NY Court of Appeals decision on Jana Winter case

8/13/2019 NY Court of Appeals decision on Jana Winter case

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=================================================================This opinion is uncorrected and subject to revision beforepublication in the New York Reports.-----------------------------------------------------------------No. 245n the !atter of "a#es $ol#es%

Respondent% v."ana &inter% 'ppellant%

(hristopher T. $and#an% for appellant.)aniel N. 'rshack% for respondent.Reporter*s (o##ittee for the +reedo# of the ,ress et al.% a#ici curiae.

R'++/% ".0

New York*s 1hield aw provides an absolute privile3e that prevents a

journalist fro# bein3 co#pelled to identif confidential sources who provided infor#ation

for a news stor. n this case% the issue is whether it would violate New York public

polic for a New York court to issue a subpoena directin3 a New York reporter to appear

at a judicial proceedin3 in another state where there is a substantial likelihood that she

will be directed to disclose the na#es of confidential sources or face bein3 held in

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conte#pt of court.

,etitioner "a#es $ol#es is char3ed with #ultiple counts of #urder%

a#on3 other offenses% arisin3 fro# a #ass shootin3 at a #idni3ht screenin3 of a

6at#an #ovie at an 'urora% (olorado #ovie theater. Twelve people were killed durin3

the incident and 78 others were wounded. $ol#es was arrested at the scene soon after

the violence ended. 'nticipatin3 that the shootin3s would 3enerate widespread #edia

attention% the state court presidin3 over the cri#inal char3es -- the )istrict (ourt for the

(ount of 'rapahoe -- i##ediatel issued an order li#itin3 pretrial publicit in the case

b either side% includin3 law enforce#ent.

/n "ul 29% 28:2% while e;ecutin3 a search warrant% the police took

possession of a notebook that $ol#es had #ailed to a pschiatrist at the


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n 1epte#ber 28:2% $ol#es filed a #otion for sanctions in the )istrict

(ourt% alle3in3 that law enforce#ent had violated the pretrial publicit orders b

speakin3 to &inter and #aintainin3 that their actions under#ined his ri3ht to a fair and

i#partial jur. The )istrict (ourt then conducted a hearin3 to investi3ate the leak.

$ol#es called :4 police officers who had co#e in contact with the notebook or had

learned about it prior to the publication of the &inter article. 'll the officers testified that

the had not leaked the infor#ation to &inter and did not know who had.

'fter the hearin3% $ol#es sou3ht a certificate under (olorado*s version of

the :?-@-289A -- the first step in the two-part process

for co#pellin3 an out-of-state witness% such as &inter% to testif or otherwise provide

evidence in (olorado. $ol#es e;plained that he sou3ht &inter*s testi#on and an

notes she had created in relation to the article because she appears to be the onl

witness that can provide the court with the na#e of the law enforce#ent a3ents that

leaked privile3ed infor#ation. n "anuar 28:9% the )istrict (ourt issued the reBuested

certificate% findin3 that there was no other witness that could provide the na#es of the

law enforce#ent a3ents who #a have provided infor#ation to "ana &inter and that

potential violation of the pretrial publicit order was a serious #atter. The court also

noted that &inter*s article had described her sources as two law enforce#ent officers

and% since all of the officers who dealt with the notebook had denied havin3 spoken to

&inter% the cri#e of perjur in the first de3ree #a be i#plicated. Thus% the (olorado

court found &inter to be a #aterial and necessar witness in the sanction proceedin3

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and therefore reBuested that she spend three das in travel and testi#on in the )istrict

(ourt at a specified date and ti#e.

1ince &inter works and lives in New York% $ol#es then co##enced this

proceedin3 in New York 1upre#e (ourt pursuant to (, ?48.:82A% New York*s

codification of the reciprocal


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privile3ed under New York*s 1hield aw. iven the nature of the testi#on sou3ht b

the )istrict (ourt and the fact that (olorado provides si3nificantl less protection to

journalists in this re3ard% &inter asserted that it would violate public polic for a New

York court to issue a subpoena directin3 her to appear in (olorado for the purpose of

divul3in3 privile3ed confidential sources. 1he noted that (ode su33ested that privile3e

issues #a be considered% even when New York is the sendin3 state% if issuance of a

subpoena would violate a stron3 public polic -- which she #aintained was the situation

here.

1upre#e (ourt 3ranted $ol#es* application and issued a subpoena

directin3 &inter to appear in (olorado% holdin3 that she was a #aterial and necessar

witness and that co#pliance with the subpoena posed no undue hardship because

$ol#es* defense tea# would pa her e;penses and she was to re#ain in (olorado for

no lon3er than three das. The court reasoned that the other issues &inter had raised%

includin3 her clai# of privile3e% were beond the scope of a subpoena application under

(, ?48.:82A and should be resolved b the )istrict (ourt in (olorado.:

The 'ppellate )ivision affir#ed in a divided decision ::8 ')9d :94A. The

#ajorit adopted 1upre#e (ourt*s view that the onl issues to be resolved b a New

York court in its capacit as a sendin3 state under (, ?48.:82A is whether $ol#es

1'fter 1upre#e (ourt issued the subpoena% &inter co#plied under protest%

appearin3 in (olorado on three occasions in which she asserted that the infor#ation

sou3ht was privile3ed under the New York and (olorado 1hield aws. (olorado hasdeferred resolution of &inter*s privile3e clai# pendin3 disposition of several otherrelated issues. 't this juncture% her case continues to present a live controvers sincean order of this (ourt reversin3 the 'ppellate )ivision and dis#issin3 $ol#es*s (,?48.:82A application will result in nullification of the subpoena% #eanin3 that &inter willhave no continuin3 le3al obli3ation to return to (olorado and 3ive further testi#on --re3ardless of (olorado*s resolution of the privile3e issue.

