Morgan, Lewis & Beckius LLP 

1701 Market Street 

Philadelphia, PA 19103-2921 

Tel: 215.963.5000 

Fax: 215.963.5001 

www.morganlewis.com 

Jennifer B. Jordan 

215.963.5959 

jjordan@morganlewis.com 

December 27, 2005 

VIA HAND DELIVERY 

Michael E. Kunz 

Clerk of Court 

United States District Court 

for the Eastern District of Pennsylvania 

601 Market Street 

Philadelphia, PA 19106 

Re: Constand v. Cosby, Civ. A. No. 05-1099-ECR 

Dear Mr. Kunz: 

Morgan Lewis 

COUNSELORS AT LAW 

Enclosed you will find the original and an electronic copy ofNonparty National Enquirer's 

Memorandum of Law in Opposition to Plaintiffs Motion to Compel, certificate of service, and 

proposed order. This document is to be filed under seal. Should you have any questions, please 

feel free to contact me at the telephone number above. 

Thank you for your attention to this matter. 

Enclosures 

cc: Bebe Kivitz, Esq. for Plaintiff (via First Class Mail) 

Patrick J. O'Connor for Defendant (via First Class Mail) 

Andrew D. Schau for Defendant (via First Class Mail) 

Case 2:05-cv-01099-ER Document 65 Filed 12/27/05 Page 1 of 34
IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

ANDREA CONSTAND, 

Plaintiff, CIVIL A. NO. 05-1099 

v. Judge Eduardo C. Robreno 

WILLIAM H. COSBY, JR., FILED UNDER SEAL 

Defendant. 

NONPARTY THE NATIONAL ENQUIRER'S MEMORANDUM OF LAW IN 

OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL 

MORGAN, LEWIS & BOCKIUS LLP 

Paul D. Weller (Bar. Id. No. 61175) 

Jennifer B. Jordan (Bar Id. No. 87011) 

1701 Market Street 

Philadelphia, PA 19103 

Telephone: 215.963.5000 

Fax: 215.963.5001 

Email: pweller@morganlewis.com 

ii ordan@morganlewis.com 

Attorneys for The National Enquirer 

Case 2:05-cv-01099-ER Document 65 Filed 12/27/05 Page 2 of 34
TABLE OF CONTENTS 

Page 

I. INTRODUCTION .............................................................................................................. 1 

II. BACKGROUND ................................................................................................................ 1 

III. ARGUMENT ...................................................................................................................... 3 

A. The Motion To Compel Should Be Denied Because Plaintiff Did Not 

Properly Serve The Subpoena ................................................................................ 4 

B. The Motion To Compel Should Be Denied Because The Subpoena Seeks 

Information Protected From Disclosure By Reporter Shield Laws And The 

First Amendment Of The United States Constitution ............................................ 8 

1. Choice OfLaw ............................................................................................ 8 

2. Plaintiff Has Failed To Meet Her Heavy Burden To Overcome the 

National Enquirer's Reporter's Privilege Under New York Law 

And The First Amendment Of The United States Constitution ............... 12 

a. New York Reporter Shield Law ................................................... 13 

(1) Plaintiff Has Failed To Prove That The Information 

Sought By The Subpoena Is Highly Material And 

Relevant To Her Claims ................................................... 14 

(2) Plaintiff Has Failed To Demonstrate That The 

Information Sought By The Subpoena Is Critical To 

The Maintenance Of Her Claims ...................................... 15 

(3) Plaintiff Has Failed To Demonstrate That The 

Information Sought By The Subpoena Is Not 

Obtainable From Other Sources ....................................... 15 

b. First Amendment Protection ......................................................... 16 

(1) Plaintiff Has Failed To Demonstrate That The Only 

Practical Access To Crucial Information Necessary 

For The Development Of Her Case Is In The 

Information Sought By The Subpoena ............................. 17 

(2) Plaintiff Has Failed To Demonstrate That The 

Information Sought By The Subpoena Is Crucial 

Information Going To The Heart Of Her Claims ............. 18 

(3) Plaintiff Has Failed To Demonstrate That She Has 

Exhausted Other Means Of Obtaining The 

Information Sought By The Subpoena ............................. 18 

C. Because The Motion To Compel Has No Merit Whatsoever, The National 

Enquirer Should Be Awarded The Fees And Costs Incurred In Responding 

To The Motion ...................................................................................................... 19 

-1-

Case 2:05-cv-01099-ER Document 65 Filed 12/27/05 Page 3 of 34
TABLE OF CONTENTS 

(continued) 

D. In The Unlikely Event That The Court Orders Production Of Any Of The 

Information Sought By The Subpoena, A Protective Order Should Be 

Page 

Issued To Protect The Information ....................................................................... 20 

IV. CONCLUSION ................................................................................................................ 21 

-11-

Case 2:05-cv-01099-ER Document 65 Filed 12/27/05 Page 4 of 34
TABLE OF AUTHORITIES 

FEDERAL CASES 

Alloway v. Wain-Roy Corp., 52 F.R.D. 203 (E.D. Pa. 1971) ......................................................... .4 

Altemose Construction Co. v. Building and Construction Trades Council, 443 F. Supp. 

489 (E.D. Pa. 1977) ........................................................................................................... 17-18 

Ayers v. Jacobs & Crumplar, P.A., 99 F.3d 565 (3d Cir. 1996) ..................................................... 8 

Board of Trustees of Laborers' District Council Health and Welfare Fund v. Pennsbury 

Excavating and Landscaping, Inc., Civ. A. No. 99-1078, 2000 WL 633021 (E.D. Pa. 

May 10, 2000) ............................................................................................................................ 5 

Branzburg v. Hayes, 408 U.S. 665 (1972) ..................................................................................... 11 

Budget Rent-A-Car Sys., Inc. v. Chappell, 407 F.3d 166 (3d Cir. 2005) ........................................ 9 

Garcia v. Plaza Oldsmobile Ltd., 421F.3d216 (3d Cir. 2005) .......................................... 9-10, 12 

GE Medical Systems Information Technologies, Inc. v. Ansar, Inc., Civ. A. No. 04-2775, 

2004 WL 2988513 (E.D. Pa. Dec. 23, 2004) ............................................................................. 5 

Grand Entertainment Group Ltd. v. Star Media Sales Inc., 988 F.2d 476 (3d Cir. 1993) .............. 8 

Hemmerich Industries Inc. v. Moss Brown & Co. Inc., 114 F.R.D. 31 (E.D. Pa. 1987) ................ .4 

Lacey v. Cessna Aircraft Co., 932 F.2d 170 (3d Cir. 1991) .......................................................... 10 

LeJeune v. Bliss-Salem, Inc., 85 F .3d 1069 (3d Cir. 1996) ............................................................. 9 

Melville v. American Home Assur. Co., 584 F.2d 1306 (3d Cir. 1978) .......................................... 9 

Mitsubishi International Corp. v. Keystone Camera Corp., Civ. A. No. 89-8595, 1990 

WL 16090 (S.D.N.Y. Feb. 13, 1990) ........................................................................................ 7 

Near v. Minnesota, 283 U.S. 697, 51 S. Ct. 625, 75 L. Ed. 1357 (1931) ...................................... 11 

New York Times Co. v. Sullivan, 376 U.S. 254 (1964) .................................................................. 17 

Pansy v. Borough of Stroudsburg, 23 F.3d 772 (3d Cir. 1994) ............................................... 20-21 

Parker v. Doe, Civ. A. No. 02-7215, 2002 WL 32107937 (E.D. Pa. Nov. 21, 2002) .................... .4 

