UNITED STATES DISTRICT COURT 

MIDDLE DISTRICT OF PENNSYLVANIA 

UNITED ST ATES OF AMERICA, CR. NO. 3:23-CR-149 

(JUDGE MANNION) v. 

DAMIEN BOLAND. 

Defendant. 

MEMORANDUM 

This matter comes before this Court on Non-Party CBS Broadcasting 

lnc.'s ("CBS") motion for reconsideration and/or clarification of this Court's 

January 6, 2024 ruling regarding CBS's motion to quash and Defendant 

Damien Boland's motion to compel. (Doc. 234 ). In that ruling, the Court 

ordered CBS to produce Defendant Boland's requested materials to this 

Court for in camera review. (Doc. 229). Defendant Boland's motion to compel 

was granted in part subject to the condition that his request complies with 

Rule 17(c) of the Federal Rules of Criminal Procedure which will be 

determined at trial. (/d.). CBS now returns to this Court in search of an order 

reconsidering or clarifying that ruling and two other aspects of this Court's 

decision. For the reasons set forth below, CBS's motion will be DENIED in 

part. 

Case 3:23-cr-00149-MEM Document 238 Filed 01/13/25 Page 1 of 8
I. Background 

The factual and procedural backgrounds of the matter have been 

outlined in the previous memorandum (Doc. 228) and are incorporated 

herein by reference. 

11. Legal Standard 

The legal standards that govern motions to reconsider are both clear, 

and clearly compelling. "The purpose of a motion for reconsideration is to 

correct manifest errors of law or fact or to present newly discovered 

evidence." Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). 

Typically, such a motion should only be granted in three, narrowly defined 

circumstances: where there is either "(1) [an] intervening change in 

controlling law, (2) availability of new evidence not previously available, or 

(3) need to correct a clear error of law or prevent manifest injustice." Dodge 

v. Susquehanna Univ., 796 F.Supp. 829, 830 (M.D. Pa. 1992). As the United 

States Court of Appeals for the Third Circuit has aptly observed: 

"The purpose of a motion for reconsideration .. . is to correct 

manifest errors of law or fact or to present newly discovered 

evidence." Max's Seafood Cafe, 176 F.3d at 677 (quoting Harsco 

Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985)). 

"Accordingly, a judgment may be altered or amended if the party 

seeking reconsideration shows at least one of the following 

grounds: (1) an intervening change in the controlling law; (2) the 

- 2 -

Case 3:23-cr-00149-MEM Document 238 Filed 01/13/25 Page 2 of 8
availability of new evidence that was not available when the court 

granted the motion for summary judgment; or (3) the need to 

correct a clear error of law or fact or to prevent manifest 

injustice." Id. (citation omitted). 

Howard Hess Dental Laboratories Inc. v. Dentsply Intern., Inc., 602 

F .3d 237, 251 (3d Cir. 2010). 

Thus, it is well settled that a mere disagreement with the court does 

not translate into the type of clear error of law which justifies reconsideration 

of a ruling. Dodge, 796 F.Supp. at 830. Furthermore, "[b]ecause federal 

courts have a strong interest in the finality of judgments, motions for 

reconsideration should be granted sparingly." Continental Casualty Co. v. 

Diversified Indus., Inc., 884 F.Supp. 937, 943 (E.D. Pa. 1995). Moreover, it 

is evident that a motion for reconsideration is not a tool to re-litigate and 

reargue issues which have already been considered and disposed of by the 

court. Dodge, 796 F.Supp. at 830. Rather, such a motion is appropriate only 

where the court has misunderstood a party or where there has been a 

significant change in law or facts since the court originally ruled on that issue. 

See Above the Belt, Inc. v. Mel Bohannon Roofing, Inc. , 99 F.R.D. 99, 101 

(E.D. Va. 1983). 

- 3 -

Case 3:23-cr-00149-MEM Document 238 Filed 01/13/25 Page 3 of 8
Ill. Discussion 

In the instant case, CBS does not argue that there has been an 

intervening change in the law which compels a different outcome here. Nor 

does CBS offer new evidence to support its claims. Rather, CBS appears to 

be using this motion to reconsider this Court's ruling to relitigate issues 

previously addressed. As explained above, a motion for reconsideration is 

not a tool to re-litigate and reargue issues which have already been 

considered and disposed of by the court. Dodge, 796 F.Supp. at 830. Thus, 

to the extent CBS urges this Court to revisit ruled on claims, the Court 

declines to do so. However, to the extent CBS urges this Court to provide 

clarification regarding certain aspects of its ruling, the Court will do so here. 

A. Reporter's Privilege and Trotta's Testimony 

CBS argues that "the Court's blanket ruling that Boland has met his 

burden to overcome CBS News's reporter's privilege is premature and 

erroneous in two respects: First, like the determination of whether Boland's 

subpoena complies with Rule 17, the determination of whether he can 

overcome the privilege must be made after Trotta testifies at trial. Second, 

any production of unpublished recordings of Jon Wertheim's interview with 

Trotta only can be compelled with respect to the particular portions of the 

recordings, if any, for which Boland has met his burden of showing, at trial, 

-4-

Case 3:23-cr-00149-MEM Document 238 Filed 01/13/25 Page 4 of 8
that the privilege has been overcome and that specific statements are crucial 

to his defense." (Doc. 234-1 , pp. 2-3) (emphasis in original). Specifically, 

CBS argues that given the precedent applicable to this matter (Riley v. City 

of Chester, 612 F.2d 708 (3d Cir. 1979), United States v. Criden, 633 F.2d 

346 (3d Cir. 1980), United States v. Cuthbertson, 630 F.2d 139 (3d Cir. 1980) 

("Cuthbertson /"), and United States v. Cuthbertson, 651 F.2d 189 (3d Cir. 