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established that &inter was a #aterial and necessar witness in the (olorado

proceedin3 and whether co#pellin3 her to testif would result in undue hardship. 's to

the latter% the #ajorit viewed the concept narrowl as enco#passin3 onl fa#ilial%

#onetar% or job-related hardships pertainin3 to the ti#e% e;pense and inconvenience

associated with the trip to the other jurisdiction -- which did not include an

conseBuences flowin3 fro# the testi#on the witness would be reBuired to 3ive.

Relin3 on (ode% the #ajorit reasoned that it would be inefficient and inconsistent

with the reciprocal sche#e for the sendin3 state to entertain issues relatin3 to

ad#issibilit and privile3e of the testi#on sou3ht. Thus% the #ajorit declined to

entertain &inter*s 1hield aw ar3u#ent% althou3h it noted that the record did not

establish with absolute certaint that the (olorado )istrict (ourt would reBuire her to

disclose the identit of confidential sources.

' two-justice dissent concluded that the subpoena application should have

been denied. 'lthou3h reco3niFin3 the 3eneral rule that issues relatin3 to ad#issibilit

and privile3e are not entertained b the sendin3 state in the (, ?48.:82A conte;t%

the dissent #aintained that lan3ua3e in a footnote in (ode supported reco3nition of an

e;ception in cases where the prospective witness #akes a co#pellin3 clai# that

issuance of the subpoena would violate a stron3 public polic of this state. /n the

#erits% the dissent deter#ined that &inter should be able to clai# the protections of the

New York 1hield aw to avoid issuance of the subpoena because (olorado*s 1hield

aw contains si3nificantl less protection in relation to confidential sources and there

was a substantial possibilit -- indeed% a near certaint -- that the )istrict (ourt would

reBuire &inter to disclose her sources or be held in conte#pt. +inall% even absent

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consideration of the privile3e issue% the dissent found that &inter had established

undue hardship under the statute because she de#onstrated% throu3h uncontradicted

evidence% that issuance of the subpoena would put her in an i#possible situation0 she

would be forced to choose between incarceration if she refused to divul3e the

infor#ationA or loss of her livelihood if she provided the infor#ation sou3ht b the

(olorado courtA.

&inter appeals as of ri3ht on the two-"ustice dissent at the 'ppellate

)ivision (,R 5?8:DaEA. n this (ourt% she continues to ar3ue that issuance of the

subpoena under the circu#stances presented here is antithetical to New York*s well-

established public polic in favor of protectin3 the anon#it of confidential sources% as

e#bodied in the New York (onstitution and the New York 1hield aw. &e therefore

be3in b e;a#inin3 that public polic.

'rticle % > C and the New York 1hield aw

New York has a lon3 tradition% with roots datin3 back to the colonial era% of

providin3 the ut#ost protection of freedo# of the press. /ur reco3nition of the

i#portance of safe3uardin3 those who provide infor#ation as part of the news3atherin3

function can be traced to the case of "ohn ,eter Gen3er who . . . was prosecuted for

publishin3 articles critical of the New York colonial overnor after he refused to disclose

his source !atter of 6each v 1hanle% ?2 NY2d 24:% 255 D:@C4E D&achtler

concurrenceEA. ' jur co#prised of colonial New Yorkers refused to convict Gen3er -- an

action widel viewed as one of the first instances when the connection between the

protection of anon#ous sources and the #aintenance of a free press was reco3niFed

in the new world. n acknowled3in3 the critical role that the press would pla in our

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de#ocratic societ% New York beca#e a hospitable environ#ent for journalists and

other purveors of the written word% leadin3 the bur3eonin3 publishin3 industr to

establish a ho#e in our state durin3 the earl ears of our nation*s histor.

'rticle % > C of the New York (onstitution -- our 3uarantee of free speech

and a free press -- was adopted in :C9:% before the +irst '#end#ent was rendered

applicable to the states /*Neill v /ak3rove (onstr.% 7: NY2d 52:% 52@ D:@CCEA. The

drafters chose not to #odel our provision after the +irst '#end#ent% decidin3 instead to

adopt #ore e;pansive lan3ua3e0

ver citiFen #a freel speak% write and publish his or hersenti#ents on all subjects . . . and no law shall be passed torestrain or abrid3e the libert of speech or of the press NY(onst% art % > CA.

