SDNY COURTHOUSE, July 13 – In the politically charged lawsuit of Mark Rich's parents against Fox News, on July 13 the news gathering privilege was invoked but only partially vindicated.
U.S. District Court for the Southern District of New York Magistrate Judge Sarah Netburn held a proceeding. Fox's lawyers cited the privilege; Rich's parents' lawyers said it was too late for that.
Judge Netburn asked, Why not just turn over the 600 documents at issue? Ultimately she gave Fox two days to make two filings. Inner City Press live tweeted it:
Fox' lawyer Meeks says she's prepared to give a hit log about a set of documents, not the documents themselves.
Judge Netburn: We're talking about fewer than 700 documents that contain key players in this case. I have a hard time believe these are not relevant... These 700 documents contain hits on Butowsky and Wheeler - how are they not relevant?
Meeks: Wheeler was a consultant, Bukowsky was a guest. Many of the hits are about news that has nothing to do with this case, or the DNC leaks.
Judge Netburn: But isn't there one document - it's confidential so I won't speak about it here - that is in fact related to this case? Meeks: Yes, the one about Seth Rich and Wikileaks, we produced in redacted form. The rest was about other news reports.
Judge Netburn: But haven't the plaintiffs said they need to rebut Fox's argument that it was not working with Butowsky on a day to day basis?
Meeks: We're producing the documents about Ms. Zimmerman, so plaintiffs have enough information... These documents are protecting by the news gathering privilege. This is a significant question under New York law. The standard is, according to the 2d Circuit, the documents have to be critical and necessary to their claim. They'd have to show this information is not available from any other source. They will be able to take Mr Butowsky's deposition. Meeks' colleague Joseph Terry: We could put in a letter about the non Seth Rich documents we withheld.
Judge Netburn: Let me ask Ms. Barron [plaintiffs' lawyer]...
Barron: If Fox stipulates that it regularly worked with Mr. Bukowsky on politically motivated stories maybe we don't need the documents. Meeks: But they are not alleging negligent supervision. The complaint here alleges that Joel and Mary Rich "becam[e] collateral damage in a political war to which they were innocent bystanders."
Judge Netburn: Could you respond to Fox's claim of privilege? Barron: No
Judge Netburn: I am going to direct that the defendants produce a full privilege log, and a letter on privilege, by Wednesday. If I think I need to see documents in camera I'll request that. Barron: Nothing further from plaintiffs. Judge: We're adjourned.
The case is Rich et al v. Fox News Network LLC et al, 18-cv-2223 (Daniels / Netburn)
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