================================================================= This opinion is uncorrected and subject to revision before publication in the New York Reports. -----------------------------------------------------------------No.

245 n 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 2aw provides an absolute privile3e that prevents a journalist fro# bein3 co#pelled to identif4 confidential sources who provided infor#ation for a news stor4. n this case% the issue is whether it would violate New York public polic4 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 1

- 2 conte#pt of court.

No. 245

,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 56at#an5 #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 (ount4 of 'rapahoe -- i##ediatel4 issued an order li#itin3 pretrial publicit4 in the case b4 either side% includin3 law enforce#ent. /n "ul4 29% 28:2% while e;ecutin3 a search warrant% the police took possession of a notebook that $ol#es had #ailed to a ps4chiatrist at the <niversit4 of (olorado before the shootin3s. $ol#es asserted that the notebook% which apparentl4 contained incri#inatin3 content% would be inad#issible at trial because it constituted a privile3ed co##unication between a patient and a ps4chiatrist. Two da4s later% the )istrict (ourt issued a second order addressin3 pretrial publicit4% precludin3 an4 part4% includin3 the police% fro# revealin3 infor#ation concernin3 the discover4 of the notebook or its contents. That sa#e da4% respondent "ana &inter -- a New York-based investi3ative reporter e#plo4ed b4 +o; News -- published an online article entitled0 5.;clusive0 !ovie !assacre 1uspect 1ent (hillin3 Notebook to ,s4chiatrist 6efore 'ttack.5 n the article% &inter described the contents of the notebook and indicated that she learned about it fro# two unidentified law enforce#ent sources. /ther news outlets also published stories revealin3 the e;istence of the notebook. 2

- 3 No. 245 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 publicit4 orders b4 speakin3 to &inter and #aintainin3 that their actions under#ined his ri3ht to a fair and i#partial jur4. 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 the4 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 <nifor# 'ct to 1ecure the 'ttendance of &itnesses fro# &ithout the 1tate in (ri#inal ,roceedin3s =(olo Rev 1tat > :?-@-289A -- the first step in the two-part process for co#pellin3 an out-of-state witness% such as &inter% to testif4 or otherwise provide evidence in (olorado. $ol#es e;plained that he sou3ht &inter*s testi#on4 and an4 notes she had created in relation to the article because she 5appears to be the onl4 witness that can provide the court with the na#e of the law enforce#ent a3ents that leaked privile3ed infor#ation.5 n "anuar4 28:9% the )istrict (ourt issued the reBuested certificate% findin3 that there was no other witness 5that could provide the na#es of the law enforce#ent a3ents who #a4 have provided infor#ation to "ana &inter5 and that potential violation of the pretrial publicit4 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 perjur4 in the first de3ree 5#a4 be i#plicated.5 Thus% the (olorado court found &inter to be a 5#aterial and necessar45 witness in the sanction proceedin3 3

and therefore reBuested that she spend three da4s in travel and testi#on4 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 (,2 ?48.:8=2A% New York*s codification of the reciprocal <nifor# 'ct to 1ecure 'ttendance of &itnesses fro# &ithout the 1tate in (ri#inal (ases% seekin3 the issuance of a subpoena co#pellin3 &inter to testif4 and provide evidence in (olorado. 'nticipatin3 that &inter would invoke the New York 1hield 2aw% $ol#es relied on our decision in !atter of (ode4 =(apital (ities% '#. 6roadastin3 (o.A =C2 NY2d 52: D:@@9EA for the proposition that an4 issue relatin3 to a clai# of privile3e could not be decided b4 a New York court when New York is the 5sendin3 state5 under (,2 ?48.:8=2A. nstead% $ol#es #aintained that privile3e issues should be addressed e;clusivel4 b4 the (olorado court% the 5de#andin3 state%5 upon &inter*s appearance there. &inter opposed the subpoena application% disputin3 that her testi#on4 was 5#aterial and necessar45 in the (olorado case 3iven that she was onl4 one of a 3roup of reporters that published articles referencin3 $ol#es* notebook. 1he also ar3ued that reBuirin3 her to testif4 and reveal her sources in (olorado would constitute an 5undue hardship5 under (,2 ?48.:8 because such disclosure would severel4 co#pro#ise her abilit4 to function as an investi3ative reporter and pursue her chosen livelihood. This contention was supported b4 the affidavit of an e;pert witness who e;plained the i#portance of confidential sources to investi3ative journalis# and opined that revelation of sources could end &inter*s career. &inter further ar3ued that the identit4 of her sources is absolutel4 4