This was in keepin3 with the consistent tradition in this 1tate of providin3 the broadest

possible protection to *the sensitive role of 3atherin3 and disse#inatin3 news of public

events* /*Neill% 7: NY2d at 52@% Buotin3 6each% ?2 NY2d at 25?A.

n furtherance of this historical tradition% the e3islature adopted the 1hield

aw in :@78. '#on3 other protections% the statute 3rants an absolute privile3e

precludin3 reporters fro# bein3 co#pelled to reveal the identit of confidential sources0

Notwithstandin3 the provisions of an 3eneral or specificlaw to the contrar% no professional journalist or newscaster .. . shall be adjud3ed in conte#pt b an court in connectionwith an civil or cri#inal proceedin3 . . . for refusin3 or failin3to disclose an news obtained or received in confidence orthe identit of the source of an such news co#in3 into suchperson*s possession in the course of 3atherin3 or obtainin3news for publication (ivil Ri3hts aw > 7@-hDbEH :@78% ch?:5% as a#ended b :@75% ch 9:?H :@C:% ch 4?C >> : to98H :@@8 ch 99% > :A.

nfor#ation subject to the privile3e is inad#issible in an action or proceedin3 or

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hearin3 before an a3enc (ivil Ri3hts aw > 7@-hDdEA. The 1hield aw therefore

prohibits a New York court fro# forcin3 a reporter to reveal a confidential source% both

b preventin3 such a directive fro# bein3 enforced throu3h the court*s conte#pt power

and b renderin3 an evidence that is covered b the provision inad#issible.

'nother subsection of the statute lar3el codified our decision in /*Neill v

/ak3rove (onstr. supra% 7: NY2d 52:A% which reco3niFed that 'rticle % > C provides

reporters with a Bualified e;e#ption a3ainst co#pelled disclosure of nonconfidential

news -- infor#ation that was not received in confidence -- unless the part seekin3

disclosure establishes that the news iA is hi3hl #aterial and relevantH iiA is critical or

necessar to the #aintenance of a part*s clai#% defense or proof of an issue #aterial

theretoH and iiiA is not obtainable fro# an alternative source (ivil Ri3hts aw > 78-

hDcEH added :@@8% ch 99% > 2A.

t is clear fro# the le3islative histor of these provisions that the

e3islature believed that such protections were essential to #aintenance of our free and

de#ocratic societ. ,rior to the adoption of the first statute in :@78% law#akers

considered affidavits prepared b several lu#inaries of the profession -- includin3

&alter (ronkite% ric 1evereid and !ike &allace -- e#phasiFin3 the critical i#portance

of protectin3 the anon#it of confidential sources in order to assure a continued flow of

infor#ation to reporters and% thus% to the public see 6ill "acket% :@78% ch ?:5% at ??-

7?A.2 The views e;pressed b these reporters were echoed b overnor Nelson

2 The affidavits were prepared in connection with a #otion to Buash a subpoena in a case thatwas pendin3 when the 1hield aw was under consideration b the e3islature and which involved aninvesti3ative reporter fro# the New York Ti#es who was subpoenaed b a +ederal rand "ur in(alifornia to testif concernin3 knowled3e he obtained about the 6lack ,anther or3aniFation. Two lowercourts held that the +irst '#end#ent protected the reporter fro# bein3 co#pelled to reveal his sources ordisclose infor#ation provided to hi# in confidence% differin3 onl on whether the reporter could avoidappearin3 at the rand "ur alto3ether (aldwell v


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Rockefeller in his #e#orandu# approvin3 the le3islation. There he e#phasiFed that

DtEhe threat to a newsDpersonE of bein3 char3ed with conte#pt and bein3 i#prisoned for

failin3 to disclose his Dor herE infor#ation or . . . sources can si3nificantl reduce his Dor

herE abilit to 3ather vital infor#ation overnor*s 'pproval !e#% 6ill "acket% :@78% ch

?:5% at @:A. The overnor described freedo# of the press as one of the foundations

upon which our for# of 3overn#ent is based% concludin3 that DaE representative

de#ocrac% such as ours% cannot e;ist unless there is a free press both willin3 and able

to keep the public infor#ed of all the news id.A. !oreover% it is evident fro# the

approval #e#orandu# that he and the e3islature intended the statute to provide the

hi3hest level of protection in the nation0 This *+reedo# of nfor#ation 6ill for News#en*

will #ake New York 1tate -- the Nation*s principal center of news 3atherin3 and

disse#ination -- the onl state that clearl protects the public*s ri3ht to know id.A.

This articulated le3islative purpose to protect a3ainst incursions on press

freedo# was repeatedl reaffir#ed in the ears after the ori3inal 1hield aw was

enacted when the statute was a#ended several ti#es in an effort to stren3then its

provisions% often in response to judicial decisions that the e3islature viewed as

affordin3 inadeBuate protections to reporters. +or e;a#ple% in :@C: the e3islature

passed a#end#ents intended to correct loopholes and fill 3aps in the e;istin3 statute%

indicatin3 this was necessar because DcEase histor #akes it abundantl clear that the

courts have been all too often disinclined to follow the letter or even the spirit of the

e;istin3 law 6each% supra% ?2 NY2d at 258% Buotin3 'sse#bl 1ponsor*s !e#% 6ill

could not be co#pelled to appear at rand "urE% vacatin3 9:: + 1upp 95C DN) (al :@78EDalthou3hreBuired to appear at rand "ur% reporter was entitled to protective order precludin3 Buestionin3concernin3 confidential sources or infor#ationEA. $owever% decidin3 the case with 6ranFbur3 v $aes48C


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"acket% :@C:% ch 4?C% at 4A.

