Opinion
00 Civ. 0676 (JCF).
November 14, 2001
MEMORANDUM AND ORDER
The plaintiff, Torah Soft Ltd., filed this action for breach of contract and related claims against the defendants, Michael Drosnin and Simon Schuster, Inc. The complaint alleges that Mr. Drosnin failed to provide an acknowledgment of the plaintiff in his book, The Bible Code, as previously agreed upon.
The current dispute involves the discovery of two documents. The first, a memorandum written by Mr. Drosnin and addressed to a Simon Schuster executive, was produced by Simon Schuster, but in redacted form at Mr. Drosnin's request. I granted the plaintiff's request for production of the unredacted document. John Doe, an individual mentioned in the document, now seeks to intervene and requests a protective order barring production of the unredacted memorandum. The second document is a letter from Mr. Drosnin to Yitzhak Rabin (the "Rabin Letter") that the defendants seek to withhold on grounds that it is irrelevant and that its production would violate the New York Press Shield Law (the "Press Shield Law"). For the reasons that follow, I grant Mr. Doe's motion to intervene but deny his request for a protective order, and I deny the defendants' application for an order barring production of the Rabin letter.
Background
On June 20, 2000, Mr. Drosnin's counsel wrote a letter to the Court requesting a protective order with respect to a memorandum from Mr. Drosnin to Dick Synder, a Simon Schuster executive (the "memo" or the "Drosnin memo"). In the memo, Mr. Drosnin describes two reports that purportedly verify "the hidden text encoded in the Bible." One document is described as a scientific report authored by Dr. Eliyahu Rips, and reference to the other report is redacted. The memo had been produced by Simon Schuster minus three redacted paragraphs discussing the second report, and Mr. Drosnin sought to bar production of the unredacted memo based on the New York Press Shield Law. (Declaration of Eric S. Sherby dated Aug. 20, 2001 ("Sherby Decl."), ¶ 11). In response, the plaintiff filed a motion to compel production of the complete document on July 12, 2000. After an in camera inspection, I ordered production of the unredacted version of the memo on September 12, 2000. Mr. Drosnin applied for reconsideration, which I denied on September 28, finding that the text of the document "indicated that it was only intended to be kept confidential temporarily." (Order dated Sept. 28, 2000). Mr. Drosnin then filed an application for a writ of mandamus, which was denied by the Second Circuit on December 21, 2000. The Court of Appeals found that Mr. Drosnin had not met "the standard for mandamus, nor demonstrated the requisite intent to disseminate the privileged material to the public."In re: Michael Drosnin, No. 00-3073 (2d Cir. Dec. 21, 2000) (order denying mandamus). Thereafter, Mr. Drosnin made still another application to be heard on this issue, which I denied on July 11, 2001.
On August 6, 2001, John Doe filed a motion in this Court seeking intervention pursuant to Rule 24(a)(2) and (b)(2) of the Federal Rules of Civil Procedure, based on his confidentiality interest in the memo, and requesting a protective order pursuant to Rule 26(c) prohibiting production of the unredacted document.
Several days earlier, the defendants had objected to the production of a letter from Mr. Drosnin to former Israeli Prime Minister Yitzhak Rabin. (Letter of William H. Crosby, Jr. dated Aug. 2, 2001). The letter, dated September 1, 1994, explains that Mr. Drosnin had uncovered information hidden in the Bible indicating that Mr. Rabin's life was in danger. The plaintiff responded that this document should be disclosed because Mr. Drosnin was not a journalist and thus was not protected under the Press Shield Law. (Letter of Howard I. Rhine dated Aug. 2, 2001).
Discussion
A. Intervention
A party seeking intervention as of right under Rule 24(a)(2) must satisfy four elements. Sackman v. Liggett Group, Inc., 167 F.R.D. 6, 20 (E.D.N.Y. 1996). First, the application must be timely. Second, the non-party must have an interest in the subject matter of the action. Third, the applicant's ability to protect his interest may be impaired or impeded by disposition of the action. Finally, the applicant's interest must not be adequately protected by the existing parties. Id.
