Case 2:16-cv-05407 Document 1 Filed 07/20/16 Page 1 of 11 Page ID #:1 1 2 3 4 5 6 7 8 9 10 11 12 13 JEAN-PAUL JASSY, Cal. Bar No. 205513 jpjassy@jassyvick.com KEVIN L. VICK, Cal. Bar No. 220738 kvick@jassyvick.com DUFFY CAROLAN, Cal Bar No. 154988 dcarolan@jassyvick.com SUNNY K. LU, Cal. Bar No. 247667 slu@jassyvick.com JASSY VICK CAROLAN LLP 6605 Hollywood Boulevard, Suite 100 Los Angeles, California 90028 Telephone: 310-870-7048 Facsimile: 310-870-7010 Colby C. Vokey (pro hac vice forthcoming) LtCol USMC (Ret.) vokeylaw@colbyvokey.com 6924 Spanky Branch Court Dallas, Texas 75248 Telephone: 214-697-0274 Facsimile: 214-594-9034 Attorneys for Plaintiffs MARK BOAL and FLAKJACKET LLC d/b/a PAGE 1 14 UNITED STATES DISTRICT COURT 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CENTRAL DISTRICT OF CALIFORNIA – WESTERN DIVISION MARK BOAL, an individual, FLAKJACKET LLC d/b/a PAGE 1, a California Limited Liability Company, v. Case No.: 2:16-CV-05407 Plaintiffs, UNITED STATES OF AMERICA; BARACK OBAMA, in his official capacity as President of the United States of America; ASHTON B. CARTER, in his official capacity as Secretary of Defense; ERIC FANNING, in his official capacity as Secretary of the Army; ROBERT B. ABRAMS, in his official capacity as General Court-Martial Convening Authority; JUSTIN OSHANA, in his official capacity as Major, Judge Advocate, US Army Trial Counsel, and DOES 1 THROUGH 10, inclusive, COMPLAINT FOR DECLARATORY AND/OR INJUNCTIVE RELIEF, OR, IN THE ALTERNATIVE, PETITION FOR A WRIT OF MANDAMUS AND/OR PROHIBITION; EXHIBIT A Defendants. COMPLAINT AND WRIT PETITION Case 2:16-cv-05407 Document 1 Filed 07/20/16 Page 2 of 11 Page ID #:2 1 Plaintiffs Mark Boal (“Boal”) and Flakjacket LLC d/b/a Page 1 (“Page 1”) 2 (collectively, “Plaintiffs”) allege against defendants United States of America, 3 President Barack Obama, Secretary Ashton B. Carter, Secretary Eric Fanning, 4 General Robert B. Abrams, Major Justin Oshana and Does 1-10 (collectively, 5 “Defendants”) as follows: 6 GENERAL ALLEGATIONS 7 8 1. Mark Boal is a reporter and filmmaker. He is an Academy-Award 9 winning screenwriter. He is a civilian and a resident of Los Angeles. His company, 10 plaintiff Page 1, is based in Los Angeles. This case is brought to protect and defend 11 Plaintiffs’ constitutional right to communicate important stories about matters of 12 immense public concern. Without this Court’s protection, Plaintiffs – and 13 specifically Boal – will be forced to provide a military prosecutor in North Carolina 14 with unpublished materials and confidential information or face contempt charges in 15 this Court under 10 U.S.C. § 847. Plaintiffs, civilians based in Los Angeles, ask this 16 Court to protect their reporter’s privilege, rooted in the First Amendment and 17 recognized in this Circuit and nationwide, to maintain in confidence their unpublished 18 materials and confidential information. 19 2. Plaintiffs seek a declaration, injunction or writ from this Court 20 preventing the issuance and/or enforcement of a subpoena demanding approximately 21 25 hours of recorded interviews Boal conducted with US Army Sgt. Robert Bowdrie 22 Bergdahl (“Bergdahl”). Bergdahl is presently facing a court martial in Ft. Bragg, 23 North Carolina for allegedly deserting his post in Afghanistan several years ago. 24 Bergdahl was captured and tortured by the Taliban and ultimately released in a 25 highly-publicized event where President Obama simultaneously released detainees 26 from Guantanamo Bay. 27 28 3. Boal recorded his interviews with Bergdahl with the intent to later disseminate portions of those interviews to the public, and to use the interviews for -1COMPLAINT & WRIT PETITION Case 2:16-cv-05407 Document 1 Filed 07/20/16 Page 3 of 11 Page ID #:3 1 Boal’s future work. Portions of Boal’s interviews with Bergdahl were licensed by 2 Page 1 to be used, and portions were used, in the second season of the critically- 3 acclaimed, highly popular, Peabody Award-winning podcast Serial, published by 4 WBEZ, a National Public Radio affiliate. It was clear that portions of the Bergdahl 5 interviews were to remain confidential, and portions of the Bergdahl interviews 6 reference confidential sources. 