privile3ed under New York*s 1hield 2aw. -iven the nature of the testi#on4 sou3ht b4 the )istrict (ourt and the fact that (olorado provides si3nificantl4 less protection to journalists in this re3ard% &inter asserted that it would violate public polic4 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 (ode4 su33ested that privile3e issues #a4 be considered% even when New York is the 5sendin3 state%5 if issuance of a subpoena would violate a stron3 public polic4 -- 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 necessar4 witness and that co#pliance with the subpoena posed no undue hardship because $ol#es* defense tea# would pa4 her e;penses and she was to re#ain in (olorado for no lon3er than three da4s. The court reasoned that the other issues &inter had raised% includin3 her clai# of privile3e% were be4ond the scope of a subpoena application under (,2 ?48.:8=2A and should be resolved b4 the )istrict (ourt in (olorado. : The 'ppellate )ivision affir#ed in a divided decision =::8 ')9d :94A. The #ajorit4 adopted 1upre#e (ourt*s view that the onl4 issues to be resolved b4 a New York court in its capacit4 as a 5sendin3 state5 under (,2 ?48.:8=2A 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 2aws. (olorado has deferred resolution of &inter*s privile3e clai# pendin3 disposition of several other related issues. 't this juncture% her case continues to present a live controvers4 since an order of this (ourt reversin3 the 'ppellate )ivision and dis#issin3 $ol#es*s (,2 ?48.:8=2A application will result in nullification of the subpoena% #eanin3 that &inter will have no continuin3 le3al obli3ation to return to (olorado and 3ive further testi#on4 -re3ardless of (olorado*s resolution of the privile3e issue. 5

established that &inter was a #aterial and necessar4 witness in the (olorado proceedin3 and whether co#pellin3 her to testif4 would result in undue hardship. 's to the latter% the #ajorit4 viewed the concept narrowl4 as enco#passin3 onl4 5fa#ilial% #onetar4% or job-related hardships5 pertainin3 to the ti#e% e;pense and inconvenience associated with the trip to the other jurisdiction -- which did not include an4 conseBuences flowin3 fro# the testi#on4 the witness would be reBuired to 3ive. Rel4in3 on (ode4% the #ajorit4 reasoned that it would be inefficient and inconsistent with the reciprocal sche#e for the 5sendin3 state5 to entertain issues relatin3 to ad#issibilit4 and privile3e of the testi#on4 sou3ht. Thus% the #ajorit4 declined to entertain &inter*s 1hield 2aw ar3u#ent% althou3h it noted that the record did not establish 5with absolute certaint45 that the (olorado )istrict (ourt would reBuire her to disclose the identit4 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#issibilit4 and privile3e are not entertained b4 the 5sendin3 state5 in the (,2 ?48.:8=2A conte;t% the dissent #aintained that lan3ua3e in a footnote in (ode4 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 polic4 of this state. /n the #erits% the dissent deter#ined that &inter should be able to clai# the protections of the New York 1hield 2aw to avoid issuance of the subpoena because (olorado*s 1hield 2aw contains si3nificantl4 less protection in relation to confidential sources and there was a substantial possibilit4 -- indeed% a near certaint4 -- that the )istrict (ourt would reBuire &inter to disclose her sources or be held in conte#pt. +inall4% even absent 6

consideration of the privile3e issue% the dissent found that &inter had established 5undue hardship5 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 b4 the (olorado courtA. &inter appeals as of ri3ht on the two-"ustice dissent at the 'ppellate )ivision =(,2R 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 wellestablished public polic4 in favor of protectin3 the anon4#it4 of confidential sources% as e#bodied in the New York (onstitution and the New York 1hield 2aw. &e therefore be3in b4 e;a#inin3 that public polic4. 'rticle % > C and the New York 1hield 2aw 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 5"ohn ,eter Gen3er who . . . was prosecuted for publishin3 articles critical of the New York colonial -overnor after he refused to disclose his source5 =!atter of 6each v 1hanle4% ?2 NY2d 24:% 255 D:@C4E D&achtler concurrenceEA. ' jur4 co#prised of colonial New Yorkers refused to convict Gen3er -- an action widel4 viewed as one of the first instances when the connection between the protection of anon4#ous sources and the #aintenance of a free press was reco3niFed in the new world. n acknowled3in3 the critical role that the press would pla4 in our 7

de#ocratic societ4% New York beca#e a hospitable environ#ent for journalists and other purve4ors of the written word% leadin3 the bur3eonin3 publishin3 industr4 to establish a ho#e in our state durin3 the earl4 4ears of our nation*s histor4. '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 5.ver4 citiFen #a4 freel4 speak% write and publish his or her senti#ents on all subjects . . . and no law shall be passed to restrain or abrid3e the libert4 of speech or of the press5 =NY (onst% art % > CA. This was in keepin3 with 5the consistent tradition in this 1tate of providin3 the broadest possible protection to *the sensitive role of 3atherin3 and disse#inatin3 news of public events*5 =/*Neill% 7: NY2d at 52@% Buotin3 6each% ?2 NY2d at 25?A. n furtherance of this historical tradition% the 2e3islature adopted the 1hield 2aw in :@78. '#on3 other protections% the statute 3rants an absolute privile3e precludin3 reporters fro# bein3 co#pelled to reveal the identit4 of confidential sources0 5Notwithstandin3 the provisions of an4 3eneral or specific law to the contrar4% no professional journalist or newscaster . . . shall be adjud3ed in conte#pt b4 an4 court in connection with an4 civil or cri#inal proceedin3 . . . for refusin3 or failin3 to disclose an4 news obtained or received in confidence or the identit4 of the source of an4 such news co#in3 into such person*s possession in the course of 3atherin3 or obtainin3 news for publication5 =(ivil Ri3hts 2aw > 7@-hDbEH 2 :@78% ch ?:5% as a#ended b4 2 :@75% ch 9:?H 2 :@C:% ch 4?C >> : to 98H 2 :@@8 ch 99% > :A. nfor#ation subject to the privile3e is 5inad#issible in an4 action or proceedin3 or 8