John Doe argues that his application is timely because the unredacted document in question has only recently been produced for an in camera inspection. The plaintiff counters that the motion is tardy because Mr. Doe failed to intervene in September 2000 when this Court originally ordered production of the document. (Sherby Decl. ¶ 46). But the motion was filed only a month after Mr. Drosnin had exhausted his numerous applications to prevent production. Had Mr. Doe filed his motion before that time, it could have been denied because the defendant was arguably able to adequately protect the applicant's interest. See Fed.R.Civ.P. 24(a)(2). Furthermore, when Mr. Doe attempted to file an order to show cause while Mr. Drosnin's mandamus petition was pending, I declined to accept the order, directing Mr. Doe to wait until after the Second Circuit had rendered a decision. (Reply Declaration of Jessie F. Beeber dated Sept. 5, 2001, ¶¶ 3-4). Accordingly, Mr. Doe's application is timely.
Assuming for the purposes of the motion to intervene that the memo contains confidential information, John Doe has established an interest in the subject matter of the current action. Production of the unredacted memorandum would disclose his identity and other allegedly confidential information. See Blum v. Schlegel, 150 F.R.D. 38, 39 (W.D.N.Y. 1993) (granting intervention of third party for limited purpose of protecting her interest in confidentiality of information sought by plaintiff in discovery).
Continuance of the action certainly will impede Mr. Doe's ability to protect his interest. If he is not able to intervene and protect his confidentiality interest, this Court will compel Simon Schuster to produce the full document, thus revealing the purportedly confidential information.
Mr. Drosnin has repeatedly tried to keep the full contents of the memo from being produced. He has failed, and there does not appear to be any other manner in which he or Simon Schuster could seek relief on this issue. Accordingly, there is no party able to adequately protect Mr. Doe's interest.
Based on the four relevant factors, then, John Doe's motion to intervene is granted.
B. The Drosnin Memo
John Doe first argues that the Drosnin memo is irrelevant to this action and therefore should not be produced pursuant to Rule 26(b)(1) of the Federal Rules of Civil Procedure. He next maintains that disclosure would be unduly burdensome under Rule 26(c). Finally, he claims that production of the memo will undermine the purposes of the Press Shield Law.
1. Relevancy
Rule 26(b)(1) allows for the broad discovery of information "reasonably calculated to lead to the discovery of admissible evidence." Recent amendments to the Rule have narrowed discovery to that related to any "claim or defense of any party." However, "[f]or good cause, the court may order discovery of any matter relevant to the subject matter involved in the action." Fed.R.Civ.P. 26(b)(1). In addition, Rule 26(b)(2) now provides that the court may limit discovery upon finding that "(i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive, (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit." Fed.R.Civ.P. 26(b)(2).
Mr. Doe argues that the redacted portions of the memo do not bear on the claims of the case, basing his argument on the decision in Blum. (Memorandum of Law on Behalf of "John Doe," a Confidential Source, In Support of His Motion for Intervention and A Protective Order ("Doe Memo.") at 7). The plaintiff in Blum brought suit alleging that he had been improperly denied tenure on account of his exercise of his free speech rights. He sought discovery of the tenure review file of a non-party professor to support his claim. After reviewing the file, the court found no information that reasonably could lead to the discovery of any evidence to support the plaintiff's theory of the case. Blum, 150 F.R.D. at 40.
In contrast, the document at issue in this case is clearly relevant. At the heart of the plaintiff's case is the contention that Mr. Drosnin agreed to mention the plaintiff in his book in exchange for assistance from Torah Soft. This aid primarily consisted of the use of Torah Soft's software to decipher the code in the Bible and use of printouts generated by the software. (First Amended Compl. ¶¶ 2, 3, 34, 47, 98, attached as Exh. C to Notice of Removal). The memo identifies who Mr. Drosnin was crediting for the research supporting Bible code theory. The memo is also relevant for impeachment purposes: as I implied in my memorandum endorsement of September 28, 2000, Mr. Drosnin asserts in one of the redacted paragraphs that Mr. Doe agreed to a future disclosure of his reports, but Mr. Doe denies that any such agreement ever existed. (Reply Declaration of John Doe dated Sept. 2, 2001 ("Doe Decl."), ¶¶ 8-9).
