Journalist’s Privilege, Candlestick Maker’s Privilege, “a Curious Unreality,” and Piling Pelion Upon Ossa

An interesting opinion in In re Subpoena to Goldberg (doesn’t Subpoena to Goldberg sound like the title of a Philip Roth novel?), which struck me as unusually concrete and vivid, as well as persuasive on the merits:

In 2004, Moshe Saperstein filed suit against the Palestinian Authority (“PA”) in the Southern District of Florida. Saperstein claimed that, pursuant to the Antiterrorism Act, 18 U.S.C. § 2333(a), the PA was liable for injuries he suffered on February 18, 2002, during an attack that occurred in the Gaza Strip.

On February 2, 2010, defendants [the Palestinian Authority] subpoenaed non-party Jeffrey Goldberg to appear for a deposition on February 18, 2010. Goldberg, a journalist based in Washington, D.C., had included an account of the attack on Saperstein in a magazine article as well as in a book. In response to the subpoena, Goldberg filed the Motion to Quash.

The court takes a fairly narrow view of the journalist’s privilege, but concludes that on these facts Goldberg shouldn’t have to testify even without regard to the journalist’s privilege:

First, defendants argue that Goldberg’s testimony is needed to demonstrate bias. According to defendants, they “subpoenaed Mr. Goldberg for deposition in this matter because Mr. Goldberg had conversations with the Plaintiff both prior to and after the attack at issue which will be admissible at trial to show that the Plaintiff is biased against Defendants, and which the jury in this matter may properly consider in evaluating the Plaintiff’s credibility as a witness and his motive for bringing this lawsuit.” Defendants later add that they “do not wish to depose Mr. Goldberg to establish the facts surrounding the attack at issue, but to elicit evidence of bias in the form of statements made by the Plaintiff and his wife to Mr. Goldberg.”

Second, defendants argue that because Saperstein, in his deposition, offered a different recollection of the statements attributed to him by Goldberg or outright denied that they were made, defendants should now be able to complete the impeachment of Saperstein by taking Goldberg’s deposition….

It hardly follows, however, that merely because evidence of Saperstein’s bias, obtained through Goldberg’s testimony, is admissible that Goldberg’s deposition can therefore be compelled. Irrespective of the profession of the intended deponent, discovery even of relevant evidence is subject to the balancing calculus, articulated in Rule 26 of the Federal Rules of Civil Procedure, that measures value against burden. Thus, discovery of relevant evidence will be prohibited if:

1. The evidence is unreasonably cumulative or duplicative.

2. The evidence can be obtained from some other source that is more convenient, less burdensome or less expensive.

3. The party seeking the evidence has had ample opportunity to obtain the information through discovery in the action.

4. The burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action and the importance of the discovery in resolving the issues.

The court notes further that there is a curious unreality about defendants’ request to explore Saperstein’s bias towards defendants. Is some one pretending that Saperstein, while seeming to like the PA, harbors a secret bias against it? It is obvious that Saperstein has strong views about the propriety of Jewish settlements on the West Bank and in Gaza and has all but shouted his views, including his dislike of the PA, from the roof tops. According to Goldberg, in his deposition, Saperstein stated the following:

1. He referred to Palestians as “Ahmads”, a pejorative equivalent to calling a Jew a “Hymie.”

2. He described a spokeman for the PA as a suit and tie wearing monkey.

3. He stated that he supported destroying a playground in Gaza, abandoned to the Palestinians, because it was meant originally for Jewish children.

4. He stated that he loved Meir Kahane, an opponent of the peace process who was so truculent in his expression of hatred of the Palestinians that he was expelled from the Knesset.

5. He wrote a letter to Time magazine, in which he questioned why other Jews did not react with respect to the actions of an Israeli who murdered 29 Muslims and wounded another 150 while they were worshiping at a mosque.

6. He stated that he finds the Oslo Accords (“the Accords”) offensive because they represented an agreement between Israel and the PA that contemplated the establishment of a Palestinian state in the West Bank and Gaza. He also stated that the Accords represent the abandonment by Israel of land that was meant for the Jews.

7. He stated that there can be no separate states of Israel and Palestine and that the idea of Palestinians having control of Gaza angers him.

Given these statements, and under the balancing calculus required by Rule 26, probing Goldberg’s recollections of other similar conversations with Saperstein will only produce evidence that is “unreasonably cumulative or duplicative.” Given what Saperstein has already said, it surely is to pile Pilion upon Ossa. Moreover, as Goldberg’s points out, no one is challenging the fact that Saperstein was injured in the manner in which he claims. It has been my experience in handling similar cases that the true question presented is how Saperstein will establish that the PA was responsible for the attack, which in turn is likely dependent on expert testimony from a historian, political scientist, or economist who will opine on the PA’s complicity in the attack. If my supposition is right, Saperstein’s bias will not be an important issue “at stake in the litigation” and discovery from Goldberg about that bias will have little importance….

With regard to defendants’ argument that they should be permitted to take Goldberg’s deposition in order to complete Saperstein’s impeachment, the fact is that Goldberg has already attested that he truthfully recorded what Saperstein said. Taking his deposition to have him repeat that is a waste of everyone’s time….

Goldberg also argues that defendants could not have exhausted all other sources for this information regarding the attack in 2002. Motion to Quash at 10. Defendants have failed to show that they have “exhausted every reasonable alternative source of information” relating to any negative bias Saperstein and his wife may harbor towards Arabs generally and towards defendants specifically. In his article, Goldberg acknowledges that he and Saperstein were colleagues at the Jerusalem Post. Given Saperstein’s outspoken nature, it is likely that other colleagues in addition to Goldberg were also aware of his views; Saperstein can hardly be accused of keeping them a secret. In addition, Saperstein’s own writings are a source of potential evidence regarding his biases. See Reply Memorandum in Support of Non-Party Jeffrey Goldberg’s Motion to Quash Subpoena and/or for a Protective Order at 7 n.3 (identifying numerous articles authored by Saperstein about the Israeli-Palestinian conflict). These sources are certainly “more convenient, less burdensome or less expensive” than Goldberg’s deposition and exploring them first is preferable to implicating a reporter’s First Amendment rights….

It must also be recalled that a more demanding weighing of these factors is imperative when the burden is sought to be imposed upon a third party. This is so whether the third party is a reporter, or a butcher, baker or candlestick maker. When judged by this calculus, and a heightened regard for the burden to be imposed upon a third party, the motion to compel clearly fails….

Whether one relies on cases pertaining to discovery from reporters or on a simple and straightforward analysis of the factors identified in Rule 26, the case against forcing Goldberg to give his deposition is appreciably stronger than the case for permitting it….