MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH SUBPOENA 1 2 3 I. INTRODUCTION AND SUMMARY OF ARGUMENT 4 Paul Anderegg, a journalist for a local television news station, went to the scene of 5 a mishap on the highway in order to obtain video footage that would later be broadcast by 6 his employer. He did so as part of his work as a journalist for KGTV, which regularly 7 involves going to such locations in order to observe and record newsworthy incidents. The 8 prosecution now seeks to subpoena Mr. Anderegg's testimony about what he observed at 9 the scene. The prosecution completely failed to comply with a statutory requirement that it 10 include with the subpoena an explanation of why it needs Mr. Anderegg's testimony, and 1 1 the subpoena should therefore be quashed. Furthermore, the journalist's shield law 12 contained in the California Constitution unequivocally bars the subpoena, and the 13 subpoena must be quashed on that ground. Finally, the subpoena should be quashed 14 pursuant to the qualified privilege provided to journalists under the First Amendment to 15 the United States Constitution. 16 II. FACTUAL BACKGROUND 17 Paul Anderegg is a journalist employed by KGTV, a San Diego-based television 18 station and news website operator owned by The E.W. Scripps Company. (Declaration of 19 Paul Anderegg ("Anderegg Deck"), U 1.) In the course of his employment, he regularly 20 covers accidents and other mishaps on highways and roadways in the San Diego area. (Id., 21 at Tj 2.) On the night of July 18, 2017, in the course of his work as a reporter for KGTV, he 22 learned that an ambulance operator had seen a car stopped in the right lane of southbound 23 Interstate 5. (Id., at ^ 3.) He travelled to the scene to observe and record it for potential 24 later reporting and broadcast by KGTV. (Ibid.) While he was at the scene, a collision 25 occurred, with another driver crashing into the stalled car. (Id., at ^ 4.) He recorded video 26 of that accident, and that video was later broadcast as part of a news report by KGTV. 27 (Ibid.) 28 -3SMRH:485456022.2 MOTION TO QUASH SUBPOENA TO JOURNALIST 1 Subsequently, on January 25, 2018, a representative of the San Diego County 2 District Attorney's office called him and told him the District Attorney's office would be 3 sending a subpoena seeking his testimony as a witness. (Id., at 5.) A copy of such a 4 subpoena was sent to KGTV (but not to Mr. Anderegg) on January 29, 2018. (Declaration 5 of David Giles ("Giles Decl."), ^ 2 and Ex. A.) The copy of the subpoena sent to KGTV 6 was not accompanied by any explanation of the need for Mr. Anderegg's testimony. (Id., 7 at Tf 2.) Counsel for KGTV objected to the subpoena, and the objections were received by 8 the District Attorney's office not later than February 13, 2018. (Id., If 3 and Ex. B.) Not 9 until the next day, February 14, 2018, was Mr. Anderegg actually served with the 10 subpoena. (Anderegg Decl., ] 6 and Ex. A.) The subpoena demands his appearance on the 11 afternoon of February 15, 2018—the next day. (Id., ^ 6 and Ex. A.) The subpoena was 12 not accompanied by any explanation of the need for the testimony sought. (Id., at ] 6.) 13 III. 14 15 16 A. THE SUBPOENA IS IMPROPER AND SHOULD BE QUASHED The Subpoena Was Issued and Served in Violation of California Law Governing the Service of Subpoenas on Journalists As noted, the subpoena by the prosecution in this case was issued on February 13, 17 2018, and was served the next day, February 14, 2018. It demands an appearance on 18 February 15, 2018—one day after being served. The reporter was informed prior to the 19 service of the subpoena that the prosecution intended to serve him with a subpoena, and a 20 copy of the subpoena was also sent to KGTV. However, neither the subpoena sent to 21 KGTV nor the subpoena served on Mr. Anderegg were preceded or accompanied by any 22 explanation of why the requested testimony would purportedly be of material assistance to 23 the prosecution or why alternate sources of information are not sufficient. Therefore, the 24 issuance and service of the subpoena violate California law, and the subpoena must be 25 quashed. 