Continental Resources CEO Harold Hamm and his wife Sue Ann Hamm attend the TIME 100 gala in New York on Apr. 24, 2012. She filed for divorce on May 19. (AP/Evan Agostini)
New York-based writer Gregory Zuckerman is protected by the state’s Shield Law from revealing, as part of an Oklahoma divorce action, the confidential information he gathered while writing his 2013 book on “wildcat” natural gas entrepreneurs, a Manhattan judge has ruled.
Supreme Court Justice Donna Mills (See Profile) denied the attempt by the wife of Harold Hamm, one of the six businessmen profiled in Zuckerman’s book, to subpoena the writer to produce all “audio and visual recordings, notes, interviews, emails, materials, records, well valuation, and all other documents” related to Hamm and his company, Continental Resources, Inc. (CRI) of Oklahoma City.
Zuckerman, a special writer for The Wall Street Journal, was author of “The Frackers: The Outrageous Inside Story of the New Billionaire Wildcatters.” It was published by Portfolio/Penguin.
Mills ruled that Zuckerman is protected against making disclosures to Sue Ann Hamm by the journalists’ Shield Law, state Civil Rights Law §79-h. The statute, enacted in 1970, generally bars a New York court from holding a journalist in contempt for refusing to reveal the identities of confidential news sources.
The judge determined in Matter of Hamm (Zuckerman), 154581/14, that Sue Ann Hamm failed to demonstrate that the information she is seeking is unavailable elsewhere and justifies violating the writer’s Shield Law rights.
“Petitioner … does not sufficiently demonstrate that her claim concerning the marital estate in the divorce proceeding will rise or fall depending on whether or not she obtains the information sought from Zuckerman,” Mills wrote. “Indeed, it appears that petitioner primarily seeks the information to address witness credibility and impeachment, which generally is not considered critical to a claim.”
Among the materials sought by Sue Ann Hamm in a pair of April 2014 subpoenas were emails between Zuckerman and CRI employees. The judge said Sue Ann Hamm did not show how she had tried, and failed, to get that information through other means, such as from CRI itself or its employees.
“Undoubtedly, there were many witnesses to events and conduct involved in the development of business endeavors and wealth of the magnitude described in the submissions … such as Hamm’s business strategies, decisions and interactions,” Mills wrote.
Sue Ann Hamm argued that Zuckerman acquired “unique insight and knowledge” that would reflect on the contributions Harold Hamm made to the marital estate—an issue that Mills called “pivotal” in the Hamm divorce case.
But Zuckerman argued that providing materials to Sue Ann Hamm would transform him from a journalist to a professional witness and cripple his ability to gather information from news sources in the future if it is believed that he might be testifying in court about his interviews.
“He also states that his objectivity may be compromised if he is compelled to provide information relating to his newsgathering activities, as he may be rendered an investigator for a litigant or the government,” Mills wrote.
The judge also denied Hamm’s request that Zuckerman be compelled to turn over information that was not used for the publication of news, either in the book or in his stories for The Wall Street Journal. Mills noted that the subpoenas do not differentiate between what materials were and were not published and said “the court is under no obligation to engage in the parsing out that petitioner seeks” to determine their possible eligibility for release.
Davis Wright Tremaine partner Elizabeth McNamara and associate Yonatan Berkovits represented Zuckerman.
“We are very pleased with the decision,” McNamara said in a statement Wednesday. “We believe the court carefully and correctly applied the law protecting newsgathering privileges.”
Francis F. Quinn, a shareholder of Lavin, O’Neil, Cedrone & DiSipio, represented Sue Ann Hamm, along with Robert Bartz, Joe Fears and Taylor Burke of Barber & Bartz in Tulsa, Okla. Bartz is a director of the Oklahoma firm, Fears is a shareholder and Burke is an associate.
Harold Hamm is reputed to be among the world’s richest people, having amassed a fortune valued at about $20 billion in the oil and natural gas industries.
He and Sue Ann Hamm, a lawyer and economist who once worked for Continental Resources, are divorcing after 25 years of marriage.
As noted by Mills in her ruling, a chief issue in their divorce is how actively Harold Hamm built his fortune at CRI during the marriage or, alternatively, the extent to which he stood by passively as his wealth grew—a distinction that would bear on the percentage of the couple’s assets subject to equitable distribution. The internal CRI emails sought by Sue Ann Hamm from Zuckerman are part of her efforts to show his active involvement in the development of the company.