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DAVIS WRIGHT TREMAINE LLP

1300 S.W. Fifth Avenue, Suite 2400

Portland, Oregon 97201-5610

(503) 241-2300 main  (503) 778-5299 fax

DUANE A. BOSWORTH, OSB #825077

duanebosworth@dwt.com

DAVIS WRIGHT TREMAINE LLP

1300 S.W. Fifth Avenue, Suite 2400

Portland, Oregon 97201-5610

Telephone: (503) 241-2300

Facsimile: (503) 778-5299

Attorneys for Oregon Public Broadcasting

and John Sepulvado

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

AT PORTLAND

UNITED STATES OF AMERICA,

PLAINTIFF,

v.

JASON PATRICK, DUANE LEO EHMER, 

DARRYL WILLIAM THORN, and JAKE 

RYAN,

DEFENDANTS.

Case No. 3:16-CR-00051-BR

MOTION OF JOHN SEPULVADO AND 

OREGON PUBLIC BROADCASTING 

TO QUASH SUBPOENA

Reporter John Sepulvado and the employer for whom he engaged in his news gathering 

efforts at all times material to this matter, Oregon Public Broadcasting (“OPB”), move this Court 

for an order quashing the subpoena served on Mr. Sepulvado on February 16, 2017, compelling 

him to testify, without stated description or limitation, on February 21, 2017.

I. INTRODUCTION

The command to testify, now revealed to concern the “authentication” of a radio segment 

created by Mr. Sepulvado and broadcast by OPB, might at first glance appear to impose less than 

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DAVIS WRIGHT TREMAINE LLP

1300 S.W. Fifth Avenue, Suite 2400

Portland, Oregon 97201-5610

(503) 241-2300 main  (503) 778-5299 fax

drastic injury to Mr. Sepulvado’s future newsgathering efforts or those of OPB’s other 

journalists. That appearance would not be correct. First, it should be understood that the 

government has advised that “authentication” will not be limited to confirming that Mr. 

Sepulvado in fact recorded Ryan Bundy and that the voices in the recording are his and Mr. 

Bundy’s. Instead, as described in very recent discussion with counsel, Mr. Sepulvado will be 

required by the government to testify about what led to his interview of Ryan Bundy and to 

broadly address whether the recording fully, accurately, and objectively captured what Ryan 

Bundy in fact said to Mr. Sepulvado. The compelled testimony will also inquire about any 

editing of Mr. Bundy’s remarks. However innocuous “authentication” may seem, that will chill 

future sources, even nonconfidential ones. That testimony, alone, will create injury to the 

reporter and to the future newsgathering efforts of all OPB journalists. Mr. Sepulvado will be 

put in the position of testifying against a source, albeit nonconfidential, who agreed to talk with 

him. Federal decisions, along with cited scholarly materials, have recognized the significant

costs even in this regard.

Second, without diminishing the problems posed by the compelled “authentication,” it is

the resulting, exhaustive cross-examination that will inevitably, within defendants’ rights, be 

extraordinarily invasive and create exceptional damage to Mr. Sepulvado and to reporters now 

and in the future at OPB. If Mr. Sepulvado is required to testify to the authentication demanded 

by the government, defendants will of course, and properly, be entitled to extensively examine 

Mr. Sepulvado regarding every aspect of his news gathering efforts in regard to the particular

broadcast including: whether there are or were other recordings or additional recorded material; 

the circumstances concerning how Mr. Sepulvado obtained an interview with Ryan Bundy;

whether the statements offered actually represent Mr. Bundy’s entire discussion and whether Mr. 

Sepulvado has any bias; and questions about Mr. Sepulvado’s sources, all in aid of determining

the weight, slant, accuracy and validity of statements in the radio segment. With regard to bias, 

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DAVIS WRIGHT TREMAINE LLP

1300 S.W. Fifth Avenue, Suite 2400

Portland, Oregon 97201-5610

(503) 241-2300 main  (503) 778-5299 fax

Mr. Sepulvado not unreasonably believes he would be asked who he has met with, and regarding 

the Malheur Occupation, what and when was their conversation.

If Mr. Sepulvado is required to testify for the government, the resulting crossexamination will invade every aspect of his newsgathering efforts. To be clear, it is not Mr. 

