enowned documentary filmmaker Ken Burns and his film company, Florentine Films, won a significant legal victory recently as a Magistrate Judge ruled that they do not have to produce unused material from his documentary The Central Park Five to New York City. On February 19, 2013, Magistrate Judge Ronald Ellis ruled that Burns and Florentine are protected by the reporter’s privilege.
The reporter’s privilege gives a journalist the right to refuse to disclose sources consulted and information collected during the newsgathering process. It is designed to protect the integrity of the newsgathering process, ensure the free-flow of information to the public, and promote the public interest in maintaining an independent press.
The Central Park Five controversy surrounding the footage from Burns’ film about the infamous “Central Park Jogger” case began in September 2012. Perhaps emboldened by the Second Circuit’s decision in Chevron Corp v. Berlinger (which compelled award winning documentary filmmaker Joseph Berlinger to produce outtakes to Chevron from his documentary Crude), New York City issued a subpoena to Burns and Florentine seeking all video and audio recordings gathered in their research for their documentary film. The City claimed that the audio and video footage was vital to its defense of a civil rights lawsuit brought by the five men profiled in the film who were wrongfully convicted of participating in the rape of the “Central Park Jogger” in 1989. Florentine moved to quash the subpoena and argued it was protected from disclosing the information under both the Second Circuit’s reporter’s privilege and the New York Shield Law.
The City opposed and argued that the filmmakers could not establish the requisite “independence” under Berlinger to qualify for the reporter’s privilege because the filmmakers had a “longstanding sympathetic relationship” with the plaintiffs. For instance, the City asserted that the filmmakers received assistance from the plaintiffs’ counsel in creating the film, and made statements that the purpose of the film was to encourage a settlement of the underlying case. Further, the City claimed that the filmmakers did not have the necessary intent to publish at the time of newsgathering because Sarah Burns, who directed and wrote the film with her father, began to gather information about the case while working on her college thesis and later working as a paralegal at the plaintiffs’ counsel’s former law firm.
However, Judge Ellis granted Florentine’s motion to quash the subpoena. Relying on Berlinger’s “independence” standard, Judge Ellis found that a documentary filmmaker simply having a viewpoint does not show a lack of independence where the filmmaker has maintained editorial and financial control over the newsgathering process. Judge Ellis found that the film was not solicited by the plaintiffs or their counsel, that Florentine retained full editorial control, and the film was even made over the objection of plaintiff’s counsel. Further, Judge Ellis held that the inquiry concerning the timing of the fact gathering does not depend on when any fact gathering began, but “when the information sought by the subpoena at issue was gathered.” Because the outtakes and interviews sought by the City were created years after Sarah Burns wrote her college thesis and stopped working for the plaintiffs’ counsel, the filmmakers maintained the necessary independence under Berlinger.
While the decision is an important victory for documentary filmmakers, Judge Ellis’ reliance on the “independence” standard set forth in Berlinger should give those filmmakers pause. Documentary filmmakers must ensure they maintain financial and editorial control over their films to maintain the reporters’ privilege. For instance, they should avoid accepting financial compensation from their subjects, and also ensure that their subjects do not have any editorial control over their films.
CDAS Partner Marc H. Simon is currently authoring a longer article focused on the reporter’s privilege and the responsibility of documentary filmmakers to produce outtakes for litigation.