Perry v. Keulian, Civ. A. No. 96-1374, 1997 WL 117027 (E.D. Pa. Mar. 11, 1997) ................... 19 

iii 

Case 2:05-cv-01099-ER Document 65 Filed 12/27/05 Page 5 of 34
Riley v. City of Chester, 612 F.2d 708 (3d Cir. 1979) ................................................................... 17 

In re Roche, 448 U.S. 1312 (1980) ................................................................................................ 16 

Roth v. United States, 354 U.S. 476 (1957) ................................................................................... 17 

Samuelson v. Susen, 576 F.2d 546 (3d Cir. 1978) ........................................................................... 9 

In re Scott Paper Co. Securities Litigation, 145 F.R.D. 366 (E.D. Pa. 1992) ............................... 18 

State Farm Mutual Auto. Ins. Co. v. CPT Medical Serv. Inc., Civ. A. No. 04-5045, 2005 

WL 2465818 (E.D.N.Y. Oct. 6, 2005) ...................................................................................... 4 

In re Subpoena Directed to Anne Barnard, Misc. No. 98-189, 1999 WL 38269 (E.D. Pa. 

Jan. 25, 1999) ........................................................................................................................... 13 

United States v. Criden, 633 F.2d 346 (3d Cir. 1980) ............................................................. 17, 21 

United States v. Cuthbertson, 630 F.2d 139 (3d Cir. 1980) .......................................................... 17 

STATE CASES 

In re Application of CBS Inc., 648 N.Y.S.2d 443 (N.Y. App. Div. 1996) .................................... 14 

Arce v. Sybron Corporation, 441N.Y.S.2d498 (N.Y. App. Div. 1981) ........................................ 7 

Matter of Beach v. Shanley, 62 N.Y.2d 241, 476 N.Y.S.2d 765, 465 N.E.2d 304 (1984) ............ 11 

Colbert v. International Security Bureau Inc., 437 N.Y.S.2d 360 (N.Y. App. Div. 1981) ............. 7 

In re Estate of Agostini, 311 Pa. Super. 233, 457 A.2d 861 (1983) .............................................. 10 

Hopkinson v. Hopkinson, 323 Pa. Super. 404, 470 A.2d 981(1984) .............................................. 7 

In the matter of Grand Jury Subpoenas Served on National Broadcasting Co., Inc., 178 

Misc. 2d 1052, 683 N.Y.S.2d 708 (1998) ................................................................................ 11 

Kuchinic v. McCrory, 422 Pa. 620, 222 A.2d 897 (1966) ......................................................... 9-10 

O'Neill v. Oakgrove Construction, Inc., 71N.Y.2d521, 523 N.E.2d 277 (1988) ........................ 11 

In re Subpoena Duces Tecum to American Broadcasting Companies, Inc., 735 N.Y.S.2d 

919 (N.Y. Sup. Ct. 2001) .................................................................................................... 14-15 

iv 

Case 2:05-cv-01099-ER Document 65 Filed 12/27/05 Page 6 of 34
Trzcinski v. Prudential Property and Casualty Ins. Co., 409 Pa. Super. 114, 597 A.2d 

687 (1991) .................................................................................................................................. 6 

FEDERAL STATUTES 

28 u.s.c. § 1332 ............................................................................................................................. 8 

FEDERAL RULES 

Fed. R. Civ. P. 4(e) ....................................................................................................................... 6-7 

Fed. R. Civ. P. 4(h) ....................................................................................................................... 4-5 

Fed. R. Civ. P. 26 ........................................................................................................................... 14 

Fed. R. Civ. P. 45(b) .................................................................................................................. 4, 12 

Fed. R. Civ. P. 45(c) ...................................................................................................... 3, 13, 19, 20 

ST ATE STATUTES 

N.Y. Const., art. I, § 8 .................................................................................................................... 11 

N.Y. Civ. Rights§ 79-h(c) ............................................................................................................ 14 

STATE RULES 

N.Y. C.P.L.R. § 31 l(a)(l) ............................................................................................................... 7 

Pa. R. Civ. P. 424 ............................................................................................................................. 6 

v 

Case 2:05-cv-01099-ER Document 65 Filed 12/27/05 Page 7 of 34
I. INTRODUCTION 

Plaintiff has filed a motion to compel nonparty The National Enquirer to comply with a 

subpoena seeking a broad range of confidential documents related to an article that The National 

Enquirer published in its March 14, 2005 issue concerning Defendant, as well as an equally 

broad range of unpublished, confidential documents related to a third party, Beth Ferrier. See 

Exh. B to Pl.'s Mem. (Subpoena). As set forth below, Plaintiffs motion to compel should be 

denied. 

As a threshold matter, Plaintiff has not effected proper service of the subpoena. Rather 

than serve the authorized, registered agent for The National Enquirer (as The National Enquirer 

suggested), Plaintiff had a process server simply leave the subpoena on the desk of a receptionist 

who was not authorized to accept service. This failure to effect proper service of the subpoena is 

fatal to Plaintiffs motion to compel, and it should be denied on this basis alone. 

Second, Plaintiffs motion to compel fails because the subpoena seeks information 

protected by the reporter's privilege under both state and federal law (including the First 

Amendment itself). To overcome the broad protection afforded by the reporter's privilege, 

Plaintiff must make a clear showing that the subpoena is the only method of obtaining material 

absolutely critical to Plaintiffs claims. In her moving papers, Plaintiff has not even come close 

to meeting this burden. 

II. BACKGROUND 

The National Enquirer is a weekly news publication with staff located at the offices of its 

parent corporation, American Media, Inc., in New York City, Boca Raton, Florida, and Santa 

Monica, California. Exh. A hereto, Declaration of Michael B. Kahane, ii 3. The National 

Enquirer was established more than three decades ago, and has continually reported local, 

Case 2:05-cv-01099-ER Document 65 Filed 12/27/05 Page 8 of 34
national and worldwide news events and other matters of public concern or public interest or 

affecting the public welfare. Id. at if 5. 

In this case, Plaintiff sued Defendant alleging claims for assault, battery, intentional and 

negligent infliction of emotional distress, defamation and false light/invasion of privacy. Am. 

Comp. iii! 1, 33-72. The gravaman of the lawsuit is that Defendant sexually assaulted Plaintiff 

and defamed her. The National Enquirer is not a party to the action. 

On October 31, 2005, Plaintiff attempted to effect service of a subpoena on The National 

Enquirer by serving CT Corporation of New York. Pl.'s Mem. at 1-2. The subpoena requested 

the following: 

All correspondence, memoranda, agreements, contracts, notes, 

meeting notes, recorded statements, unrecorded statements, 

summaries or other documents in your possession concerning the 

February 21, 2005, Exclusive Interview given by Bill Cosby to The 

National Enquirer, as well as any polygraph tests, correspondence, 

memoranda, agreements, contracts, notes, meeting notes, recorded 

statements, unrecorded statements, summaries, or other documents 

in your possession concerning your interviews and/or polygraphs 

of Beth Ferrier, as well as any correspondence or documents 

concerning any discussions or agreements not to run the Beth 

Ferrier story, or to run the Cosby "Exclusive Interview" instead. 

Also, any documents concerning any compensation paid to Bill 

Cosby regarding the above. 

Exh. B to Pl.'s Mem. (Subpoena). 

