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) ) ) Plaintiff, ) v. ) ) ALBERTO GONZALES, ) ATTORNEY GENERAL, et al., ) ) Defendants. ) __________________________________________) STEVEN J. HATFILL, M.D.,
Case No. 1:03-CV-01793 (RBW)
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
/s/ Kevin T. Baine (No. 238600) Kevin Hardy (No. 473941) Carl R. Metz (No. 490633)
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. Dated: May 3, 2007
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)
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
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.
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)). -3-
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). -4-
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
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’ -6-
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 -7-
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 nonparty 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 -8-
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. 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.
Dated May 3, 2007
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