In a unanimous opinion issued on Wednesday, a three-judge panel of the Second Circuit affirmed a decision quashing a subpoena that would have required Eisinger to testify in ongoing litigation against Goldman in Boston federal district court.
Reed Smith’s clients, Janet and James Baker, were inventors who made–and then lost–a fortune through their speech recognition software company, Dragon Systems. The Bakers sold Dragon to a Belgian rival, Lernout & Hauspie, in 2000 on the advice of their financial advisors at Goldman Sachs. L&H went belly-up soon after in the midst of an accounting scandal, and the Bakers lost an alleged $300 million in now-worthless stock.
The Bakers sued Goldman Sachs in 2009, alleging that the bank failed to adequately investigate L&H’s balance sheets and negligently advised them to make the deal. To support those claims, their lawyers at Reed Smith pointed to WSJ exposes on L&H that Eisinger wrote in 2000. If Eisinger was able to uncover discrepancies in L&H’s stock valuation, they argued, why couldn’t Goldman Sachs?
Manhattan federal district court judge Barbara Jones rejected the plaintiffs bid to depose Eisinger in April, finding that the reporter could assert a qualified privilege under the New York state shield law for journalists. In an opinion by judge Ralph Winter, the Second Circuit agreed on Wednesday, finding that it was “virtually self-evident that the Shield Law would protect Eisinger from compelled testimony.”
A trial date has not yet been set in the Bakers’ underlying case against Goldman in Boston.
Paul Vizcarrando of Wachtell, who argued for Goldman Sachs, declined to comment. With him on the brief was Ropes & Gray partner John Donovan, who did not return a call seeking comment. Media law specialist Gayle Sproul of Levine Sullivan Koch & Schulz argued for Eisinger, who now covers Wall Street for ProPublica. Sproul was traveling on Wednesday and not available to comment.
Alan Cotler of Reed Smith, who represents the Bakers, declined to comment.