Because CT Corporation of New York is not The National Enquirer's registered agent for 

service, the subpoena was returned. Pl.'s Mem. at 2. The general counsel for The National 

Enquirer, Marc Rupp, Esq., directed Plaintiff to serve the subpoena on CT Corporation of 

Florida, which is The National Enquirer's registered agent for service of process. Id. Plaintiff 

refused to comply with this suggestion. One week later, Plaintiff attempted to serve the 

subpoena on The National Enquirer by personal service at the offices of American Media, Inc. at 

One Park Avenue, New York, New York. 

2 

Case 2:05-cv-01099-ER Document 65 Filed 12/27/05 Page 9 of 34
Plaintiffs process server, however, attempted to effect service by leaving a copy of the 

subpoena on the desk of American Media, Inc.'s receptionist. Exh. E to Pl.'s Mem. (Affidavit of 

Process Server). The receptionist expressly informed the process server that she was not 

authorized to accept service of the subpoena. See Exh. B hereto, Declaration of Inicia Gallop, if 

7. As of this date, Plaintiff has made no attempt to serve the subpoena on the National 

Enquirer's registered agent, CT Corporation of Florida. 

The National Enquirer lodged timely objections to the subpoena in accordance with 

Federal Rule of Civil Procedure 45(c). Exh. H to Pl.'s Mem. (letter to Plaintiffs counsel). The 

National Enquirer objected to the subpoena on several grounds, including that it is overbroad and 

seeks confidential and privileged information. Id. The National Enquirer also repeatedly 

advised Plaintiff that service of the subpoena was improper. Id. 

In an effort to resolve any dispute over the subpoena, however, The National Enquirer 

offered to make a limited production of information that would be subject to a protective order. 

Id. Plaintiff refused this offer of compromise and instead filed the instant motion to compel. 

Because the matters into which Plaintiff seeks to inquire go to the heart of the reporter's 

privilege recognized under state statutory law and the United States Constitution, The National 

Enquirer has been forced to oppose Plaintiffs motion to compel. This motion should be denied 

for the reasons set forth below. 

III. ARGUMENT 

A. The Motion To Compel Should Be Denied Because Plaintiff Did Not Properly 

Serve The Subpoena. 

Plaintiff bears the initial burden of showing that service of the subpoena has been made 

upon a proper agent of The National Enquirer. Hemmerich Industries Inc. v. Moss Brown & Co. 

3 

Case 2:05-cv-01099-ER Document 65 Filed 12/27/05 Page 10 of 34
Inc., 114 F.R.D. 31, 32 (E.D. Pa. 1987) (citing Alloway v. Wain-Roy Corp., 52 F.R.D. 203, 204 

(E.D. Pa. 1971) ). Plaintiff cannot meet this burden. 1 

To effect proper service of a subpoena on a nonparty, such as The National Enquirer, 

Federal Rule of Civil Procedure 45(b) requires personal service of the subpoena. See Fed. R. 

Civ. P. 45(b) (describing service of subpoena as delivering copy to person); Parker v. Doe, Civ. 

A. No. 02-7215, 2002 WL 32107937, at *2 (E.D. Pa. Nov. 21, 2002) ("service of a subpoena is 

effected by delivering a copy of the subpoena to the person named within"); 9A Wright & 

Miller, Federal Practice and Procedure Civil 2d, § 2454 (1995). When the "person" to whom the 

subpoena is directed is a corporation, Federal Rule of Civil Procedure 4(h)(l) defines the proper 

method of service. See State Farm Mutual Auto. Ins. Co. v. CPT Medical Servs. Inc., Civ. A. 

No. 04-5045, 2005 WL 2465818, at *3 (E.D.N.Y. Oct. 6, 2005) (in determining whether service 

of subpoena on a corporation is sufficient, "courts may be guided by Fed. R. Civ. P. 4(h)(l) 

regarding service of process on corporations and individuals"). 

Rule 4(h)(l) ("Service Upon Corporations and Associations") provides in relevant part 

that service may be made on a corporation: 

in a judicial district of the United States in the manner prescribed 

for individuals by subdivision (e)(l) [i.e., the law of the state in 

which the district court is located], or by delivering a copy of the 

summons and of the complaint to an officer, a managing or general 

agent, or to any other agent authorized by appointment or by law to 

receive service of process, and, ifthe agent is one authorized by 

statute to receive service and the statute so requires, by also 

mailing a copy to the defendant. 

In this case, Plaintiff did not effect proper service of the subpoena under Federal Rule of 

Civil Procedure 4(h)(l). The receptionist at American Media, Inc.'s offices at One Park Avenue 

is not an "officer, a managing or general agent." Nor is she a person authorized to accept service 

Because service was improper, jurisdiction over The National Enquirer is lacking. The National Enquirer 

appears only for the limited purpose of opposing the motion to compel. 

4 

Case 2:05-cv-01099-ER Document 65 Filed 12/27/05 Page 11 of 34
of process on behalf of The National Enquirer. Fed. R. Civ. P. 4(h)(l). See Exh. B hereto,~~ 3-

4, 6-7 (receptionist expressly told process server that she was not authorized to accept service of 

subpoena). The Affidavit of Service submitted by Plaintiff provides no basis to conclude 

otherwise. See GE Medical Systems Information Technologies, Inc. v. Ansar, Inc., Civ. A. No. 

04-2775, 2004 WL 2988513, at *4 (E.D. Pa. Dec. 23, 2004) ("The Affidavit of Service contains 

no information regarding [the person's] position, authority, or control over Defendants' place of 

business."). Indeed, the Affidavit of Service merely describes the service of the subpoena as 

"delivering to and leaving a copy [of the subpoena] for the National Enquirer, personally on the 

reception desk of' Jane Doe' (receptionist) a person of suitable age and discretion, who was 

unwilling to accept service after calling a Mark 'Doe', a person who works for the Enquirer who 

refused to come out to accept subpoena." Exh. E to Pl.' s Mem. This is legally insufficient. See 

Board of Trustees of Laborers' District Council Health and Welfare Fund v. Pennsbury 

Excavating and Landscaping, Inc., Civ. A. No. 99-1078, 2000 WL 633021 at *1 (E.D. Pa. May 

10, 2000) ("Nothing in the record suggests that [the person served] was 'an officer, a managing 

or general agent, or any other agent authorized by appointment or by law to receive service of 

process."'). 

Plaintiffs service of the subpoena also is defective under Pennsylvania law, which is the 

"law of the state in which is the district court is located." Fed. R. Civ. P. 4(e)(l).2 Pennsylvania 

Rule of Civil Procedure 424 provides for personal service upon a corporation as follows: 

2 Rule 4(h)( 1) also states, in the alternative, that service upon a corporation may be made in accordance with 

subsection ( e )(1) - service in accordance with the state in which the district court is located or where 

service is effected. This alternate means of non-personal service ofa summons and complaint is 

inapplicable to service ofa subpoena because Rule 45 requires service by personal delivery. See Parker v. 

Doe, Civ. A. No. 02-7215, 2002 WL 32107937 at *2 (E.D. Pa. Nov. 21, 2002). Therefore, subsection 

(e)(l) is applicable only to the extent that it allows for a means of personal delivery. 

5 

Case 2:05-cv-01099-ER Document 65 Filed 12/27/05 Page 12 of 34
Service of original process upon a corporation or similar entity 

shall be made by handing a copy to any of the following persons 

provided the person served is not a plaintiff in the action: 

(1) an executive officer, partner or trustee of the corporation or 

similar entity, or 

(2) the manager, clerk or other person for the time being in charge 

of any regular place of business or activity of the corporation or 

similar entity, or 

(3) an agent authorized by the corporation or similar entity in 

writing to receive service of process for it. 

Pa. R. Civ. P. 424. 