2. Protective Order
Under Rule 26(c), a court upon a showing of good cause may "make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Fed.R.Civ.P. 26(c). The applicant must make "a particular and specific demonstration of fact, as distinguished from general, conclusory statements, revealing some injustice, prejudice or consequential harm that will result if protection is denied." Blum, 150 F.R.D. at 41 (citations omitted).
Mr. Doe argues that he will be subjected to burden and annoyance if the full memo is produced because Torah Soft will likely seek further discovery from him. However, this argument is premature since any future request for discovery will be decided on its own merits.
Mr. Doe also maintains that compelling production of the document will be oppressive and unfair because it will force the defendants to reveal information provided by Mr. Doe in strict confidence. (Doe Memo. at 8). The information cited in the memo, however, is not of a confidential nature. Again, one of the redacted paragraphs makes clear that John Doe had agreed to future disclosure of the two reports mentioned in the memo. See People v. LeGrand, 67 A.D.2d 446, 451-52, 415 N.Y.S.2d 252, 256 (2d Dep't 1979) (where the information was "imparted for the express purpose of appearing in appellant's forthcoming book," there was no "agreement of confidentiality; it was, at best, an agreement to postpone divulgence of the information until the book was published").
Mr. Doe now claims that there was never any such arrangement and that Mr. Drosnin did not have permission to divulge information to Simon Schuster about the two reports. (Doe Decl. ¶¶ 8-9). Nevertheless, to invoke the privilege of confidentiality, Mr. Doe "carries the burden of proffering at least preponderant evidence of the mutuality of the understanding . . . of confidentiality," which he has failed to do. In re Dack, 101 Misc.2d 490, 501, 421 N.Y.S.2d 775, 783 (Sup.Ct. Monroe Co. 1979) (quotation and citation omitted) (agreement of confidentiality will not be implied where person asked to remain anonymous but reporter failed to agree to withhold source of information). To support his claim of confidentiality, Mr. Doe points to the fact that The Bible Code does not contain any mention of the allegedly privileged reports. (Doe Decl. ¶ 9). However, the agreement at the time the information was supplied to Mr. Drosnin is controlling for the purposes of this discussion, see PPM America, Inc., 152 F.R.D. 32, 36 (S.D.N.Y. 1993), and, as the memo makes clear, either there was a previous understanding that the information could be disclosed at a later date or there was no mutual understanding about the confidentiality of the information. In either scenario, the privilege of confidentiality does not attach. See id. (varying verb tenses in affidavits attesting to agreement of confidentiality indicate lack of mutuality at time of disclosure of information); Dack, 101 Misc.2d at 501, 421 N.Y.S.2d at 783 ("no implication of confidentiality will exist where the facts and circumstances are inconsistent with . . . or opposed to the intention or understanding of either or both of the principals").
Furthermore, even if there was a mutual understanding of confidentiality between Mr. Doe and Mr. Drosnin, and Mr. Drosnin "misspoke [him]self in [the] memo" to Simon Schuster (Letter of Michael Drosnin dated July 11, 2001), the information redacted from the memo, specifically a description of a document supporting the existence of a code in the Bible, is itself not confidential. Although this document was never published in Mr. Drosnin's book, it was sent to a high-ranking government official and contained a warning to him of some apparent danger. Presumably this letter was read by others besides the addressee, destroying any confidentiality.
Therefore, the information in the memo is not confidential, and, if it ever was, it was at most only temporarily so. Accordingly, no protective order is warranted because the memo is no longer privileged.
3. New York Press Shield Law
The New York Press Shield Law protects journalists from being compelled to disclose confidential and non-confidential sources. Mr. Doe claims that production of the memo will "undermine the purpose of" the Press Shield Law. (Doe Memo. at 9). However, only "professional journalists" and "newscasters" as defined in the Press Shield Law can assert the privilege. N.Y. Civ. Rights Law § 79-h(b), (c). Mr. Doe does not claim to be either, and therefore he is not entitled to its protection. See LeGrand, 67 A.D.2d at 451, 415 N.Y.S.2d at 255.