's a result% New York public polic as e#bodied in the (onstitution and

our current statutor sche#e provides a #antle of protection for those who 3ather and

report the news -- and their confidential sources -- that has been reco3niFed as the

stron3est in the nation. 'nd safe3uardin3 the anon#it of those who provide

infor#ation in confidence is perhaps the core principle of New York*s journalistic

privile3e% as is evident fro# our colonial tradition% the constitutional te;t and the

le3islative histor of the 1hield aw.

This is reflected in our decision in !atter of 6each v 1hanle id.A% which

involved a controvers between a television reporter and a rand "ur that was

investi3atin3 the unauthoriFed disclosure of a sealed report issued b a prior rand

"ur. n e;chan3e for an e;press pro#ise to keep his identit secret% a source

apparentl told the reporter that the earlier rand "ur had reco##ended the re#oval

of the local 1heriff in connection with an investi3ation into the ille3al retention and sale

of 3uns. &hen this infor#ation was revealed in a news broadcast% the second rand

"ur was convened to deter#ine whether the contents of the sealed report had been

disclosed to the reporter b a 3rand juror% public official or other public e#ploee in

violation of ,enal aw > 2:5.78 -- conduct that constitutes a class felon. 1ubpoenas

were issued to the reporter seekin3 his testi#on and notes on the source of the news

report.

'fter reviewin3 the histor of the 1hield aw and considerin3 its lan3ua3e%

we reversed the order of the 'ppellate )ivision% which had directed the reporter*s

appearance at the rand "ur% and ordered that the subpoenas should have been

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Buashed. &e e;plained0

The inescapable conclusion is that the 1hield aw providesa broad protection to journalists without an Bualifin3lan3ua3e. t does not distin3uish between cri#inal and civil

#atters% nor does it e;cept situations where the reporterobserves a cri#inal act . .. 'lthou3h this #a thwart a 3randjur investi3ation% the statute per#its a reporter to retain hisor her infor#ation% even when the act of divul3in3 theinfor#ation was itself cri#inal conduct. ven if one were tobe in disa3ree#ent with the wisdo# of the polic underlin3section 7@-h and no #atter how heinous the cri#e underinvesti3ation% the courts are not free to i3nore the #andateof the e3islature and substitute a polic of their own6each% ?2 NY2d at 25:-252 Dinternal Buotation #arks andcitations o#ittedEA.

6each was decided on purel statutor 3rounds under the doctrine of constitutional

avoidance% althou3h then-"ud3e &achtler noted in a concurrence that the protection of

confidential sources was essential to the tpe of freedo# of e;pression traditionall

e;pected in this 1tate and should be reco3niFed as a ri3ht 3uaranteed b the 1tate

(onstitution id. at 25? D&achtler concurrenceEA. n /*Neil% we later confir#ed that

'rticle % > C also enco#passes a journalist*s privile3e as part of the 3uarantee of free

speech and a free press.

t is therefore evident based on the New York (onstitution% the 1hield aw

and our precedent that a New York court could not co#pel &inter to reveal the identit

of the sources that supplied infor#ation to her in relation to her online news article

about $ol#es* notebook. $ol#es does not ar3ue otherwise but relies on our decision in

!atter of (ode (apital (ities% '#. 6roadcastin3 (orp.A supra% C2 NY2d 52:A for the

proposition that% when New York functions as the sendin3 state in relation to a (,

?48.:82A application% issues concernin3 testi#onial privile3e -- includin3 the

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applicabilit of the absolute privile3e afforded b the 1hield aw -- si#pl cannot be

considered b a New York court. &e ne;t address this issue.

(, ?48.:8 and (ode

(, ?48.:82A is New York*s codification of the


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bein3 held in conte#pt for failin3 to 3ive testi#on in the de#andin3 state.

n (ode% a New York news or3aniFation was subpoenaed b a New

"erse rand "ur that was investi3atin3 ille3al point shavin3 and 3a#blin3 activities

associated with colle3iate basketball. The news or3aniFation had previousl broadcast

a stor that contained brief e;cerpts of an interview with an unidentified plaer who was

dis3uised in the report to preserve his anon#it and who provided infor#ation relevant

to the investi3ation. The plaer later revealed his identit to the rand "ur and decided

to cooperate in the investi3ation but he could not recall everthin3 that he had said

durin3 the 98-#inute videotaped interview with the reporter% onl a s#all portion of

which had been aired durin3 the broadcast. Thus% the rand "ur sou3ht to obtain

videotaped out-takes of the interview and the reporter*s notes. nvokin3 (, ?48.:82A

in an effort to secure the attendance of the New York reporter at its proceedin3s in New

"erse% the New "erse rand "ur obtained the reBuisite certificate and co##enced a

proceedin3 in the New York count where the news or3aniFation was based reBuestin3

issuance of a subpoena. n response% the broadcaster contended that the #aterial

sou3ht was privile3ed under the New "erse 1hield aw% #aintainin3 that New "erse

3rants an absolute privile3e protectin3 infor#ation of the tpe sou3ht there.