7 4. Defendant Major Justin Oshana, trial counsel (i.e., prosecutor) in 8 Bergdahl’s court martial, has made clear in communications with counsel for Boal 9 that Defendants intend to issue a subpoena on July 22, 2016 seeking all of Boal’s 10 recorded interviews with Bergdahl (the “Subpoena”). Major Oshana provided Boal’s 11 counsel with a draft of the Subpoena, a copy of which is attached, in which the 12 President (via Major Oshana) broadly demands that Plaintiffs produce: “The 13 complete unedited audio recordings of conversations between Sergeant Bergdahl and 14 Mark Boal referenced in the Serial podcast as over 25 hours of recorded 15 conversations.” The Subpoena would invade Boal’s right to gather and publish 16 newsworthy material under the First Amendment to the United States Constitution, 17 the common law and state constitutional and statutory provisions, e.g., Cal. Const., 18 art. I, § 2, Evid. C. § 1070. Issuance and enforcement of the Subpoena would force 19 Boal to decide between facing a contempt certification in a military court in North 20 Carolina, and ultimately in this Court under 10 U.S.C. § 847(b), or sacrificing his 21 work and his constitutional and common law rights and become the arm of a military 22 prosecutor. The threatened Subpoena is unlawful and inconsistent with the First 23 Amendment, the common law, Department of Justice guidelines for the issuance of 24 subpoenas to reporters and state protections for reporters. 25 5. Accordingly, Plaintiffs respectfully request that this Court protect their 26 rights and enjoin the issuance and enforcement of the Subpoena, declare that such 27 Subpoena is inconsistent with Plaintiffs’ rights and/or issue a writ of mandamus 28 and/or prohibition barring the issuance or enforcement of the Subpoena. -2COMPLAINT & WRIT PETITION Case 2:16-cv-05407 Document 1 Filed 07/20/16 Page 4 of 11 Page ID #:4 JURISDICTION & VENUE 1 2 6. This Court has subject matter jurisdiction under 28 U.S.C. § 1331 (“The 3 district courts shall have original jurisdiction of all civil actions arising under the 4 Constitution, laws, or treaties of the United States”), 28 U.S.C. § 1361 (“The district 5 courts shall have original jurisdiction of any action in the nature of mandamus to 6 compel an officer or employee of the United States or any agency thereof to perform 7 a duty owed to the plaintiff”); 28 U.S.C. § 1651(a) (“all courts established by Act of 8 Congress may issue all writs necessary or appropriate in aid of their respective 9 jurisdictions and agreeable to the usages and principles of law”); 5 U.S.C. § 702 10 11 (district court jurisdiction to review agency actions), and the federal common law. 7. Venue is proper in the United States District Court for the Central 12 District of California, Western Division, pursuant to 28 U.S.C. § 1391(c)(1) because 13 Plaintiffs are domiciled in Los Angeles County, California and, alternatively, 14 pursuant to 28 U.S.C. § 1391(b)(2) because the property at issue (the recorded 15 interviews of Bergdahl) are located in Los Angeles County, California. 16 PARTIES 17 18 8. Plaintiff Mark Boal is an award-winning journalist, filmmaker and 19 producer, covering stories of national interest since 1998 and the military and 20 national security since 2011. Boal’s Playboy Magazine article “Death and Dishonor” 21 – the true story of a father who searches for his missing Iraq war veteran son – was 22 adopted by Oscar-winner Paul Haggis into the film, In the Valley of Elah. Drawing 23 from his experiences as a reporter during the war in Iraq, Boal wrote The Hurt 24 Locker, the multi-Oscar- winning film directed by Kathryn Bigelow. As writer and 25 producer of the film, Boal won two Oscars, for Best Picture and Best Original 26 Screenplay. Boal most recently wrote and produced the critically