The Honorable Nelson K. H. Lee Hearing Date: July 16, 2020 at 1:30 pm 1 2 3 4 5 6 SUPERIOR COURT OF THE STATE OF WASHINGTON KING COUNTY 7 8 STATE OF WASHINGTON SW No. 20-0-616926 9 NEWS MEDIA REPLY IN SUPPORT OF OBJECTIONS AND REQUEST TO QUASH PURPORTED SUBPOENA FOR PROTECTED NEWSGATHERING MATERIAL 10 COUNTY OF KING 11 12 13 14 The News Media entities targeted in the Seattle Police Department’s proposed subpoena 15 submit this Reply in further support of their objections and request to quash. In its July 13, 2020 16 Response memorandum (“Opp.”), SPD fails to justify, by “clear and convincing” evidence, 17 compelled production of the privileged newsgathering material at issue here. See 18 RCW 5.68.010. SPD’s asserted need to rifle through raw media footage rests on readily 19 distinguishable cases and on sheer speculation, which is an insufficient basis for breaching the 20 journalists’ shield. Its response fails to demonstrate that it has exhausted alternative sources for 21 the information it is demanding from the press. SPD also downplays the significant safety risk to 22 local journalists posed by the subpoena, which is contrary to the public interest. The Court 23 should decline to enforce the subpoena. 24 25 I. THE SUBPOENA IS PROCEDURALLY IMPROPER. SPD argues that Washington’s legal restrictions on newsroom search warrants require 26 merely that a demand for journalistic work product be “served” in accordance with CR 45(b), 27 OBJECTIONS TO SUBPOENA - 1 4833-3534-2275v.1 0050033-000558 Davis Wright Tremaine LLP L AW O FFICE S 920 Fifth Avenue, Suite 3300 Seattle, WA 98104-1610 206.622.3150 main · 206.757.7700 fax 1 and that none of the other protections applicable to third-party subpoenas duces tecum apply 2 here. Opp. at 5-6. This is an untenable reading of the law, and attempts to paper over the facial 3 procedural defects in SPD’s purported subpoena. See Objections at 4-6. In Washington, police 4 may obtain evidence from the news media “only through a subpoena duces tecum.” RCW 5 10.79.015(3) (emphasis added). And “subpoenas in criminal proceedings are issued in the same 6 manner as subpoenas in civil actions, so we look to the civil rules to determine whether they 7 require notice. Civil Rule (CR) 45 sets out the rules for issuing subpoenas in civil cases.” State 8 v. White, 126 Wn. App. 131, 134, 107 P.3d 753, 754 (2005). Civil Rule 45, in turn, provides 9 third-party recipients of subpoenas procedural protections, such as the right to object; to shift the 10 burden to the issuing party to justify the subpoena; and to have an avenue for appeal. See 11 Objections at 6; CR 45(a), (c); Republic of Kazakhstan v. Does 1-100, 192 Wn. App. 773, 781, 12 368 P.3d 524 (2016) (nonparty appeal of denial of motion to quash subpoena); Eugster v. City of 13 Spokane, 121 Wn. App. 799, 91 P.3d 117 (2004) (appeal of order quashing CR 45 subpoena 14 duces tecum). SPD contends that CrR 2.3(f)((2) specifically incorporates only CR 45’s service 15 16 provision, and therefore that none of CR 45’s other provisions – not even the right to object to 17 overbroad subpoenas – applies. Opp. at 6, 12-13. This argument cannot be squared with the 18 plain language of RCW 10.79.015(3), which unambiguously requires that demands for news 19 material be made via a “subpoena duces tecum.” SPD’s position, if accepted, would mean that 20 the press is entitled to less protection than other subpoenaed third parties who – even in criminal 21 matters – have a right to object on overbreadth and other grounds. See CrR 4.8(b)(4).1 That 22 view is contrary to the history of RCW 10.79.015(3). See Objections at 5; Jimenez v. City of 23 24 1 SPD does not really believe its own argument on this point, as evidenced by its offer to subject its subpoena to a “protective order” that would not apply were it simply serving a search 26 warrant. Opp. at 13. SPD’s proposed protective order does not address the News Media’s overbreadth concerns; among other things, it would still require full production to the police of 27 scores of individual journalists’ footage. See Esler Decl. Ex. 1. 