hearin3 before an4 a3enc45 =(ivil Ri3hts 2aw > 7@-hDdEA. The 1hield 2aw therefore prohibits a New York court fro# forcin3 a reporter to reveal a confidential source% both b4 preventin3 such a directive fro# bein3 enforced throu3h the court*s conte#pt power and b4 renderin3 an4 evidence that is covered b4 the provision inad#issible. 'nother subsection of the statute lar3el4 codified our decision in /*Neill v /ak3rove (onstr. =supra% 7: NY2d 52:A% which reco3niFed that 'rticle % > C provides reporters with a 5Bualified e;e#ption5 a3ainst co#pelled disclosure of 5nonconfidential news5 -- infor#ation that was not received in confidence -- unless the part4 seekin3 disclosure establishes that the news 5=iA is hi3hl4 #aterial and relevantH =iiA is critical or necessar4 to the #aintenance of a part4*s clai#% defense or proof of an issue #aterial theretoH and =iiiA is not obtainable fro# an4 alternative source5 =(ivil Ri3hts 2aw > 78hDcEH added 2 :@@8% ch 99% > 2A. t is clear fro# the le3islative histor4 of these provisions that the 2e3islature believed that such protections were essential to #aintenance of our free and de#ocratic societ4. ,rior to the adoption of the first statute in :@78% law#akers considered affidavits prepared b4 several lu#inaries of the profession -- includin3 &alter (ronkite% .ric 1evereid and !ike &allace -- e#phasiFin3 the critical i#portance of protectin3 the anon4#it4 of confidential sources in order to assure a continued flow of infor#ation to reporters and% thus% to the public =see 6ill "acket% 2 :@78% ch ?:5% at ??7?A.2 The views e;pressed b4 these reporters were echoed b4 -overnor Nelson
2 The affidavits were prepared in connection with a #otion to Buash a subpoena in a case that was pendin3 when the 1hield 2aw was under consideration b4 the 2e3islature and which involved an investi3ative reporter fro# the New York Ti#es who was subpoenaed b4 a +ederal -rand "ur4 in (alifornia to testif4 concernin3 knowled3e he obtained about the 6lack ,anther or3aniFation. Two lower courts held that the +irst '#end#ent protected the reporter fro# bein3 co#pelled to reveal his sources or disclose infor#ation provided to hi# in confidence% differin3 onl4 on whether the reporter could avoid appearin3 at the -rand "ur4 alto3ether =(aldwell v <nited 1tates% 494 +2d :8C: D@th (ir :@78E Dreporter

Rockefeller in his #e#orandu# approvin3 the le3islation. There he e#phasiFed that 5DtEhe 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 si3nificantl4 reduce his Dor herE abilit4 to 3ather vital infor#ation5 =-overnor*s 'pproval !e#% 6ill "acket% 2 :@78% ch ?:5% at @:A. The -overnor described freedo# of the press as 5one of the foundations upon which our for# of 3overn#ent is based%5 concludin3 that 5DaE representative de#ocrac4% 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 news5 =id.A. !oreover% it is evident fro# the approval #e#orandu# that he and the 2e3islature intended the statute to provide the hi3hest level of protection in the nation0 5This *+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 onl4 state that clearl4 protects the public*s ri3ht to know5 =id.A. This articulated le3islative purpose to protect a3ainst incursions on press freedo# was repeatedl4 reaffir#ed in the 4ears after the ori3inal 1hield 2aw 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 2e3islature viewed as affordin3 inadeBuate protections to reporters. +or e;a#ple% in :@C: the 2e3islature passed a#end#ents intended to 5correct loopholes and fill 3aps in the e;istin3 statute%5 indicatin3 this was necessar4 because 5DcEase histor4 #akes it abundantl4 clear that the courts have been all too often disinclined to follow the letter or even the spirit of the e;istin3 law5 =6each% supra% ?2 NY2d at 258% Buotin3 'sse#bl4 1ponsor*s !e#% 6ill
could not be co#pelled to appear at -rand "ur4E% vacatin3 9:: + 1upp 95C DN) (al :@78EDalthou3h reBuired to appear at -rand "ur4% reporter was entitled to protective order precludin3 Buestionin3 concernin3 confidential sources or infor#ationEA. $owever% decidin3 the case with 6ranFbur3 v $a4es =48C <1 ??5 D:@72EA% the <nited 1tates 1upre#e (ourt disa3reed% holdin3 that the reporter could not rel4 on the +irst '#end#ent to avoid appearin3 and 3ivin3 evidence in response to a -rand "ur4 subpoena.