Sepulvado’s or OPB’s position that defendants should not be permitted to ask their questions, but 

instead that if he is compelled by the government to testify as the government requires, that 

compelled testimony will invariably lead to questions that will invade both confidential and 

nonconfidential newsgathering, and will have an exceptional impact on his and OPB’s future 

newsgathering. For these reasons Mr. Sepulvado and OPB ask this Court to quash the subpoena 

issued by the government, which will generate an avalanche of invasive inquiry exceptionally 

affecting newsgathering.

II. FACTS

Under the circumstances, movants will shortly provide a declaration further establishing 

the following facts.

The government communicated with this counsel and with OPB about issuing a subpoena 

to Mr. Sepulvado early last fall, in 2016. The government indicated that a subpoena would be 

issued soon after that discussion but nothing more was heard until February, 2017.

The matter of a subpoena to be issued to Mr. Sepulvado reappeared for the first time on 

February 6, 2017. Mr. Sepulvado received a telephone call from Ryan Bounds, Assistant U.S. 

Attorney, informing him that the government intended to subpoena him. Mr. Bounds followed 

this up with an email to him that same day, at 5:18 p.m., in which he briefly outlined the 

testimony to be commanded, including whether the January 9, 2016 interview, as published on 

OPB’s website, fairly and accurately depicted Mr. Bundy’s statements and had not been edited or 

altered to mischaracterize what Mr. Bundy said. Mr. Bounds also described to Mr. Sepulvado on 

February 6 that “Your willingness to accept service of the subpoena and to testify thereunder 

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DAVIS WRIGHT TREMAINE LLP

1300 S.W. Fifth Avenue, Suite 2400

Portland, Oregon 97201-5610

(503) 241-2300 main  (503) 778-5299 fax

may obviate the Attorney General’s personal authorization for the issuance of the subpoena 

(which we may not be able to procure in time) ....”

At noon on February 7, 2017, Mr. Sepulvado confirmed with Mr. Bounds that he and 

OPB would not agree to his testifying. A few minutes later Mr. Bounds asked for the name and 

number of the OPB person with whom Mr. Sepulvado talked. Later that day Mr. Bounds spoke 

with Rebecca Morris, general counsel for OPB, who confirmed that Mr. Sepulvado and OPB 

strongly objected to the government’s effort to compel Mr. Sepulvado’s testimony.

Nothing was heard from the government until 2:00 p.m. on Thursday, February 9, 2017, 

when Mr. Bounds emailed Ms. Morris to ask whether OPB had a copy of the entire raw 

recording of Ryan Bundy’s interview with Mr. Sepulvado. Ms. Morris promptly responded that 

OPB did not have such a copy and that as she had told Mr. Bounds’ colleagues the previous fall,

“It would be unusual for our news room to retain raw footage after a story has been edited and 

published.” Mr. Bounds followed that up again with a question about whether Mr. Sepulvado 

himself might have retained “a complete copy” of the interview. Ms. Morris told him she was 

certain Mr. Sepulvado did not have any raw recording.

No further discussion occurred between anyone at the government and either Mr. 

Sepulvado or anyone at OPB until February 15, when Mr. Bounds told Ms. Morris that the 

government did in fact intend to subpoena Mr. Sepulvado. OPB learned that the government had 

stated in open court on February 15, 2017 that Mr. Sepulvado would be subpoenaed.

At 8:30 a.m. on Thursday, February 16, Mr. Bounds emailed Ms. Morris that “the 

Attorney General has authorized the issuance of a subpoena to Mr. Sepulvado”. Mr. Bounds said 

the government expected to serve Mr. Sepulvado that day and informed Ms. Morris, for the first 

time, that: “Please note that the court has set a hearing for tomorrow to determine the 

admissibility of the OPB report.”

Mr. Bounds emailed Ms. Morris again on the same day at 11:13 a.m. stating, in toto and 

for the first time, “the subpoena for Mr. Sepulvado will be for 2/21 (the first day of trial).” 

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DAVIS WRIGHT TREMAINE LLP

1300 S.W. Fifth Avenue, Suite 2400

Portland, Oregon 97201-5610

(503) 241-2300 main  (503) 778-5299 fax

At 1:44 p.m. on February 16, 2017 Mr. Bounds emailed Mr. Sepulvado, stating “As I 

indicated to Ms. Morris at OPB earlier today (before I had a copy of it), Attorney General 

Sessions himself has authorized the issuance of the attached subpoena to you.” (Emphasis 

added.) Mr. Bounds told Mr. Sepulvado for the first time that: “The court has provisionally set 

a hearing ... TOMORROW at 1:00 p.m., but that will clearly have to be rescheduled in light of 

the delay in getting approval for the subpoena. We can work with your lawyer on that, so please 

let us know as soon as possible who your lawyer will be.” (all capitalization and italics in 

original).

