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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

TAMMY KITZMILLER, et al., : Case No. 04cv2688

:

Plaintiffs :

:

v. : Judge Jones

:

DOVER AREA SCHOOL DISTRICT, et al.,:

:

Defendants. :

MEMORANDUM AND ORDER

September 28, 2005

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

On September 12, 2005, we rendered an Order granting in part and denying

in part a Motion to Reconsider our August 2, 2005 Order filed by the Non-Party

Subpoenaed Witnesses, Joseph Maldonado (“Maldonado”) and Heidi BernhardBubb (“Bernhard-Bubb”) (collectively “the Reporters”). In our September 12,

2005 Order, we directed the following regarding depositions in the case sub judice:

“Maldonado and Bernhard-Bubb may be deposed with regard strictly to what they

saw and heard at Dover Area School District public meetings; however, the

subject depositions are limited in that the Reporters may not be questioned

concerning any confidential sources. An examination of the Reporters’

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motivation(s), bias, mental impressions, or other information extrinsic to what the

Reporters saw and heard at Dover Area School Board meetings is not permitted

within the subject depositions.” (Rec. Doc. 183 at 6-7, emphasis in original). In

addition, our September 12, 2005 Order provided that with regard to the

production of documents at issue, the requested e-mails are not relevant to this

case and the Reporter’s Privilege applies to the balance of the documents

requested by Defendants in their respective subpoenas. Id. at 7. 

We have since been made aware of the fact that the Reporters appeared on

September 27, 2005 for scheduled depositions which had been properly noticed by

Defendants, but refused to testify based upon their reliance on what they termed the

First Amendment Reporter’s Privilege. On September 28, 2005, the Court met in

chambers with counsel for both parties, as well as counsel for the Reporters to

discuss the continuing problems regarding testimony to be provided by the

Reporters. At that time, we were advised that without additional clarification by the

Court, the Reporters intended to invoke the same privilege as referenced herein,

and that they would accordingly refuse to testify as fact witnesses for Plaintiffs

during today’s proceedings. 

After an extended discussion with all counsel concerning the Reporters’

position as it relates to this case, and after additional consideration on this issue, we

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will adopt certain language provided by counsel for the Reporters to the extent

provided herein, which shall apply to deposition testimony provided by the

Reporters, as well as the Reporters’ trial testimony in the Plaintiffs’ case-in-chief as

fact witnesses. In addition, and to be clear, all of the limitations imposed upon the

Reporters’ testimony at depositions as set forth in our September 12, 2005 Order

will extend to their testimony at trial. As affidavits have been provided in lieu of

testimony to support a newspaper article(s), the Reporters shall be obligated to

testify as to the facts set forth in the articles, i.e., what was seen and heard as

related in the newspaper article(s). By doing so, the Reporters will be verbalizing

the contents of said Affidavit by testifying as to what appears in the newspaper

article(s), unless such Affidavit is otherwise accepted by all parties as validating or

authenticating the contents of the newspaper article(s) in issue. However, as we

have clearly explained in prior Orders of the Court, no testimony shall relate to

unpublished material or information or to the Reporters’ motivation(s), bias, mental

impression, or other information extrinsic to what the Reporters saw and heard, and

the Reporters shall not be obligated to reveal any confidential sources. Again, we

reiterate that the specifications of this Order pertain to both deposition testimony

provided by the Reporters, as well as the Reporters’ trial testimony that will be

elicited in the Plaintiffs’ case-in-chief as fact witnesses. 

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NOW, THEREFORE, IT IS ORDERED THAT:

1. As we stated within the body of this Order, this Order is applicable to

deposition testimony provided by the Reporters, as well as the

Reporters’ trial testimony as fact witnesses in the Plaintiffs’ case-inchief. As affidavits have been provided in lieu of testimony to support

a newspaper article(s), the Reporters shall be obligated to testify as to

the facts set forth in the articles, i.e., what was seen and heard as

related in the newspaper article(s). By doing so, the Reporters will be

verbalizing the contents of said Affidavit by testifying as to what

appears in the newspaper article(s), unless such Affidavit is otherwise

accepted by all parties as validating or authenticating the contents of

the newspaper article(s) in issue. However, as we have clearly

explained in prior Orders of the Court, no testimony shall relate to

unpublished material or information or to the Reporters’ motivation(s),

bias, mental impression, or other information extrinsic to what the

Reporters saw and heard, and the Reporters shall not be obligated to

reveal any confidential sources. 

s/ John E. Jones III

 John E. Jones III

United States District Judge

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