1upre#e (ourt issued the subpoena% without decidin3 the privile3e issue.

6ut the 'ppellate )ivision reversed% reasonin3 that New York -- which was functionin3

as the sendin3 state -- #ust resolve the reporter*s clai# that the infor#ation sou3ht was

privile3ed in the de#andin3 state because% if the clai# had #erit% the evidence would

be inad#issible in the de#andin3 state and therefore could not be #aterial or

necessar to the cri#inal investi3ation. The 'ppellate )ivision then analFed New

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"erse*s 1hield aw% concludin3 that the reBuested infor#ation was protected b an

absolute privile3e% si#ilar to the privile3e 3ranted under New York*s 1hield aw.

/n appeal% we reversed and directed that the subpoena should be

reinstated% holdin3 that the 'ppellate )ivision had erred in considerin3 the news

or3aniFation*s clai# that the infor#ation was privile3ed under New "erse law. &e

deter#ined that the inBuir conducted b the sendin3 state to deter#ine whether the

infor#ation sou3ht is #aterial and necessar within the #eanin3 of (, ?48.:82A is

li#ited and does not enco#pass the concepts of ad#issibilit% disclosabilit or privile3e.

ndicatin3 that DiEt would be inefficient and inconsistent with the over-all purpose and

desi3n of this reciprocal statutor sche#e to per#it the sendin3 1tate*s courts to resolve

Buestions of privile3e on a (, ?48.:82A application% (ode% C2 NY2d at 52@A we

concluded that evidentiar Buestions such as privile3e are best resolved in the 1tate --

and in the proceedin3 -- in which the evidence is to be used id. at 598A. &e e;plained

that

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- 16 - No. 245

DiEn view of the sensitivit of privile3e issues to local policconcerns and particulariFed le3al rules% it would #ake littlesense to construe (, ?48.:82A as authoriFin3 the courts ofthis 1tate to deter#ine Buestions of privile3e that arise out of

the law of another jurisdiction and which relate to specificcri#inal proceedin3s pendin3 in that other jurisdiction id.A.

n (ode% we articulated the 3eneral rule that a clai# that the evidence

sou3ht will be inad#issible in the de#andin3 state based on the applicabilit of a

privile3e is si#pl not a proper basis for a sendin3 state% such as New York% to den the

subpoena reBuest under the


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- 17 - No. 245

concerns% which #ilitated a3ainst a New York court deter#inDin3E Buestions of privile3e

that arise out of the law of another jurisdiction (ode% C2 NY2d at 598A.

1econd% because there was no clai#ed disparit between the protection

afforded in the de#andin3 state and that provided in New York in relation to the

infor#ation sou3ht% no co#parable public polic issue was presented in (ode. There

the reporter did not ar3ue that he needed the protection of the New York courts because

New "erse would resolve the privile3e issue in a #anner offensive to a stron3 public

polic of this 1tate -- he contended just the opposite% assertin3 that New York should

decline to issue the subpoena because the videotaped out-takes were privile3ed under

New "erse law. n contrast% here &inter #akes a co#pellin3 ar3u#ent that the

pro#ise of confidentialit she provided to her sources will not be honored b the

(olorado courts. (olorado offered no privile3e to reporters until :@@8 and its current

1hield aw 3rants onl Bualified% as opposed to absolute% protection -- even in relation

to the identit of sources of confidential news.9 ssentiall% the (olorado courts e#plo

a balancin3 test to deter#ine whether a reporter can be reBuired to reveal an

anon#ous source -- a procedure in stark contrast to the absolute privile3e cloakin3

that infor#ation in New York.

This brin3s us to perhaps the #ost i#portant factual distinction between

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this case and (ode. n (ode% the New "erse rand "ur did not subpoena the

reporter for the purpose of co#pellin3 hi# to reveal the identit of a confidential source.

The basketball plaer who had been interviewed on condition of anon#it had co#e

forward of his own accord and New "erse authorities alread knew who he was -- the

sou3ht to obtain the video out-takes fro# the interview because he could not recall

everthin3 he had said to the reporter. To be sure% nonpublished #aterial such as this

receives si3nificant protection in New York and apparentl also in New "erseA% even

when the source is known. 6ut we cannot i3nore the obvious distinction between the

#aterial sou3ht in (ode and the testi#on at issue here.

t is clear fro# the certificate issued b the )istrict (ourt in this case that

the onl purpose of reBuirin3 &inter to appear in (olorado is to co#pel her to reveal the

identities of the individuals who supplied the infor#ation she reported in the news stor

-- infor#ation obtained in e;chan3e for a pro#ise of confidentialit. )isclosure of this

infor#ation will enable the )istrict (ourt to deter#ine the ori3in of the leaks% presu#abl

so that the individuals involved can be sanctioned for violation of the nondisclosure

order and perhaps even prosecuted for perjur. This is a valid objective in li3ht of the

apparent breach of the )istrict (ourt*s pretrial 3a3 order. 6ut this predictable chain of

events is precisel the har# sou3ht to be avoided under our 1hield aw for it is fear of

reprisal of this tpe that closes #ouths% causin3 news sources to dr up and inhibitin3

the future investi3ative efforts of reporters. The )istrict (ourt is understandabl

troubled b the violation of the restrictions it i#posed on pretrial disclosure% but the New

York 1hield aw per#its a reporter to retain his or her infor#ation% even when the act

of divul3in3 the infor#ation was itself cri#inal conduct 6each% ?2 NY2d at 252A.