III. ARGUMENT

Department of Justice rules, found at 28 C.F.R. § 50.10, provide guidance to this Court 

regarding the balancing of issues involved in compelling a reporter to testify or to provide 

information. On their face at least, the rules demonstrate the societal values at issue. 

Section 50.10 is titled in pertinent part “Policy regarding obtaining information from, or 

records of, members of the news media ....” The rules begin with a “Statement of Principles”

that “because freedom of the press can be no broader than the freedom of the news media to 

investigate and report the news, the Department’s policy is intended to provide protection to 

members of the news media from certain law enforcement tools, whether criminal or civil, that 

might reasonably impair newsgathering activities.” The Principles recognize “safeguarding the 

essential role of the fair press in fostering government accountability and an open society.”

The rules describe the intent of policy to “protect freedom of the press, newsgathering 

activities, and confidential news media sources” and require that “the government should have 

made all reasonable attempts to obtain the information from alternative, non-media sources” and 

“should have pursued negotiations with the affected members of the news media ....” Members

of the Department of Justice are specifically instructed that a “subpoena should be narrowly 

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DAVIS WRIGHT TREMAINE LLP

1300 S.W. Fifth Avenue, Suite 2400

Portland, Oregon 97201-5610

(503) 241-2300 main  (503) 778-5299 fax

drawn. It should be directed at material and relevant information regarding a limited subject 

matter ... and should give reasonable and timely notice of the demand.”1 

In addition to 28 C.F.R. § 50.10, federal courts are advised of other sources that provide 

guidance regarding compelled testimony or provision of information. Multiple decisions 

regarding privilege in federal courts have concluded that a court may, and as often stated, should,

consider state privilege law. See, e.g., In the Matter of Lewis v. United States, 517 F.2d 236, 237 

(9th Cir. 1975), citing Ninth Circuit and Second Circuit rulings. In Baker v. F&F Investments, 

470 F.2d 778 (2d Cir 1972), the court considered relevant New York and Illinois state privilege 

law which it found “reflect a paramount public interest in the maintenance of a vigorous, 

aggressive and independent press capable of participating in robust, unfettered debate over 

controversial matters....” With regard to the “compelled disclosure of confidential sources” in 

particular, the court found that “the deterrent effect such disclosure is likely to have upon future 

‘undercover’ investigative reporting, the dividends of which are revealed in articles such as [the 

one at issue] threaten the freedom of the press and the public’s need to be informed. It thereby 

undermines values which traditionally have been protected by federal courts applying federal 

public policy.”

In Riley v. City of Chester, 612 F.2d 708 (3d Cir. 1979), the court held that 

“Although we are not bound to follow Pennsylvania law, neither 

should we ignore Pennsylvania’s public policy giving newspaper 

reporters protection from divulging their sources. Pennsylvania 

regards newspapers as ‘the principal guardians of the general 

welfare of the Community’ who are ‘in the best sense of the 

maxim pro bono publico....’ Pennsylvania’s concern that 

newspapers be encouraged and protected in the newsgathering and 

communications functions [has been] expressed by its highest 

court.” 

 1 In this matter the government, after many months to consider what it needed in this second 

trial, first mentioned an intent to subpoena Mr. Sepulvado in this matter on February 6. That 

intent apparently became a reality on February 15, and the subpoena was served on February 16,

for appearance at trial during the week of February 21.

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DAVIS WRIGHT TREMAINE LLP

1300 S.W. Fifth Avenue, Suite 2400

Portland, Oregon 97201-5610

(503) 241-2300 main  (503) 778-5299 fax

The court further stated that “the interests behind the Pennsylvania state and the federal common 

law in this regard are congruent, each stemming from an independent base of authority but both 

leading to protection of the vital communications role played by the press in a free society.” 

