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EXHIBIT M
EFTA_R1_02214032
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M8-85
•
AND GEORGE RUSH
•
•
•
x
McKENNA, D.J.,
1.
Daily News, L.P., the publisher of the Daily News, and
George Rush, a Daily News reporter, move, pursuant to Fed. R. Civ.
P. 45(c) (3)(A)(iii), for an order quashing subpoenas issued by
counsel for the plaintiff in an action pending in the United States
District Court for the Southern District of Florida entitled Jane
Doe v. Jeffrey Epstein (08 Civ. 80893 KAM), in which the plaintiff
seeks to recover damages arising out of the defendant's alleged
sexual abuse of her when she was a minor. The subpoenas seek the
production of "[a]ll taped conversations between George Rush and
Jeffrey Edward Epstein, including telephone recordings, all emails
to and from Jeffrey Edward Epstein or someone representing
themselves to be Jeffrey Epstein," and the testimony of George Rush
and Anne B. Carroll, a Vice President and General Counsel of Daily
News, L.P. (Carroll Decl., Apr. 7, 2010, Exs. A & B.)
In the
alternative, the subpoenaed parties seek a protective order barring
disclosure under Fed. R. Civ. P. 26(c).
COPIES MAILED TO COUNSEL 1 8 MAY 2010
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2.
The subpoenaed parties base their motion on "the
qualified reporter's privilege accorded by the First Amendment to
the United States Constitution and federal common law." (Revised
Notice of Mot., Apr. 12, 2010, at 1.)
3.
Mr. Rush states that he (with his wife) is a weekly
columnist in the Daily News, that in the fall of 2009 he began to
follow criminal and civil legal proceedings in Florida relating to
Mr. Epstein (Rush Aff., Apr. 6, 2010 [Carroll Decl., Apr. 7, 2010,
Ex. G] 11 1-2), and that in November of 2009 he was able to arrange
a telephone interview of Mr. Epstein (who was apparently in
Florida) from the New York City office of the Daily News.
(Id.
I 4.) Mr. Rush made a recording of the conversation (which lasted
about 22 minutes) and a transcription thereof, both of which have
been submitted to the Court for in camera inspection.
Mr. Rush
advised counsel for the plaintiff in Jane Doe v. Jeffrey Epstein
that he had interviewed Mr. Epstein (id. 1 7) and declined to give
counsel a copy of the interview recording. (Id. 1 8.) Mr. Rush
subsequently corrected the date of the interview to "prior to
October 22, 2009." (Rush Supp. Aff., Apr. 30, 2010 [Carroll Reply
Decl., May 3, 2010, Ex. C] 1 2.)
At the outset of the interview, Mr Epstein said that it
was off-the-record, and Mr. Rush agreed. (Rush Aff., Apr. 6, 2010
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1 5.) Several days after the interview, Mr. Rush played a three or
four minute segment of the recording to three persons whom he
regarded as valuable news sources, under an agreement of strict
secrecy. (Id. 1 6.) On an occasion after he first told counsel
for Jane Doe that he had interviewed Mr. Epstein, Mr. Rush gave him
"a one or two word characterization of what [he] perceived to be
Epstein's overall stance and repeated to him one sentence from the
interview -- both of which [he] believed made the point that there
was nothing there for [counsel] or his client." (Id. 1 8.)
Mr. Rush also, on October 22, 2009, spoke with Michael
Fisten, an investigator for counsel to Jane Doe, who had heard from
a third party about Mr. Rush's interview of Mr. Epstein. (Fisten
Aff., Apr. 23, 2010 [Real Party in Interest Jane Doe's Resp. in
Opp'n to Mot. of Daily News, L.P., to Quash Subpoena, Ex. B] 1 3.)
Mr. Rush paraphrased the interview relatively thoroughly. (Id. 1
7.)
4.
As noted above, the present motion has been argued on the
qualified reporter's privilege.'
The Second Circuit recognizes not only a qualified
' The First Amended Complaint in Jane Doe v. Jeffrey Epstein
(Carroll Decl., Apr. 7, 2010, Ex. E) asserts two claims under Florida
common law (Counts I & III), one claim under federal law (18 U.S.C. §
2255) (Count II), and two claims under Florida statutes (Counts IV & V);
federal subject matter jurisdiction is premised on diversity of
citizenship, Jane Doe being alleged to be a resident of Florida, and Mr.
Epstein a resident of New York (First Am. Comp'. 11 3, 4 & 7).
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privilege protecting journalists' confidential sources but also a
privilege that extends to nonconfidential materials. Gonzales v.
Nat'l Broad. Co., Inc., 194 F.3d 29, 33 (2d Cir. 1999) ("Gonzales
III").2
In the present case, Mr. Rush's source -- Mr. Epstein --
is not confidential: Mr. Rush disclosed his source to counsel for
Jane Doe not long after the interview.
The Second Circuit, in
Gonzales III, held that
while nonconfidential press materials are protected
by a qualified privilege, the showing needed to
overcome the privilege is less demanding than the
showing required where confidential materials are
sought.
Where a civil litigant seeks non-
confidential 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.
194 F.3d at 36.
5.
This Court has reviewed both the recording and Mr. Rush's
transcript in camera.
The Court finds that portions of the
recording "are of likely relevance to a significant issue in [Jane
2 In Gonzales v. Pierce, 175 F.R.D. 57 (S.D.N.Y. 1997) ("Gonzales
I"), the district court granted in part and denied in part a motion to
compel production of unedited videotapes from NBC and the deposition of
certain NBC personnel. In Gonzales v. Nat'l Broad. Co., Inc., 155 F.3d
618 (2d Cir. 1998) ("Gonzales II"), the Second Circuit affirmed Gonzales
I.
In Gonzalez III the Second Circuit, on rehearing, withdrew its
Gonzales II opinion (see 194 F.3d at 30 & n.**), and affirmed the
district court.
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Doe v. Epstein]," Gonzales III, 194 F.3d at 36, or, rather,
depending on how used, two issues, liability and damages.
The
Court notes, in particular, a statement included in the first full
paragraph attributed to Mr. Epstein at page 15 of the transcript.
The Court also finds that the materials at issue "are not
reasonably obtainable from other available sources," id., since the
record is quite clear that Mr. Epstein has regularly been
asserting, and will continue to assert, his Fifth Amendment
privilege to relevant questions. The fact that the recording is in
Mr. Epstein's own voice is also significant from a trial
perspective.
The deposition of Mr. Rush is to be limited to
authentication of the recording and the transcript.
6.
Not everything in the recording is relevant, but some
non-relevant statements may (or may not) have context value.
Ultimately, the amount of the recorded conversation that it would
be appropriate to admit in a jury trial is one for the trial judge,
with input from counsel on both sides. This Court defers to the
trial court in this regard.
7.
Plaintiff's counsel's access to the recording and
transcript has been given for a specific purpose only: use in the
trial of Jane Doe v. Epstein.
This order does not authorize the
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use of, or reference to, the conversation reflected in the
recording and the transcript in any other context, unless so
authorized by the trial court in the case in which such use is
sought, and it does not in any way authorize dissemination to the
press or other media of all or any part of the conversation, the
recording, or the transcript.'
8.
The recording and transcript will be held in chambers or
under seal until any appeal from this decision is decided or the
time to file a notice of appeal has expired.
SO ORDERED.
Dated: May /f; 2010
Lawrence M. McKenna
U.S.D.J.
3 Persons other than Jane Doe and Mr. Epstein are mentioned in the
conversation.
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