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's we have e;plained% protection of the anon#it of confidential

sources is a core -- if not the central -- concern underlin3 New York*s journalist

privile3e% with roots that can be traced back to the inception of the press in New York.

'lthou3h there are uncertainties concernin3 the application of the outer reaches of our

statute% particularl the scope of the Bualified privile3e for nonconfidential news which

#ust be deter#ined on a case-b-case basis see e.3. ,eople v (o#best% 4 NY9d 94:

D2885E Dcri#inal defendant #et his burden under 1hield aw to co#pel production of

nonconfidential videotapes of defendant*s interro3ation b police #ade b docu#entar

fil# crewEA% there is no principle #ore funda#ental or well-established than the ri3ht of a

reporter to refuse to divul3e a confidential source. 'nd that concern is directl

i#plicated here 3iven that the onl purpose for &inter*s testi#on is to ascertain who

leaked the infor#ation re3ardin3 the discover of the notebook. ndeed% absent that

infor#ation% there is no #aterial or necessar testi#on &inter could offer in connection

with the (olorado proceedin3.

!oreover% as a New York reporter% &inter was aware of

-- and was entitled to rel on -- the absolute protection e#bodied in our 1hield aw

when she #ade the pro#ises of confidentialit that she now seeks to honor. iven that

this is the case% and in li3ht of the si3nificant disparit between New York and (olorado

law% she was entitled to have the 1hield aw issue adjudicated in New York before the

subpoena was issued% even thou3h it relates to testi#on sou3ht in the courts of

another state. &e therefore conclude that an order fro# a New York court directin3 a

reporter to appear in another state where% as here% there is a substantial likelihood that

she will be co#pelled to identif sources who have been pro#ised confidentialit would

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offend our stron3 public polic -- a co##on law% statutor and constitutional tradition

that has plaed a si3nificant role in this 1tate beco#in3 the #edia capital of the countr

if not the world.

,er#ittin3 a New York court to consider the privile3e issue raised here in

the conte;t of a (, ?48.:82A proceedin3 will not% as $ol#es su33ests% have the effect

of e;pandin3 the territorial effect of New York law beond our borders -- and this is true

even if we assu#e that &inter was in (olorado when she spoke with her confidential

sources. The outco#e of this case does not and should notA turn on whether &inter

received the infor#ation while she was in (olorado or obtained it over the telephone or

via co#puter while sittin3 in her New York office. ' rule predicated on where a New

York reporter was located when she learned of an anon#ous tip would lead to arbitrar

results and would i3nore several practical realities% includin3 the widespread use of

cuttin3-ed3e co##unication technolo3 to facilitate the news3atherin3 process and the

3lobal nature of toda*s news #arket it is now possible for a journalist based in New

York to cover a (alifornia stor while on assi3n#ent in 1in3apore throu3h the use of e-

#ail% te;t #essa3in3 and the likeA. New York journalists should not have to consult the

law in the jurisdiction where a source is located or where a stor breaks assu#in3

either is ascertainableA in order to deter#ine whether the can issue a bindin3 pro#ise

of confidentialit.

The dissent apparentl views this case as presentin3 a conflict of laws

issue and would resolve it pursuant to Restate#ent D1econdE of (onflict of aws > :9@.


21/27

3eneral rule is that the privile3e will not be honored b the court of the foru# state the

court where the evidence is sou3ht to be ad#ittedA. 4 &e cited the Restate#ent in

(ode in support of the proposition that in #ost instances privile3e issues should be

resolved in the courts of the de#andin3 jurisdiction (ode% C2 NY2d at 598A -- a view

that we do not retreat fro# toda. 6ut we certainl did not appl the Restate#ent

analsis% which affords si3nificance to the location where the co##unication occurred%

a#on3 other factors.5 &e need not decide whether section :9@ reflects a polic that

should be adopted in New York in other conte;ts -- plainl% New York law 3overns here

since we are applin3 New York statutor and decisional law (, ?48.:8D2E and (odeA

to deter#ine whether a New York court should issue a subpoena. t is enou3h to note

that the provision was clearl not desi3ned to resolve controversies involvin3 journalist

shield laws a tpe of privile3e not #entioned in the co##entarA% nor does it suppl a

workable rule that would be consistent with New York public polic. ?

41ubsection : directs that evidence that was not privile3ed in the state which has the #ostsi3nificant relationship with the co##unication will be ad#itted% even if the evidence would be privile3ed

in the foru# state -- the jurisdiction where the judicial proceedin3 is underwa -- unless to do so wouldviolate a stron3 public polic of the foru# state. ikewise% under subsection 2% evidence that is privile3edin the state which has the #ost si3nificant relationship with the co##unication but that is not privile3edin the foru# jurisdiction should also be ad#itted unless there is so#e special reason wh the foru#polic favorin3 ad#ission should not be 3iven effect. The Restate#ent therefore reflects a policfavorin3 the ad#issibilit of privile3ed testi#on in the event of a conflict.

