UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

__________________________________ ) IN RE SUBPOENA TO ) JEFF REY G OLDBE RG ) Misc. Ac tion No. 10-115 (RWR /JMF ) )

__________________________________ ) ) MOSHE S AP ERSTE IN et al., ) ) P laintif fs, ) ) v. ) ) THE PALESTI NIAN AU THORIT Y ) et al., ) ) Defendan ts. )

__________________________________ )

MEMORAN DUM OP INION Currently pendingand re ady

for r esolution is Non-Party J eff rey Goldberg ’s Motion to Quash Subpoena

and/or for

a Protec tive Orde r [#1] (“Motion to Quash” ). F or the re asons stated below, the motion will be g rante d. BACK GR OUND In 2004, Moshe Saper stein filed suit ag ainst the Palestinian Authority (“PA” ) in the Southern District of F lorida. De fenda nts’ Opposition to Non-Party J eff rey Goldberg ’s Motion to Quash Subpoena

and Response to Jeffre y

Goldberg ’s Motion for Protective O rder [#3] (“D efs. Opp.”) . Saperstein c laimed that, pursuant to the Antiter rorism Act, 18 U.S.C. § 2333(a) , the PA 1

All refe renc es to the United States Code a re to the e lectronic versions that appe ar in 1 Westlaw or L exis

.was liable f or injuries he suf

fer ed on F ebrua

ry 18, 2002, duringan attac k that occur red in the Gaza Strip. I d. at 1-2. On Fe bruar

y 2, 2010, defe ndants subpoenae d non-par ty J eff rey Goldbergto appea

r for a deposition on Febr

uary 18, 2010. Motion to Quash at 2. Goldberg , a journa list based in Washington, D.C., had include d an ac count of the attack on Saper stein in a mag azine article as 2 well as in a book. In response to the subpoena, G oldbergfiled the Motion to Quash. 3 DISCUSSIO N I

. L eg al Standards Resolution of the curr ent motion is gover ned by two rules. Unde r Rule 26 of the F eder al Rules of Civil P roce dure, “ [p] arties may obtain discovery

reg ardingany

matter, not privileg ed, which is rele vant to the subject matter involved in the pendingaction.” F ed. R. Civ. P. 26(b)(1). I f, howe ver, the discovery soug ht, in this case throug h a subpoena to a third party , “re quires disclosure of pr ivilege d or other pr otected matter, if no exception or wa iver a pplies; or [ ] subjects a pe rson to undue burde n,” the third party may move to quash the subpoena under Rule 4 45 of the F eder al Rules of Civil P roce dure. I I

. The Repor

ter’s or J ournalist’s Privileg e Goldbergclaims protec tion pursuant to a journalist’s or re porter’ s privileg e under the First Amendme nt. Motion t o Quash at 5-7. Citing ca ses from the D .C. Circuit and this C ourt, Goldbergargues that “the privileg e prote cts not only ag ainst the compelled disclosure of See Motion to Quash at Attac hment 2. 2 I d. at Attachme nt 3. 3 Fe d. R. Civ. P . 45(c) (3). 4 2journalist’s confide ntial sources, but a lso unpublished journalists work product, including a

repor ter’s note books, diaries, a ccounts of nonc onfidential but unpublished interviews, a nd other unpublished material g ener ated in the c ourse of the editorial proc ess.” I d. at 6. Def endants a nswer G oldberg ’s claims with sever al theorie s. First, def endants a rgue that Goldberg ’s testimony

is not privilege d since de fenda nts only seek nonc onfidential information. Def s. Opp. at 12. Second, de fenda nts argue that re cent Circuit opinions have e ither held that

even c onfidential informa tion is not protec ted or que stioned the protec tion of confidential materia ls. I d. at 12-14. Third, de fenda nts argue that eve n if there does exist s uch a pr ivilege , Goldberg ’s testimony

is not protected be cause 1) not all of the infor mation sought wa s obtained for the pur

pose of public dissemination, 2) the infor mation sought is of likely rele vance to a signific ant issue, 3) the infor mation sought c annot re asonably be obtained f

rom another

source . I d. at 15-23. A. Under

the Fir st Amendment In the seminal ca se of B ranzburg v. Hayes, 408 U.S. 665 (1972), the Supreme Court held unequivoca lly

that the Fir st Amendment was not the sourc e of a n absolute testimonial privileg e for r eporte rs: Until now the only testimonial privilege for unof ficial witnesse s that is rooted in the Fe dera l Consti tution is the Fif th Amendment privileg e ag ainst self-incr imination. W e ar e aske d to cre ate another by interpre ting the F irst Amendment to g rant ne wsmen a testimonial privilege that other c itiz ens do not enjoy . This we decline to do. I d. at 689. Speakingin the context of gr and jury proce eding s, the Court further stated:

