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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

 

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STEVEN J. HATFILL, M.D.,

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Plaintiff,

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

v.

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ALBERTO GONZALES,

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ATTORNEY GENERAL, et al.,

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Defendants.

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AMERICAN BROADCASTING COMPANIES, INC., WP COMPANY LLC d/b/a THE WASHINGTON POST, AND NEWSWEEK, INC.’S MOTION TO QUASH

The American Broadcasting Companies, Inc. (“ABC”), WP Company LLC d/b/a

The Washington Post (the “Post”) and Newsweek, Inc. (“Newsweek”), through undersigned

counsel, hereby move this Court for an Order, pursuant to Rule 45 of the Federal Rules of Civil

Procedure, quashing the subpoenas served on them by the plaintiff in the above-captioned case.

The grounds for this Motion are set forth in the accompanying Memorandum of Law in Support

of the Motion to Quash.

Pursuant to Local Rule 7(m), we have conferred with counsel for the plaintiff,

who has advised us that plaintiff will oppose this motion.

Respectfully submitted,

WILLIAMS & CONNOLLY LLP

By:

/s/

Kevin T. Baine (No. 238600) Kevin Hardy (No. 473941) Carl R. Metz (No. 490633)

Dated: May 3, 2007

725 12th Street, N.W. Washington, D.C. 20005 (202) 434-5000

Counsel for WP Company LLC d/b/a The Washington Post, Newsweek, Inc. and American Broadcasting Companies, Inc.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

 

)

STEVEN J. HATFILL, M.D.,

)

)

Plaintiff,

)

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

v.

)

)

ALBERTO GONZALES,

)

ATTORNEY GENERAL, et al.,

)

)

Defendants.

)

)

MEMORANDUM OF AMERICAN BROADCASTING COMPANIES, INC., WP COMPANY LLC d/b/a THE WASHINGTON POST, AND NEWSWEEK, INC. IN SUPPORT OF THEIR MOTION TO QUASH

After this Court granted an additional period for the plaintiff in this case to

attempt to identify confidential news sources, plaintiff issued new subpoenas to American

Broadcasting Companies, Inc. (“ABC”), WP Company LLC d/b/a The Washington Post (the

“Post”), and Newsweek, Inc. (“Newsweek”), among other news organizations. Reporters for

ABC, the Post and Newsweek, represented by undersigned counsel, have previously testified in

this case pursuant to subpoenas addressed to them individually. In their depositions, they

provided certain information about their confidential sources but asserted their First Amendment

and common law privileges not to identify those confidential sources. In the wake of the Court’s

recent order, we anticipated that the plaintiff would move to compel these reporters to identify

their sources. Instead, the plaintiff issued new Rule 30(b)(6) deposition notices and subpoenas

seeking a broad range of information and documents concerning the news gathering practices of

these three news organizations.

The government has objected to these new subpoenas on the ground of their

untimeliness and inconsistency with the understandings underlying the Court’s recent order. As

non-parties to the case, we do not address those issues. We urge the Court to quash these new

subpoenas because (a) they are largely duplicative of the subpoenas to the reporters who have

testified; (b) they are not reasonably calculated to lead to the discovery of admissible evidence;

and (c) they are, in any event, unduly broad.

BACKGROUND

A. The Original Rule 30(b)(6) Subpoenas

Dr. Hatfill commenced this action in August 2003 against then-Attorney General

John Ashcroft, the Department of Justice (“DOJ”), the Federal Bureau of Investigation (“FBI”)

and several individuals for alleged violations of, inter alia, the Privacy Act of 1974. In view of

the still-pending criminal investigation into Dr. Hatfill’s role, if any, in the 2001 anthrax attacks,

and at the government’s request, this Court entered several Orders staying discovery through the

fall of 2004. On October 21, 2004, the stay of discovery was lifted in part, permitting Dr. Hatfill

to pursue written discovery from the government and deposition testimony from third-parties,

including any “reporters who may have information pertaining to this case.” See Oct. 21, 2004

Order ¶ 1.

In December 2004, Dr. Hatfill served Rule 30(b)(6) deposition notices and

document subpoenas upon ABC, the Post and Newsweek, as well as other news organizations.