25 OBJECTIONS TO SUBPOENA - 2 4833-3534-2275v.1 0050033-000558 Davis Wright Tremaine LLP L AW O FFICE S 920 Fifth Avenue, Suite 3300 Seattle, WA 98104-1610 206.622.3150 main · 206.757.7700 fax 1 Chicago, 733 F. Supp. 2d 1268, 1273 (W.D. Wash. 2010) (quashing subpoena as unduly 2 burdensome, in addition to violating the journalist’s privilege). 3 SPD also ignores the News Media’s objection that this matter remains pending under a 4 search warrant cause number that is not available on the public docket. This defect is of 5 constitutional magnitude, because it deprives the public of its right to access judicial documents. 6 State v. Richardson, 177 Wn.2d 351, 360, 302 P.3d 156 (2013) (article I, section 10 right to open 7 court records applies to court dockets), citing Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 640 8 P.2d 716 (1982). This further demonstrates that SPD has failed to follow proper procedure in 9 pursuing the subpoena. 10 11 II. SPD HAS NOT SHOWN A COMPELLING NEED. To overcome the shield law’s protections, SPD’s burden was to establish, by “clear and 12 convincing evidence,” that the news footage it seeks is both “highly material and relevant” and 13 “critical or necessary[.]” RCW 5.68.010(2)(b)(i-ii). It is well established that this requirement 14 of heightened need cannot be demonstrated by speculation. Objections at 9-10; see also, e.g., 15 State v. Rinaldo, 102 Wn.2d 749, 760, 689 P.2d 392 (1984) (Dimmick, J., concurring) 16 (journalist’s common law shield cannot be overcome by “affidavit broadly speculat[ing], 17 without citing specifics, that information needed for the defense was being held by the 18 newspaper”); Durand v. Massachusetts Dep't of Health, 2013 WL 2325168, at *1 (D. Mass. May 19 28, 2013) (granting motion to quash under journalist’s shield where alleged relevance of 20 information was “based on speculation”); People v. Novak, 41 Misc. 3d 749, 755, 971 N.Y.S.2d 21 853, 857 (2013) (enforcing shield statute where materiality was “speculative”). 22 Yet speculation is all that SPD offers. It contends the News Media’s raw footage “may 23 be the best evidence available to identify” suspects Opp. at 9 (emphasis added). This wholly 24 conclusory assertion of possible relevance is not enough to overcome the News Media’s 25 privilege. See In re Subpoena Duces Tecum to Ayala, 162 Misc. 2d 108, 114, 616 N.Y.S.2d 575, 26 579 (1994) (contention that news video “‘may’ be [a litigant’s] most reliable version” of events 27 at issue fails to overcome privilege; “Mere speculation without demonstrative factual OBJECTIONS TO SUBPOENA - 3 4833-3534-2275v.1 0050033-000558 Davis Wright Tremaine LLP L AW O FFICE S 920 Fifth Avenue, Suite 3300 Seattle, WA 98104-1610 206.622.3150 main · 206.757.7700 fax 1 corroboration is legally insufficient to impinge upon the First Amendment safeguards embodied 2 within” state shield laws). At best, SPD is raising the mere possibility that unaired journalistic 3 work product might produce better images than the hours of live and otherwise published images 4 that SPD already has available from other sources. Magan Aff. at 15. SPD already has, for 5 example, a head-on image of the suspect in the red Adidas sweatsuit, and a clear picture of the 6 arson suspect in the knit cap (id. at 10, 13); and footage of the “suspect wearing a Rolling Stones 7 sweatshirt” is widely available online.2 SPD offers no reason to believe that any better images 8 exist in the raw