3On the re cord now befor e us, we perc eive no ba sis for holding that the public intere st in law enfor ceme nt and in ensuringeff ective g rand jury

proce eding s is insufficient to overr ide the conse quential, but uncer tain, burden on ne ws g ather ing that is said to result from insisti ngthat repor

ters, like other

citizens, respond to releva nt questions put to them in t he cour se of a valid g rand jury investigation or criminal trial. I d. at 690-91. Interpre ting the Supre me Court’s holding in B ranzburg , the D.C. Circuit expanded its understandingof the bre adth of the pr ivilege to include civil as we ll as criminal proc eeding s. I n Z erilli v. Smi th, 656 F.2d 705 (D .C. Cir. 1981), the court stated the following : “Althoug h Br anzburgmay

limit the scope of a r eporte r’s F irst Amendment privileg e in cr iminal proce eding s, this circuit has pre viously held that in civil case s, where the public intere st in eff ective la w enf orce ment is absent, that ca se is not controlling.” I d. at 711 (c iting Care y v. Hume, 492 F .2d 631, 636 (D.C. Cir.), ce rt. dismissed, 417 U.S. 938 (1974)). Writing in the context of compelled conf idential source information, the cour t further noted: I n g ener al, when strikingthe balanc e betwe en the c ivil li tiga nt’s interest in compelled disc losure and the public interest in protec ting a

newspa per’ s confidential sourc es, we will be mindful of the pre fer

red position of the F irst Amendment and the importance of a vig orous pre ss. Efforts will be take n to minim ize impingeme nt upon the repor ter’s a bility to ga ther ne ws . . . Thus, in the ordinar

y case the civil litigant’s inter est in disclosure should yield to the journalist’s privileg e. Z erilli, 656 F.2d at 713. Accor d In the Matter of an Application to Enforce Administrative Subpoena of the U.S. Comm odity Future s TradingComm’n v. McGraw -Hill Cos., 507 F. Supp. 2d 45, 51 (D.D.C. 2007) ( “B y contra st, in civil cases, the privileg e ty pically preva ils because any interest in over coming the privileg e is by definition a private rathe r than a public interest.”)

.

4The c ourt then ar ticulated a thr ee- part test to deter mine the appr opriate ba lance betwee n the litigant’ s interest in the information and the public’s intere st in protecting a re porter’ s First Amendment privileg e. F irst, the court must deter mine whether

the information soug ht is central to the litigant’s c ase. I d. at 713. Second, the c ourt must determine whe ther the litig ant has exhausted alternative source s of information. I d. Acc ord Cly burn v. Ne ws World Com mc’ns, Inc., 903 F .3d 29 (D.C. Cir. 1990) (“ But the r eporte r’s privileg e is a qua lified one. I f the plaintiff exhausts all reasonable alternative means of ide ntifying the source , the privileg e may yield.”); L ee v. D ep’t of Justice, 401 F. Supp. 2d 123, 132 (D.D .C. 2005), appea l dismi ssed, 2006 U.S. App. L EXI S 15208 (D.C. Cir. J une 16, 2006) ( “The repor ter must answe r questions for information (1) that is “centra l” to the plaintiff’s c ase a nd (2) a s to which the plaintiff ha s exercised a ll reasona

ble alter natives to obtain elsewhe re.” ). Third, the c ourt must draw a distinction between c ivil cases in which the r eporte r is a par ty and ones in whic h the re porter is not: “When the journalist is a party , and succ essful asse rtion of the privileg e will eff ectively shield him from liabilit y , the equities we igh some what more heavily in favor of

disclosure.” Z erilli, 656 F.2d at 714. Accor d Hutira v. I slamic Republic of I ran, 211 F . Supp. 2d 115, 119 (D.D.C. 2002). Followingthe D.C. Circuit’s establishment of a ba lancing test in Ze rilli, judges of

this court have fur

ther c larified that the repor ter’s pr ivilege includes both confide ntial and nonconfide ntial information:

Reg ardle ss of whethe r [the parties see king disc overy] seek confide ntial or nonconfide ntial sources, or whether they seek disclosure or ve rification of statements, [they are ] attempti ng to examine the repor

torial and e ditorial proce sses. The f act that their purpose is to support, rathe r than unde rmine, the bona fides of the

5statements as e x presse d by the re porters makes no diffe renc e. Such discovery

nece ssarily

implicates the F irst Amendment interests of the jour

nalists. NL RB v. Mortense n, 701 F. Supp. 244, 247 (D.D .C. 1998). Acc ord Hutira, 211 F . Supp. 2d at 121 (“While Iam not convince d that vitiating the pr ivilege in a par ticular c ase w ould undermine the news g ather ing pr ocess, I am per suaded that the wholesale abrog ation of the privileg e for nonconfide ntial information would have a ripple ef fec t felt beyond any

single lawsuit or newspa per a rticle.” ) (inter

nal citations omitted). 1. Centrality Goldbergclaims that all he knows a bout the 2002 attack a g ainst Saperstein is re flec ted in the followingtwo sentenc es that appe are d in his New Yorke r ar ticle: “Two year s ag o, Saperstein,

was ambushed nea

r Kissufim; Palestinian gunf ire tore off two f

inge rs of his re maining ha nd. He had the pr esenc e of mind to push down on the ac cele rator, a nd struck a Pale stinian gunma n.” Motion to Quash at 8. Goldbergargues there fore that his deposition testi mony is neither re levant

nor ce ntral to Saperste in’s case . I d. Def endants howe ver pr ovide two diffe rent rationales for the ir seekingto depose Goldberg . First, def

endants a rgue that Goldber g ’s testimony is neede d to demonstrate bias. Acc ordingto defe ndants, they “subpoena ed Mr. Goldbe rgfor de position i n this matter beca use Mr. Goldber g had conve rsations with the Plaintiff both prior to and af ter the attack at issue whic h will be admissible at trial to show that the Plaintiff is biased ag ainst Defe ndants, and whic h the jury in this m atter ma

y proper ly consider in e valuatingthe Plaintiff’s cr edibility as a w itness and his moti ve for

bring ing this lawsuit.” De fs. Opp. at 2. De fenda nts later add that they

“do not wish to depose Mr. Goldbe rgto establish the fac ts surroundingthe attac k at issue, but to elicit
6evidenc e of bia s in the form of state ments made by the Plaintiff and his wife to Mr. G oldberg .” I d. at 16. Second, def

endants a rgue that bec ause Sape rstein, in his deposition, offere d a diffe rent

rec ollection of the stateme nts attributed to him by Goldbergor outright denied that they wer e made, de fenda

nts should now be able to complete the impeac hment of Saper stein by taking Goldberg ’s deposition. See De fenda nts’ Notice Reg ardingthe Deposition of Moshe Sape rstein [#10] at 2-9.

a. Bia s Contrary to Goldberg ’s claim that “te stimony about any

statements Mr. Saper stein may have ma de to Mr. Goldber g alleg edly sug g esting a bias a g ainst defe ndants is manifestly irrele vant, and f

ar f rom the kind of ‘c entra l’ testimony g oing to ‘ the hea

rt of the matter ’ re quired to overc ome the re porter’ s privileg e,” evidenc e of bia s is alway s releva nt. As noted by

the 5 Supreme Court, “[p]roof of bias is almost alway s releva nt beca use the jury , as finder

of fa ct and weig her of

cre dibilit y , has historically been e ntitled to assess all evidence which mig ht bear on the ac cura cy

and truth of a

witness’ testimony .” United States v. Abe l, 469 U.S. 45, 52 (1984). See also Nor

th Carolina Right to L ife, Inc. v. L eake , 231 F.R.D. 49, 51 (D .D.C. 2005) (“ The bias that is releva

nt, however , is that of a witness or partyin the case , not of an unre lated non-pa rty .”) (empha sis added). G iven the political nature of Saper stein’s claims ag ainst defe ndants, that they eng ag ed in ac ts of terror ism ag ainst J ewish civilians, evidenc e of his bias may be sig nificant to defe ndant’s impeac hment of Saper stein’s cre dibilit y by establishing tha

t his action ag ainst the PA is polit ically

motivated as the a cts of a ma n who despises the PA. See Motion to Quash at Motion to Quash at 10. 5 7Attachment 6 ( Third Amende d Complaint).