Plaintiff cannot establish that leaving a copy of the subpoena with American Media, 

Inc.'s receptionist at One Park Avenue is proper service under Rule 424. As the record makes 

clear, the receptionist is not an executive officer, partner or trustee of the corporation; the 

manager, clerk or other person for the time being in charge of any regular place of business or 

activity of the corporation; or an agent authorized by the corporation or similar entity in writing 

to receive service of process for it as required by the Rule. See Exh. B hereto, ~~ 3-4, 6; 

Trzcinski v. Prudential Property and Casualty Ins. Co., 409 Pa. Super. 114, 118, 597 A.2d 687, 

689 (1991 ). Admittedly, service upon a receptionist who represents to the process server that he 

or she is the person in charge at the time of service may be proper. See Hopkinson v. Hopkinson, 

323 Pa. Super. 404, 414, 470 A.2d 981, 987 (1984), overruled on other grounds, Sander v. 

Sander, 378 Pa. 474 (1988). However, the receptionist in this case expressly told Plaintiffs 

process server that she lacked the requisite authority. Exh. B hereto,~ 7. 

Similarly, Plaintiffs service of the subpoena upon the receptionist is defective under 

New York law, which is the law of the state "in which service is effected." Fed. R. Civ. P. 

4(e)(l). Personal service of process upon a corporation in New York is governed by N.Y. 

C.P.L.R. § 31 l(a)(l), which requires service to be made upon "an officer, director, managing or 

6 

Case 2:05-cv-01099-ER Document 65 Filed 12/27/05 Page 13 of 34
general agent, or cashier or assistant cashier or to any other agent authorized by appointment or 

by law to receive service." New York courts have held that service of process on a receptionist 

who notifies the process server that he or she is not authorized to accept service, as is the case 

here, is invalid as a matter oflaw. See Arce v. Sybron Corporation, 441N.Y.S.2d498, 502 

(N.Y. App. Div. 1981); Colbert v. International Security Bureau Inc., 437 N.Y.S.2d 360, 362 

(N.Y. App. Div. 1981). 

Plaintiffs reliance on Mitsubishi International Corp. v. Keystone Camera Corp., Civ. A. 

No. 89-8595, 1990 WL 16090 (S.D.N.Y. Feb. 13, 1990), does not dictate a different conclusion. 

In Mitsubishi, the court found that the process server had not simply left a copy of the summons 

and complaint with the receptionist. Instead, the process server had actually obtained the 

signature of a mid-level employee of the corporation to which the complaint was directed. 1990 

WL 16090 at *3. The process server specifically stated that he was told that the employee could 

accept the summons and complaint on behalf of the corporation. Id. at * 1. In contrast, 

Plaintiffs process server received no such assurances from American Media, Inc. 's receptionist. 

See Exh. B hereto,~ 7. Therefore, Mitsubishi is inapposite. 

Plaintiffs alternative argument that The National Enquirer nonetheless received notice of 

the subpoena fares no better. The Third Circuit "has made clear that 'notice cannot by itself 

validate an otherwise defective service."' Ayers v. Jacobs & Crumplar, P.A., 99 F.3d 565, 568 

(3d Cir. 1996) (quoting Grand Entertainment Group Ltd. v. Star Media Sales Inc., 988 F.2d 476, 

492 (3d Cir. 1993)). 

Because Plaintiff never effected proper service of the subpoena upon The National 

Enquirer, Plaintiffs motion to compel must be denied. 

7 

Case 2:05-cv-01099-ER Document 65 Filed 12/27/05 Page 14 of 34
B. The Motion To Compel Should Be Denied Because The Subpoena Seeks 

Information Protected From Disclosure By Reporter Shield Laws And The 

First Amendment Of The United States Constitution. 

Even if Plaintiff were to cure the defect in service of the subpoena, she is not entitled to 

the documents requested. State legislatures and courts throughout this country have recognized 

the freedom of the press to gather and report on the news. As an extension of that freedom is the 

freedom from unwarranted intrusions upon the press of having to respond to compelled 

disclosure of materials gathered in the process of investigating and reporting on newsworthy 

events and matters of public concern. Clearly, the press is not to be used as a private 

investigatory arm of private litigants involved in civil litigation. With these principles in mind, 

courts and legislatures have placed an extraordinarily heavy burden on litigants to justify the 

request for such information - it must be critical to the underlying claims and requested from 

the press only as a last resort. This is a burden that Plaintiff cannot meet here. 

1. Choice Of Law. 

This Court has jurisdiction over the underlying litigation based on diversity of 

citizenship. 28 U.S.C. § 1332; see also Am. Compl., if 3. The National Enquirer is located in 

New York, which is where Plaintiff attempted to serve her subpoena. See Exh. B to Pl.'s Mem. 

(Subpoena). Therefore, Plaintiffs motion to compel raises an issue regarding which State's law 

would apply in determining the scope of The National Enquirer's reporter's privilege. 

Federal Rule of Evidence 501 states: "[I]n civil actions and proceedings, with respect to 

an element of a claim or defense as to which State law supplies the rule of decision, the privilege 

of a witness, person, government, State, or political subdivision thereof shall be determined in 

accordance with State law." Therefore, this Court must look to Pennsylvania's choice of law 

authority to determine which State's privilege law applies to this motion to compel. See 

Samuelson v. Susen, 576 F.2d 546, 549, 551 (3d Cir. 1978) ("Rule 501 requires a district court 

8 

Case 2:05-cv-01099-ER Document 65 Filed 12/27/05 Page 15 of 34
exercising diversity jurisdiction to apply the law of privilege which would be applied by the 

courts of the state in which it sits" and looking to Pennsylvania's conflict-of-laws rules to 

determine whether to apply Pennsylvania or Ohio law to a privilege question). 

The current Pennsylvania conflicts-of-law analysis "'combines the approaches of both the 

Restatement [(Second) of Conflict of Laws] (contacts establishing significant relationships) and 

'interest analysis' (qualitative appraisal of the relevant States' policies with respect to the 

controversy)."' Garcia v. Plaza Oldsmobile Ltd., 421 F.3d 216, 219 (3d Cir. 2005) (quoting 

Melville v. American Home Assur. Co., 584 F.2d 1306, 1308 (3d Cir. 1978)). The Third Circuit 

has explained the appropriate threshold analysis as follows: 

Under Pennsylvania law, before assessing the governmental 

interests of the jurisdictions whose law may control and examining 

their contacts with the dispute, we must determine what type of 

'conflict,' if any, exists between the purported competing bodies of 

law. See Kuchinic v. McCrory, 422 Pa. 620, 222 A.2d 897, 899-

900 (1966). We begin with an 'interest analysis' of the policies of 

all interested states and then - based on the result of that analysis 

- determine whether the case involves a true or false conflict or 

whether it is unprovided for. Budget Rent-A-Car Sys., Inc. v. 

Chappell, 407 F.3d 166, 169-70 (3d Cir. 2005); see also LeJeune 

v. Bliss-Salem, Inc., 85 F.3d 1069, 1071 (3d Cir. 1996). 

There is a true conflict 'when the governmental interests of both 

jurisdictions would be impaired if their law were not applied.' 

Lacey v. Cessna Aircraft Co., 932 F.2d 170, 187 & n. 15 (3d Cir. 

1991) (emphasis in original). If a case presents a true conflict, 

Pennsylvania choice-of-law rules 'call for the application of the 

law of the state having the most significant contacts or 

relationships with the particular issue.' In re Estate of Agostini, 

311 Pa. Super. 233, 457 A.2d 861, 871 (1983). But there is a false 

conflict 'if only one jurisdiction's governmental interests would be 

impaired by the application of the other jurisdiction's law.' Lacey, 

932 F.2d at 187. If there is a false conflict, we apply the law of the 

only interested jurisdiction. See, e.g., Kuchinic v. McCrory, 222 

A.2d at 899-900. 