Much like the present subpoenas, the 2004 subpoenas identified certain articles and broadcasts,

and asked each of the corporate defendants to designate a representative who was knowledgeable

about the source(s) for those articles and broadcasts. (Copies of these subpoenas are attached

hereto as Ex. 1, 2, & 3.) The third-party news organizations moved to quash those subpoenas

(and alternatively sought protective orders) in January 2004, arguing both that the information

sought by Dr. Hatfill was protected from disclosure by the First Amendment and federal

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common law, and that Rule 30(b)(6) depositions were an improper means of obtaining source

information in any event. 1

Specifically, with respect to the propriety of using Rule 30(b)(6) depositions to

obtain source information, the organizations argued that, because the individual reporters who

had sources were typically not “officers, directors or managing agents” of their corporations, and

were unlikely to consent to testify voluntarily, the media organizations would be unable to

proffer a witness with first-hand knowledge of the journalists’ relationship with their sources.

See AP/CBS/CNBC Mem. at 26-28; ABC/Post/Newsweek Mem. at 6 n.2 (incorporating same by

reference). In other words, a corporate representative designated pursuant to Rule 30(b)(6)

would only have second-hand knowledge of what the source actually said, and Dr. Hatfill would

inevitably seek to follow that deposition with a second round of depositions with the reporters

who actually spoke to the sources. Id.

Dr. Hatfill opposed the motions in a written memorandum. However, on May 13,

2005, before this Court could rule on the matter, Dr. Hatfill agreed to withdraw the Rule 30(b)(6)

subpoenas in favor of pursuing depositions of individual journalists. Pursuant to an agreement

among counsel, Dr. Hatfill was provided the names of journalists who had confidential

government sources, and in exchange, Dr. Hatfill withdrew the 30(b)(6) subpoenas and later

issued new subpoenas to certain of those individual journalists. See Ex. 4 (May 2, 2005 letter

from K. Baine to M. Grannis); Ex. 5 (May 13, 2005 letter from M. Grannis to K. Baine, N.

1 See Hatfill v. Gonzales, et al., 1:03-CV-01793, at Docket No. 52 (Memorandum of the Washington Post, Newsweek, Inc. and American Broadcasting Companies in Support of their Motions to Quash or for a Protective Order (“ABC/Post/Newsweek Mem.”) (filed 1/28/05)); id. Docket No. 56 (Memorandum in Support of Motions by the Associated Press, CBS Broadcasting Inc., and CNBC Inc. to Quash Subpoenas or for a Protective Order (“AP/CBS/CNBC Mem.”) (filed 1/28/2005)).

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Siegel and L. Machado). Although Dr. Hatfill did not waive his right to reissue the 30(b)(6)

subpoenas at a later date, he did not do so at any time during the discovery period.

B. Dr. Hatfill Conducts Depositions of Individual Reporters

Over four days in March, April and May 2006, Dr. Hatfill deposed Michael

Isikoff and Daniel Klaidman of Newsweek, Allan Lengel of the Post, and Brian Ross of ABC.

Between them, these individuals were the authors and correspondents responsible (in whole or in

part) for sixteen of the twenty-one articles and broadcasts referenced in the subpoenas that had

previously been served on ABC, the Post and Newsweek. In the depositions, Dr. Hatfill asked

Messrs. Isikoff, Klaidman, Lengel and Ross to identify their sources. The journalists

respectfully invoked privilege as to the specific identity of their sources, but testified that they

had such sources and confirmed the published information identifying those sources.

Dr. Hatfill has not, as of this date, moved to compel further testimony from those

reporters.

C. The New Rule 30(b)(6) Subpoenas

Following a recent round of motions addressed to the government’s invocation of

the law enforcement privilege, this Court entered an order permitting Dr. Hatfill to “proceed with

discovery to attempt to obtain the identity of the alleged source or sources at the Department of

Justice (“DOJ”) and the Federal Bureau of Investigation (“FBI”) who allegedly provided

information to news reporters concerning the criminal investigation of Dr. Hatfill.” See March

30, 2007 Order at 3; see also April 20, 2007 Order at 1. As the Defendants point out in their own

motion regarding these new subpoenas, Dr. Hatfill argued in favor of that order by emphasizing

his need to “compel reporters in this case who have been witnesses to reveal the identity of

sources.” See Transcript of June 28, 2006 Status Conference, at 3:25-4:1 (Attachment # 4 to

Defendant’s Motion to Amend/Correct the March 30, 2007 Order) (emphasis added).

