Lawyers for Florentine Films, John Siegal and Peter Shapiro of Baker & Hostetler, moved to quash what they called a "sweeping" subpoena, and, in November, filed a memorandum that said the five had not even been deposed for the pending litigation and the city was embarking on a fishing expedition (NYLJ, Nov. 9, 2012).
They invoked the federal reporters' common law privilege and New York's Shield Law, N.Y. Civil Rights Law §79-(h).
The city countered by saying the privileges couldn't be invoked because the film was not an exercise in journalism, but instead an advocacy piece in which the filmmakers sided with the plaintiffs.
In the city's papers, Assistant Corporation Counsel Philip DePaul and Senior Counsel Elizabeth Daitz said any claim to objectivity in "The Central Park Five" was undercut by the fact that Sarah Burns had worked with one of the plaintiffs' lawyer, Jonathan Moore, as an intern, and that Ken Burns had made public statements urging the city to settle with the plaintiffs.
But yesterday, Ellis said Florentine Films had "met its burden of demonstrating journalistic independence in the undertaking of the Film." He also said independence is not sacrificed because a reporter takes a position.
"An otherwise independent newsgathering process is not undermined solely because a publication reflects the journalist's previously held point of view," he said. "A journalist seeking to invoke the privilege must also demonstrate that her intention at the time the information is gathered was for the purpose of disseminating the information to the public, not for different reasons."
Here, he said, Sarah Burns stated that the film was not solicited by the plaintiffs or their attorneys, that it was actually made over the objection of one plaintiff's attorney, and that Florentine retained full editorial control.
And any statement made after the gathering of information, Ellis said, is "irrelevant for purposes of the reporter's privilege."
Ellis went on to say that the city had failed to show that the information it was seeking "is of likely relevance to a significant issue in the case and not reasonably available from another source."
Ellis distinguished this case from Chevron v. Berlinger, 629 F.3d 297 (2011), where the U.S. Court of Appeals for the Second Circuit said filmmaker Joseph Berlinger had to turn over outtakes from his own film about environmental litigation in Ecuador because the film had been solicited by plaintiffs attorney Steven Donziger and Donziger exercised some editorial control over the final product.