acclaimed Zero 27 Dark Thirty, which went on to receive five Oscar nominations, and earned Boal his 28 second WGA Award for Best Original Screenplay. Boal’s 2011 investigative report -3COMPLAINT & WRIT PETITION Case 2:16-cv-05407 Document 1 Filed 07/20/16 Page 5 of 11 Page ID #:5 1 for Rolling Stone entitled the “Kill Team” exposed Afghanistan war crimes, which 2 were eventually punished in the military justice system. Earlier pieces in Playboy 3 were the first to focus national attention on the VA’s failures to diagnose PTSD 4 among returning veterans. His 2008 investigative story for Rolling Stone entitled 5 “Everyone Will Remember Me as Some Sort of Monster” was selected for the Best 6 American Crime Writing anthology edited by Otto Penzler. Boal’s research into 7 Bergdahl’s disappearance from an Army outpost in Afghanistan began in the summer 8 of 2014, with the intention of researching and developing a story that could be told in 9 multiple mediums, as a documentary, a feature film, news articles, and possibly, a 10 non-fiction book. Boal conducted extensive interviews with individuals familiar with 11 the case, and in May 2015, teamed up with the reporters at the Peabody award- 12 winning Serial. Together they co-produced a 10-hour podcast exploring the meaning 13 of the Bergdahl saga against the backdrop of the war in Afghanistan and Operation 14 Enduring Freedom. 15 9. Plaintiff Flakjacket LLC d/b/a Page 1 is a California limited liability 16 company founded by Boal to explore the intersection of reporting and entertainment. 17 In addition to its work earlier this year co-producing the journalistic podcast Serial 18 (which is an off-shoot of National Public Radio’s This American Life and has more 19 than 50 million listeners world-wide) Boal and his company recently commissioned a 20 wide range of works of public-interest non-fiction from prominent writers and 21 Pulitzer prize-winning journalists on subjects such as policing and race relations in 22 Detroit circa 1967, Second-Wave feminism and the constitutional issues important to 23 that movement, as well as the ATF’s role in the raid in Waco, Texas in 1993, and 24 many more. Additionally, Page 1 is executive producing a forthcoming, prize- 25 winning documentary about the psycho-dynamics of terrorist attacks, which won best 26 documentary at the Tel Aviv Film Festival. 27 28 10. Defendant Barack Obama is President of the United States of America. On information and belief, the Subpoena will issue from the “President of the United -4COMPLAINT & WRIT PETITION Case 2:16-cv-05407 Document 1 Filed 07/20/16 Page 6 of 11 Page ID #:6 1 States.” President Obama is being sued in his official capacity as President and 2 Commander in Chief of the Armed Forces of the United States of America. 3 11. Defendant Ashton B. Carter is Secretary of Defense for the United States 4 of America. On information and belief, Secretary Carter is responsible for the actions 5 of defendant Major Justin Oshana. Secretary Carter is being sued in his official 6 capacity. 7 12. Defendant Eric Fanning is Secretary of the Army for the United States of 8 America. On information and belief, Secretary Fanning is responsible for the actions 9 of defendant Major Justin Oshana. Secretary Fanning is being sued in his official 10 capacity. 11 13. Defendant Robert B. Abrams, is a General in the United States Army. 12 General Abrams is the Commander of Army Forces Command and serves as the 13 Convening Authority for the general court-martial of Bergdahl. General Abrams is 14 the official who referred the charges against Bergdahl to a court-martial and is 15 responsible for the investigation, referral, and conduct of the court-martial. General 16 Abrams is being sued in his official capacity. 17 14. Defendant Justin Oshana, is a Major in the United States Army. Major 18 Oshana is Judge Advocate and trial counsel – i.e., prosecutor – in the court martial 19 proceedings against Bergdahl at Ft. Bragg, North Carolina. On information and 20 belief, Major Oshana will subscribe the Subpoena. Major Oshana has confirmed that 21 the Subpoena will issue on July 22, 2016 with a return date of August 16, 2016. 