The fillmmakers who produced a documentary on the five men wrongfully convicted in the Central Park jogger case are fighting back against a subpoena for outtakes issued by the New York City Law Department.
Decrying a “sweeping subpoena for nearly all of the video and audio recordings” gathered during the making of “The Central Park Five,” attorneys for directors Ken Burns, his daughter Sarah Burns and her husband David McMahon insisted the material is shielded by both state law and the federal reporter’s privilege.
‘The Central Park Five’ is set for general release on Nov. 23.
The filmmakers, along with their company Florentine Films, all represented by John Siegal and Peter Shapiro of Baker & Hostetler, have asked Southern District Judge Deborah Batts (See Profile) to quash the subpoena that was served on Ken Burns on Sept. 12 and narrowed slightly in October. Siegal and Shapiro submitted a memorandum of law in support of the motion to quash on Nov. 7.
“The first was a classic ‘any and all’ subpoena and we said ‘no way,’” Siegal said yesterday in an interview. The city then served a subpoena “for all of the outtakes of everyone who has any direct knowledge, plus the lawyers in the civil case, plus expert witnesses,” he said.
“But we couldn’t resolve it so we felt the necessary thing to do was to make a motion to quash because they weren’t willing to limit in it in anything approaching an appropriate fashion,” Siegal said.
The subpoena was the latest salvo in the nearly nine-year-old lawsuit of In re McCray, 03-cv-09685, which was brought by the five men who were arrested as teens and served prison terms into adulthood for the April 19, 1989, rape and beating of jogger Trisha Meili in Central Park.
Yusef Salaam, 15 at the time of the attack, and Korey Wise, 16, Raymond Santana, 14, Antron McCray, 15, and Kevin Richardson, 14, were ultimately exonerated in an investigation triggered by the admission of another man, convicted rapist Matias Reyes, that he had attacked Meili and left her for dead.
The five men’s convictions were vacated in 2002 after a report by Manhattan District Attorney Robert Morgenthau’s office cleared them—a conclusion that the New York Police Department and former Sex Crimes prosecutor Linda Fairstein refuse to accept.
In 2003, lawyers for the men filed a civil suit in the Southern District seeking $50 million each for malicious prosecution and civil rights violations that the city has fought ever since.
The film, set to be shown at the DOC NYC film festival on Nov. 15 and to be released in theaters Nov. 23, tells the story of the “Central Park Five” through interviews with the men as well as politicians, journalists who covered the case and others.
Ken Burns, in a declaration in support of the motion to quash, states that the documentary barely mentions the civil suit, while acknowledging he and his partners have advocated that the city should settle with the plaintiffs and “close this painful chapter in their lives and the life of the City.”
This point of view, Burns said, “did not determine the content of the film: just the opposite, it was our reporting for the Film that led us to the feeling that these individuals have suffered enough and that their claims for damages should be settled.”
The city now says that the video and audiotapes of interviews with the men about what they claim were coerced confessions, as well as interviews with other subjects in the film, are critical to its defense of the lawsuit.
But in their motion papers, Siegal and Shapiro said the subpoena reflects nothing more than “hope and speculation” that the outtakes may contain useful material. They also say the Law Department has failed to show it sought alternate sources of the information, such as through depositions of the plaintiffs.
“And they have not appropriately narrowed the outtakes they seek; they are requesting all recordings of everyone interviewed for the film who has any direct knowledge of the Central Park criminal case or this civil litigation,” they write.
The Baker & Hostetler team also distinguishes this case from a recent ruling concerning the reporter’s privilege: the decision by the U.S. Court of Appeals to uphold subpoenas sought by Chevron to defeat a multi-billion dollar environmental judgment against the oil company in Ecuador.
In Chevron v. Berlinger, 629 F.3d 297 (2011), the Second Circuit said filmmaker Joseph Berlinger had to turn over outtakes from his own film about the Ecuador litigation because the film had been solicited by plaintiffs attorney Steven Donziger and Donziger exercised some editorial control over the final product.
By contrast, Siegal and Shapiro said, “Florentine Films undertook, researched and produced The Central Park Five independently without financial or editorial control or input by the plaintiffs or their attorneys.”
The city claims the filmmakers are now allied with the plaintiffs and have forfeited any claim to reportorial objectivity.
But Siegal and Shapiro said the Berlinger case has their clients covered, despite the city’s “aggressive” and “unsustainable” attempt to bring the Central Park subpoena within the ambit of Berlinger.
“Indeed, in its decision in Berlinger, the Second Circuit went out of its way to clearly instruct that its decision could not be applied to filmmakers like Florentine Films who utilize an independent journalistic process even if they reach a point-of-view about the story they are covering,” the attorneys state.
Under the New York Shield Law, Civil Rights Law §79-h, the attorneys argue, the city’s lawyers “are seeking nothing but material obtained by professional journalists during the newsgathering process,” and the material is thus shielded by the qualified journalists’ privilege.
The attorneys said the city has failed to meet any part of the stringent three-part test for overcoming the qualified privilege—it has not shown the outtakes are “highly material and relevant,” that it is “critical or necessary to the maintenance of the prosecution of the case,” and that the information is “not obtainable from any alternative source.”
They also argue the research and reporting is protected by the federal reporter’s privilege that is grounded in First Amendment and federal common law.
To avoid “interference with the functioning of independent journalists, courts in this circuit have frequently construed the reporter’s privilege to protect against the compelled disclosure of unpublished materials, including video outtakes,” the lawyers assert.
And the Second Circuit, they said, has made clear that the First Amendment requires “that this protection applies with extra force where the litigant engaging in the ‘fishing expedition’ is a governmental body.”
The subpoena, the attorneys argue, “raises the troubling specter of a government that has been litigating this case for eight years targeting a film on the eve of its release because it is worried about the impact of the film on public opinion and, potentially, the jury pool in this case.”
Executive Assistant Corporation Counsel Celeste Koeleveld released a statement maintaining that the city has a case for seeking the outtakes.
“The filmmakers’ actions clearly demonstrate that this project is advocacy, not objective journalism,” she said. “The outtakes go to the heart of the plaintiffs’ multi-million dollar legal case against the city and should be part of that case. We will respond to their motion to quash and await the court’s ruling.”