The shark image can only mean one thing – it’s time for Shark Week on the Discovery Channel! Which also means it’s time for eDiscovery Case Week on eDiscovery Today, where we’ll cover five cases in the next five days! In Colborn v. Netflix Inc., No. 19-cv-0484-bhl (E.D. Wis. June 23, 2022), Wisconsin District Judge Brett H. Ludwig granted the defendant’s motion to compel a journalist on the plaintiff legal team to respond to discovery requests regarding his journalistic work involving events associated with the Steven Avery case covered in the documentary Making a Murderer.
In this defamation action, the plaintiff asserted claims against four defendants who were involved in the production and distribution of two documentary miniseries, Making a Murderer and Making a Murderer 2. Defendant Netflix, Inc. asked respondent Michael Griesbach – who also happened to be one of the plaintiff’s counsel of record – to produce documents related to his journalistic work, which concerned the events underlying this case. This journalist on the plaintiff legal team had authored three books about the case and was, by his own admission, “obsessed” with the case against Steven Avery.
The Respondent flatly refused, initially based on a number of written objections and, subsequently, based on Wisconsin Statute § 885.14, Wisconsin’s “Reporter Privilege” statute. Defendant Netflix filed a motion to compel, asking the Court to order respondent to produce responsive materials.
The respondent objected to Netflix’s subpoena on five grounds: (1) the evidence sought did not meet the Fed. R. Evid. 401 standard for admissibility; (2) disclosure would prejudice plaintiff by turning his attorney into a witness; (3) the respondent had no special knowledge concerning the evidence in the Avery case because he relied on public documents for his research; (4) the evidence sought was available from alternative sources; and (5) Wisconsin’s reporter privilege shielded the information sought from disclosure.
Judge Ludwig began his order by stating: “Lawyers and journalists comprise (perhaps apocryphally) two of our country’s most respected professions.” Addressing the respondent’s first objection and stating the respondent “Mistakenly Conflates the Evidentiary Standards for Admissibility with the Standards Governing Discovery”, he also stated: “This is a classic category error. What is discoverable is not always, and indeed does not need to be, admissible. The key at the discovery stage is relevance… a party who refuses to respond to a subpoena on the grounds that nothing produced would be admissible at a trial propounds a position no more logical than a detective who rebukes fingerprint evidence simply because that, in and of itself, will not conclusively identify the culprit. The discovery provisions of the Federal Rules of Civil Procedure ‘are to be applied as broadly and liberally as possible’ to allow parties to explore possible leads.”
Judge Ludwig also rejected the respondent’s second, third and fourth objections, stating: “Respondent complains that he should not be required to respond to a subpoena seeking copies of his books when those books are in print and publicly available…But the subpoena does not simply request copies of the books…Rather, it seeks ‘documents drafted in connection with the books;’ ‘documents and communications … consulted, relied upon, sent, received, or used in writing the books;’ ‘documents and communication regarding … drafting, editing, or fact-checking of the books;’ and ‘documents and communications regarding … marketing and promotion of [the] books.’…Respondent asks the Court to take him at his word that even these related documents and communications are publicly available…But ‘there’s nothing to see here’ is not a valid defense to a properly issued subpoena.”
He also stated that “through a subpoena issued to the Manitowoc County Sheriff’s Department, Netflix was able to discover messages that Respondent sent from his private email address specifically discussing Making a Murderer with members of the Sheriff’s Department…Unless he cc’d the Department on every email in which he broached the docuseries, Respondent is likely in possession of additional private discussions responsive to Netflix’s subpoena. At the very least, he has not carried his burden to show that Netflix’s discovery requests were improper.”
With regard to the respondent’s objection regarding reporter privilege, Judge Ludwig first rejected defendant Netflix’s contention that the respondent waived the privilege when he failed to invoke it in his initial set of objections, stating: “as Netflix acknowledged at a status conference held on June 14, 2022,…the delay has not caused it any real prejudice.”
However, Judge Ludwig rejected the respondent’s objection regarding reporter privilege, citing an “uncannily similar case” (Simon v. Northwestern University) which found that a filmmaker who had joined the plaintiff’s litigation team could not wield the reporter’s privilege as both a sword and shield to benefit his client and disadvantage the opponent. Here, Judge Ludwig found that – as a journalist on the plaintiff legal team – “Respondent cannot allow Colborn to selectively access and thereby weaponize only the most advantageous facts, while his adversaries are denied that access and left grasping in the dark. This is precisely the kind of situation that the sword-and-shield waiver doctrine is meant to prevent. The Court therefore finds that Wis. Stat. Section 885.14 is not applicable in Respondent’s case.”
So, what do you think? Do you think being a journalist on the plaintiff legal team cancels reporter privilege? Please share any comments you might have or if you’d like to know more about a particular topic.
Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today.
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