Opinion
Nos. 02 Civ. 1234 (WHP)(FM), 02 Civ. 1367 (WHP)(FM), 02 Civ. 6537 (WHP)(FM).
October 20, 2004
OPINION AND ORDER
I. Introduction
The Plaintiffs in these related actions pursuant to 42 U.S.C. § 1983 are individuals who were arrested for minor offenses at certain demonstrations. The Plaintiffs allege that their First and Fourteenth Amendment rights were violated because the New York City Police Department ("PD") "put [them] through the system" rather than releasing them on the desk appearance tickets ("DATs") for which they allegedly were eligible. (Pls.' Mem. at 1). The Plaintiffs further allege that, despite a provision in the PD's Patrol Guide generally requiring the issuance of DATs to individuals arrested for minor offenses, the Defendants established a policy and practice ("Policy") of either not issuing DATs to persons arrested in connection with protest or demonstration activities or not determining the arrestees' eligibility for a DAT. According to the Plaintiffs, the consequence of the Policy was that persons arrested in connection with demonstration or protest activity would be held in jail for long periods of time, often overnight. (See id. at 1-2).
Two non-party deposition witnesses, reporters John Marzulli ("Marzulli") of the New York Daily News (see Docket 59), and William Rashbaum ("Rashbaum") of the New York Times, (see Docket No. 57), have now moved to quash the Plaintiffs' subpoenas seeking their testimony about statements attributed to two former City officials in three newspaper articles (one in the News and two in the Times). I heard oral argument on August 12, 2004, at which time I reserved decision pending the deposition of former PD Commissioner Bernard Kerik ("Kerik"). (See 8/12/04 Tr. at 33-34).
For the following reasons, the reporters' motions to quash are denied, and the depositions of the two reporters shall go forward, subject to the terms and conditions detailed below.
II. Factual Background
The Plaintiffs contend that the Policy was first put into practice informally following the protests arising out of the shooting death of Amadou Diallo in February 1999. Thereafter, the Policy was memorialized in a "FINEST" message disseminated within the PD on May 1, 2001. The FINEST message incorporating the Policy was revoked on July 13, 2001. The Plaintiffs allege, and the Defendants deny, that the Policy existed prior to its codification in the FINEST message. (See Pls.' Mem. at 3-5). This is one of the key issues in these cases.
The Plaintiffs now seek to depose Marzulli and Rashbaum. Rashbaum's testimony is sought in connection with two articles published in the Times. The first article, dated May 30, 2001 ("May 30 Times Article"), stated that the PD had "started requiring that those arrested at protests of more than 20 people spend the night in jail," and that "[p]olice officials said the practice [of not issuing DATs for demonstration-related offenses] began informally in early 1999." (Affirm. of Jonathan C. Moore, Esq., dated June 29, 2004 ("Moore Affirm."), Ex. 3 (May 30Times Article)). Additionally, the Article attributed to Thomas Antenen ("Antenen"), then the PD's Deputy Commissioner for Public Information, a statement that the "policy was created in conjunction with the [PD's] Legal Division and the office of [the C]ity's Corporation Counsel." (Id.). The Article also quoted Antenen as saying that the PD "believe[d] that the policy . . . codified on May 1 [, 2001, was] a sensible policy that [struck] the balance between [its] needs to maintain public safety and public order and the legitimate rights of people to protest." (Id.).
Rashbaum's second article, which was published on July 14, 2001 ("July 14 Times Article"), dealt with the PD's decision to rescind the Policy. The Article stated that:
Facing two civil rights lawsuits, the [PD] yesterday rescinded a two-year-old policy under which people arrested for minor offenses at protests were jailed overnight rather than given summonses to appear in court later.
The policy was informally started in the spring of 1999 under former Commissioner Howard Safir. . . . For reasons that remain unclear, the policy was not formalized until May 1, 2001, in a brief message to police commanders.
