Sept. 11, 2001, injured so many people and organizations in so many different ways. Certainly, one of the most grievously injured was the Fire Department of New York. No one will ever forget the pictures of firefighters working at the site of what was once the World Trade Center Towers, searching through the rubble, initially for survivors and, all too soon, only for bodies. The firefighters took very seriously their commitment to bring their brothers and sisters home from “the pile.”

Sentiments ran high, and wounds were very deep and only just beginning to heal by November 2001. As the operation at Ground Zero shifted from rescue to body recovery, the City of New York began to consider the costs associated with the recovery effort and decided to reduce the number of New York City Fire Department members committed to the operation.

The firefighters' union was very upset by this decision, feeling that the city had gone back on a promise to allow the department to bring out all of the lost firefighters. In November, the union organized a demonstration to protest the decision to reduce the fire department labor force at Ground Zero.

Unfortunately, the demonstration got out of hand when some of the firefighters arrived at an area near Ground Zero that the police had barricaded off. Several firefighters were arrested and accused of breaking through the barricades, among other charges. The firefighters who were arrested claimed that the police moved the barriers for them voluntarily, that their conduct at the demonstration was peaceful, and that the legal action taken against them by the city was retaliatory and unlawful. Consequently, in the case of Carter, et al., v. The City of New York, et al., No. 02 Civ. 8755 (RJH) U.S. District Court for the Southern District of New York (2004), several of the arrested firefighters brought suit against the City of New York and various city officials, alleging that the firefighters were subjected to false arrest, malicious prosecution and various constitutional violations because they participated in the demonstration.

Evidence in matters such as this often tends to be confusing and conflicting. In this instance, both sides presented contradictory versions of the events in an effort to bolster their own position. As part of the discovery process, the city moved to take the deposition of John Schiumo, a reporter for a local news station, regarding observations that he made at the demonstration. Schiumo was present at the demonstration for the express purpose of gathering information with “intent to disseminate to the public.” Consequently, Schiumo declined to give a deposition, claiming that he had a journalist's qualified privilege not to disclose non-confidential information obtained in the news-gathering process. The court was then obliged to determine whether to compel him to provide the requested deposition.

The city also originally sought to obtain from Schiumo a videotape that he recorded and information regarding conversations that he had with participants at the demonstration, as well as his personal observation of the events. The city later withdrew its request for testimony regarding Schiumo's conversations with other observers of the demonstration. Furthermore, it received a copy of the videotape. Therefore, the only issue left to the court was whether the defendants had a right to take Schiumo's deposition regarding his personal observations of the events at the demonstration.

The city argued that the observations of a reporter at a public event are not subject to a journalist's qualified privilege, and therefore it was entitled to take the deposition. In support of its argument, the city cited Gonzales v. National Broadcasting Company, Inc. 194 F.3d 29 (2d Cir. 1999).

Gonzales arose when the NBC news program Dateline performed an investigation of law enforcement in Louisiana. The investigation was prompted by a suit brought by Albert and Mary Gonzales against a Louisiana deputy sheriff, claiming that he stopped their vehicle without probable cause or reasonable suspicion and detained them solely because of their Hispanic origin. They further alleged that it was this deputy's practice to stop travelers without probable cause or reasonable suspicion in order to extort valuable property from them and to detain and question “minority” citizens, including Hispanics, longer than similarly situated Caucasians.

NBC equipped a car with hidden cameras and had an employee travel incognito on Louisiana roadways to investigate the allegations. Ultimately, the employee was stopped by the deputy. The deputy claimed that the employee had been stopped for driving erratically by slowing down and speeding up, while the Dateline report claimed that the car had been set on cruise control below the posted speed limit. The Dateline report claimed that footage recorded by the hidden cameras demonstrated that no traffic laws had been violated, and that the car had been stopped without probable cause. The actual video images broadcast in the report, however, showed only a few brief clips of the car in motion, as well as footage of the deputy pulling over the vehicle and examining the currency compartment of a passenger's wallet.

The Gonzaleses were obviously interested in obtaining a full copy of the video, as it could possibly demonstrate a pattern of behavior by the deputy. They served NBC with a subpoena seeking the original, unedited camera footage of the deputy's stop, as well as deposition testimony from NBC representatives. The court had to determine if the Gonzaleses were entitled to this information, and held that the qualified privilege protecting press materials from disclosure applies to nonconfidential as well as to confidential materials. In examining the Gonzaleses' claim for the video, the court held that NBC had established at least a qualified privilege as to all information gathered by its reporter, whether through electronic recording, such as a videotape, or through direct perception.

The court went on to note that there is a bona fide concern for the potential harm that disclosure may present to the paramount public interest in the maintenance of a vigorous, aggressive and independent press capable of participating in robust, unfettered debate over controversial matters. To protect the important interests of reporters and the public in preserving the confidentiality of journalists' sources, the court held that disclosure of confidential material may be ordered only upon a clear and specific showing that the information sought is:

• Highly material and relevant,
• Necessary or critical to the maintenance of the claim, and
• Not obtainable from other available sources.

However, the court stated that where the protection of confidential sources is not involved, the nature of the press interest protected by the privilege is narrower. The lack of a confidential source may be an important element in balancing the defendant's need for the material sought against the interest of the journalist in preventing production in a particular case. While nonconfidential press materials are protected by a qualified privilege, the showing needed to overcome the privilege is less demanding than the showing required when confidential materials are sought. Where civil litigants seek nonconfidential material from a nonparty press entity, the litigants are entitled to the requested discovery notwithstanding a valid assertion of the journalists' privilege if they can show only that the materials at issue:

• Are of likely relevance to a significant issue in the case, and
• Are not reasonably obtainable from other available sources.

The court then applied the Gonzales reasoning to the New York City case to determine if Schiumo should be required to be deposed as to his direct perceptions of the demonstration. The court ruled that the nature of the information, here a reporter's observations at a large public event, is a factor to be considered in determining whether the journalists' qualified privilege has been overcome. The court held that the city had made a weak showing of the need to take Schiumo's deposition. The city did not contend that the information sought was “not reasonably obtainable from other available sources.” Instead, the city's sole contention was that Schiumo was a “nonpartisan” witness whose testimony would presumably be more credible before a jury.

The court observed that the videotape of the demonstration had already been produced and that there were scores of other witnesses to this large public demonstration. Consequently, the court concluded that the city had not made a sufficient showing of unavailability of this information from other sources so as to compel further testimony from Schiumo, and denied the city's motion.

Sometimes potential evidence possessed by the press is overlooked. This is unfortunate, because it often can be very valuable. These cases illustrate that just because information is held by a journalist does not automatically mean that it cannot be discovered. Points to keep in mind in deciding whether to seek evidence from the press include:

• There is almost certain to be more video footage created than what is shown on television. Don't limit your quest to just what has been broadcast.
• Remember that it is more difficult to discover confidential material than nonconfidential material.
• Decide in advance if the potential information is worth the impact that forcing its disclosure may have on your future relationship with the press entity with which you are going to do battle.

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Philip C. Stittleburg, MIFireE, is a Wisconsin attorney who has been chief of the La Farge (Wis.) Fire Department since 1977. He has been legal counsel for the Wisconsin State Fire Fighters Association, legal counsel and Wisconsin director for the National Volunteer Fire Council Inc., president of the NVFC Foundation, and current NVFC chair. Stittleburg sits on the NFPA board of directors and has served on the committee for NFPA 1500, Fire Department Occupational Safety and Health Program.