I t hardly follows, howeve r, that mere ly beca use evide nce of

Saperstein’ s bias, obtained throug h Goldberg ’s testimony , is admissibl e that Goldber g ’s deposition can the ref ore be compelled. Irre spective of the profe ssion of the intended de ponent, discover y even of rele vant evidenc e is subject to the bala ncingcalc ulus, articulated in Rule 26 of the Fe dera l Rules of Civil Procedur e, that mea sures va lue ag ainst burden. Thus, discove ry of re levant evide nce w ill be prohibited if: 1. The e vidence is unreasona bly cumulative or duplicative. 2. The e vidence can be obtained fr om some other sourc e that is more c onvenient, less burdensome or

less expensive. 3. The pa

rty seekingthe evidenc e has ha d ample opportunity to obtain the information throug h discovery in the action. 4. The burde n or expense of the proposed discove ry outweig hs its li kely

benef it, consideringthe nee ds of the ca se, the amount in controversy , the par ties’

resour ces, the importance of the issues at stake in the action and the importance of the discover

y in resolving the issues. Fe d. R. Civ. P . 26(b)( 2)(C). The c ourt notes furthe r that there is a curious unre ality about def

endants’ r equest to explore Saperstein’s bia s towards de fenda nts. I s some one pre tending that Saperstein, while seemingto like the PA, harbors a secr et bias ag ainst it? It is obvious t hat Saper stein has strong views about the pr opriety of Jewish settlements on the W est Ba nk and in Gaza a

nd has all but shouted his views, including his disli ke of the PA, from the roof tops. Accor ding to Goldbe rg , in
8his deposition, S aper stein stated the following :

1. He r efe rre d to Palestians as “Ahma ds”, a pe jorative e quivalent to callinga Jew a “Hy mie.” 2. He de scribed a

spokeman for

the PA as a suit and tie we aringmonkey

. 3. He state d that he supported de stroy ing a playg round in Gaza, a

bandoned to the Palestinians, beca

use it was mea

nt orig inally

for Jewish children. 4. He state d that he loved Me ir Kaha ne, an oppone nt of the pea ce pr ocess who w as so truculent in his expression of hatred of the Palestinians that he wa s expelled from the Kne sset. 5. He wr ote a letter

to Time mag azine, in which he que stioned why other Jews did not rea ct with respe ct to the ac tions of an I srae li who murdere d 29 Muslims and wounded a

nother 150 while the y

wer e wor shiping at a mosque. 6. He state d that he finds the Oslo Ac cords ( “the Ac cords” ) off ensive be cause they repr esente d an agree ment betwee n I srae l and the PA that contemplate d the establishment of a Pale stinian state in the West Bank a nd Gaza. He also stated that the Acc ords re prese nt the abandonme nt by I srae l of land that wa s meant for the J ews. 7. He state d that there can be no separ ate state s of I srae l and Palestine and tha t the idea of Palestinians having control of Ga za ang ers him. J eff rey Golberg ’s Response to De fenda nts’ Notice Reg ardingthe Deposition of Moshe Saperstein ( “Goldber g ’s Response” ) [#11] at 2-3. Given these statements, and unde r the ba lancingcalc ulus require d by Rule 26, probing

9Goldberg ’s re collections of other simil ar c onversa

tions with S aper stein will only produce evidenc e that is “unre asonably cumulative or duplicative.” F ed. R. Civ. P. 26(b)(2)(C)( i). Given what Saper stein has alre ady said, it surely

is to pil e Pilion upon Ossa. Moreover , as Goldber g ’s points out, no one is challeng ing the fac t that Saperstein wa s injured in the manner in which he claims. I t has bee n my

experience in handling similar c ases that the tr ue question pre sented is how Saper stein will establish that the PA was responsible for the attac k, which in turn is likely

6 depende nt on expert testimony from a historian, political sc ientist, or economist who will opine on the PA’s complicity

in the attack. I f my

supposition i s rig ht, Saperstein’s bias w ill not be an important issue “at stake in the litigation” a nd discovery

from Goldber g about that bias will have littl e importanc e. See F ed. R. Civ. P 26(b)(2)(C)( iii).

b. I mpeac hment Wit h reg ard to de fenda

nts’ argument that they

should be permitted to take G oldberg ’s deposition in order to complete Saperstein’ s impeachme nt, the fac t is that Goldberghas alre ady attested that he truthfully

rec orded what Saper stein said. See Motion to Quash, Attachme nt 1 (De clar ation of Jeffre y

Goldberg ) at 2. Taking his de position t o have him re peat that is a w aste of eve ryone’s time.