It represented a significant change in handling arrests at peaceful protests and demonstrations. In the past, those arrested for offenses like disorderly conduct and obstructing governmental administration, both misdemeanors, would get a summons, known as a desk appearance ticket, to appear in court at a later date.
Under the policy, no summonses or desk appearance tickets were to be issued for offenses committed at demonstrations or similar events with more than 20 participants.
(Id. Ex. 2 (July 14 Times Article)).
The July 14 Times Article attributed to Daniel Connolly ("Connolly"), who was then serving as special counsel to Corporation Counsel Michael Hess, a statement that the Policy was "developed by the `upper echelon' of the Police Department in 1999, at a time when there was a significant increase in civil disobedience around the city." (Id.). According to the Article, Connolly further stated that the PD's decision to rescind the Policy came after a review by the PD in consultation with his office, which was prompted by two civil rights lawsuits against the City, and was "an effort at `balancing people's First Amendment rights with issues involving public safety.'" (Id.).
Marzulli's testimony is sought in connection with his article published in the Daily News on July 14, 2001 ("July 14 News Article"). In that Article, Marzulli wrote:
Former Police Commissioner Howard Safir defended the old policy, calling it "appropriate at the time" when [PD] resources were being strained by the hundreds of arrests.
"It was to deter people from committing crimes and from being repeat offenders," Safir said, sharing credit with Deputy Commissioner of Legal Matters George Grasso [for] coming up with the plan.
(Id. Ex. 4 (July 14 News Article)).
In their papers in opposition to the reporters' motions to quash the subpoenas, the Plaintiffs state that they seek to establish through the deposition testimony of Rashbaum and Marzulli "that the comments they reported were in fact made." (Pls.' Mem. at 6). They pledge not to seek any testimony "other than an affirmation . . . that the statements made to them and information provided to them by high-ranking City officials were in fact made and provided," and that the journalists accurately reported such comments and information. (Id.). If Rashbaum and Marzulli are unable to recall the statements in question, the Plaintiffs indicate that they "will ask them merely to describe whether it was their practice to accurately record statements and information provided to them, and whether they followed that practice in preparing the articles in question." (Id.).
Finally, the Plaintiffs indicate that they are not seeking the reporters' testimony solely for the purpose of impeaching any City witnesses. Rather, because the former City officials that the Plaintiffs have deposed do not recall making the statements attributed to them in the articles, the Plaintiffs hope to introduce the statements at trial through the reporters on the theory that they constitute "direct admissions by defendants of the very policies at issue in the case." (Id. at 19 n. 8).
In their papers, the Defendants indicate that if the depositions go forward, they intend to cross-examine the journalists as to their credibility, bias, and memory. (Defs.' Mem. at 5). Specifically, the Defendants have expressed a desire to cross-examine Marzulli about his possible bias against the PD and Safir, based upon Safir's decision to ban Marzulli from a 1996 PD press conference following Marzulli's publication of an article in which Safir was called a "lightweight." (Id.). In fact, the 1996 article attributed that remark to First Deputy Commissioner John Timoney, noting that he later apologized. (See Decl. of Dara L. Weiss, Esq., dated July 29, 2004, Ex. B). The Defendants also indicate that they will seek to cross-examine Rashbaum on the basis of Safir's deposition testimony that Rashbaum "often" reported things which were untrue. (See Defs.' Mem. at 5).
III. Discussion
A court may quash or modify a subpoena if it "requires disclosure of privileged or other protected matter and no exception or waiver applies." Fed.R.Civ.P. 45(c)(3)(A)(iii).
A. Gonzales Standard
The parties agree that the information plaintiffs seek through the deposition testimony of the reporters does not involve confidential sources, and that the test set forth in Gonzales v. National Broadcasting Co., 194 F.3d 29, 36 (2d Cir. 1999), therefore applies. (See Pls.' Mem. at 7-22; Rashbaum Mem. at 4-12; Marzulli Mem. at 2-9). In Gonzales, the Court of Appeals held that the qualified journalist's privilege, long-recognized in this Circuit, applied to nonconfidential, as well as confidential, information. See id. at 35.