footage. Its mere conjecture “is not enough to compel journalists to empty their 9 newsroom files.” Flynn v. Roanoke Companies Grp., 2007 WL 4564113, at *3 (N.D. Ga. Dec. 10 21, 2007) (emphasis added). SPD has failed to show any “actual,” as opposed to merely 11 “potential” relevance,3 and it cannot show that any prosecution “virtually rises or falls with the 12 admission or exclusion” of the evidence sought from the press. In re Application to Quash 13 Subpoena to NBC, 79 F.3d 346, 351 (2d Cir. 1996). The shield law applies because SPD has 14 offered no clear and convincing evidence that the subpoena seeks “highly material and relevant” 15 and “critical or necessary” information. 16 III. SPD HAS NOT SHOWN IT HAS EXHAUSTED ALTERNATIVE SOURCES. 17 The News Media’s Objections identified multiple independent ways in which SPD has 18 failed to exhaust alternative sources for the information it is seeking from the press, as required 19 to overcome the shield law’s protection. RCW 5.68.010(2)(b)(iii); Objections at 10. SPD fails 20 to explain why it has disregarded the many obvious alternatives to obtaining this information. It 21 asserts merely that it has reviewed surveillance footage from three nearby businesses, and images 22 sent to it by citizens and published by the News Media. Opp. at 11. SPD does not assert that it 23 has reviewed all publicly available footage, such as social media posts from May 30, 2020; 24 indeed, it fails to indicate whether it has completed a review of the footage it already has. Nor 25 does SPD dispute that it has failed to issue search warrants to other businesses with surveillance 26 2 27 3 See, e.g. https://www.thesun.co.uk/news/11748320/security-guard-seattle-protest-rifle/. Shoen v. Shoen, 48 F.3d 412, 416 (9th Cir. 1995). OBJECTIONS TO SUBPOENA - 4 4833-3534-2275v.1 0050033-000558 Davis Wright Tremaine LLP L AW O FFICE S 920 Fifth Avenue, Suite 3300 Seattle, WA 98104-1610 206.622.3150 main · 206.757.7700 fax 1 cameras in the area, or to pursue other readily available alternatives such as publicizing the 2 images it already possesses to seek the public’s help in identifying suspects, or interviewing 3 witnesses to the events described in its supporting affidavit. In short, SPD has failed to meet its 4 burden of showing, with clear and convincing evidence, that it has no “reasonable and available 5 means to obtain” the information from alternative sources. RCW 5.68.010(2)(b)(iii). The primary case SPD relies on, In re Grand Jury Subpoena to NBC, 178 Misc.2d 1052, 6 7 683 N.Y.S.2d 708 (1998), is readily distinguishable. In that case, the court approved a subpoena 8 for media footage of an assault on police officers only after presented with evidence that “all 9 police officers and supervisors claiming knowledge of the circumstances of the assaults were 10 interviewed (with the exception of one who has not yet returned to duty because of injuries) and 11 all of these officers reviewed the available tapes to see if they could recognize the location of the 12 attacks on them and identify the persons responsible.” Id., 683 N.Y.S.2d at 710.4 SPD has not 13 demonstrated such exhaustion of alternate sources here. 14 IV. SPD’S SUBPOENA IS NOT IN THE PUBLIC INTEREST. SPD pays lip service to the shield law’s public interest provision, arguing that the 15 16 requested unpublished news material was photographed in a public space. Opp. at 12. But the 17 shield law requires the Court to determine whether “[t]here is a compelling public interest in the 18 disclosure,” even in cases involving non-confidential newsgathering material. RCW 19 5.68.010(2)(b)(iv). SPD attempts to downplay the compelling public interest in assuring that the News 20 21 Media is not perceived as an arm of law enforcement, dismissing these