Garcia, 421 F.3d at 220 (footnote omitted). 

9 

Case 2:05-cv-01099-ER Document 65 Filed 12/27/05 Page 16 of 34
Therefore, the threshold inquiry is which States have an interest in having their relevant 

law applied, and what type of choice or conflict is presented. In this case, the States with the 

most direct interest in the dispute are Pennsylvania (where the underlying litigation is pending) 

and New York (where The National Enquirer is located, and the author as well as the documents 

subject to the subpoena, are located). 

Consideration of Pennsylvania's choice oflaw analysis demonstrates that New York law 

should apply to the resolution of the subpoena under the facts here. The New York legislature 

has enacted legislation that was specifically intended to address this situation: 

Section 79-h of the Civil Rights Law reflects our state's high 

regard for the values of free speech and a free press insofar as it 

protects journalists and newscasters from penalties for maintaining 

the confidentiality of their news-gathering activities. While the 

law provides 'absolute protection for confidential news' (CRL § 

79-h[b] ), where, as here, unpublished news has not been obtained 

in confidence, it is nevertheless protected by a qualified privilege 

exempting those journalists from contempt sanctions who refuse to 

disclose it ' ... unless the party seeking such news has made a 

clear and specific showing that the news: (i) is highly material and 

relevant; (ii) is critical or necessary to the maintenance of a 

party's claim, defense or proof of an issue material thereto; and 

(iii) is not obtainable from any alternative source.' (CRL § 79-

h[ c ]). 

In the matter of Grand Jury Subpoenas Served on National Broadcasting Co., Inc., 178 Misc.2d 

1052, 1054-55, 683 N.Y.S.2d 708, 710-11 (1998) (footnote omitted) (emphasis added). In 

explaining the heightened protection afforded journalists under New York law, the New York 

Court of Appeals stated: 

'[C]onstruing [our] own constitution so as to recognize a 

newsman's privilege', as the Branzburg [v. Hayes, 408 U.S. 665 

(1972)] court foresaw we might (408 U.S., at 706, 92 S. Ct. at 

2669, supra), we have no difficulty in concluding that the 

guarantee of a free press in article I, § 8 of the New York 

Constitution independently mandates the protection afforded by 

the qualified privilege to prevent undue diversion of journalistic 

effort and disruption of press functions. The expansive language 

10 

Case 2:05-cv-01099-ER Document 65 Filed 12/27/05 Page 17 of 34
of our State constitutional guarantee (compare, N.Y. Const., art. I, 

§ 8, with U.S. Const. 1st Amend.), its formulation and adoption 

prior to the Supreme Court's application of the First Amendment 

to the States (compare, N.Y. Const. of 1821, art. VII,§ 8; and 

Brandreth v. Lance, 8 Paige 24 [1839], with Near v. Minnesota, 

283 U.S. 697, 51 S. Ct. 625, 75 L. Ed. 1357 [1931]- [citing 

Brandreth v. Lance and other New York cases with approval, id., 

at 719, n. 11, 51 S. Ct. at 632 n. 11]), the recognition in very early 

New York history of a constitutionally guaranteed liberty of the 

press (see, Jay, Address to the People of the State ofNew York, 

May 1788, 3 American Museum [No. 6] 559 [1792], reprinted in 3 

Roots of the Bill of Rights, at 554, 560 [Schwartz ed.]; Smith, 

Address to the People of the State of New York, May 1788 -

Postscript [agreeing with Jay on that point], reprinted in id., at 566, 

576), and the consistent tradition in this State of providing the 

broadest possible protection to 'the sensitive role of gathering and 

disseminating news of public events' (Matter of Beach v. Shanley, 

62 N.Y.2d 241, 256, 476 N.Y.S.2d 765, 465 N.E.2d 304 

[Wachtler, J., concurring]), all call for particular vigilance by the 

courts of this State in safeguarding the free press against undue 

interference. 

O'Neill v. Oakgrove Construction, Inc., 71N.Y.2d521, 528-29, 523 N.E.2d 277, 280-81 

(1988). 

Thus, New York has unequivocally provided its press with the "broadest possible 

protection" against efforts to obtain newsgathering material through a subpoena. Applying 

Pennsylvania law in this case would frustrate this legislative effort. 

Additionally, Pennsylvania has no fundamental interest that would be impaired by 

applying New York law. Importantly, under Pennsylvania's choice-of-law analysis, in such a 

false conflicts case, courts would apply the law of New York - the only interested jurisdiction. 

Garcia, 421 F.3d at 220. Plaintiff has little, if any, connection to Pennsylvania. She is not a 

Pennsylvania citizen whose rights Pennsylvania may seek to balance against the interests of a 

free press. In contrast, The National Enquirer and its journalists in New York have justifiably 

expected that New York law, which provides an environment in which freedom of the press is 

11 

Case 2:05-cv-01099-ER Document 65 Filed 12/27/05 Page 18 of 34
highly valued and newsgathering materials are clearly protected by statute, would apply to 

situations such as the subpoena in this case. See Fed. R. Civ. P. 45(b)(2). 

Even ifthe Court were to determine that Pennsylvania's interests would be impaired if 

not applied to the subpoena, New York law would still apply. As the Third Circuit has held, "[i]f 

a case presents a true conflict, Pennsylvania choice-of-law rules 'call for the application of the 

law of the state having the most significant contacts or relationships with the particular issue.'" 

Garcia, 421 F.3d at 220 (quoting In re Estate of Agostini, 311 Pa. Super. 233, 457 A.2d 861, 871 

(1983)). As noted above, New York State has the greatest contacts and relationship with the 

issue of the reporter's privilege. The National Enquirer and the journalist in question are located 

in New York, as are the documents sought by Plaintiffs subpoena.3 For all of these reasons, 

New York law should apply in determining the proper scope of The National Enquirer's 

reporter's privilege. 

2. Plaintiff Has Failed To Meet Her Heavy Burden To Overcome the 

National Enquirer's Reporter's Privilege Under New York Law And 

The First Amendment Of The United States Constitution. 

Federal Rule of Civil Procedure 45( c )(3)(A) provides that a court "shall quash or modify 

[a] subpoena if it ... requires the disclosure of privileged or other protected matter and no 

exception or waiver applies." Plaintiffs motion to compel should be denied because her 

subpoena seeks information that is privileged under both the New York Reporter's Shield Law 

and the First Amendment of the United States Constitution. See In re Subpoena Directed to 

Indeed, the subpoena should have (except for Plaintiff's apparent gamesmanship) issued from the United 

States District Court for the Southern District of New York, thereby making any contacts between the 

subpoena and Pennsylvania non-existent. In preparing the subpoena, Plaintiff had deliberately selected an 

office of an attorney not of record located in Center City, Philadelphia as the place for the production of the 

documents requested by the subpoena (location identified as "Troiani/Kivitz, L.L.P. c/o Ralph A. Jacobs & 

Associates"). This office is conveniently located 96 miles from The National Enquirer's New York offices. 

This is no mistake as Plaintiff's counsel's offices are located in Devon, Pennsylvania, which is more than 

100 miles from the National Enquirer's New York offices and, therefore, outside the subpoena power of 

this Court. See Fed. R. Civ. P. 45(b)(2). 