1981 ) ("Cuthbertson //")), '"the evidentiary potential' of newsgathering 

material 'will arise only when the witnesses testify' ... [and the] Court is not 

in a position to decide whether Boland has overcome the reporter's privilege 

with respect to any specific aspect of the interviews or what material is 

'crucial' to his defense until after Trotta testifies." (Doc. 234-1 , p. 5) (quoting 

Cuthbertson II, 651 F.2d at 196 and citing Riley, 612 F.2d at 717). The Court 

disagrees. 

To the extent CBS is arguing that the precedent in this matter stand for 

the proposition that there is a general timing requirement for when a court 

can consider the qualified reporter's privilege and balance a defendant's 

need for the material sought against the interest of the journalist in preventing 

production, the Court disagrees. As explained in this Court's memorandum 

and understood in the Riley-Criden-Cuthbertson trilogy, a court must perform 

the three-prong Riley inquiry and conduct a "delicate balancing" of the 

- 5 -

Case 3:23-cr-00149-MEM Document 238 Filed 01/13/25 Page 5 of 8
interests involved, in which the materiality, relevance and necessity of the 

information sought must be demonstrated. See Riley, 612 F.2d at 717. No 

timing requirement is mandated. Furthermore, the Court's determinationthat "the Defendant has met all the Riley factors, and therefore, CBS's 

reporter's privilege to guard against producing those portions of Trotta's 

interview contained in any recorded conversations and unpublished video 

recordings is superseded by the countervailing interests in this particular 

case"-is made as a preliminary finding at this stage of the proceeding to 

warrant in camera review; it is not a finding to compel production to 

Defendant Boland. In Cuthbertson I, the Third Circuit agreed with CBS that 

a sufficient showing to justify production of privileged material to the court for 

in camera review is required. 630 F.2d at 148-149. Thus, a threshold 

showing was required and met by Defendant Boland. The very Supreme 

Court case from which Riley adopted its three-prong inquiry, New York Times 

Co. v. Jasca/evich, stated that "[g]iven the likelihood that forced disclosure 

even for in camera review will inhibit the reporter's and newspaper's exercise 

of First Amendment rights [the Court] believe[s] that some threshold showing 

of materiality, relevance, and necessity should be required." 439 U.S. 1331 , 

1335 ( 1978 ). This threshold showing has been satisfied by Defendant 

Boland. An ultimate finding may not be made until after Trotta's testimony, if 

- 6 -

Case 3:23-cr-00149-MEM Document 238 Filed 01/13/25 Page 6 of 8
it occurs, and will depend on whether any of his statements to reporter Jon 

Wertheim "ripen into evidentiary material for purposes of impeachment," that 

such materials are not merely cumulative but substantively distinctive from 

other material possessed by Defendant Boland, and, thus, necessary to the 

defense. The Court cannot make an ultimate finding on privilege at this stage 

of the proceeding, neither has it done so. 

1 

CBS next argues that whether Boland has met his burden must be 

assessed for each statement on the unpublished recordings that may be 

produced. The Court agrees. Again, at this time, no production to Defendant 

Boland has been compelled. No statements have been reviewed. No 

ultimate findings have been made. 

8. Request for a Second Hearing 

CBS requests to be heard again after Trotta testifies. This request is 

denied. CBS has already been given an opportunity to be heard. CBS has 

made its motion to the Court and the Court has made its ruling. The Court 

will not allow CBS to conduct its own minitrial during trial. 

1 CBS has not been "preemptively ... deprived of its right to assert the 

reporter's privilege over its newsgathering material at trial[.]" (Doc. 234-1 , p. 

5). CBS has already asserted its privilege, filed briefs in support of it and 

been heard on oral arguments about it. There is no need to re-assert it. 

- 7 -

Case 3:23-cr-00149-MEM Document 238 Filed 01/13/25 Page 7 of 8
C. Recordings of Interviews with Trotta's Attorney and Subpoena 

to Mr. Wertheim. 

Lastly, CBS raises other aspects that it requires clarification. First, CBS 

asks whether the Order requires CBS to provide the Court a copy of 

recordings of interviews with Jospeh D'Andrea, Trotta's attorney. The Order 

does not. Defendant Boland has not made a preliminary showing requiring 

production of such recordings for in camera review. Second, CBS asks this 

Court to make clear that any ruling it makes in this case applies only to CBS 

and not to reporter Jon Wertheim, in his individual capacity, given that 

Defendant Boland has withdrawn the subpoena to Mr. Wertheim. The Court 

agrees to the extent that material is the property of Mr. Wertheim and not the 

property of CBS. To the extent this was not understood by CBS and Mr. 

Wertheim, the court notes such clarification. 

IV. Conclusion 

Based on the foregoing, CBS's motion for reconsideration (Doc. 234) 

will be DENIED in part as noted above. An appropriate order follows. 

DATE: January 13, 2025 

23-149-06 

'-' I Mnfacfiy, E . .M.annum, 

MALACHY E. MANNION 

United States District Judge 

- 8 -

Case 3:23-cr-00149-MEM Document 238 Filed 01/13/25 Page 8 of 8