26 Code of Civil Procedure section 1986.1(b)(2) governs the service of subpoenas on 27 journalists in both civil and criminal cases, and it provides as follows: 28 -4SMRH:485456022.2 MOTION TO QUASH SUBPOENA TO JOURNALIST To protect against the inadvertent disclosure by a third party of information protected by Section 2 of Article I of the California Constitution, a party issuing a subpoena in any civil or criminal proceeding to a third party tnat seeks the records of a journalist shall, except in circumstances that pose a clear and substantial tnreat to the integrity of the criminal investigation or present an imminent risk of death or serious bodily harm, provide notice of the subpoena to the journalist and the publisher or the newspaper, magazine, or other publication or station operations manager of the broadcast station that employs or contracts with the journalist, as applicable, at least five days prior to issuing the subpoena. The party issuing the subpoena shall include in the notice, at a minimum, an explanation of why the requested records will be of material assistance to the party seeking them and why alternate sources of information are not sufficient to avoid the need for the subpoena. 1 2 3 4 5 6 7 8 (Civ. Proc. Code § 1986.1, subd. (b)(2), emphasis added.) Because the prosecution failed 9 to provide any explanation of the purported need for the testimony it seeks, the subpoena 10 does not comply with the most basic requirements for a subpoena on a journalist under 11 California law. It must therefore be quashed. 12 B. 14 The Subpoena Seeks Testimony That Is Absolutely Privileged under the California Shield Law 1. The California Shield Law Provides an Absolute Privilege Against Compelled Disclosure of Any Unpublished Information in This Case 15 The California Constitution provides that no reporter may be held in contempt for 13 16 refusing to disclose any unpublished information obtained or prepared in gathering, 17 receiving or processing information for communication to the public. (Cal. Const., art. I, 18 § 2, subd. (b); see also Evid. Code § 1070.) The privilege afforded by California law for 19 unpublished information or knowledge possessed by a journalist is "absolute" in all cases 20 except where it comes into conflict with the federal constitutional rights of a criminal 21 defendant. (Miller v. Superior Court (1999) 21 Cal. 4th 883, 890-91.) It may not be 22 overcome by the prosecution in a criminal case. {Id., at 897, 901.) 23 Rigorous enforcement of the journalist's privilege is critical to protecting the 24 autonomy of the free press: 25 26 27 As the institution that gathers and disseminates information, journalists often serve as the eyes and ears of the public. [Citations.] Because journalists not only gather a great deal of information, but publicly identify themselves as possessing it, they are especially prone to be called upon by litigants seeking to minimize the costs of obtaining needed information. [Citations.] 28 -5SMRH:485456022.2 MOTION TO QUASH SUBPOENA TO JOURNALIST 1 {Id. at 898.) "[T]he compelled disclosure of non-confidential information harms the press' 2 ability to gather information by 'damaging confidential sources' trust in the press' capacity 3 to keep secrets and, in a broader sense, by converting the press in the public's mind into an 4 investigative arm of prosecutors and the courts.' " (Shoen v. Shoen ("Shoen 7") (9th Cir. 5 1993) 5 F.3d 1289, 1295.) "The threat to the autonomy of the press is posed as much by a 6 criminal prosecutor as by other litigants." {Miller, supra, 21 Cal.4th at 898.) Accordingly, 7 it is essential that this Court recognize and protect the reporter's privilege in this case. 2. 8 9 The California Shield Law Applies to the Testimony Sought by the Prosecution California's shield law applies to the testimony the prosecution seeks in this case. 10 11 The shield law protects reporters from compelled disclosure of "any unpublished 12 information obtained or prepared in gathering, receiving or processing of information for 13 communication to the public." (Cal. Const., art. I, § 2, subd. (b); accord Evid. Code 14 § 1070, subd. (b).) Mr. Anderegg was gathering information for communication to the 15 public at the time he obtained the information the prosecution seeks. The California 16 Supreme Court has specifically held that, for purposes of the shield law, a journalist 17 capturing images of an automobile crash on a public highway is engaged in the 18 newsgathering process. New York Times Co. v. Superior Court (1990) 51 Cal.3d 453, 456 19 [holding that a newspaper photographer was protected by the shield