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However, rather than move to compel further testimony from Messrs. Isikoff,

Klaidman, Lengel and Ross, or any other reporter who was previously deposed, Dr. Hatfill

responded to this Court’s Order by issuing new Rule 30(b)(6) subpoenas to ABC, the Post,

Newsweek and other news organizations. (Copies of the subpoenas are attached as Ex. 6, 7, &

8.) These subpoenas requested documents and testimony concerning not only the identity of

specific sources, but also more remote topics such as the companies’ policies and practices

concerning the use of confidential sources generally, and the companies procedures with respect

to “the custody, retention, and preservation of documents received or created by your employees

or agents, including but not limited to, reporters’ notes and emails.” Ex. 6-8 at ¶ 3, 4.

The 30(b)(6) subpoenas would require ABC to produce a knowledgeable

corporate representative for deposition on May 9, 2007, with representatives of Newsweek and

the Post to follow on May 11 and 14, respectively.

ARGUMENT

The Rule 30(b)(6) subpoenas should be quashed, pursuant to Rule 45, on the

ground that they are duplicative of other discovery, unlikely to lead to the discovery of

admissible evidence, and unduly burdensome in any event. To the extent that the purpose of

these subpoenas is simply to duplicate the subpoenas already issued to individual reporters, they

are unnecessary and improper. To the extent that their purpose is to secure evidence of the

identity of other reporters’ sources, they are a clumsy, time-consuming and ineffective device.

Even assuming that ABC, the Post and Newsweek were capable of producing a corporate

representative who could identify the sources of other reporters (some of whom no longer work

at the institutions), that would not result in admissible testimony about conversations with those

sources. In short, corporate depositions in this case are a poor substitute for depositions of

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persons with personal knowledge. And these corporate subpoenas are not limited to the sole

issue on which the Court has authorized extended discovery—the identification of sources.

A. The Rule 30(b)(6) Subpoenas Are Duplicative of Other Discovery.

This Court has repeatedly recognized that a Rule 30(b)(6) subpoena is improper

when it requires the corporate deponent to provide testimony that is duplicative of other

discovery. See Banks v. Office of Senate Sargeant at Arms, 222 F.R.D. 7, 19 (D.D.C. 2004)

(Facciola, Mag.) (issuing protective order against Rule 30(b)(6) deposition notices, and

instructing that any substitute notices be limited to “information that has not been previously

discovered

By taking these depositions, plaintiff is certifying to me that he will not ask

questions that duplicate questions previously asked of other witness or seek information that he

already has by virtue of responses to other discovery devices.”); see also Pro-Football, Inc. v.

Harjo, No. 99-1385 (CK), 2006 WL 2092637, *6-*7 (D.D.C. 2006) (denying leave to pursue

Rule 30(b)(6) depositions where the identified topics were duplicative of earlier document

requests).

Those concerns are amplified where, as here, the target of the proposed discovery

is a third-party witness. As the Court of Appeals recently cautioned, “[t]he Rule 45 ‘undue

burden’ standard requires district courts supervising discovery to be generally sensitive to the

costs imposed on third parties.” Watts v. Securities Exchange Comm’n, --- F.3d ---, 2007 WL

935898, * 7 (D.C. Cir., Mar. 30, 2007). The Court continued:

In addition, Federal Rule of Civil Procedure 26(b)(1)-(2) requires district courts in ‘[a]ll discovery’ to consider a number of factors potentially relevant to the question of undue burden, including:

whether the discovery is ‘unreasonably cumulative or duplicative’; whether the discovery sought is ‘obtainable from some other source that is more convenient, less burdensome, or less expensive’; and whether ‘the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties’

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resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.’

Id. (emphasis added); see also Cusumano v. Microsoft Corp., 162 F.3d 708, 717 (1st Cir. 1998)

(“concern for the unwanted burden thrust upon non-parties is a factor entitled to special weight

in evaluating the balance of competing needs” in Rule 45 inquiry) (quoted in Watts).

Here, Dr. Hatfill has already taken the depositions of the ABC, Post and

Newsweek reporters who were principally responsible for the news reports that are of interest to

him. Those reporters have confirmed that they had confidential sources who provided

information about Dr. Hatfill. They have described their conversations with those sources, but

asserted their First Amendment and common law privileges not to identify them. If Dr. Hatfill

wishes to pursue the identity of those sources, he can file a motion to compel, as he indicated to

the Court he will.