12 

Case 2:05-cv-01099-ER Document 65 Filed 12/27/05 Page 19 of 34
Anne Barnard, Misc. No. 98-189, 1999 WL 38269, at *2 (E.D. Pa. Jan. 25, 1999) (applying both 

state shield law and federal constitutional privilege to privilege analysis in diversity case). 

a. New York Reporter Shield Law. 

New York's Reporter Shield Law states, in relevant part: 

Exemption of professional journalists and newscasters from 

contempt: Qualified protection for nonconfidential news. 

Notwithstanding the provisions of/ any general or specific law to 

the contrary, no professional journalist or newscaster presently or 

having been employed or otherwise associated with any 

newspaper, magazine, news agency, press association, wire 

service, radio or television transmission station or network or other 

professional medium of communicating news to the public shall be 

adjudged in contempt by any court in connection with any civil or 

criminal proceeding, or by any legislature or other body having 

contempt powers, nor shall a grand jury seek to have a journalist or 

newscaster held in contempt by any court, legislature or other body 

having contempt powers for refusing or failing to disclose any 

unpublished news obtained or prepared by a journalist or 

newscaster in the course of gathering or obtaining news as 

provided in subdivision (b) of this section, or the source of any 

such news, where such news was not obtained or received in 

confidence unless the party seeking such news has made a clear 

and specific showing that the news: (i) is highly material and 

relevant; (ii) is critical or necessary to the maintenance of a 

party's claim, defense or proof of an issue material thereto; and 

(iii) is not obtainable from any alternative source. A court shall 

order disclosure only of such portion, or portions, of the news 

sought as to which the above-described showing has been made 

and shall support such order with clear and specific findings made 

after a hearing. 

N.Y. Civ. Rights§ 79-h(c) (emphasis added). 4 

All unpublished information related to interviews of Defendant and Beth Ferrier is 

entitled to the qualified protections of New York's Reporter Shield Law. See In re Subpoena 

4 Subsection (c) quoted above cross-references the following subsection (b): "any news obtained or received 

in confidence or the identity of the source of any such news coming into such person's possession in the 

court of gathering or obtaining news for publication or to be published in a newspaper, magazine, or for 

broadcast by a radio or television station or network or for public dissemination by any other professional 

medium or agency which has as one of its main functions the dissemination of news to the public, by which 

such person is professionally employed or otherwise associated in a news gathering capacity." 

13 

Case 2:05-cv-01099-ER Document 65 Filed 12/27/05 Page 20 of 34
Duces Tecum to American Broadcasting Companies, Inc., 735 N.Y.S.2d 919, 922 (N.Y. Sup. Ct. 

2001) (interview with disclosed informant is nonconfidential news). As such, Plaintiff bears the 

heavy burden of satisfying, in her moving papers, the requirements of the three-prong test 

articulated in the statute. See In re Application of CBS Inc., 648 N.Y.S.2d 443, 443-44 (N.Y. 

App. Div. 1996). Plaintiff fails to meet this burden. 

(1) Plaintiff Has Failed To Prove That The Information 

Sought By The Subpoena Is Highly Material And 

Relevant To Her Claims. 

Under New York's Reporter Shield Law, Plaintiff bears the initial burden of making a 

"clear and specific showing" that the information she seeks to compel from the National 

Enquirer is "highly material and relevant." N.Y. Civ. Rights§ 79-h(c). A mere relevance 

standard would require Plaintiff to make a specific showing that the material is at least likely to 

lead to the discovery of admissible evidence. Fed. R. Civ. P. 26. In her moving papers, Plaintiff 

has not met this standard, let alone proven that the requested discovery is "highly material and 

relevant." 

Instead, Plaintiff relies solely on the conclusory statement that "all the requested 

documents relate to issues of liability, defamation and credibility, all of which are at issue in this 

case." Pl.' s Mem. at 7. Under the relevant decisional authorities, this bare allegation fails to 

demonstrate that the requested discovery is highly material and relevant to Plaintiffs claims. 

See In re Subpoena Duces Tecum to American Broadcasting Companies, Inc., 735 N.Y.S.2d at 

922 (such a conclusory allegation amounts to pure conjecture). 

(2) Plaintiff Has Failed To Demonstrate That The 

Information Sought By The Subpoena Is Critical To 

The Maintenance Of Her Claims. 

Plaintiff has likewise failed to demonstrate that the requested information is critical or 

necessary to the maintenance of her claims. 

14 

Case 2:05-cv-01099-ER Document 65 Filed 12/27/05 Page 21 of 34
The compelled disclosure of information from a newsperson, such as here, must be 

ordered only when there is an "urgent requirement." In re Subpoena Duces Tecum to American 

Broadcasting Companies, Inc., 735 N.Y.S.2d at 921-22. It should be available to litigants as 

only a "last resort." Id. "Thus, the provision of the Civil Rights Law at issue is not satisfied 

absent clear and specific proof 'that the claim for which the information is to be used virtually 

rises or falls with the admission or exclusion of the proffered evidence."' Id. at 922 (internal 

citations omitted). 

Moreover, "when the legislature speaks of unpublished news being critical or necessary 

to the proof of a claim or defense, it does not have in mind general and ordinary impeachment 

materials or matters which might arguably bear on the assessment of credibility of witnesses." 

Id. General allegations of credibility and unspecified issues of "liability and defamation," as 

Plaintiff alleges, cannot meet this burden as a matter of law. Id. 5 

(3) Plaintiff Has Failed To Demonstrate That The 

Information Sought By The Subpoena Is Not 

Obtainable From Other Sources. 

Plaintiff's motion to compel also is fundamentally flawed because Plaintiff makes no 

showing that the information in question is available only from The National Enquirer. This 

failure of proof provides a separate and independent basis for denying Plaintiff's motion to 

compel. 

Courts require that before burdening the press with requests for newsgathering materials, 

litigants much exhaust all other available sources for the information that they seek. This 

exhaustion requirement is strictly enforced. See, e.g., In re Roche, 448 U.S. 1312 (1980) 

Plaintiff alludes to the fact that she needs this information on an expedited basis "if Plaintiff is to join 

the paper as an additional defendant" and that "[w]ithout the requested information, Plaintiff will be 

severely prejudiced in her ability to draft a complaint." Pl.'s Mem. at 9. However, Plaintiff cannot simply 

use the power of the subpoena as a fishing expedition to determine whether she wants to add The National 

Enquirer as a defendant. Moreover, whatever The National Enquirer published that would be the subject of 

any potential claim against it is already well known to Plaintiff, without the need for an improper subpoena. 

15 

Case 2:05-cv-01099-ER Document 65 Filed 12/27/05 Page 22 of 34
(plaintiff required to seek information from 65 witnesses before seeking disclosure from 

journalist). 

In addressing the scope of the subpoena, Plaintiff argues that the subpoena is limited only 

to documents and agreements concerning The National Enquirer's interviews of Defendant and 

Beth Ferrier. See Pl. 's Mem. at 7. Plaintiff, however, does not even attempt to articulate how, if 

at all, she sought this information from Defendant or Ms. Ferrier. 

Because Plaintiff has not met her burden of showing that The National Enquirer is the 

only available source of the information critical to the maintenance of her claims, her motion to 

compel should be denied. 

b. First Amendment Protection. 

Even ifthe Court were for any reason to conclude that the New York Reporter Shield 

Law should not determine the privilege applicable to this case, the law of this circuit clearly 

provides non-party news organizations, like The National Enquirer, with a qualified privilege 

against compelled disclosure of information that they gather, generate, use or rely upon in the 

course of their work as journalists. See, e.g., Riley v. City of Chester, 612 F.2d 708 (3d Cir. 