law for his reporting 20 on an accident on a public highway when, "acting within the scope of his employment, 21 [he] took several photographs of the accident scene"].)1 The California Supreme Court has 22 23 24 25 26 27 28 That the information obtained by Mr. Anderegg as the result of observing and videotaping the stalled car and the subsequent accident are protected by the shield law is confirmed by the California Supreme Court's action on another case, as well. In 1989, prior to the decision in New York Times Co. v. Superior Court, a Court of Appeal addressed a subpoena to a reporter in circumstances nearly identical to those in this case. A reporter had gone to the scene of an accident on Highway 99 in Bakersfield, California. While filing an interview at the scene, another car hit accident debris and went out of control. The driver was seriously injured. In an ensuing lawsuit, the driver sought the testimony of the reporter, who acknowledged having observed the accident, but who 1 -6SMRH:485456022.2 MOTION TO QUASH SUBPOENA TO JOURNALIST 1 expressly rejected the notion that "a reporter's percipient observations of a non­ 2 confidential occurrence are not 'information' within the meaning of the shield law." 3 (Delaney v. Superior Court (1990) 50 Cal.3d 785, 799 ["Under Delaney's strained 4 interpretation, a reporter or any other eyewitness to an automobile accident would have no 5 'information' as to the accident. This flies in the face of reason and plain English."].) 6 Thus, the circumstances under which Mr. Anderegg observed the events that are the 7 subject of this prosecution clearly fall within the scope of the shield law. The shield law's capacious definition of unpublished information plainly 8 9 encompasses any information the prosecution could seek from Mr. Anderegg. 10 " '[U]npublished information' includes information not disseminated to the public by the 11 person from whom disclosure is sought, whether or not related information has been 12 disseminated and includes, but is not limited to, all notes, outtakes, photographs, tapes or 13 other data of whatever sort not itself disseminated to the public through a medium of 14 communication .. . ." (Cal. Const., art. I, § 2, subd. (b); accord Evid. Code § 1070, 15 subd. (c).) "[T]he shield law applies to unpublished information whether confidential or 16 not " (Miller, supra, 21 Cal.4th at 897.) Furthermore, the shield law's "absolute" 17 immunity protects Mr. Anderegg even if "the assertion of this immunity might lead to the 18 inability of the prosecution to gain access to all the evidence it desires." (Id., at 898.) 19 Accordingly, the Court should quash the prosecution's subpoena. The prosecution may argue that Mr. Anderegg waived his protection under the 20 21 shield law by calling 911 and stating that one of the occupants of the stalled car was trying 22 to push it out of the traffic lane and seemed incoherent or unresponsive. To the extent the 23 24 refused to testify based on the shield law. The Court of Appeal held that the reporter's "happenstance" observation of the accident was not protected by the shield law. (Liggett v. 25 Superior Court (1989) Cal.App.3d 426.) The Supreme Court granted review and, after its 26 decisions in New York Times Co. v. Superior Court and Delaney v. Superior Court (1990) 50 Cal.3d 785, confirming that the protection afforded by the shield law is absolute except 27 where it conflicts with the federal constitutional rights of a criminal defendant, vacated the Court of Appeal decision and directed the Court of Appeal to reconsider. (Liggett v. 28 Superior Court, Supreme Court Case No. S011581, order entered Novemberl5, 1990.) -Jz. SMRH:485456022.2 MOTION TO QUASH SUBPOENA TO JOURNALIST 1 prosecution provides evidence of such a communication, it does not constitute a waiver of 2 the protection of the shield law. The protection afforded by the shield law is an immunity 3 from contempt, not merely a privilege, and therefore cannot be waived by a limited 4 disclosure of information by a journalist. {McGarryv. University of San Diego (2007) 154 5 Cal.App.4th 97, 119-21.) Moreover, finding a waiver and imposing a duty to testify under 6 these circumstances would defeat the central purpose of the shield law or would lead to a 7 result plainly contrary to public policy. The core purpose of the shield law is ensuring that 8 the public is informed about newsworthy events. (See, e.g., Delaney v. Superior Court, 9 supra, 50 Cal.3d at 802, n. 13.) If reporters could not rely on the shield law to protect 10 them from becoming unwilling witnesses in criminal proceedings based on notifying 1 1 emergency responders of dangerous situations they witness in the course of their work, 12 they would either have to forego observing such situations or refrain from notifying first 13 responders. The public would be harmed in either event. 