10

"acket% 2 :@C:% ch 4?C% at 4A. 's a result% New York public polic4 as e#bodied in the (onstitution and our current statutor4 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 anon4#it4 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 histor4 of the 1hield 2aw. This is reflected in our decision in !atter of 6each v 1hanle4 =id.A% which involved a controvers4 between a television reporter and a -rand "ur4 that was investi3atin3 the unauthoriFed disclosure of a sealed report issued b4 a prior -rand "ur4. n e;chan3e for an e;press pro#ise to keep his identit4 secret% a source apparentl4 told the reporter that the earlier -rand "ur4 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 "ur4 was convened to deter#ine whether the contents of the sealed report had been disclosed to the reporter b4 a 3rand juror% public official or other public e#plo4ee in violation of ,enal 2aw > 2:5.78 -- conduct that constitutes a class . felon4. 1ubpoenas were issued to the reporter seekin3 his testi#on4 and notes on the source of the news report. 'fter reviewin3 the histor4 of the 1hield 2aw and considerin3 its lan3ua3e% we reversed the order of the 'ppellate )ivision% which had directed the reporter*s appearance at the -rand "ur4% and ordered that the subpoenas should have been 11

Buashed. &e e;plained0 5The inescapable conclusion is that the 1hield 2aw provides a broad protection to journalists without an4 Bualif4in3 lan3ua3e. t does not distin3uish between cri#inal and civil #atters% nor does it e;cept situations where the reporter observes a cri#inal act . .. 'lthou3h this #a4 thwart a 3rand jur4 investi3ation% the statute 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. .ven if one were to be in disa3ree#ent with the wisdo# of the polic4 underl4in3 section 7@-h and no #atter how heinous the cri#e under investi3ation% the courts are not free to i3nore the #andate of the 2e3islature and substitute a polic4 of their own5 =6each% ?2 NY2d at 25:-252 Dinternal Buotation #arks and citations o#ittedEA. 6each was decided on purel4 statutor4 3rounds under the doctrine of constitutional avoidance% althou3h then-"ud3e &achtler noted in a concurrence that the protection of confidential sources was 5essential to the t4pe of freedo# of e;pression traditionall4 e;pected in this 1tate and should be reco3niFed as a ri3ht 3uaranteed b4 the 1tate (onstitution5 =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 2aw and our precedent that a New York court could not co#pel &inter to reveal the identit4 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 (ode4 =(apital (ities% '#. 6roadcastin3 (orp.A =supra% C2 NY2d 52:A for the proposition that% when New York functions as the 5sendin3 state5 in relation to a (,2 ?48.:8=2A application% issues concernin3 testi#onial privile3e -- includin3 the 12

applicabilit4 of the absolute privile3e afforded b4 the 1hield 2aw -- si#pl4 cannot be considered b4 a New York court. &e ne;t address this issue. (,2 ?48.:8 and (ode4 (,2 ?48.:8=2A is New York*s codification of the <nifor# 'ct to 1ecure the 'ttendance of &itnesses +ro# &ithout a 1tate in (ri#inal ,roceedin3s% which has been adopted b4 all 58 states. The <nifor# 'ct creates a two-step procedure for co#pellin3 the appearance of a witness located in another jurisdiction. +irst% the relevant court in the de#andin3 state -- the jurisdiction that seeks the witness*s testi#on4 -- #ust issue a 5certificate5 findin3 5that there is a cri#inal prosecution pendin3 in such court . . .% that a person bein3 within this state is a #aterial witness in such prosecution . . . and that his Dor herE presence will be reBuired for a specified nu#ber of da4s5 =(,2 ?48.:8D2EA. Ne;t% if the witness whose testi#on4 is sou3ht is present in New York% #eanin3 New York is the 5sendin3 state%5 the certificate is presented to a 1upre#e (ourt "ustice or a (ount4 (ourt "ud3e in the count4 where the witness is located and that court conducts a hearin3 to deter#ine whether to issue a subpoena directin3 the witness to appear in the de#andin3 state. ' subpoena is appropriate% however% onl4 if the New York court deter#ines 5that the witness is #aterial and necessar4% that it will not cause undue hardship to the witness to be co#pelled to attend and testif4 in the prosecution . . . % and that the laws of the Dde#andin3E state 5will 3ive to hi# Dor herE protection fro# arrest and the service of civil and cri#inal process5 =(,2 ?48.:8D2EA. The latter clause prevents the witness fro# bein3 subjected to arrest for an4 unrelated outstandin3 warrant or fro# bein3 served with process while answerin3 the subpoena -- but it has not been interpreted as protectin3 the witness fro# 13

bein3 held in conte#pt for failin3 to 3ive testi#on4 in the de#andin3 state. n (ode4% a New York news or3aniFation was subpoenaed b4 a New "erse4 -rand "ur4 that was investi3atin3 ille3al point shavin3 and 3a#blin3 activities associated with colle3iate basketball. The news or3aniFation had previousl4 broadcast a stor4 that contained brief e;cerpts of an interview with an unidentified pla4er who was dis3uised in the report to preserve his anon4#it4 and who provided infor#ation relevant to the investi3ation. The pla4er later revealed his identit4 to the -rand "ur4 and decided to cooperate in the investi3ation but he could not recall ever4thin3 that he had said durin3 the 98-#inute videotaped interview with the reporter% onl4 a s#all portion of which had been aired durin3 the broadcast. Thus% the -rand "ur4 sou3ht to obtain videotaped out-takes of the interview and the reporter*s notes. nvokin3 (,2 ?48.:8=2A in an effort to secure the attendance of the New York reporter at its proceedin3s in New "erse4% the New "erse4 -rand "ur4 obtained the reBuisite certificate and co##enced a proceedin3 in the New York count4 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 "erse4 1hield 2aw% #aintainin3 that New "erse4 3rants an absolute privile3e protectin3 infor#ation of the t4pe 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 necessar4 to the cri#inal investi3ation. The 'ppellate )ivision then anal4Fed New 14

