In re McCray

928 F. Supp. 2d 748, 2013 WL 815620
CourtDistrict Court, S.D. New York
DecidedMarch 5, 2013
DocketNo. 03 Civ. 9685 (DAB)(RLE)
StatusPublished
Cited by3 cases

This text of 928 F. Supp. 2d 748 (In re McCray) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re McCray, 928 F. Supp. 2d 748, 2013 WL 815620 (S.D.N.Y. 2013).

Opinion

[751]*751OPINION AND ORDER

RONALD L. ELLIS, United States Magistrate Judge:

I. INTRODUCTION

Before the Court is a Motion to Quash a Subpoena to Produce Certain Video and Audio Tapes brought by non-party Florentine Films (“Florentine”). (Doc No. 187.) Defendants’ amended subpoena, dated October 2, 2012, seeks the production of copies of audio and/or video materials documenting interviews with eighteen specifically named persons collected in the course of reporting and producing a documentary film entitled The Central Park Five (the “Film”). Defendants’ subpoena requests the production of all outtake footage, and also extends to video and/or audio tapes documenting interviews with: (1) “current or former counsel and/or experts retained by plaintiffs”; (2) “witnesses to the events at issue in this litigation”; and (3) “any and all witnesses who were present during and/or participated in the events of April 19, 1989, the subsequent investigation, arrest or prosecution of plaintiffs.” (Defs.’ Mem. In Opp. To Florentine Films’ Mot. To Quash Subpoena (“Defs.’ Mem.”), Doc. No. 200.) Florentine objects to the subpoena on several grounds, but primarily on the ground that Defendants’ subpoena fails to overcome the qualified reporter’s privilege both codified in the New York Shield Law, § 79-h(c) of the New York Civil Rights Law, and established by the Second Circuit for nonconfidential materials in Gonzales v. Nat’l Broad. Co., 194 F.3d 29 (2d Cir.1999). Defendants argue that the Film’s filmmakers — Kenneth Burns, David McMahon and Sarah Bums — are not independent journalists entitled to the reporter’s privilege. (Defs Mem. at 12.) For the reasons set forth below, Florentine’s Motion to Quash the Subpoena is GRANTED.

II. BACKGROUND

The Court assumes general familiarity with the facts and circumstances of the events that gave rise to this litigation, and the facts are set forth here only to the extent necessary for the present motion. Florentine’s application arises in the context of a decade of civil litigation in this case. Antron McCray, Kevin Richardson, Raymond Santana, Kharey Wise, and Yusef Salaam (collectively, the “main Plaintiffs”) each served prison terms ranging from seven to thirteen years in prison after being convicted for the 1989 attack on Trisha Meili, long known to the public as the “Central Park Jogger.” (Amend. Consol. Compl. ¶¶ 864-72.) In 2002, another man’s confession and DNA evidence led the district attorney’s office to recommend vacating the main Plaintiffs’ convictions. (Id. at ¶¶ 874-88.) On December 19, 2002, the convictions were vacated by order in the New York Supreme Court. [752]*752(Id. at ¶¶ 901-02.) In 2003, the main Plaintiffs and their families filed suit against the City of New York, the New York City Police Department, the New York County District Attorney’s Office, and certain of the employees and agents of these offices (collectively, “Defendants”) who Plaintiffs assert, inter alia, conspired and perpetuated false evidence in securing the main Plaintiffs’ convictions. (Id. at ¶ 7.)

Florentine Films is a film production company. Kenneth L. Burns, David McMahon, and Sarah L. Burns make up part of the filmmaker group. (Mem. In Support of Florentine Films’s Mot. To Quash (“Florentine Mot.”), Doc No. 190.) In 2012, Florentine released a documentary film entitled The Central Park Five. (Id. at 4.) The Film reports on the “experiences of the five men who were convicted of participating in the [1989] rape of the ‘Central Park Jogger’ and then served full prison terms before their convictions were vacated.” (Id. at 5.)

A. The First Subpoena

On September 12, 2012, Defendants originally served a subpoena on Florentine that called for the production of all “audio, video and/or written materials, in any form” that was “related in any way to the subject matter” of the case brought by Plaintiffs. (Declaration of John Siegel (“Siegel Deck”), Ex. B.) On or about September 25, 2012, Florentine objected to this subpoena on the grounds that the subpoena was overbroad and unduly burdensome under Federal Rule of Civil Procedure 26 and that the subpoena violated the reporter’s privilege under both the federal common law and the New York Shield Law, Civil Rights Law, § 79-h. (Id. at ¶ 3; Ex. C; Defs.’ Mem. at 2.) In response to Plaintiffs’ objections, Defendants withdrew the original subpoena and served the amended subpoena that is now the subject of Florentine’s motion. (Defs.’ Mem. at 2.)

B. The Present Subpoena

On October 2, 2012, Defendants issued an amended subpoena that called for the production of “audio and/or video materials documenting interviews ... in connection with the book and/or film ‘The Central Park Five’ ” of the main and familial plaintiffs, “their current or former counsel,” “experts retained by plaintiffs in this litigation,” and any “witnesses to the events at issue in this litigation.” (Siegel Deck Ex. A.) On or about October 9, 2012, counsel for Florentine advised Defendants that certain materials sought by the subpoena do not exist, and therefore, the scope of the subpoena is “effectively limited to the raw footage of interviews with the plaintiffs and their counsel.” (Defs.’ Mem. at 2.)

Defendants make several claims of relevance. First, Defendants argue that the unedited interviews that appear in the Film are relevant to the claims and damages asserted in the case. Specifically, Defendants note that the materials they seek are relevant because, in the edited interviews appearing in the Film, Plaintiffs describe their recollection of the events on April 19, 1989, the circumstances surrounding their questioning by police officers, and how their criminal trials and incarcerations have affected them to the present day. (Id. at 8.) Second, Defendants argue that Plaintiffs’ credibility is “of the utmost significance” in this case, and that the edited portions of the Film conflict with prior testimony given by certain Plaintiffs in their criminal trials and during hearings pursuant to the New York General Municipal Law, § 50-(h). (Id. at 8-9). Lastly, Defendants maintain that the subpoenaed materials are relevant because current or former counsel to Plaintiffs not appearing in the Film “may have been interviewed,” and in so doing, it is “plausible” that counsel, or even Plaintiffs [753]*753themselves, waived attorney-client privilege or attorney work product. {Id. at 9-10.)

Florentine objects to the amended subpoena for essentially the same reasons it objected to the original subpoena. Florentine maintains that Defendants’ subpoena is: (1) substantially overbroad because it is not limited by subject matter; (2) premature because Plaintiffs have not yet been deposed; and (3) inappropriate because Defendants have failed to overcome the qualified reporter’s privilege under the federal common law and state Shield Law. (Florentine Mot. at 1.)

III. DISCUSSION

A. New York Shield Law, Civil Rights Law § 79-h

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928 F. Supp. 2d 748, 2013 WL 815620, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-mccray-nysd-2013.