5f we had% we would surel have #entioned in (ode that the videotaped interview between theNorth (arolina 1tate :9@% (o##ent eA. 6ut there is also ane;ception to this e;ception% because the latter rule will not appl if the state where the co##unicationtook place has substantial contacts with the parties and the transaction id.A n order to navi3ate thisco#plicated test% the court would have to know the identit of both parties to the co##unication% thenature and scope of their prior relationship if anA% and the location of the conversation which raises its

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'nd lest there be an confusion% we reiterate that the issue we confront is

whether a New York court should issue a subpoena co#pellin3 a New York journalist to

appear as a witness in another state to 3ive testi#on when such a result is

inconsistent with the core protection of our 1hield aw. Thus% the narrow e;ception we

reco3niFe toda% which per#its a New York court to consider and appl New York*s

journalist*s privile3e in relation to issuance of its own process -- a subpoena -- in a

narrow subset of cases% is not tanta#ount to 3ivin3 a New York law e;traterritorial

effect.

This is not the first ti#e that we have relied on the 1hield aw to reco3niFe

an e;ception to the tpical rules 3overnin3 subpoenas. n 6each we held that a rand

"ur subpoena should have been Buashed where the onl testi#on sou3ht was the

identit of a broadcast reporter*s confidential source. This deviated fro# the 3eneral

rule 3overnin3 subpoenas ad testificandu#% which is that a clai# of privile3e cannot be

asserted until the witness appears before the reBuisite tribunal and is presented with a

Buestion that i#plicates protected infor#ation. &e declined to appl that rule in 6each

because the entire focus of the rand "ur*s inBuir would be on the identit of Dthe

reporter*sE confidential source% reasonin3 that no le3iti#ate purpose would be served

b reBuirin3 the witness to 3o throu3h the for#alit of appearin3 before the rand "ur

onl to refuse to answer Buestions concernin3 the infor#ation sou3ht 6each% ?2 NY2d

at 248-24:A. (o#pellin3 a reporter to appear in court to respond to a subpoena that

own proble#s% as noted above% since the #a not have been in the sa#e placeA. n a case such as thisinvolvin3 an atte#pt to discover the identit of a confidential source% the standard would be i#possible toappl because #ost of the infor#ation needed to appl the test would be the ver sa#e infor#ation thereporter seeks to protect as privile3ed under the 1hield aw.

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seeks infor#ation that is clearl cloaked with an absolute privile3e can itself be viewed

as a si3nificant incursion into the press autono# reco3niFed in 'rticle % > C and the

1hield aw. /ur approach was consistent with the realit that DtEhe nature of the press

function #akes it a #ore likel tar3et for subpoenas which% in turn% will 3enerate cost

and diversion in ti#e and attention fro# journalistic pursuits /*Neill% 7: NY2d at 599

D6ellacosa concurrenceE D"ournalists should be spendin3 their ti#e in newsroo#s% not

in courtroo#s as participants in the liti3ation processEA. The sa#e concerns infor# our

decision in this case.

'pplication of a li#ited public polic e;ception in these unusual

circu#stances should not upset the (ode rule% which we reaffir#0 absent a threatened

violation of an e;tre#el stron3 and clear public polic of this 1tate such as is present

here% New York courts adjudicatin3 (, ?48.:82A applications should decline to resolve

ad#issibilit issues% includin3 privile3e clai#s% so that the can be decided in the

de#andin3 state. 6ecause the e;ception will rarel be applicable% we do not anticipate

that toda*s holdin3 will be interpreted as an erosion of the doctrine of co#it or as

otherwise si3nificantl i#pairin3 the procedure for securin3 the attendance of out-of-

state witnesses. To obtain relief% a part seekin3 to avoid issuance of a subpoena under

(, ?48.:82A will have to establish that a stron3 public polic is i#plicated and that

there is a substantial likelihood that an order co#pellin3 the witness*s appearance and

testi#on in the other jurisdiction would directl offend that polic. ven in 1hield aw

cases si#ilar to this one% this standard will be difficult to #eet since #an jurisdictions

offer co#parable protections in relation to the identit of confidential sourcesH7when the

7 +or e;a#ple% it appears that at least :? states have adopted privile3e statutes that provideabsolute protection to a reporter*s confidential sources0 'laba#a% 'riFona% (alifornia% )elaware% )istrict of

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de#andin3 state falls into this cate3or% the privile3e issue could be deferred for

resolution b the other jurisdiction under (ode without offendin3 New York*s public

polic. !oreover% before the e;ception #a be invoked% the record #ust indicate that

the prospective witness reasonabl relied on the protections afforded under New York

law when en3a3ed in the conduct that 3ave rise to the subpoena reBuest. The standard

we set toda is hi3h and will% we suspect% seldo# be #et. $ere% however% where there

is a substantial likelihood that a New York reporter will be co#pelled to divul3e the

identit of a confidential source or face a conte#pt sanctionA if reBuired to appear in the

other jurisdiction -- a result that would offend the core protection of the 1hield aw% a

New York public polic of the hi3hest order-- all of these hurdles have been cleared.

&e therefore conclude that the subpoena application should have been denied.

n li3ht of our resolution of the privile3e issue% we have no occasion to

address &inter*s alternative ar3u#ent that her statutor clai# of undue hardship

afforded a separate basis for relief.