In In Re Stratosphere Court Securities Litigation, 183 F.R.D. 684 (D. Nev. 1999), the 

court stated that 

“although this court is not bound to follow Nevada law in 

determining whether reporters should be compelled to disclose his 

or her sources, when dealing with purely federal issues of law, it 

should not ignore Nevada’s public policy, as expressed in its 

statute of providing reporters protection from divulging their 

sources. In writing his article for Nevada publication, clearly [the 

reporter] had a reasonable expectation that he would be protected 

by Nevada’s media privilege law.”

Id. at 686.

In this matter, movants respectfully contend that consideration should be given to 

Oregon’s exceptional media shield law, ORS 44.510 et seq. Movants also ask the Court to note 

that Mr. Sepulvado conducted his reporting in this matter with “a reasonable expectation that he 

would be protected by [Oregon’s] media privilege law” as described in In Re Stratosphere. 

An examination of Oregon’s media shield law demonstrates that, with the two exceptions 

of where probable cause exists to believe that a journalist is committing or is about to commit a 

crime, or where the content at issue forms the basis for a defense of a defamation action, 

privilege in Oregon is absolute, both with regard to “the source of any published or unpublished 

information” whether or not that source is wholly confidential, ORS 44.520(a) and, even more 

broadly, with regard to “any unpublished information obtained or prepared by the [journalist] in 

the course of gathering, receiving or processing information for any medium of communication 

to the public.” Id. at (b). “‘Unpublished information’ includes, but is not limited to, all notes, 

outtakes, photographs, tapes or other data of whatever sort not themselves disseminated to the 

public ... whether or not published information based upon or related to such material has been 

disseminated.” ORS 44.510(5). 

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DAVIS WRIGHT TREMAINE LLP

1300 S.W. Fifth Avenue, Suite 2400

Portland, Oregon 97201-5610

(503) 241-2300 main  (503) 778-5299 fax

The strength of Oregon’s law, upon which Mr. Sepulvado relied, is further demonstrated 

in ORS 44.520(1) which states “no person connected with, employed by or engaged in any 

medium of communication with the public shall be required by a legislative, executive, or 

judicial officer or body or any other authority having power to compel testimony of the 

production of evidence, to disclose by subpoena or otherwise” any source, confidential or not, or 

“any unpublished information obtained by the journalist in the source of newsgathering.” 

The strength of the statute on which Mr. Sepulvado reasonably relied in his decisions

about newsgathering is further found in its direction that a journalist may not be compelled to 

testify or to disclose information by any “judicial officer or body.” While Oregon’s media shield 

law does not of course bind this Court at all in its determination of federal common law, 

respectfully it should be considered. Further, that Mr. Sepulvado acted at all times under the 

rules of that shield in making decisions about, for example, offering confidentiality or obtaining 

information, should be considered. 

Finally, of course, decisional law guides this Court regarding reporter’s privilege. Many 

of the Ninth Circuit’s decisions regarding compelled testimony of a journalist involve a grand 

jury seeking criminal evidence. Those decisions follow the Supreme Court in Branzburg v. 

Hayes, 408 U.S. 665 (1972), in which, Justice Powell, concurring in a five to four decision, 

stated that he wanted to “emphasize what seemed to me to be the limited nature of the Court’s 

holding,” namely that the decision was with regard to journalists “subpoenaed to testify before a 

grand jury.” See In the matter of Lewis v. U.S., 501 F.2d 418 (9th Cir. 1974); Farr v. Pitchess, 

522 F.2d 464 (9th Cir. 1975); In re Grand Jury Proceedings, 5 F.3d 397 (9th Cir. 1993). The

testimony sought here is not for the compelling reason of criminal investigation. 

In the first Shoen v. Shoen decision, 5 F.3d 1289 (9th Cir. 1993), the court held that the

“journalist in question has standing to invoke the journalist’s privilege regardless of whether the 

information sought was ‘obtained under a promise of confidentiality’ or whether the materials 

sought ‘contained confidential information.’” The Court also cited with approval a description 

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DAVIS WRIGHT TREMAINE LLP

1300 S.W. Fifth Avenue, Suite 2400

Portland, Oregon 97201-5610

(503) 241-2300 main  (503) 778-5299 fax

of some of a journalist’s interests noted in United States v. LaRouche Campaign, 841 F.2d 1176 

(1st Cir. 1988): 

the threat of administrative and judicial intrusion into the 

newsgathering and editorial process; the disadvantage of a 

journalist appearing to be an investigative arm of the judicial 

system or a research tool of government or of a private party; a 

disincentive to compile and preserve non-broadcast material; and 

the burden on journalists’ time and resources in responding to 

subpoenas. 