22 Major Oshana is being sued in his official capacity. 23 15. The true names and capacities of the defendants sued herein as DOE 24 defendants 1 through 10, inclusive, are currently unknown to Plaintiffs, who therefore 25 sue such defendants by fictitious names. Each of the defendants designated herein as 26 a DOE is legally responsible for the unlawful acts alleged herein. Plaintiff will seek 27 leave of Court to amend the Complaint to reflect the true names and capacities of the 28 DOE defendants when such identities become known. -5COMPLAINT & WRIT PETITION Case 2:16-cv-05407 Document 1 Filed 07/20/16 Page 7 of 11 Page ID #:7 1 2 FIRST CLAIM 3 (For Declaratory Relief, 28 U.S.C. § 2201) 4 (Against all Defendants) 5 16. 6 forth here in full. 7 17. 8 Plaintiffs reallege and incorporate by reference Paragraphs 1-15 as if set Defendants have made clear their intention to imminently issue, serve and enforce the Subpoena against Plaintiffs. 9 18. Plaintiffs dispute that the Subpoena should be issued or enforced. 10 19. There is an actual case or controversy of sufficient immediacy and 11 reality as to whether the Subpoena may be issued or enforced, whether Plaintiffs must 12 comply with the Subpoena, and whether and to what extent Plaintiffs are entitled to 13 rely on the reporter’s privilege and other related privileges, immunities and 14 protections in response to the Subpoena. 15 20. Plaintiffs seek a declaration from this Court that the Subpoena may not 16 issue, may not be enforced and/or that Plaintiffs may lawfully refuse to comply with 17 the Subpoena. 18 19 SECOND CLAIM 20 (For Injunctive Relief) 21 (Against All Defendants) 22 21. 23 forth here in full. 24 22. 25 26 Plaintiffs reallege and incorporate by reference Paragraphs 1-20 as if set Defendants have made clear their intention to imminently issue, serve and enforce the Subpoena with a return date of August 16, 2016. 23. Issuance and enforcement of the Subpoena will irreparably harm 27 Plaintiffs. Either Plaintiffs will be forced to reveal unpublished and unbroadcast 28 segments of interviews gathered for news and public affairs reporting purposes, -6COMPLAINT & WRIT PETITION Case 2:16-cv-05407 Document 1 Filed 07/20/16 Page 8 of 11 Page ID #:8 1 which include confidential information, or Plaintiffs will be subjected to contempt 2 proceedings for their failure to do so. Disclosure will irreparably damage Plaintiffs’ 3 ability to gather news and give sources and subjects confidence in their ability to keep 4 materials confidential. Contempt proceedings will cause loss of liberty or property 5 that is unwarranted and unconstitutional. In either event, Plaintiffs – third parties to 6 the Bergdahl court martial – will be unduly burdened by the Subpoena and forced to 7 expend substantial sums on counsel. 8 9 24. Plaintiffs respectfully request that the Court temporarily, preliminarily and permanently enjoin all Defendants from issuing and/or enforcing the Subpoena. 10 11 THIRD CLAIM 12 (For Writ of Mandamus And/Or Prohibition, 28 U.S.C. § 1651(a)) 13 (Against All Defendants) 14 25. 15 forth here in full. 16 26. 17 18 Plaintiffs reallege and incorporate by reference Paragraphs 1-24 as if set Defendants have made clear their intention to imminently issue, serve and enforce the Subpoena with a return date of August 16, 2016. 27. In order to protect their constitutional, common law and statutory rights, 19 Plaintiffs respectfully request that the Court issue a writ of mandamus and/or 20 prohibition to all Defendants directing Defendants not to issue or enforce the 21 Subpoena. 