1979). The Third Circuit has repeatedly recognized this privilege, which has as its source the 

First Amendment to the United States Constitution. See, e.g., United States v. Criden, 633 F.2d 

346 (3d Cir. 1980). As the Third Circuit noted, "[t]he First Amendment 'was fashioned to assure 

unfettered interchange of ideas for the bringing about of political and social change desired by 

the people' and bottomed on 'a profound national commitment to the principle that debate on 

public issues should be uninhibited, robust, and wide-open." Criden, 633 F.2d at 355 (quoting 

Roth v. United States, 354 U.S. 476, 484 (1957) and New York Times Co. v. Sullivan, 376 U.S. 

254, 270 (1964), respectively). 

16 

Case 2:05-cv-01099-ER Document 65 Filed 12/27/05 Page 23 of 34
This privilege protects not only confidential sources but the widest range of confidential 

and non-confidential work product of journalists. Indeed, "compelled production of a reporter's 

resource materials is equally as invidious as the compelled disclosure of ... confidential 

sources." Altemose Construction Co. v. Building and Construction Trades Council, 443 F. Supp. 

489, 491 (E.D. Pa. 1977); see also United States v. Cuthbertson, 630 F.2d 139, 147 (3d Cir. 

1980). 

Courts from this circuit have repeatedly protected newspersons' materials from 

compelled production except in extraordinary cases. For example, in Riley, the Third Circuit 

adopted a three-prong test, similar to that crafted by the New York legislature, to be applied 

when a party seeks to compel the production of news gathering material. A moving party must 

show: (1) "that [the] only practical access to crucial information necessary for the development 

of the case is through the newsman's sources"; (2) that "[t]he material sought must provide a 

source of crucial information going to the heart of a claim"; and (3) that the moving party 

"exhausted other means of obtaining the information." Riley, 612 F.2d at 717. Under this 

standard, a litigant must show a "demonstrated, specific need for the evidence" before a reporter 

can be compelled to produce his or her documents. Id. at 716. Because this is a civil case, the 

burden on Plaintiff to demonstrate this extraordinary need is heavier than if the underlying case 

was criminal. Id. at 717. Plaintiff fails to meet this burden here. 

(1) Plaintiff Has Failed To Demonstrate That The Only 

Practical Access To Crucial Information Necessary For 

The Development Of Her Case Is In The Information 

Sought By The Subpoena. 

As stated in subsection two, infra, Plaintiff has made no showing that crucial information 

necessary for the development of her case is available solely through The National Enquirer. See 

Altemose Construction Company, 443 F. Supp. at 491 (protecting affidavits and all other written 

17 

Case 2:05-cv-01099-ER Document 65 Filed 12/27/05 Page 24 of 34
statements from individuals interviewed for television program because the parties showed "no 

particularized need for these affidavits; there was not even a demonstration that the information 

could not be secured from alternative sources.") Plaintiffs attempt to ignore this requirement is 

unavailing. 

(2) Plaintiff Has Failed To Demonstrate That The 

Information Sought By The Subpoena Is Crucial 

Information Going To The Heart Of Her Claims. 

Similarly, Plaintiff has made no showing in her moving papers that the information she 

seeks is critical to her claims against Defendant. Plaintiffs single, conclusory allegation that the 

newsgathering source information sought by the subpoena relates somehow to the issues of 

"liability, defamation and credibility" is legally insufficient. In re Scott Paper Co. Securities 

Litigation, 145 F.R.D. 366, 371 (E.D. Pa. 1992) (unpublished notes and source materials 

protected by reporter's privilege because "mere possibility of helpful information ... is not a 

sufficiently strong showing of need to justify the great intrusion into the deliberative process of 

the press."). 

(3) Plaintiff Has Failed To Demonstrate That She Has 

Exhausted Other Means Of Obtaining The Information 

Sought By The Subpoena. 

Finally, Plaintiff fails to demonstrate that she has exhausted other means of obtaining the 

same information requested from The National Enquirer. See Perry v. Keulian, Civ. A. No. 96-

1374, 1997 WL 117027at*1 (E.D. Pa. Mar. 11, 1997) ("Since Defendant represents an 

alternative route of access to these, her own statements, and since Plaintiffs have failed to show 

that they have made an effort to obtain this information from her or any other sources, Plaintiffs 

have failed to meet the first two prongs .... "). As noted above, Plaintiffs moving papers do not 

address at all this requirement. For this additional reason, Plaintiff has not carried her burden of 

18 

Case 2:05-cv-01099-ER Document 65 Filed 12/27/05 Page 25 of 34
overcoming The National Enquirer's reporter's privilege, and her motion to compel should be 

denied. 

C. Because The Motion To Compel Has No Merit Whatsoever, The National 

Enquirer Should Be Awarded The Fees And Costs Incurred In Responding 

To The Motion. 

For the reasons already described, Plaintiff has failed to overcome the objections asserted 

by The National Enquirer in response to the subpoena. 6 By its plain terms, the subpoena seeks 

all information related in any way to the interviews of Defendant and Ms. Ferrier, irrespective of 

whether they concern Plaintiff. This goes far beyond the boundaries of any possible relevance in 

this case. The subpoena also deliberately seeks confidential and privileged information that is 

clearly protected from discovery under state and federal law. 

Not only did Plaintiff improperly serve the subpoena, Plaintiff then brought her motion to 

compel without making any meaningful effort to comply with the legal requirements for such a 

motion. As set forth above, Plaintiff made no effort to demonstrate a connection between the 

information sought by the subpoena and her claims, the inability to obtain this information from 

other sources, or the critical nature of the information to her claims. There is no reasonable 

excuse for this conduct. 

In every way, Plaintiffs motion to compel justifies sanctions. The National Enquirer 

respectfully submits that the Court should not condone this type of conduct. Accordingly, The 

National Enquirer asks that the Court enter an Order awarding The National Enquirer the fees 

and costs incurred in responding to the motion to compel. Fed. R. Civ. P. 45(c)(l). 

6 Consistent with Federal Rule of Civil Procedure 45(c), The National Enquirer formally objected to the 

subpoena on the grounds, among others, that it is overbroad, seeks confidential and privileged 

information, and is not reasonably calculated to lead to the discovery of admissible evidence. Exh. H to 

PJ's. Mem. 

19 

Case 2:05-cv-01099-ER Document 65 Filed 12/27/05 Page 26 of 34
D. In The Unlikely Event That The Court Orders Production Of Any Of The 

Information Sought By The Subpoena, A Protective Order Should Be Issued 

To Protect The Information. 

In the alternative, if the Court decides to order production of any of the information 

requested by Plaintiff (which for the reasons already stated should not be the case), the Court 

should enter an appropriate protective order protecting the confidentiality of the information. 

The National Enquirer's need for privacy unquestionably outweighs the public's interest in 

obtaining access to the requested materials. 

In Pansy v. Borough of Stroudsburg, 23 F.3d 772, 787 (3d Cir. 1994), the Third Circuit 

outlined factors that should be considered by a lower court before entering a protective order. Id. 

at 787-88. Those factors include whether the disclosure will violate any privacy interests, 

whether the information is being sought for a legitimate purpose, whether the disclosure will 

impose embarrassment, and whether the matter involves issues of public concern. Id. These 

factors weigh in favor of entering a protective order in this case. 

Here, the subpoena seeks information that is among the most confidential information of 

any news organization. This information includes The National Enquirer interviewer's notes, 

summaries and source agreements with Defendant and Beth Ferrier. At all times, The National 

Enquirer expected that this information would remain private. 