"erse4*s 1hield 2aw% concludin3 that the reBuested infor#ation was protected b4 an absolute privile3e% si#ilar to the privile3e 3ranted under New York*s 1hield 2aw. /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 "erse4 law. &e deter#ined that the inBuir4 conducted b4 the sendin3 state to deter#ine whether the infor#ation sou3ht is 5#aterial and necessar45 within the #eanin3 of (,2 ?48.:8=2A is li#ited and does not enco#pass the concepts of ad#issibilit4% disclosabilit4 or privile3e. ndicatin3 that 5DiEt would be inefficient and inconsistent with the over-all purpose and desi3n of this reciprocal statutor4 sche#e to per#it the sendin3 1tate*s courts to resolve Buestions of privile3e on a (,2 ?48.:8=2A application%5 =(ode4% C2 NY2d at 52@A we concluded that 5evidentiar4 Buestions such as privile3e are best resolved in the 1tate -and in the proceedin3 -- in which the evidence is to be used5 =id. at 598A. &e e;plained that

15

- 16 No. 245 5DiEn view of the sensitivit4 of privile3e issues to local polic4 concerns and particulariFed le3al rules% it would #ake little sense to construe (,2 ?48.:8=2A as authoriFin3 the courts of this 1tate to deter#ine Buestions of privile3e that arise out of the law of another jurisdiction and which relate to specific cri#inal proceedin3s pendin3 in that other jurisdiction5 =id.A. n (ode4% we articulated the 3eneral rule that a clai# that the evidence sou3ht will be inad#issible in the de#andin3 state based on the applicabilit4 of a privile3e is si#pl4 not a proper basis for a sendin3 state% such as New York% to den4 the subpoena reBuest under the <nifor# 'ct. n this case% the 'ppellate )ivision #ajorit4 understandabl4 relied on this proposition when den4in3 &inter relief. $owever% we also clarified in (ode4 that 5DoEur holdin3 should not be construed as foreclosin3 the possibilit4 that in so#e future case a stron3 public polic4 of this 1tate% even one e#bodied in an evidentiar4 privile3e% #i3ht justif4 the refusal of relief under (,2 ?48.:8 even if the *#aterial and necessar4* test set forth in the statute is satisfied5 =id. at 598% n 9A. &inter ar3ues that this is such a 5future case5 and we a3ree. &e be3in with the observation that this case is distin3uishable fro# (ode4 in several critical respects. $ere% &inter relies on the journalist*s privile3e e#bodied in the New York 1hield 2aw. n (ode4% the news or3aniFation ar3ued that the reporter*s testi#on4% alon3 with the video out-takes and notes% were privile3ed under the law of New "erse4 which% like New York% offers substantial protection to reporters in relation to unpublished #aterials. This distinction is si3nificant for two reasons. +irst% since the reporter in (ode4 was rel4in3 on another state*s law% it #ade sense that the other state should resolve an4 issue that arose concernin3 the applicabilit4 of the privile3e. &e e#phasiFed this in the decision when we noted that privile3e issues raise 5local polic4 16

- 17 No. 245 concerns%5 which #ilitated a3ainst a New York court 5deter#inDin3E Buestions of privile3e that arise out of the law of another jurisdiction5 =(ode4% C2 NY2d at 598A. 1econd% because there was no clai#ed disparit4 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 polic4 issue was presented in (ode4. There the reporter did not ar3ue that he needed the protection of the New York courts because New "erse4 would resolve the privile3e issue in a #anner offensive to a stron3 public polic4 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 "erse4 law. n contrast% here &inter #akes a co#pellin3 ar3u#ent that the pro#ise of confidentialit4 she provided to her sources will not be honored b4 the (olorado courts. (olorado offered no privile3e to reporters until :@@8 and its current 1hield 2aw 3rants onl4 Bualified% as opposed to absolute% protection -- even in relation to the identit4 of sources of confidential news. 9 .ssentiall4% the (olorado courts e#plo4 a balancin3 test to deter#ine whether a reporter can be reBuired to reveal an anon4#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
3<nder (olorado law% the Bualified privile3e protectin3 the identit4 of confidential sources can be abro3ated if the part4 seekin3 the infor#ation can prove% b4 a preponderance of the evidence% that =:A 5the news infor#ation is directl4 relevant to a substantial issue involved in the proceedin3%5 =2A 5the news infor#ation cannot be obtained b4 an4 other reasonable #eans%5 and =9A 5a stron3 interest of the part4 seekin3 to subpoena the newsperson outwei3hs the interests under the first a#end#ent to the <nited 1tates constitution of such newsperson in not respondin3 to a subpoena and of the 3eneral public in receivin3 news infor#ation5 =(olo Rev 1tat > :9-@8-::@D9EA. 's &inter points out% when issuin3 the certificate% the (olorado court also essentiall4 concluded that the first two pron3s are #et here -- it found that &inter*s testi#on4 was probative of the issue to be resolved =who leaked the infor#ationA and that the infor#ation sou3ht could not be secured b4 an4 other #eans.