22 PRAYER FOR RELIEF 23 24 WHEREFORE, Plaintiffs pray for relief and judgment as follows: 25 1. A declaration from this Court that the threatened issuance and 26 enforcement of the Subpoena implicates important and constitutionally protected 27 rights under the First Amendment to the United States Constitution and the common 28 law, and that, therefore, the Subpoena may not issue, may not be enforced and/or that -7COMPLAINT & WRIT PETITION Case 2:16-cv-05407 Document 1 Filed 07/20/16 Page 9 of 11 Page ID #:9 1 Plaintiffs may lawfully refuse to comply with the Subpoena without threat of 2 prosecution or contempt; 3 4 5 6 2. The Court grant temporary, preliminary and permanent injunctions restraining Defendants from issuing or enforcing the Subpoena; 3. The Court issue a writ of mandamus and/or prohibition to all Defendants directing Defendants not to issue or enforce the Subpoena; 7 4. Costs and attorney’s fees to the extent authorized by law; and 8 5. Any and all other relief as the Court deems necessary, just and proper. 9 10 11 12 13 14 15 Dated: July 20, 2016 JASSY VICK CAROLAN LLP By _____/s/ Jean-Paul Jassy ________ JEAN-PAUL JASSY Attorneys for Plaintiffs MARK BOAL and FLAKJACKET LLC d/b/a PAGE 1 16 17 18 19 20 21 22 23 24 25 26 27 28 -8COMPLAINT & WRIT PETITION Case 2:16-cv-05407 Document 1 Filed 07/20/16 Page 10 of 11 Page ID #:10 Exhibit A Case 2:16-cv-05407 Document 1 Filed 07/20/16 Page 11 of 11 Page ID #:11 SUBPOENA The President of the United States, to Parallax Media, LLC (operating as Page One Productions), c/o Jackoway, Tyerman, Wertheimer, Austen, Mendelbaum, Morris & Kelin, AP. You are hereby required to produce the below listed documentary evidence for use in the court-martial case of the United States v. Sergeant Robert Bowdrie (Bowe) Bergdahl as appointed by Court-Martial Convening Order #1, Headquarters, United States Army Forces Command, Fort Bragg, North Carolina 28310, dated 11 November 2015. These records must be produced no later than May 1st, 2016. Documentary evidence: The complete unedited audio recordings of conversations between Sergeant Bergdahl and Mark Boal referenced in the Serial podcast as over 25 hours of recorded conversations. If available, include the date and time for all recordings. This subpoena only requires the production of certain evidence and does not include a provision requiring personal appearance at this time. Failure to comply may result in a subpoena being issued for personal appearance and the production of documents or other evidence. In that case, failure to appear and testify is punishable by a fine of not more than $500 or imprisonment for a period not more than six months, or both. (10 U.S.C. § 847). Failure to appear may also result in your being taken into custody and brought before the courtmartial under a Warrant of Attachment (DD Form 454). Manual for Courts-Martial R.C.M. 703(e)(2)(G). Return a copy of this subpoena with the required audio evidence. If personal appearance is required, bring this subpoena with you and do not depart from the proceeding without proper permission. Subscribed at Fort Bragg, North Carolina this 28th day of March, 2016. ___________________________ JUSTIN OSHANA, Major (Signature (See R.C.M. 703(e)(2)(C)) Judge Advocate, U.S. Army Trial Counsel The witness is requested to sign one copy of this subpoena and to return the signed copy to the person serving the subpoena. I hereby accept service of the above subpoena. ________________________________________ (Signature of Witness/Authorized Recipient) NOTE: If the witness/authorized recipient does not sign, complete the following: Personally appeared before me, the undersigned authority, ____________________, who, being first duly sworn according to law, deposes and says that at __________, on _______________, 20___, he/she personally delivered to _________________________, a duplicate of this subpoena, by ____________________ (method of delivery). _____ _________________________________________ (Grade) (Signature) Subscribed and sworn to before me at ___________________________, this _____ day of __________, 20___. _____ ____________________ __________________________________________ (Grade) (Official Status) (Signature) DD FORM 453-R, MAY 2000 PREVIOUS EDITION IS OBSOLETE. APD PE v1.00