LaRouche at 1182, 1294-1295.

With regard to the compelled disclosure of non-confidential information, the Court cited

“scholarly authority” regarding harm to the press’ ability to gather information by

damaging confidential sources’ trust in the press’ ability to keep

secrets and, in a broader sense, by converting the press in the 

public’s mind to an investigative arm of the prosecutors and the 

courts. It is their independent status that often enables reporters to 

gain access, without a pledge of confidentiality, to meetings or 

places where a policeman or a politician would not be welcome. If 

perceived as an adjunct of the police or of the courts, journalists 

might well be shunned by persons who might otherwise give them

information without a promise of confidentiality, barred from

meetings which they would otherwise be free to attend and to 

describe, or even physically harassed if, for example, observed

taking notes or photographs ....

Duane D. Morris & John W. Zucker, the Journalists Privilege and Testimonial Privileges, 474-

75 (Scott N. Stone & Ronald S. Liebman eds, 1983). The Ninth Circuit continued:

We find this body of Circuit case law and scholarly authoritives so 

persuasive that we think it unnecessary to discuss the question 

further. Accordingly, we hold that the journalists’ privilege

applies to a journalists’ resource materials even in the absence of

the element of confidentiality.

Id. at 1295.

In this matter, the government belatedly sought authorization for a subpoena to Mr. 

Sepulvado and obtained that authorization either late on February 15 or, as Mr. Bounds 

described, became aware of it on February 16. The subpoena nominally was for February 21, or

other days that week. From the handling of this matter, the Court might reasonably draw the 

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DAVIS WRIGHT TREMAINE LLP

1300 S.W. Fifth Avenue, Suite 2400

Portland, Oregon 97201-5610

(503) 241-2300 main  (503) 778-5299 fax

inference that the information sought from Mr. Sepulvado is not critically important and the 

government has not demonstrated a compelling need to acquire that information as the Ninth 

Circuit stated regarding a reporter’s privilege in Shoen v. Shoen, 48 F.3d 412, 414 (9th Cir. 1995)

quoting Herbert v. Lando, 441 U.S. 153, 183 (1979). 

Rooted in the First Amendment, the privilege is a recognition that 

society’s interest in protecting the integrity of the newsgathering 

process and ensuring the free flow of information to the public, is 

an interest of sufficient social importance to justify some incidental

sacrifice of sources of fact needed in the administration of justice.

With all due respect, the government’s handling of this matter tends to indicate that quashing the 

subpoena would result in “incidental sacrifice.” Id.

IV. CONCLUSION

Decisions in the Ninth Circuit and throughout the federal system demonstrate that a 

reporter’s privilege clearly exists even as its contours continue to be defined. The idea of a 

reporter’s privilege may suffer from an image problem. Mr. Sepulvado and OPB do not in any 

way attempt to declare themselves “above the law.” But Courts have long recognized privilege 

in a number of settings, permitting certain individuals to refuse to testify or to provide 

information because of the conclusion that there are important societal interests that must be 

preserved. While the exact contours of a reporter’s privilege continue to be discussed, it cannot

be gainsaid that scores of courts have expressly recognized that journalists must be able to 

remain independent in order to fulfill their long-standing role in our democracy. When, for one 

example, reporters are called into court to testify for or against a party, scores of courts have 

recognized that a reporter’s credibility is harmed thereby, even in nonconfidential matters; as

described, potential sources come to see a reporter as an agent of the state or as advocates for one 

side or the other.

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DAVIS WRIGHT TREMAINE LLP

1300 S.W. Fifth Avenue, Suite 2400

Portland, Oregon 97201-5610

(503) 241-2300 main  (503) 778-5299 fax

Mr. Sepulvado and OPB, which has at issue the future of its own newsgathering, 

respectfully ask this Court to quash the government’s subpoena.

2

DATED this 21st day of February, 2017.

DAVIS WRIGHT TREMAINE LLP

By 

Duane A. Bosworth

OSB #825077

Telephone: (503) 241-2300

Facsimile: (503) 778-5299

duanebosworth@dwt.com

Attorneys for Oregon Public Broadcasting and 

John Sepulvado

 2 Movants apologize for errors and missing page cites, which occurred in their haste to recreate

this memorandum.

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