                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

__________________________________
                                   )
IN RE SUBPOENA TO                  )
JEFFREY GOLDBERG                   )                Misc. Action No. 10-115 (RWR/JMF)
                                   )
__________________________________ )
                                   )
MOSHE SAPERSTEIN et al.,           )
                                   )
        Plaintiffs,                )
                                   )
                v.                 )
                                   )
THE PALESTINIAN AUTHORITY          )
et al.,                            )
                                   )
        Defendants.                )
__________________________________ )


                                MEMORANDUM OPINION

       Currently pending and ready for resolution is Non-Party Jeffrey Goldberg’s Motion to

Quash Subpoena and/or for a Protective Order [#1] (“Motion to Quash”). For the reasons stated

below, the motion will be granted.

                                       BACKGROUND

       In 2004, Moshe Saperstein filed suit against the Palestinian Authority (“PA”) in the

Southern District of Florida. Defendants’ Opposition to Non-Party Jeffrey Goldberg’s Motion to

Quash Subpoena and Response to Jeffrey Goldberg’s Motion for Protective Order [#3] (“Defs.

Opp.”). Saperstein claimed that, pursuant to the Antiterrorism Act, 18 U.S.C. § 2333(a),1 the PA




       1
       All references to the United States Code are to the electronic versions that appear in
Westlaw or Lexis.
was liable for injuries he suffered on February 18, 2002, during an attack that occurred in the

Gaza Strip. Id. at 1-2.

        On February 2, 2010, defendants subpoenaed non-party Jeffrey Goldberg to appear for a

deposition on February 18, 2010. Motion to Quash at 2. Goldberg, a journalist based in

Washington, D.C., had included an account of the attack on Saperstein in a magazine article2 as

well as in a book.3 In response to the subpoena, Goldberg filed the Motion to Quash.

                                          DISCUSSION

I.      Legal Standards

        Resolution of the current motion is governed by two rules. Under Rule 26 of the Federal

Rules of Civil Procedure, “[p]arties may obtain discovery regarding any matter, not privileged,

which is relevant to the subject matter involved in the pending action.” Fed. R. Civ. P. 26(b)(1).

If, however, the discovery sought, in this case through a subpoena to a third party, “requires

disclosure of privileged or other protected matter, if no exception or waiver applies; or [ ]

subjects a person to undue burden,”4 the third party may move to quash the subpoena under Rule

45 of the Federal Rules of Civil Procedure.

II.     The Reporter’s or Journalist’s Privilege

        Goldberg claims protection pursuant to a journalist’s or reporter’s privilege under the

First Amendment. Motion to Quash at 5-7. Citing cases from the D.C. Circuit and this Court,

Goldberg argues that “the privilege protects not only against the compelled disclosure of


        2
            See Motion to Quash at Attachment 2.
        3
            Id. at Attachment 3.
        4
            Fed. R. Civ. P. 45(c)(3).

                                                   2
journalist’s confidential sources, but also unpublished journalists work product, including a

reporter’s notebooks, diaries, accounts of nonconfidential but unpublished interviews, and other

unpublished material generated in the course of the editorial process.” Id. at 6.

        Defendants answer Goldberg’s claims with several theories. First, defendants argue that

Goldberg’s testimony is not privileged since defendants only seek nonconfidential information.

Defs. Opp. at 12. Second, defendants argue that recent Circuit opinions have either held that

even confidential information is not protected or questioned the protection of confidential

materials. Id. at 12-14. Third, defendants argue that even if there does exist such a privilege,

Goldberg’s testimony is not protected because 1) not all of the information sought was obtained

for the purpose of public dissemination, 2) the information sought is of likely relevance to a

significant issue, 3) the information sought cannot reasonably be obtained from another source.

Id. at 15-23.

        A.       Under the First Amendment

        In the seminal case of Branzburg v. Hayes, 408 U.S. 665 (1972), the Supreme Court held

unequivocally that the First Amendment was not the source of an absolute testimonial privilege

for reporters:

                 Until now the only testimonial privilege for unofficial witnesses
                 that is rooted in the Federal Constitution is the Fifth Amendment
                 privilege against self-incrimination. We are asked to create
                 another by interpreting the First Amendment to grant newsmen a
                 testimonial privilege that other citizens do not enjoy. This we
                 decline to do.

Id. at 689.