17

this case and (ode4. n (ode4% the New "erse4 -rand "ur4 did not subpoena the reporter for the purpose of co#pellin3 hi# to reveal the identit4 of a confidential source. The basketball pla4er who had been interviewed on condition of anon4#it4 had co#e forward of his own accord and New "erse4 authorities alread4 knew who he was -- the4 sou3ht to obtain the video out-takes fro# the interview because he could not recall ever4thin3 he had said to the reporter. To be sure% nonpublished #aterial such as this receives si3nificant protection in New York =and apparentl4 also in New "erse4A% even when the source is known. 6ut we cannot i3nore the obvious distinction between the #aterial sou3ht in (ode4 and the testi#on4 at issue here. t is clear fro# the certificate issued b4 the )istrict (ourt in this case that the onl4 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 stor4 -- infor#ation obtained in e;chan3e for a pro#ise of confidentialit4. )isclosure of this infor#ation will enable the )istrict (ourt to deter#ine the ori3in of the leaks% presu#abl4 so that the individuals involved can be sanctioned for violation of the nondisclosure order and perhaps even prosecuted for perjur4. This is a valid objective in li3ht of the apparent breach of the )istrict (ourt*s pretrial 53a35 order. 6ut this predictable chain of events is precisel4 the har# sou3ht to be avoided under our 1hield 2aw for it is fear of reprisal of this t4pe that closes #ouths% causin3 news sources to dr4 up and inhibitin3 the future investi3ative efforts of reporters. The )istrict (ourt is understandabl4 troubled b4 the violation of the restrictions it i#posed on pretrial disclosure% but the New York 1hield 2aw 5per#its a reporter to retain his or her infor#ation% even when the act of divul3in3 the infor#ation was itself cri#inal conduct5 =6each% ?2 NY2d at 252A. 18

's we have e;plained% protection of the anon4#it4 of confidential sources is a core -- if not the central -- concern underl4in3 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% particularl4 the scope of the Bualified privile3e for nonconfidential news which #ust be deter#ined on a case-b4-case basis =see e.3. ,eople v (o#best% 4 NY9d 94: D2885E Dcri#inal defendant #et his burden under 1hield 2aw to co#pel production of nonconfidential videotapes of defendant*s interro3ation b4 police #ade b4 docu#entar4 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 directl4 i#plicated here 3iven that the onl4 purpose for &inter*s testi#on4 is to ascertain who leaked the infor#ation re3ardin3 the discover4 of the notebook. ndeed% absent that infor#ation% there is no #aterial or necessar4 testi#on4 &inter could offer in connection with the (olorado proceedin3. !oreover% as a New York reporter% &inter was aware of -- and was entitled to rel4 on -- the absolute protection e#bodied in our 1hield 2aw when she #ade the pro#ises of confidentialit4 that she now seeks to honor. -iven that this is the case% and in li3ht of the si3nificant disparit4 between New York and (olorado law% she was entitled to have the 1hield 2aw issue adjudicated in New York before the subpoena was issued% even thou3h it relates to testi#on4 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 identif4 sources who have been pro#ised confidentialit4 would 19

offend our stron3 public polic4 -- a co##on law% statutor4 and constitutional tradition that has pla4ed a si3nificant role in this 1tate beco#in3 the #edia capital of the countr4 if not the world. ,er#ittin3 a New York court to consider the privile3e issue raised here in the conte;t of a (,2 ?48.:8=2A proceedin3 will not% as $ol#es su33ests% have the effect of e;pandin3 the territorial effect of New York law be4ond 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 anon4#ous tip would lead to arbitrar4 results and would i3nore several practical realities% includin3 the widespread use of cuttin3-ed3e co##unication technolo34 to facilitate the news3atherin3 process and the 3lobal nature of toda4*s news #arket =it is now possible for a journalist based in New York to cover a (alifornia stor4 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 stor4 5breaks5 =assu#in3 either is ascertainableA in order to deter#ine whether the4 can issue a bindin3 pro#ise of confidentialit4. The dissent apparentl4 views this case as presentin3 a conflict of laws issue and would resolve it pursuant to Restate#ent D1econdE of (onflict of 2aws > :9@. <nder that provision -- which we have never applied -- if there is a disparit4 between the laws in two states such that a co##unication is privile3ed in one but not the other% the 20

3eneral rule is that the privile3e will not be honored b4 the court of the 5foru#5 state =the court where the evidence is sou3ht to be ad#ittedA. 4 &e cited the Restate#ent in (ode4 in support of the proposition that in #ost instances privile3e issues should be resolved in the courts of the de#andin3 jurisdiction =(ode4% C2 NY2d at 598A -- a view that we do not retreat fro# toda4. 6ut we certainl4 did not appl4 the Restate#ent anal4sis% 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 polic4 that should be adopted in New York in other conte;ts -- plainl4% New York law 3overns here since we are appl4in3 New York statutor4 and decisional law =(,2 ?48.:8D2E and (ode4A to deter#ine whether a New York court should issue a subpoena. t is enou3h to note that the provision was clearl4 not desi3ned to resolve controversies involvin3 journalist shield laws =a t4pe of privile3e not #entioned in the co##entar4A% nor does it suppl4 a workable rule that would be consistent with New York public polic4. ?
41ubsection : directs that evidence that was not privile3ed in the state 5which has the #ost si3nificant relationship with the co##unication will be ad#itted%5 even if the evidence would be privile3ed in the 5foru#5 state -- the jurisdiction where the judicial proceedin3 is underwa4 -- unless to do so would violate a stron3 public polic4 of the foru# state. 2ikewise% under subsection 2% evidence that is privile3ed in the state 5which has the #ost si3nificant relationship with the co##unication5 but that is not privile3ed in the foru# jurisdiction should also be ad#itted 5unless there is so#e special reason wh4 the foru# polic4 favorin3 ad#ission should not be 3iven effect.5 The Restate#ent therefore reflects a polic4 favorin3 the ad#issibilit4 of privile3ed testi#on4 in the event of a conflict.