2. Ex haustion Goldbergalso arg

ues that def

endants c ould not have exhausted all other sour ces f or this information re g ardingthe attac k in 2002. Motion t o Quash a t 10. Defe ndants have failed to show that they have “ exhausted ever

y rea sonable a lternative sour ce of information” r elatingto any neg ative bias Sape rstein and his wife may harbor towards Ar abs g ener ally

and towar ds See Motion to Quash at 10-11. 6 10defe ndants specif ically . I n his article, Goldbe rgacknow ledg es that he a nd Saperstein we re colleagues at the Jerusalem Post. Defs. O pp., Attachment 1 at 2. Given Saper stein’s outspoken nature , it is l ikely

that other c olleagues in addition to Goldberg wer e also a

war e of his views; Saperstein c an har dly

be ac cused of

keepingthem a sec ret. In addition, Saperstein’s own writing s are a sourc e of pote ntial evidence reg ardinghis biases. See Reply Memorandum in Support of Non-Party

J eff rey Goldberg ’s Motion to Quash Subpoena and/or for a Protective Orde r at 7 n.3 (ide ntifying nume rous ar ticles authore d by

Saperstein a

bout the I srae li-Palestinian conflict). T hese sour ces a re c erta inly

“more convenie nt, less burdensome or less expensive” 7 than Goldber g ’s deposition and exploring them f irst is prefe rable to impli catinga re porter’ s First Amendment rig hts.

3. J ournalist as Third Party I t must also be rec alled that a mor e dema nding w eig hing of

these fa ctors is imperative when the bur den is soug ht to be imposed upon a third par ty . This is so whether the third pa rty is 8

a re porter, or

a butche r, bake r or c andlestick make r. When judg ed by this calculus, and a heig htened r eg ard f

or the burde n to be imposed upon a third par ty , the motion to compel clear ly fails. B. At Common L aw In a footnote, G oldbergargues in the alter native that ther e is a re porter’ s or journalists’s

Fe d. R. Civ. P . 26(b)( 2)(C)( i). 7 See, e.g ., Ex x on Shipping Co. v. U.S. Dep’t of I nterior, 34 F .3d 774, 779 (9th Cir. 8 1994); Premier Ele ction Soluti ons, I nc. v. Sy stest L abs I nc., No. 09- CV-1822, 2009 WL 3075597, at *3 (D. Colo. Sept. 22, 2009); In re: Motion to Compel Com pliance w ith Subpoena Direc t[ ed] to Dep’t of Ve tera n Affa irs, 257 F.R.D. 12, 18 (D .D.C. 2009).

11privileg e in the common law. See Motion to Quash at 11 n.7. That Goldber g chose to discuss

the exist ence of a c ommon law repor ter’s pr ivilege in a footnote is telling in that the a uthority cited for such a pr ivilege is J udg e Tatel’s conc urre nce in In re Grand Jury Subpoena, Judi th Miller, 397 F.3d 964, 986- 87 (D.C. Cir. 2005), ce rt. denied 545 U .S. 1150 (2005). Concurre nces, how ever , are not binding author ity and have no prec edential e ffe ct. In any event, havingdeter

mined above that Goldbergdoes have a qualifie d repor ter’s pr ivilege which defe ndants have failed to ove rcome , and that the bur den of ta king G oldberg ’s testimony outweig hs what little use and sig nificanc e it might have , the cour t need not conside r fur

ther the exis tence of any

such privileg e at c ommon law.

CONCLUSION Whether one r elies on ca ses per taining to discove ry

from re porters or

on a simple and straig htforwa

rd ana ly sis of the fac tors identified in Rule 26, the ca se ag ainst forc ing G oldbergto g ive his deposition is apprecia bly strong er tha

n the ca se for

permitting it. The Motion to Quash will therefor e be de nied. An Orde r ac companies this Memora ndum Opinion.

___________________________ J OHN M. F ACCI OL A UNI TED STATES MAGI STRATE J UDGE

12