In a victory for journalism and independent film-making, Magistrate Judge Ronald L. Ellis of the Southern District of New York, quashed a subpoena served by the City of New York’s lawyers against Florentine Films, the film company owned by Ken Burns and his daughter Sarah Burns and son-in-law David McMahon. The subpoena was issued in relation to the $250 million lawsuit against the City over the wrongful conviction of the Central Park 5 defendants. In 2012, Florentine Films had released a documentary focusing on how the lives of the 5 falsely convicted men had been affected by their experience.
The City served a subpoena on the film company seeking outtakes from the interviews of the plaintiffs in the Federal case. Florentine moved to quash the subpoena arguing that the footage was protected under the journalist’s privilege. The City contended that the issue was similar to a federal appellate court ruling in 2011 concerning another documentary filmmaker, Joe Berlinger. In that case, Mr. Berlinger had to turn over outtakes from “Crude,” a 2009 film about a group of Ecuadoreans who were suing Chevron, saying that oil fields established there by Texaco (now owned by Chevron) polluted their water supply. But the court found that Florentine’s independence from the plaintiffs distinguished that case; Mr. Berlinger had specifically been asked to make a film from the Ecuadoreans’ perspective and later removed a scene from the movie at the request of their lawyer, the Burns team had remained always independent, the judge found. The court took the Burns’ at their word that while its true they have advocated for the settlement of the lawsuit (after the release of the film), they formed that opinion after completion of filming and had already budgeted for and decided to release the film regardless of what their opinions were after filmmaking.
Judge Ellis said that therefore the city’s comparisons of Mr. Burns to Mr. Berlinger were “misplaced” and that having a point of view did not necessarily preclude the protections against subpoenas generally granted to journalists. Both Federal law and NY State Law (the New York Shield Law, which is § 79-h(c) of the New York Civil Rights Law) protect journalists from having to reveal sources and information obtained during their investigation. Generally, confidential information is given much greater protection, while non-confidential information can be obtained by third parties if a clear and specific showing is made that the material is: (1) highly material and relevant; (2) critical or necessary to a party’s claim, defense, or proof of a material issue; (3) not obtainable from any other source. Judge Ellis said that City had not established that the outtakes were highly material and could not be obtained from another source – namely the plaintiffs’ depositions which had not yet occurred. He further noted that a “journalist seeking to invoke the privilege must also demonstrate that her intention at the time the information in question is gathered was for the purpose of disseminating the information to the public, and not for different reasons. Having a point of view, however, does not necessarily change that intention:
“Indeed, it seems likely that a filmmaker would have a point of view going into a project,” Judge Ellis wrote.
The City did not help itself by misquoting a Burns interview about the film in Variety magazine. In an effort to show that Burns was not an objective, independent filmmaker and therefore not entitled to claim the journalist’s privilege, the City’s motion stated that Burns had told Variety: “that the purpose of the film was ‘first and foremost … the settlement of the civil suit.'” Of course, if the court believed that forcing a settlement of the civil lawsuit was the film project’s motivation from the beginning, it would be unlikely that Florentine could rely on the journalistic privilege. But unfortunately for the City, their adversary and the court noticed that little “…” in the middle of the quote and decided to look at the quote in its entirety which actually read: “‘We’re filmmakers first and foremost and we want to make a difference,’ he noted. ‘So having a theatrical release will, I think, amplify the pressure on the city to settle so they can put their lives back together.'” How could the City’s lawyers think they would get away with such a shameful mischaracterization of Burns’ statement? Did they really think no one would look it up? When I worked at the City Law Department in the early part of my career, I was the City’s senior trial attorney and worked on many high-profile cases. I met often with the upper level execs and all of my court submission were scrutinized for accuracy and for correlation with City policy. If I had done something like this, I would have been sent to fight dog-license summonses in Staten Island by then-Corporation Counsel FAO Schwarz III (heir to the toy fortune BTW) who had always maintained that the Law Department should run as close to the way that a white-shoe Park Avenue law firm runs as possible. Integrity was the main by-word. Sure, we were going to lose some case, but we never would misrepresent a fact or a legal position to a court. The City’s lawyers are lucky Judge Ellis did not sanction them for this gross attempt to mislead the court. Instead, in a footnote he stated: “The manipulation of the quote in this manner is troubling. The Court does not find the point urged by Defendants to be consistent with a fair reading of the entire quoted material. Even assuming that Burns was accurately quoted, defendants cannot bolster a weak argument by omitting language which undermines that argument.”
In a case that could have gone either way, I am sure the City’s ploy did not gain it any points. Judge’s are human and those kind of shenanigans tend to make them disbelieve the rest of your papers and your arguments. The judge told the City to take the plaintiffs’ depositions and then see if they can craft an argument that they still need the outtakes; but for now, he ruled, Florentine is entitled to invoke the journalistic privilege and hold on to the requested footage.