14 C. 15 16 The Subpoena Seeks Testimony that Is Subject to a Qualified Privilege under the First Amendment to the United States Constitution In addition to the absolute immunity provided by California's shield law, Mr. 17 Anderegg is also entitled to invoke the "qualified privilege against compelled disclosure" 18 afforded by the First Amendment to the United States Constitution. (Shoen I, supra, 5 19 F.3d at 1292.) Under the First Amendment, a party may only compel disclosure from a 20 non-party journalist if it can demonstrate that the information it seeks is "(1) unavailable 21 despite exhaustion of all reasonable alternative sources; (2) noncumulative; and (3) clearly 22 relevant to an important issue in the case." {Shoen v. Shoen ("Shoen IF) (9th Cir. 1995) 48 23 F.3d 412, 415.) Like the California shield law, First Amendment protection applies to all 24 unpublished information. {Shoen I, supra, 5 F.3d at 1294-1296.) "Once the privilege is 25 properly invoked, the burden shifts to the requesting party to demonstrate a sufficiently 26 compelling need for the journalist's materials to overcome the privilege." {Shoen I, supra, 27 5 F.3d at 1296.) 28 -8SMRH:485456022.2 MOTION TO QUASH SUBPOENA TO JOURNALIST As discussed above, the prosecution ignored the requirement under Civil Procedure 1 2 Code section 1986.1, subdivision (b)(2), that it provide "at a minimum, an explanation of 3 why the requested records will be of material assistance to the party seeking them and why 4 alternate sources of information are not sufficient to avoid the need for the subpoena." 5 Accordingly, it is not possible at this time for Mr. Anderegg to anticipate how the 6 prosecution might attempt to meet its burden of establishing the three elements that it must 7 prove in order to overcome Mr. Anderegg's privilege under the First Amendment. 8 However, it appears highly unlikely that the prosecution will be able to prove that any 9 observations Mr. Anderegg may have made about the defendant are not cumulative of 10 observations that law enforcement officers may have made, evidence from blood tests or 11 other examination of the defendant after the incident, or the broadcast video of the incident 12 (which KGTV has already provided). Barring a demonstration by the prosecution that its subpoena meets the three 13 14 elements required under the First Amendment, the Court should quash the subpoena on 15 federal constitutional grounds in addition to quashing the subpoena pursuant to 16 California's shield law. In the event that the prosecution attempts to meet its burden of 17 proving the three elements, Mr. Anderegg requests an opportunity to respond. 18 IV. CONCLUSION 19 This subpoena must be quashed in light of the immunities and privileges afforded to 20 all California journalists. If journalists' rights are not protected with unwavering diligence, 21 they will be forced to weigh whether to pursue information in the reporting process against 22 the prospect that they will be called in to testify. Because a reporter cannot know at the 23 outset of an investigation whether his work will someday pique a prosecutor's interest, the 24 shield law can only accomplish its purpose of encouraging the free flow of information if it 25 is enforced always, not merely when it is convenient. This Court should protect Mr. 26 Anderegg's rights, which are guaranteed by both the California and the United States 27 Constitutions, and in so doing, this Court will also protect the public's interest in 28 -9SMRH:485456022.2 MOTION TO QUASH SUBPOENA TO JOURNALIST 1 maintaining vigorous, aggressive, and independent journalism. The Court can and must 2 quash the subpoena. 3 Dated: February 15, 2018 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP 4 5 6 7 Attorneys for Non-Party Witness Paul Anderegg 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -10SMRH:485456022.2 MOTION TO QUASH SUBPOENA TO JOURNALIST