The purpose of the journalist's privilege is to "protect the important interests of reporters and the public in preserving the confidentiality of journalists' sources." In re Petroleum Prods. Antitrust Litig., 680 F.2d 5, 7 (2d Cir. 1982). The privilege "reflect[s] a paramount public interest in the maintenance of a vigorous, aggressive and independent press capable or participating in robust, unfettered debate over controversial matters." United States v. Burke, 700 F.2d 70, 77 (2d Cir. 1983) (quoting Baker v. F F Inv., 470 F.2d 778, 782 (2d Cir. 1972)). Whether the privilege is constitutionally required or rooted in federal common law remains an open question. Gonzales, 194 F.3d at 35-36 n. 6. Nonetheless, it is clear that the interests protected by the privilege are those "safeguarded by the First Amendment." United States v. Marcos, No. 87 Cr. 598 (JFK), 1990 WL 74521, at *2 (S.D.N.Y. June 1, 1990).
Pursuant to Gonzales, "[w]here a civil litigant seeks nonconfidential materials from a nonparty press entity, the litigant is entitled to the requested discovery notwithstanding a valid assertion of the journalists' privilege if he can show that the materials at issue are of likely relevance to a significant issue in the case, and are not reasonably obtainable from other available sources." Gonzales, 194 F.3d at 36. In so holding, the court observed that "where the protection of confidential sources is not involved, the nature of the press interest protected by the privilege is narrower [than where confidential sources are involved]." Id.
1. The testimony requested is of likely relevance to a significant issue in the case
The Plaintiffs contend that the reporters' anticipated verification of the statements of high ranking City officials acknowledging the existence of the Policy is relevant to a "significant" — indeed, a critical — issue in this case. (See Pls.' Mem. at 9). In response, Marzulli simply states, without further elucidation, that "it is not established that anything reported in the [July 14 News A]rticle concerning Mr. Safir in fact relates to a `significant' issue in [P]laintiffs' suit." (Marzulli Mem. at 7). For his part, Rashbaum asserts that the testimony sought from him by the Plaintiffs constitutes inadmissible hearsay and, therefore, is not relevant. (See Rashbaum Mem. at 7-10; Rashbaum Reply Mem. at 4-6).
Contrary to these contentions, the testimony sought from them clearly is relevant to a significant issue in this case. As the Plaintiffs correctly observe, the statements of high ranking City officials confirming the existence of the Policy prior to May 1, 2001, if established to the jury's satisfaction, would constitute "compelling evidence" of one of the Plaintiffs' key allegations. (Pls.' Mem. at 9).
The Plaintiffs also argue that "regardless of whether the reporters' testimony is ultimately deemed admissible at trial . . . its relevance at this stage in the litigation does not depend on this determination." (Pls.' Mem. at 10). However, in determining whether to quash a subpoena, courts in this Circuit have considered the admissibility of the materials sought from journalists. See, e.g., Concerned Citizens of Belle Haven v. Belle Haven Club, No. 3:99CV1467 (D. Conn. June 22, 2004) (unpublished decision attached to the Marzulli Reply Mem. as Ex. A) (granting reporter's motion to quash subpoena seeking deposition testimony as to whether statements in a magazine article were accurate in light of Gonzales because the plaintiffs' explanation of their relevance was "weak and unconvincing," and because the statements were inadmissible under Rule 801(d)(2)(C) or (D), and could be used only for impeachment purposes); Inside Radio, Inc. v. Clear Channel Communications, Inc., 208 F.R.D. 537, 543 (S.D.N.Y. 2002) (considering, in a case where confidential sources were sought, whether statements published in a newsletter would be barred by the hearsay rule if offered at trial through the testimony of the newspaper publisher). Accordingly, while the admissibility of the statements perhaps need not be finally resolved at this stage, it is an inquiry which merits consideration in ruling on the reporters' motions.
a. Admissibility Under Rule 801(d)(2)
The Plaintiffs assert that the testimony of the reporters will be admissible, pursuant to Rule 801 of the Federal Rules of Evidence, as admissions by the agents or employees of a party-opponent. (See Pls.' Mem. of Law at 12-15). Rule 801 provides, in pertinent part:
(d) Statements which are not hearsay. A statement is not hearsay if —
. . .