C. The Rabin Letter
The defendants maintain that the Rabin letter is irrelevant to this litigation and consequently need not be produced. They also argue that the letter is protected under the New York Press Shield Law.
1. Relevancy
As stated previously, parties may obtain discovery for matters related to any "claim or defense of any party." Fed.R.Civ.P. 26(b)(1). The Rabin letter is clearly relevant to this action because it discusses a source of the Bible code, which is at issue in this case. It is therefore discoverable.
2. New York Press Shield Law
The plaintiff contends that Mr. Drosnin is not subject to the protections of the Press Shield Law because he is not a professional journalist. The Press Shield Law defines a "professional journalist" as:
one who, for gain or livelihood, is engaged in gathering, preparing, collecting, writing, editing, filming, taping or photographing of news intended for a newspaper, magazine, news agency, press association or wire service or other professional medium or agency which has as one of its regular functions the processing and researching of news intended for dissemination to the public; such person shall be someone performing said function either as a regular employee or as one otherwise professionally affiliated for gain or livelihood with such medium of communication.
N Y Civ. Rights Law § 79-h(a)(6). Because Mr. Drosnin does not fit into any of the first five categories, the issue is whether he was writing for a "professional medium or agency which has as one of its regular functions the processing and researching of news intended for dissemination to the public." This last category was not included in the original 1970 statute, but was added in 1981 after cases such asLeGrand, 67 A.D.2d 446, 415 N.Y.S.2d 252, had been decided. In LeGrand, the court found that an author working on a non-fiction book about a "crime family" was not entitled to protection under the Press Shield Law because he did not qualify as a professional journalist as it was then defined. The court further stated that Section 79-h "evince[s] a clear legislative design to benefit 'professional journalists' and 'newscasters' only. [It] should not by judicial fiat and strained interpretation be deemed to encompass those engaged in a different field of writing and research." LeGrand, 67 A.D.2d at 451, 415 N.Y.S.2d at 255.
In response to decisions such as LeGrand, the legislature broadened the definition of a "professional journalist" so that "[a]ll those persons, whatever the job titles, performing a legitimate journalistic function will be protected." 1970 N Y Legis. Ann. at 257. Indeed, Assemblyman Steven Sanders, one of the sponsors of the bill, wrote in his memorandum that
the highly absurd present situation of a Mr. Smith who writes news stories for a New York Times being covered while that same Mr. Smith six months later leaving the Times and beginning work on an investigative book of non-fiction intended for sale to a Harper Row is not covered, is corrected in this bill. Thus the new bill will protect the journalistic process wherever that process is being professionally undertaken.Id. Mr. Drosnin easily fits within the extended parameters of the statute. He previously worked as a reporter for the Washington Post and the Wall Street Journal and was doing research for The Bible Code in 1994, the period when he wrote the letter to Prime Minister Rabin. Mr. Drosnin was, therefore, a professional journalist under the statute.
Mr. Drosnin asserts that the Rabin letter is protected as unpublished non-confidential material pursuant to New York Civil Rights Law § 79-h(c). This section provides in part that "no professional journalist . . . shall be held in contempt by any court . . . for refusing . . . to disclose any unpublished news obtained or prepared by a journalist . . . in the course of gathering or obtaining news." N.Y. Civ. Rights Law § 79-h(c). Based on my in camera review of the letter, however, there is nothing to suggest that it was authored "in the course of gathering or obtaining news." Rather, it appears simply to be a warning to Prime Minister Rabin. It does not seek any further information for the book, nor does it even mention that Mr. Drosnin was in the process of gathering information for publication. Accordingly, the Rabin letter is not protected under the Press Shield Law and shall be produced.
Putting aside whether the letter constitutes "news," it is doubtful that the letter would qualify as "unpublished" based on the fact that portions of the letter have indeed been published. See Book Description forThe Bible Code, http://www.amazon.com (site visited Nov. 7, 2001).
Conclusion
For the reasons set forth above, John Doe's motion to intervene is granted and his application for a protective order is denied. Simon Schuster shall therefore produce an unredacted copy of the Drosnin memo. In addition, the defendants' application to block production of the Rabin letter is denied and they shall produce a copy of the letter.
SO ORDERED.