5 f we had% we would surel4 have #entioned in (ode4 that the videotaped interview between the North (arolina 1tate <niversit4 basketball pla4er and the New York reporter occurred at a hotel in 'lban4% New York -- a fact that the dissent would apparentl4 view as i#portant if not dispositive% even thou3h the law of the foru# state alwa4s 3overns under the Restate#ent.
? 'lthou3h the inBuir4 is not dispositive under the Restate#ent because the law of the foru# state is para#ount% section :9@ su33ests that the focus should be on the 5state which has the #ost si3nificant relationship with the co##unication%5 notin3 in co##ent e that this 5will usuall4 be the state where the co##unication took place5 unless there was a 5prior relationship between the parties to the co##unication5 in which case 5the state of #ost si3nificant relationship will be that where the relationship was centered5 =Restate#ent D1econdE of (onflict of 2aws > :9@% (o##ent eA. 6ut there is also an e;ception to this e;ception% because the latter rule will not appl4 if 5the state where the co##unication took place has substantial contacts with the parties and the transaction5 =id.A n order to navi3ate this co#plicated test% the court would have to know the identit4 of both parties to the co##unication% the nature and scope of their prior relationship =if an4A% and the location of the conversation =which raises its

21

'nd lest there be an4 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#on4 when such a result is inconsistent with the core protection of our 1hield 2aw. Thus% the narrow e;ception we reco3niFe toda4% which per#its a New York court to consider and appl4 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 2aw to reco3niFe an e;ception to the t4pical rules 3overnin3 subpoenas. n 6each we held that a -rand "ur4 subpoena should have been Buashed where the onl4 testi#on4 sou3ht was the identit4 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 appl4 that rule in 6each because 5the entire focus of the -rand "ur4*s inBuir4 would be on the identit4 of Dthe reporter*sE confidential source%5 reasonin3 that no le3iti#ate purpose would be served b4 reBuirin3 the witness to 3o throu3h the for#alit4 of appearin3 before the -rand "ur4 onl4 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 the4 #a4 not have been in the sa#e placeA. n a case such as this involvin3 an atte#pt to discover the identit4 of a confidential source% the standard would be i#possible to appl4 because #ost of the infor#ation needed to appl4 the test would be the ver4 sa#e infor#ation the reporter seeks to protect as privile3ed under the 1hield 2aw.

22

seeks infor#ation that is clearl4 cloaked with an absolute privile3e can itself be viewed as a si3nificant incursion into the press autono#4 reco3niFed in 'rticle % > C and the 1hield 2aw. /ur approach was consistent with the realit4 that 5DtEhe nature of the press function #akes it a #ore likel4 tar3et for subpoenas which% in turn% will 3enerate cost and diversion in ti#e and attention fro# journalistic pursuits5 =/*Neill% 7: NY2d at 599 D6ellacosa concurrenceE D5"ournalists should be spendin3 their ti#e in newsroo#s% not in courtroo#s as participants in the liti3ation process5EA. The sa#e concerns infor# our decision in this case. 'pplication of a li#ited public polic4 e;ception in these unusual circu#stances should not upset the (ode4 rule% which we reaffir#0 absent a threatened violation of an e;tre#el4 stron3 and clear public polic4 of this 1tate such as is present here% New York courts adjudicatin3 (,2 ?48.:8=2A applications should decline to resolve ad#issibilit4 issues% includin3 privile3e clai#s% so that the4 can be decided in the de#andin3 state. 6ecause the e;ception will rarel4 be applicable% we do not anticipate that toda4*s holdin3 will be interpreted as an erosion of the doctrine of co#it4 or as otherwise si3nificantl4 i#pairin3 the procedure for securin3 the attendance of out-ofstate witnesses. To obtain relief% a part4 seekin3 to avoid issuance of a subpoena under (,2 ?48.:8=2A will have to establish that a stron3 public polic4 is i#plicated and that there is a substantial likelihood that an order co#pellin3 the witness*s appearance and testi#on4 in the other jurisdiction would directl4 offend that polic4. .ven in 1hield 2aw cases si#ilar to this one% this standard will be difficult to #eet since #an4 jurisdictions offer co#parable protections in relation to the identit4 of confidential sourcesH 7 when the
7 +or e;a#ple% it appears that at least :? states have adopted privile3e statutes that provide absolute protection to a reporter*s confidential sources0 'laba#a% 'riFona% (alifornia% )elaware% )istrict of

23

de#andin3 state falls into this cate3or4% the privile3e issue could be deferred for resolution b4 the other jurisdiction under (ode4 without offendin3 New York*s public polic4. !oreover% before the e;ception #a4 be invoked% the record #ust indicate that the prospective witness reasonabl4 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 toda4 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 identit4 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 2aw% a New York public polic4 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 statutor4 clai# of undue hardship afforded a separate basis for relief. 'ccordin3l4% the order of the 'ppellate )ivision should be reversed% without costs% and the petition dis#issed.

