attempt to elicit on
cross-examination is not clearly and actually relevant to an important
issue of the case. As the Second Circuit explained in Burke, unless a
criminal defendant who seeks to pierce the privilege can make a "clear
and specific showing" that the evidence is "necessary or critical to
the maintenance of his defense," the reporter's privilege will be
upheld. Burke, 700 F.2d at 77. Bell's unpublished communications with
McCullagh do not go directly to the issue of whether he engaged in
interstate stalking of federal agents. Communications between
McCullagh and others relating to Bell's case would be inadmissible
hearsay, or, if they involve federal agents, would be merely
impeachment evidence, which is not evidence that is considered
"critical or necessary to the maintenance or defense of a claim." See
In Re Application to Quash Subpoena, 79 F.3d 346, 352 (2d Cir. 1996).
And McCullagh's actions (any research he might have done) are
completely irrelevant. Indeed, communications with reporters, and what
reporters might have done with that information, will undoubtedly
confuse the issues, delay the proceedings, and waste time. See Fed. R.
Evid. 403; see also National Union Fire Ins. Co. v. Seafirst Corp.,
1987 U.S. Dist. Lexis 16094, *4-5, 14 Media L. Rep. 1190 (W.D. Wash.
1987) (quashing subpoena seeking unpublished information because
communications between defendant and reporters were only "marginally
relevant at best," even though contents of article were important to
case).
Further, to allow the privilege to be invaded here would set a
terrible precedent. To allow a defendant to cross-examine a reporter
about privileged matters simply because the government has asked a
reporter about non-privileged matters would eviscerate the privilege.
Every time the subject matter of a news article became the subject
matter of a trial, newsgathering activities would become fair game for
the litigants. It is this very concern - that journalists will be
routinely subjected to subpoenas - that caused the Ninth Circuit to
hold that "compelled disclosure is the exception, not the rule." Shoen
II, 48 F.3d at 416.
5.
CONCLUSION
In extending the journalist's privilege to unpublished information,
the Ninth Circuit explicitly recognized "that routine court-compelled
disclosure of research materials poses a serious threat to the
vitality of the newsgathering process." Shoen II, 48 F.3d at 415-16.
Accordingly, reporter Declan McCullagh requests that the Court quash
the subpoena, or, alternatively, enter a protective order that
prohibits counsel from inquiring into any matters other than the
published contents of the articles.
DATED: March 29, 2001.
PETER SULLIVAN
TIMOTHY L. ALGER
GIBSON, DUNN & CRUTCHER LLP
KELLY PATRICK CORR
CORR CRONIN LLP
By: ________________________________
Kelly Patrick Corr
Attorneys for non-party witness DECLAN McCULLAGH
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