concerns as existing even 22 23 4 The case also is distinguishable on the ground that the New York shield statute, unlike RCW 5.68.010, lacks a “public interest” requirement. Indeed, the court expressly declined to weigh 24 “the value to the prosecution” of the news outtakes against “the qualified privilege afforded to 25 the media against disclosure.” Id. at 711. SPD’s reliance on In re Grand Jury Subpoena, 201 F. App’x 430 (9th Cir. 2006) is entirely misplaced, as the Ninth Circuit expressly found that the 26 recalcitrant witness objecting to the subpoena was not a working journalist, and thus was not subject to California’s shield law. Id. at 433 n.1 27 OBJECTIONS TO SUBPOENA - 5 4833-3534-2275v.1 0050033-000558 Davis Wright Tremaine LLP L AW O FFICE S 920 Fifth Avenue, Suite 3300 Seattle, WA 98104-1610 206.622.3150 main · 206.757.7700 fax 1 “in the absence of any subpoena.” Opp. at 12. This argument blithely disregards the public 2 interest, recognized by case law, in assuring that journalists are not treated or perceived “as an 3 adjunct of the police or of the courts,” because doing so imperils both their ability to report the 4 news, and their physical safety. Shoen v. Shoen, 5 F.3d 1289, 1295 (9th Cir. 1993) (citation 5 omitted). The News Media documented the very real risks SPD’s subpoena poses to local 6 journalists, including specifically in the context of covering the mass demonstrations and civil 7 unrest that has unfolded in Seattle since May 30. See Objections at 11-12 & Gawlowski Decl. 8 SPD cannot meet its burden under the shield law simply by waving off these concerns. The 9 Court should hold that SPD has failed to show, by clear and convincing evidence, that the 10 disclosures sought by SPD’s subpoena are in the public interest. 11 V. CONCLUSION For the reasons set out above and in the News Media’s objections, the Court should enter 12 13 an order holding that the Subpoena is not enforceable. 14 --------------- 15 I certify that this memorandum contains 1729 words, in compliance with the Local Civil 16 Rules. 17 DATED this 14th day of July, 2020. 18 Davis Wright Tremaine LLP Attorneys for Seattle Times Co., Sinclair Media of Seattle, LLC, KING Broadcasting Company, KIRO TV, Inc. and Fox Television Stations, LLC 19 20 21 By /s/ Eric M. Stahl Eric M. Stahl, WSBA #27619 22 23 24 25 26 27 OBJECTIONS TO SUBPOENA - 6 4833-3534-2275v.1 0050033-000558 Davis Wright Tremaine LLP L AW O FFICE S 920 Fifth Avenue, Suite 3300 Seattle, WA 98104-1610 206.622.3150 main · 206.757.7700 fax DECLARATION OF SERVICE 1 2 The undersigned, hereby declares under the laws of the State of Washington, that on this 3 day he caused to be served, a copy of the foregoing document on the following counsel of record 4 in the manner indicated: 5 6 7 8 9 Brian W. Esler Miller Nash Graham & Dunn LLP Pier 70, 2801 Alaskan Way, Suite 300 Seattle, WA 98121-1128 brian.esler@millernash.com nick.valera@millernash.com Gill.Fadaie@millernash.com 10 Gary Ernsdorff King County Prosecutor’s Office 11 516 3rd Avenue, Suite W554 Seattle, WA 98104-2390 12 Gary.ernsdorff@kingcounty.gov 13 Cherie Getchell 14 Seattle City Attorney’s Office 610 5th Avenue 15 Seattle, WA 98104-1900 Cherie.getchell2@seattle.gov 16 17 [ ] Via First Class Mail [ ] Via Overnight Mail [X] Via Email [ ] Via Messenger [ ] Via First Class Mail [ ] Via Overnight Mail [X] Via Email [ ] Via Messenger [ ] Via First Class Mail [ ] Via Overnight Mail [X] Via Email [ ] Via Messenger DATED this 14th day of July, 2020, at Seattle, Washington. 18 19 /s/ Eric M. Stahl Eric M. Stahl, WSBA #27619 20 21 22 23 24 25 26 27 OBJECTIONS TO SUBPOENA - 7 4833-3534-2275v.1 0050033-000558 Davis Wright Tremaine LLP L AW O FFICE S 920 Fifth Avenue, Suite 3300 Seattle, WA 98104-1610 206.622.3150 main · 206.757.7700 fax