(2) Admission by party-opponent. The statement is offered against a party and is . . . (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship[.]
i. 801(d)(2)(C)
Turning first to Rule 801(d)(2)(C), the Plaintiffs argue that Antenen and Connolly were authorized by the PD to make statements about PD policy, including the Policy at issue here. (See Pls.' Mem. of Law at 12-13). There is deposition testimony that supports this claim. For example, Antenen testified that his duties as a spokesman for the PD included the retrieval and dissemination of accurate police-related information to the media and public. (Moore Affirm. Ex. 9 (Dep. of Thomas Antenen, taken on Oct. 16, 2003 ("Antenen Dep.")) at 12-13, 17). Antenen also testified that he reported directly to the Police Commissioner and consulted with the Commissioner and other top brass on a "daily basis" to obtain answers to press inquiries. (Id. at 14, 38). Likewise, Connolly testified that inquiries about litigation involving the PD, such as cases involving the Policy, were "on some occasions referred to the Law Department." (Id. Ex. 8 (Dep. of Daniel Connolly, Esq., taken on Sept. 30, 2003 ("Connolly Dep.")) at 60-61).
Rashbaum contends that the Plaintiffs nevertheless have failed to demonstrate Antenen's and Connolly's authorization to speak about whether the Policy predated the May 2001 FINEST message. He notes that Antenen testified that it was not his practice to "chas[e] ghosts," i.e., discuss policies and practices that pre-dated his tenure as PD spokesman. (See Rashbaum Reply Mem. at 5-6 (citing Antenen Dep. at 112)). Rashbaum also argues that Connolly's testimony that he was authorized to speak about litigation involving the PD on "some occasions" is an insufficient basis to conclude that he was authorized to speak about the history of the Policy. (See id. at 6).
Based on the limited deposition testimony provided to the Court, it is difficult to say whether the statements of Antenen and Connolly were sufficiently "authorized" for purposes of 801(2)(C). However, there is no need to resolve this question at this stage, because the statements appear to be admissible under Rule 801(d)(2)(D).
ii. 801(d)(2)(D)
To satisfy the requirements of Rule 801(d)(2)(D), (1) there must be an agency or employment relationship between the party and the declarant; (2) the statement must have been made during the course of this relationship, and (3) the statement must relate to a matter within the scope of the employment or agency.See Pappas v. Middle Earth Condo. Ass'n, 963 F.2d 534, 537 (2d Cir. 1992); Hillert v. Pronav Ship Mgmt., Inc., No. 01 Civ. 7440 (HBP), 2004 WL 1555159, at *1 (S.D.N.Y. July 12, 2004). "The authority granted in the agency [or employment] relationship need not include authority to make damaging statements, but simply the authority to take action about which the statements relate."Pappas, 963 F.2d at 538. Also, the declarant is not required to have had personal knowledge of the subject matter about which he speaks. See United States v. Lauersen, 348 F.3d 329, 340 (2d Cir. 2003) ("[W]e have not required personal knowledge for statements by a party's agent."), cert denied, 124 S. Ct. 2190 (2004); accord Hillert, 2004 WL 1555159, at *2.
