IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ) ) Plaintiff, ) ) v. ) ) ALBERTO GONZALES ) ATTORNEY GENERAL, et al.

, ) ) Defendants. ) __________________________________________) STEVEN J. HATFILL, M.D.,

Case No. 1:03-CV-01793 (RBW)

MOTION BY NON-PARTY CBS BROADCASTING INC. TO QUASH SUBPOENA Pursuant to Fed. R. Civ. P. 26(c) and 45(c), non-party CBS Broadcasting Inc. (“CBS”), by its undersigned counsel, hereby moves to quash a Rule 30(b)(6) subpoena issued to it by Plaintiff in the above-referenced action. For the reasons set forth more fully in the accompanying Memorandum of Law and the Declaration of Lee Levine submitted herewith, the subpoena should be quashed. Pursuant to Local Rule 7(m), we have conferred with counsel for Plaintiff, who has advised that Plaintiff will oppose this motion. May 8, 2007 Respectfully submitted, LEVINE SULLIVAN KOCH & SCHULZ, L.L.P. By /s/ Lee Levine (DC Bar No. 343095) Nathan Siegel (DC Bar No. 446253) Chad R. Bowman (DC Bar No. 484150)

1050 17th Street, N.W., Suite 800 Washington, DC 20036 (202) 508-1100 Attorneys for Non-Party CBS Broadcasting Inc.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ) ) Plaintiff, ) ) v. ) ) ATTORNEY GENERAL ) JOHN ASHCROFT, et al., ) ) Defendants. ) __________________________________________) STEVEN J. HATFILL, M.D.,

Case No. 1:03-CV-01793 (RBW)

MEMORANDUM IN SUPPORT OF MOTION BY NON-PARTY CBS BROADCASTING INC. TO QUASH SUBPOENA Pursuant to Federal Rules of Civil Procedure 45(c) and 26(c), non-party CBS Broadcasting Inc. (“CBS”), through undersigned counsel, respectfully submits this memorandum of law in support of its motion to quash plaintiff’s subpoena to it. STATEMENT OF FACTS The general history of press-related discovery in this case is set forth in detail in the Memoranda of Law filed by other news organizations that have moved to quash subpoenas, and need not be repeated here. With respect to CBS, Plaintiff originally served a Rule 30(b)(6) subpoena on CBS in December 2004, and CBS moved to quash that subpoena. See Dk. 56. Pursuant to an agreement reached with all news organizations involved at the time, the CBS subpoena was withdrawn and CBS informed Plaintiff that Jim Stewart, a CBS News correspondent at the time, had knowledge of the anonymous sources quoted in all three of the CBS News stories identified in the subpoena.

Subsequently, Mr. Stewart himself was subpoenaed and sat for a four-hour deposition. Mr. Stewart answered virtually all of Plaintiff’s counsel’s questions, including many about confidential source practices, see Declaration of Lee Levine (“Levine Decl.”) Exhibit 1 at 1, 10:8-12:15, 29:1-33:21, 36:18-39:9, 208:11-13. He declined to identify his confidential FBI and Department of Justice sources and invoked the reporter’s privilege recognized by the First Amendment and federal common law. Id. at 7:2-8:6; 114:8-11, 131:7-15, 138:4-7. Mr. Stewart also testified that he did not make any notes of conversations with these sources. Id. at 100:21101:1, 117:17-19, 125:12-18, 133:4-6. Plaintiff has not, to date, moved to compel any further testimony from Mr. Stewart. In November 2006, Mr. Stewart retired from CBS News. Levine Decl. at ¶4; see also CBS Newsman Jim Stewart to Retire; Veteran Journalist Broke Many Major News Stories During 37-Year Career, CBSNEWS.COM (Sept. 28, 2006).1 On April 24, 2007 the Rule 30(b)(6) subpoena that is the subject of this Motion was served on counsel for CBS. Levine Decl. Ex. 2. The subpoena seeks testimony and documents concerning the same three news broadcasts that were the subject of Mr. Stewart’s deposition. CBS has conducted a search for documents potentially responsive to the subpoena, but has not found any documents that relate to any of the confidential sources that were the subject of Mr. Stewart’s testimony. Levine Decl. at ¶5. ARGUMENT Each of the points and authorities set forth in the Memorandum of Law filed on behalf of The Washington Post, Newsweek and ABC in support of their motion to quash applies equally to CBS and is hereby incorporated by reference. Moreover, the arguments raised in that Available at http://www.cbsnews.com/stories/2006/09/28/eveningnews/main2049557.shtml (last visited May 7, 2007).
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memorandum regarding the inappropriate and duplicative nature of the Rule 30(b)(6) subpoenas apply with special force to CBS. The CBS subpoena is entirely duplicative of Mr. Stewart’s deposition. All three of the news reports listed in the present subpoena were reported by Mr. Stewart, all were the subject of extensive examination at his deposition, and Mr. Stewart testified that he and only he personally spoke to the anonymous sources quoted in his news reports. Levine Decl. Ex.1 at 139:19-140:1, 207:12-18; see also id. at 26:2-11, 162:15-19. Moreover, while subpoenas have sometimes been issued to news organizations, separate and apart from their reporters, for the purpose of seeking documents identifying confidential sources that might be solely within the company’s possession, CBS has no such documents. Levine Decl. ¶5. In addition, CBS notes that the only justification Plaintiff has provided for initiating this new, duplicative discovery is his claim that he “must” now try to pursue corporate employers for the same information that was the subject of reporters’ depositions, because corporations are more likely to provide it. Plaintiff’s Opposition to Defendant’s Motion for Clarification (Dk. 149) at 2. With all due respect, if Plaintiff really believed this proposition, he would have pursued this discovery during the discovery period, rather than risk waiving the opportunity to do so now. Plaintiff has been aware from the inception of this case that he might conclude that he should file motions to compel answers from reporters to questions about the specific identities of sources. Thus he created a record during the depositions to lay the groundwork for possible motions to compel, and joined the government in raising that prospect with the Court rather than simply proceed to motions for summary judgment. Nothing prevented Plaintiff from attempting to lay a similar groundwork for subsequent litigation against CBS and other news organizations at that time.

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As more fully discussed in the memoranda supporting other motions to quash filed in this matter, Plaintiff’s belated interest in serving corporate subpoenas at this late date, right after the Court has ordered the parties to engage in mediation, strongly suggests that his real interest is to attempt to leverage settlements from news organizations rather than seek discovery. That is not an appropriate ground for invoking this Court’s processes, and the subpoenas should be quashed. CONCLUSION For the foregoing reasons, the subpoena to CBS Broadcasting Inc. should be quashed.

May 8, 2007

LEVINE SULLIVAN KOCH & SCHULZ, L.L.P. By /s/ Lee Levine (DC Bar No. 343095) Nathan Siegel (DC Bar No. 446253) Chad R. Bowman (DC Bar No. 484150) 1050 17th Street, N.W., Suite 800 Washington, DC 20036 (202) 508-1100 Attorneys for CBS Broadcasting Inc.

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