Understand what your client has promised.
At the heart of a leak investigation is your client’s promise of confidentiality to a source. You will find, however, that the ways in which journalists promise confidentiality are legion, and there is no guidebook. Phrases such as “on background,” “off the record,” and “deep background” all can mean different things to different people. In fact, the source may have a different understanding than your client of what was meant.
You should also understand the setting in which your client made his promise of confidentiality. Was it over the phone, to an official likely to keep a phone log? Was it in person, under circumstances in which there is a documentary record of the meeting, such as a calendar or a meal receipt? With this information you will gain insight into the prosecutor’s investigative steps leading to your client.
Determine what relevant documents your client controls.
All reporters take notes, and all reporters send e-mails to their editors and colleagues. By and large, the electronic messages sent within the company are controlled and owned by the company, making them susceptible to a corporate subpoena. But the handwritten notes taken by your client during (or right after) his conversations with his sources may, in some media organizations, be the reporter’s personal property.
The difference may be critical to your strategy, especially when your client’s corporate employer is less likely to refuse a judge’s order to comply with a grand jury subpoena. Perhaps the prosecutor will learn the source’s identity by obtaining corporate records, thus obviating the need for your client to go into civil contempt.
In any event, the existence of both corporate and personal documents allows you a bit more flexibility in fashioning your strategy and opens additional avenues for compromise to keep your client out of jail. For instance, the prosecutor may obtain the information he needs from corporate documents, and your client may be able to avoid testifying about his sources before the grand jury.
Another important piece of data from the documents: To whom did your client reveal the identity of his source? Here again, different media organizations have different procedures for the treatment of source identities, but it is likely that at least one editor knows the source’s identity. This is a potentially complicating factor if multiple subpoenas for testimony are issued. Although Fitzgerald never went down this path, other prosecutors may not be so restrained and may subpoena for grand jury testimony everyone within a media organization with knowledge of the source’s identity.
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