The Plaintiffs argue that the requirements for admissibility have been met under Rule 801(d)(2)(D), because Antenen and Connolly were both employees of the City and made their statements to the reporters during the course of their employment. (See Pls.' Mem. at 14). The Plaintiffs further contend that Antenen's and Connolly's statements "unquestionably" relate to matters within the scope of their employment because Antenen researched the Policy in response to Rashbaum's inquiry, (see id. (citing Antenen Dep. at 103-04, 157-58)), and Connolly reviewed the Policy, discussed it with members of the PD, (see Connolly Dep. at 35-36); and represented the City in two lawsuits challenging its legality. (See Pls.' Mem. of Law at 15). It is not clear from the deposition excerpts provided whether the Plaintiffs have accurately characterized Connolly's role. (See Connolly Dep. at 69-70, 74-75). Nevertheless, it is apparent that, in his capacity as special counsel at the Law Department, Connolly had a number of conversations about the Policy with reporters such as Rashbaum, as well as civil rights lawyers such as Christopher Dunn. (See Connolly Dep. at 67-70).
The admissibility of hearsay evidence is a question which is appropriately resolved by the district judge who will try these cases. Nevertheless, at this preliminary stage it appears that the Plaintiffs have made a reasonable showing that the statements of Antenen and Connolly were likely made in the course of their employment as highranking PD and Law Department officials, and relate to the scope of their employment and authority. If so, they may well be admissible at trial and, therefore, constitute "compelling evidence" regarding a central issue in these cases, thereby satisfying the first prong of the Gonzales test.
b. The materials requested are not reasonably attainable from other sources
The second prong of the Gonzales test requires a showing that the discovery sought is not reasonably obtainable from other available sources. See Gonzales, 194 F.3d at 36. Rashbaum and Marzulli assert that the Plaintiffs have not made an adequate showing in this regard. (See Rashbaum Mem. at 10-12; Marzulli Mem. at 7-9). In their motion papers submitted prior to the oral argument, the reporters noted that other PD officials who may have had a hand in conceiving or implementing the policy, including former Commissioner Kerik, had yet to be deposed. (See Rashbaum Mem. at 11). They argued that until the depositions of those other officials were taken, the Plaintiffs' subpoenas to the reporters were premature.
For their part, the Plaintiffs note that they now have taken the depositions of all the officials mentioned in the articles, as well as other high- and mid-level PD officials. (See Pls.' Mem. at 15-16). The Plaintiffs allege that none of these deponents has admitted that the Policy existed, and that it is "unlikely that [P]laintiffs would be able to locate other individuals [other than the reporters] to whom the officials acknowledged that the [P]olicy . . . existed before May 2001." (Id. at 16).
In light of the reporters' suggestions that the depositions of certain police officials would obviate the need to take their depositions, I reserved decision on this motion until Kerik's deposition could be completed. (See 8/12/04 Tr. at 33-34). Kerik's deposition thereafter was taken on August 19, 2004. At his deposition, Kerik testified that he had no recollection of discussions of the May 1, 2001 FINEST message, or the Policy generally. (See, e.g., Dep. of Bernard Kerik, taken on Aug. 19, 2004 ("Kerik Dep.") at 60).
Accordingly, the Plaintiffs have made an adequate showing that the evidence that they seek is not available from other sources.
IV. Conclusion
For the foregoing reasons, I find that the Plaintiffs are entitled to take the depositions of Marzulli and Rashbaum for the limited purposes that they have outlined. The Defendants, of course, are entitled to cross-examine those witnesses when the depositions are taken. Nonetheless, even though there will be no disclosures of confidential sources as a result of this ruling, the reporters are entitled to assurances that the depositions will neither expand beyond the narrow scope that the Plaintiffs have described, nor turn into a free-for-all on cross-examination. For these reasons, the motions to quash are denied, subject to the following conditions:
1. The depositions will each be limited to a maximum of 45 minutes, of which the Plaintiffs may use no more than 15 minutes.
2. The deposition of each witness will take place in Courtroom 11C, and I will oversee the questioning. Counsel are instructed to confer with my Chambers to arrange a suitable date and time.
SO ORDERED.