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LOS ANGELES-A new type of waiver that has emerged out of this month’s perjury trial of I. Lewis “Scooter” Libby Jr. is gaining momentum as more reporters are subpoenaed to testify in court cases. “Source waivers” release reporters from a long-standing obligation to protect the identities of, and conversations with, their confidential sources of information. The waivers have been most noticeable in the Libby case, in which several reporters disclosed specific conversations they had with their sources. U.S. v. I. Lewis Libby, No. 1:05cr00394 (D.D.C.). The waivers are starting to pop up in other cases. This month, two federal prosecutors granted source waivers in an investigation into who leaked grand jury information to two New York Times reporters covering the criminal case against private investigator Anthony Pellicano. Supporters say the waivers provide protection for journalists facing jail. Opponents fear that source waivers are coerced unless a source personally approves them. “It’s become a new thing,” said Kelli Sager, a Los Angeles media law partner at Seattle-based Davis Wright Tremaine, of source waivers. “The last year or so this has been a popular tool by people trying to force reporters to testify.” Source waivers are on the rise as the government issues more subpoenas to reporters. Reporters were subpoenaed in the recent case of Wen Ho Lee, a former scientist at Los Alamos National Laboratory who pleaded guilty to mishandling data and later settled a lawsuit he brought alleging that his private information was leaked to the media. Two San Francisco Chronicle reporters were subpoenaed after the paper published grand jury material about athletes in the recent Balco steroids case, but a defense attorney in the case admitted in a plea deal on Feb. 15 he had leaked the material to the reporters. In the Libby case, which was in jury deliberations at press time, several of the sources granted waivers to reporters. Libby, former chief of staff for Vice President Dick Cheney, was charged with lying to a grand jury in an investigation about who leaked the identity of CIA agent Valerie Plame Wilson in 2003. Matthew Cooper, a former journalist at Time magazine, agreed to a source waiver while facing jail for refusing to disclose his sources in the Libby case, said his lawyer, Richard Sauber, a partner in the Washington office of New York’s Fried, Frank, Harris, Shriver & Jacobson. But he distinguished the waiver, which he referred to as a “personal” waiver, from a more general source waiver sought by federal prosecutors that would have released Cooper from revealing conversations about any subject he had with his source. He said a “personal” waiver, which is obtained by personally asking the source for permission, allowed Cooper to limit his testimony to specific conversations. In the Pellicano case, two prosecutors in the criminal case authorized reporters earlier this month to talk about their conversations related to the leaks and asked that everyone with access to the leaked material be required to sign source waivers. U.S. v. Pellicano, No. 2:05cr01046 (C.D. Calif.). But Terree Bowers, a lawyer in the Los Angeles office of Howrey who represents Terry Christensen, a partner at Los Angeles’ Christensen, Glaser, Fink, Jacobs, Weil & Shapiro who was indicted in the case, objected to the waivers. He said none of the government’s agents or investigators has signed the waivers.

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