'ccordin3l% the order of the 'ppellate )ivision should be reversed%

without costs% and the petition dis#issed.

(olu#bia% ndiana% Ientuck% !arland% !ontana% Nebraska% Nevada% New York% /hio% /klaho#a%/re3on% ,ennslvania see The (o##ittee on (o##unications and !edia aw% New York (it 6ar

'ssociation% The +ederal (o##on aw of "ournalists* ,rivile3e0 ' ,osition ,aper% The Record% Jol ?8%

ssue :% 2:4-295% at 22C D2885EA. 1everal others provide stron3 -- thou3h not absolute -- protection%adoptin3 standards that preclude a reporter fro# bein3 reBuired to divul3e a source e;cept in ver li#itedcircu#stances. +or e;a#ple% in 'rkansas revelation of a source cannot be co#pelled absent proof thatthe article was written% published% or broadcast in bad faith% with #alice% and not in the interest of thepublic welfare 'rk (ode 'nn > :?-C5-5:8A. &est Jir3inia recentl enacted a provision precludin3 areporter fro# bein3 reBuired to divul3e the identit of a source without his or her consentA unless suchtesti#on or infor#ation is necessar to prevent i##inent death% serious bodil injur or unjustincarceration & Ja (ode > 57-9-:8DbED:EA. 'lthou3h we #a lead the states in relation to the scope ofour journalist privile3e% New York is not alone in its reco3nition of the need to protect sources.

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- 25 - No. 245

!atter of "a#es $ol#es v "ana &inter

No. 245

1!T$% ". dissentin3A0

a3ree with the #ajorit that New York*s 1hield aw reflects a stron3

public polic of the state to protect confidential sources% and that that polic would

justif% in a proper case% a refusal to issue a subpoena under the


26/27

'ccordin3 to the Restate#ent 1econdA of (onflict of aws Restate#entA%

the Buestion of whether a particular co##unication is privile3ed should be decided

either b the law of the foru# or the law of the state which has the #ost si3nificant

relationship with the co##unication Restate#ent% > :9@A. $ere% under the

Restate#ent rule% there is no conflict to resolve% because (olorado is both the foru# --

i.e.% the location of the proceedin3 in which a part seeks to offer an alle3edl privile3ed

co##unication in evidence -- and the state with the #ost si3nificant relationship. '

co##ent to the Restate#ent sas that% DtEhe state which has the #ost si3nificant

relationship with a co##unication will usuall be the state where the co##unication

took place Restate#ent% > :9@% co##ent eA% and see no reason wh this case should

be an e;ception.

a# therefore unpersuaded b the #ajorit*s clai# that &inter was

entitled to rel on the absolute protection of the New York 1hield aw #ajorit op at

29A. 'nother Restate#ent co##ent > :9@% co##ent cA sas that if Dthe parties to the

co##unicationE relied on an law at all% the would have relied on the local law of the

state of #ost si3nificant relationship. &inter chose to leave New York% fl to (olorado%

and have conversations in (olorado with her sources. 1he and her sources could

reasonabl e;pect the Buestion of whether their co##unications were privile3ed to be

3overned b (olorado law% just as it would be if &inter were a New York lawer who

had flown out to #eet a (olorado client% or a wife who went to (olorado to talk to her

husband.

The #ajorit #akes the superficiall appealin3 ar3u#ent that New York

journalists and their sources cannot safel assu#e that their conversations will be

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confidential unless the New York 1hield aw follows the journalist everwhere #ajorit

op at 24-25A. t is true that the universal application of New York law would enhance

certaint -- but that is a result that New York courts do not have the power to achieve.

The #ajorit sas0 New York journalists should not have to consult the law in the

jurisdiction where a source is located . . . in order to deter#ine whether the can issue a

bindin3 pro#ise of confidentialit id.A -- but the will alwas have to do that% despite

toda*s decision% because the cannot be assured that New York courts will decide

ever case. f &inter had been subpoenaed when she was in (olorado -- or if she were

to be subpoenaed at so#e later date% when she travels to (olorado a3ain -- no New

York court would be involved% and if a (olorado court chose to enforce the subpoena

she would have to choose between disclosin3 her sources and co##ittin3 conte#pt.

There is nothin3 the New York courts can do about that.

The si#ple fact that no one jurisdiction can rule the world is the reason

conflict of laws rules e;ist. The #ajorit*s choice to i3nore those rules in this case

see#s to #e unjustified% and unlikel to produce either har#on a#on3 judicial sste#s

or predictable results in cases that involve a clai# of journalist-source privile3e.

K K K K K K K K K K K K K K K K K

/rder reversed% without costs% and petition dis#issed. /pinion b "ud3e raffeo. (hief"ud3e ipp#an and "ud3es Rivera and 'bdus-1alaa# concur. "ud3e 1#ith dissentsand votes to affir# in an opinion in which "ud3e ,i3ott concurs. "ud3e Read dissentsand votes to affir# for the reasons stated in the opinion b "ustice )arcel ). (lark at the

'ppellate )ivision ::8 ')9d :94A.

)ecided )ece#ber :8% 28:9

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Documents

NY Court of Appeals decision on Jana Winter case