(olu#bia% ndiana% Ientuck4% !ar4land% !ontana% Nebraska% Nevada% New York% /hio% /klaho#a% /re3on% ,enns4lvania =see The (o##ittee on (o##unications and !edia 2aw% New York (it4 6ar 'ssociation% 5The +ederal (o##on 2aw of "ournalists* ,rivile3e0 ' ,osition ,aper%5 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 ver4 li#ited circu#stances. +or e;a#ple% in 'rkansas revelation of a source cannot be co#pelled absent proof that 5the article was written% published% or broadcast in bad faith% with #alice% and not in the interest of the public welfare5 ='rk (ode 'nn > :?-C5-5:8A. &est Jir3inia recentl4 enacted a provision precludin3 a reporter fro# bein3 reBuired to divul3e the identit4 of a source =without his or her consentA 5unless such testi#on4 or infor#ation is necessar4 to prevent i##inent death% serious bodil4 injur4 or unjust incarceration5 =& Ja (ode > 57-9-:8DbED:EA. 'lthou3h we #a4 lead the states in relation to the scope of our journalist privile3e% New York is not alone in its reco3nition of the need to protect sources.

24

- 25 !atter of "a#es $ol#es v "ana &inter No. 245

No. 245

1! T$% ". =dissentin3A0 a3ree with the #ajorit4 that New York*s 1hield 2aw reflects a stron3 public polic4 of the state to protect confidential sources% and that that polic4 would justif4% in a proper case% a refusal to issue a subpoena under the <nifor# 'ct to 1ecure 'ttendance of &itnesses fro# &ithout the 1tate in (ri#inal (ases. do not think this is

a proper case% however% because the alle3edl4 privile3ed co##unications took place wholl4 in (olorado% and the New York 1hield 2aw does not appl4 to the#. &hile the record does not sa4 where "ana &inter was when she spoke to her (olorado law enforce#ent sources% her brief in this (ourt concedes that she was in (olorado. =.ven without that concession% we would not assu#e otherwise fro# a silent recordH it is &inter*s burden to establish the e;istence of a privile3e.A The #ajorit4 holds the (olorado location of the co##unications to be irrelevant% apparentl4 on the 3round that &inter*s office is located in New York. The #ajorit4 is holdin3% in substance% that a New York reporter takes the protection of New York*s 1hield 2aw with her when she travels -- presu#abl4% an4where in the world. This see#s to #e an e;cessive e;pansion of New York*s jurisdiction% one that is unlikel4 to be honored b4 other states or countries or to attain the predictabilit4 that the #ajorit4 sa4s is its 3oal. 25

'ccordin3 to the Restate#ent =1econdA of (onflict of 2aws =Restate#entA% the Buestion of whether a particular co##unication is privile3ed should be decided either b4 the 5law of the foru#5 or the 5law of the state which has the #ost si3nificant relationship with the co##unication5 =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 part4 seeks to offer an alle3edl4 privile3ed co##unication in evidence -- and the state with the #ost si3nificant relationship. ' co##ent to the Restate#ent sa4s that% 5DtEhe state which has the #ost si3nificant relationship with a co##unication will usuall4 be the state where the co##unication took place5 =Restate#ent% > :9@% co##ent eA% and see no reason wh4 this case should be an e;ception. a# therefore unpersuaded b4 the #ajorit4*s clai# that &inter 5was entitled to rel4 on5 the absolute protection of the New York 1hield 2aw =#ajorit4 op at 29A. 'nother Restate#ent co##ent => :9@% co##ent cA sa4s that 5if Dthe parties to the co##unicationE relied on an4 law at all% the4 would have relied on the local law of the state of #ost si3nificant relationship.5 &inter chose to leave New York% fl4 to (olorado% and have conversations in (olorado with her sources. 1he and her sources could reasonabl4 e;pect the Buestion of whether their co##unications were privile3ed to be 3overned b4 (olorado law% just as it would be if &inter were a New York law4er who had flown out to #eet a (olorado client% or a wife who went to (olorado to talk to her husband. The #ajorit4 #akes the superficiall4 appealin3 ar3u#ent that New York journalists and their sources cannot safel4 assu#e that their conversations will be 26

confidential unless the New York 1hield 2aw follows the journalist ever4where =#ajorit4 op at 24-25A. t is true that the universal application of New York law would enhance certaint4 -- but that is a result that New York courts do not have the power to achieve. The #ajorit4 sa4s0 5New York journalists should not have to consult the law in the jurisdiction where a source is located . . . in order to deter#ine whether the4 can issue a bindin3 pro#ise of confidentialit45 =id.A -- but the4 will alwa4s have to do that% despite toda4*s decision% because the4 cannot be assured that New York courts will decide ever4 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 #ajorit4*s choice to i3nore those rules in this case see#s to #e unjustified% and unlikel4 to produce either har#on4 a#on3 judicial s4ste#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 b4 "ud3e -raffeo. (hief "ud3e 2ipp#an and "ud3es Rivera and 'bdus-1alaa# concur. "ud3e 1#ith dissents and votes to affir# in an opinion in which "ud3e ,i3ott concurs. "ud3e Read dissents and votes to affir# for the reasons stated in the opinion b4 "ustice )arcel ). (lark at the 'ppellate )ivision =::8 ')9d :94A. )ecided )ece#ber :8% 28:9

27