B. The 30(b)(6) Depositions Will Not Lead to Admissible Evidence.

Dr. Hatfill did not take the depositions of a few additional reporters at ABC, the

Post and Newsweek who were also identified as having written or contributed to news stories

about him, but his counsel has known for years who those additional reporters are. He chose not

to subpoena them during the discovery period and chooses not to seek their individual testimony

even now. Presumably he now seeks to use the device of a Rule 30(b)(6) deposition to ask

whether they had confidential sources and, if so, who they were. But this is an indirect and

awkward way to pursue those questions, even if they were timely.

First, Rule 30(b)(6) is a discovery device only; there is no comparable mechanism

for requiring a corporation to testify at trial through a designated representative. See Brazos

River Authority v. GE Ionics, Inc., 469 F.3d 416, 434 (5th Cir. 2006) (“[T]here is no rule

requiring that the corporate designee testify ‘vicariously’ at trial”). In most cases, that fact does

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nothing to diminish the usefulness of a Rule 30(b)(6) deposition, because when the corporation is

a defendant or plaintiff, its representative’s deposition testimony is admissible as substantive

evidence against the corporation at trial. See Fed R. Civ. P. 32(a)(2) (permitting the use of a

party’s deposition transcript at trial, including corporate parties deposed under Rule 30(b)(6)).

The same is not true, however, for the deposition testimony offered by representatives of non-

party corporations such as ABC, the Post or Newsweek, who are not covered by Rule 32(a)(2).

In short, Rule 30(b)(6) depositions of these corporate entities will not be usable at trial in this

case.

Second, even if a Rule 30(b)(6) deposition could be used at trial, any 30(b)(6)

testimony likely to be elicited in this case would be inadmissible hearsay. Only the journalist

who had the confidential relationship with the source can provide first-hand testimony about his

or her conversations with the source. The corporation cannot force a journalist—who is not an

“officer[], director[] or managing agent[]”—to testify as its corporate representative. And it is

unlikely that a journalist with a confidential source would “consent to testify” on behalf of the

employer on such a matter. See Fed. R. Civ. P. 30(b)(6). And so 30(b)(6) subpoenas are

unlikely to serve as anything other than a prelude to additional subpoenas to individual reporters.

This is time-consuming and inefficient even in the initial stages of discovery; it is even more so

in the 60-day extended discovery period that has been allowed in this case.

C. The Subpoenas Are Overbroad.

The Court has authorized Dr. Hatfill to “proceed with discovery to attempt to

obtain the identity of the alleged source or sources at the Department of Justice (“DOJ”) and the

Federal Bureau of Investigation (“FBI”) who allegedly provided information to news reporters

concerning the criminal investigation of Dr. Hatfill.” See March 30, 2007 Order at 3; see also

April 20, 2007 Order at 1. These 30(b)(6) subpoenas are not so limited. They seek to compel

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testimony and the production of documents concerning not only FBI and DOJ sources, but any

government sources. Ex. 6-8, ¶ 2. They also seek testimony and documents pertaining to more

remote topics, such as the companies’ policies and practices concerning the use of confidential

sources generally, and the companies procedures with respect to “the custody, retention, and

preservation of documents received or created by your employees or agents, including but not

limited to, reporters’ notes and emails.” Ex. 6-8, ¶¶ 3, 4. These topics go far beyond what the

Court authorized and far beyond anything that is reasonably calculated to lead to the identity of

sources who might have violated the Privacy Act.

CONCLUSION

For the foregoing reasons, ABC, the Post and Newsweek respectfully request that

the Court enter an order quashing the Rule 30(b)(6) subpoenas recently issued to them by the

plaintiff.

Dated May 3, 2007

Respectfully submitted,

WILLIAMS & CONNOLLY LLP

/s/

Kevin T. Baine (No. 238600) Kevin Hardy (No. 473941) Carl R. Metz (No. 490633) 725 Twelfth Street, N.W. Washington, D.C. 20005 (202) 434-5000 (202) 434-5029 (facsimile)

Counsel for WP Company LLC d/b/a The Washington Post, Newsweek, Inc. and American Broadcasting Companies, Inc.

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