As recognized by the courts for decades, these materials are at the core of the reporters' 

privilege under the First Amendment. See Criden, 633 F.2d at 355 ("The First Amendment 'was 

fashioned to assure unfettered interchange of ideas for the bringing about of political and social 

change desired by the people' and bottomed on 'a profound national commitment to the principle 

that debate on public issues should be uninhibited, robust, and wide-open."). Without the ability 

to protect this confidential information, The National Enquirer's capacity to function as a news 

organization will be seriously harmed. Absent this protection, The National Enquirer will not be 

20 

Case 2:05-cv-01099-ER Document 65 Filed 12/27/05 Page 27 of 34
able to ensure the free flow of information with its news sources, who will naturally be reluctant 

to share information knowing that it can be publicly disclosed against their wishes. 

In contrast, the public interest in obtaining access to these materials is nonexistent. This 

matter does not involve issues that are important to the "public health, safety and welfare" such 

that disclosure is warranted. Pansy, 23 F.3d at 788. This is a case involving private litigants, 

and the materials to which Plaintiff seeks access are of little legitimate public interest. Id. 

To the extent that Plaintiff opposes the entry of a protective order, there is no question 

that the information is being sought by Plaintiff for an improper purpose. Put bluntly, no 

legitimate public purpose will be served by Plaintiff openly publicizing the confidential 

information of The National Enquirer. A contrary position by Plaintiff would only highlight the 

improper nature of Plaintiffs motion to compel. 

IV. CONCLUSION 

For the foregoing reasons, nonparty The National Enquirer respectfully requests that the 

Court deny Plaintiffs motion to compel and award The National Enquirer the fees and costs 

incurred in responding to the motion. 

DATED: December 27, 2005 

21 

Respectfully submitted, 

CKIUSLLP 

Email: pweller@morganlewis.com 

ii ordan@morganlewis.com 

Attorneys for The National Enquirer 

Case 2:05-cv-01099-ER Document 65 Filed 12/27/05 Page 28 of 34
IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

ANDREA CONSTAND. 

Plaintiff, 

v. 

Wll.,LIAM H. COSBY, 

CIV~ A. NO. 05-1099 

Judge Eduardo C. Robreno 

FILED UNDER SEAL 

Defendan.L 

DECLARATION OJi' MICHAEL B. KABANE 

PYRSVANT TO 21 y.s.c. 1114§ 

I, Michael B. Kahane, d~late under penalty of perjury as follows: 

1. My name is Michael B. K.ahanc, and I am O'Ver the age of 18. 

2. I am the Executive Vice-President and General Collllscl of American Media, Inc. 

National :Enquirer, Inc. is a Florida corporation, and a wholly owned subsidiary of American 

,. ,,,~ - , -"-"' Media, Inc., and I am the corporate SecJ:CStary ofNational Enquirer, Inc. I make this Declaration 

based on personal knowledge. 

3. The National Enquirer is a weekly news publication which utilizes American 

Media Ino.'s offices in New York City, Boca Raton, Florida, and Santa Monica, California. 

Approximately one-half of the staff that works on The National Enquirer is located in New York 

Cjty. 

4. Barry Levine, the individual with by-line credit on the article that is ref~ced in 

Plaintiff's subpoena, is based in American Media's New York office. 

,.HT 

Case 2:05-cv-01099-ER Document 65 Filed 12/27/05 Page 29 of 34
S. The National Enquirer was established more than three decades ago, and has 

continually reported local, national and worldwide news events and other mattc:rs of public 

concern. 

6. In this industryt The National Enquirer hires reporters to gather and report on 

newsworthy events. 

7. The National Enquirer published an article regarding an interview between its 

editor. Barry Levine, and Defmdant William Cosby. 

8. N. part of its investigation for the article reganiing Mr. Cosby, The National 

Enquirer gathered documents and other resource material reglll'ding the subject article. The 

National Enquirer considers these materials privileged from production in response to subpoenas 

and discovery n:quests. 

I declal'CI under penalty of perjury under the laws of the United States of America that the 

foregoing is true and correct. 

Dated: December 22, 200S 

2 

Case 2:05-cv-01099-ER Document 65 Filed 12/27/05 Page 30 of 34
IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

ANDREA CONSTAND, 

Plaintiff, 

v. 

WILLIAM H. COSBY, 

Defendant. 

CIVIL A. NO. 05-1099 

Judge Eduardo C. Robreno 

FILED UNDER SEAL 

DECLARATION OF INICIA GALLOP 

PURSUANT TO 28 U.S.C. § 1746 

I, Inicia Gallop, declare under penalty of perjury as follows: 

1. My name is Inicia Gallop, and I am over the age of 18. I make this Declaration 

based on personal knowledge 

2. I am a receptionist for American Media, Inc .. located at One Park A venue, New 

York, New York. I have been employed in this capacity since November 29, 2004. 

3. As a receptionist, my duties are receiving office visitors and telephone calls. I am 

not in charge of the office and have no managerial or discretionary responsibilities. 

4. I am not an officer, partner, or trustee of National Enquirer, Inc., nor am I in 

charge of any of The National Enquirer's operations. 

5. On the afternoon of November 7, 2005, a gentleman approached me at my desk. 

He identified himself as a process server and asked if I would accept service of a subpoena 

addressed to The National Enquirer. 

6. I am not authorized to accept any service of process. 

• '..!f . 

Case 2:05-cv-01099-ER Document 65 Filed 12/27/05 Page 31 of 34
7. After I informed the process server that I was not authorized to accept service of 

the subpoena, the process server left a copy of the subpoena on the reception desk and left the 

building. 

I declare under penalty of perjury under the laws of the United States of America 

that the foregoing is true and correct. 

Dated: December 22, 2005 

2 

Case 2:05-cv-01099-ER Document 65 Filed 12/27/05 Page 32 of 34
CERTIFICATE OF SERVICE 

I hereby certify that on this date a true and correct copy of the foregoing The National 

Enquirer's Memorandum of Law in Opposition to Plaintiffs Motion to Compel and proposed 

order were served on the following via first class mail: 

DATED: December 27, 2005 

Dolores M. Troiani 

Bebe Kivitz 

Troiani/Kivitz LLP 

38 N. Waterloo Road 

Devon, PA 19333 

Attorneys for Plaintiff 

Patrick J. O'Connor 

Cozen 0' Connor 

1900 Market Street 

Philadelphia, PA 19103 

Andrew D. Schau 

Patterson Belknap Webb & Tyler, LLP 

1133 Avenue of the Americas 

New York, NY 10036 

Case 2:05-cv-01099-ER Document 65 Filed 12/27/05 Page 33 of 34
IN THE UNITED ST ATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

ANDREA CONSTAND, 

Plaintiff, CIVIL A. NO. 05-1099 

v. Judge Eduardo C. Robreno 

WILLIAM H. COSBY, JR., FILED UNDER SEAL 

Defendant. 

PROPOSED ORDER 

AND NOW, this ___ , day of _____ , 200_, upon Plaintiffs motion to 

compel The National Enquirer's compliance with subpoena for documents and request for 

expedited resolution, and The National Enquirer's response thereto, it is hereby ORDERED that 

Plaintiffs motion to compel is DENIED. 

It is further ORDERED that Plaintiff shall pay the fees and costs incurred by The 

National Enquirer in responding to Plaintiffs motion to compel. 

BY THE COURT. 

------------' J. 

Eduardo C. Robreno 

United States District Court 

Case 2:05-cv-01099-ER Document 65 Filed 12/27/05 Page 34 of 34