        Speaking in the context of grand jury proceedings, the Court further stated:



                                                  3
                 On the record now before us, we perceive no basis for holding that
                 the public interest in law enforcement and in ensuring effective
                 grand jury proceedings is insufficient to override the consequential,
                 but uncertain, burden on news gathering that is said to result from
                 insisting that reporters, like other citizens, respond to relevant
                 questions put to them in the course of a valid grand jury
                 investigation or criminal trial.

Id. at 690-91.

       Interpreting the Supreme Court’s holding in Branzburg, the D.C. Circuit expanded its

understanding of the breadth of the privilege to include civil as well as criminal proceedings. In

Zerilli v. Smith, 656 F.2d 705 (D.C. Cir. 1981), the court stated the following: “Although

Branzburg may limit the scope of a reporter’s First Amendment privilege in criminal

proceedings, this circuit has previously held that in civil cases, where the public interest in

effective law enforcement is absent, that case is not controlling.” Id. at 711 (citing Carey v.

Hume, 492 F.2d 631, 636 (D.C. Cir.), cert. dismissed, 417 U.S. 938 (1974)). Writing in the

context of compelled confidential source information, the court further noted:

                 In general, when striking the balance between the civil litigant’s
                 interest in compelled disclosure and the public interest in
                 protecting a newspaper’s confidential sources, we will be mindful
                 of the preferred position of the First Amendment and the
                 importance of a vigorous press. Efforts will be taken to minimize
                 impingement upon the reporter’s ability to gather news . . . Thus, in
                 the ordinary case the civil litigant’s interest in disclosure should
                 yield to the journalist’s privilege.

Zerilli, 656 F.2d at 713. Accord In the Matter of an Application to Enforce Administrative

Subpoena of the U.S. Commodity Futures Trading Comm’n v. McGraw-Hill Cos., 507 F. Supp.

2d 45, 51 (D.D.C. 2007) (“By contrast, in civil cases, the privilege typically prevails because any

interest in overcoming the privilege is by definition a private rather than a public interest.”).



                                                  4
        The court then articulated a three-part test to determine the appropriate balance between

the litigant’s interest in the information and the public’s interest in protecting a reporter’s First

Amendment privilege. First, the court must determine whether the information sought is central

to the litigant’s case. Id. at 713. Second, the court must determine whether the litigant has

exhausted alternative sources of information. Id. Accord Clyburn v. News World Commc’ns,

Inc., 903 F.3d 29 (D.C. Cir. 1990) (“But the reporter’s privilege is a qualified one. If the plaintiff

exhausts all reasonable alternative means of identifying the source, the privilege may yield.”);

Lee v. Dep’t of Justice, 401 F. Supp. 2d 123, 132 (D.D.C. 2005), appeal dismissed, 2006 U.S.

App. LEXIS 15208 (D.C. Cir. June 16, 2006) (“The reporter must answer questions for

information (1) that is “central” to the plaintiff’s case and (2) as to which the plaintiff has

exercised all reasonable alternatives to obtain elsewhere.”). Third, the court must draw a

distinction between civil cases in which the reporter is a party and ones in which the reporter is

not: “When the journalist is a party, and successful assertion of the privilege will effectively

shield him from liability, the equities weigh somewhat more heavily in favor of disclosure.”

Zerilli, 656 F.2d at 714. Accord Hutira v. Islamic Republic of Iran, 211 F. Supp. 2d 115, 119

(D.D.C. 2002).

        Following the D.C. Circuit’s establishment of a balancing test in Zerilli, judges of this

court have further clarified that the reporter’s privilege includes both confidential and

nonconfidential information:

                Regardless of whether [the parties seeking discovery] seek
                confidential or nonconfidential sources, or whether they seek
                disclosure or verification of statements, [they are] attempting to
                examine the reportorial and editorial processes. The fact that their
                purpose is to support, rather than undermine, the bona fides of the


                                                   5
               statements as expressed by the reporters makes no difference.
               Such discovery necessarily implicates the First Amendment
               interests of the journalists.

NLRB v. Mortensen, 701 F. Supp. 244, 247 (D.D.C. 1998). Accord Hutira, 211 F. Supp. 2d at

121 (“While I am not convinced that vitiating the privilege in a particular case would undermine

the news gathering process, I am persuaded that the wholesale abrogation of the privilege for

nonconfidential information would have a ripple effect felt beyond any single lawsuit or

newspaper article.”) (internal citations omitted).

               1.      Centrality

       Goldberg claims that all he knows about the 2002 attack against Saperstein is reflected in

the following two sentences that appeared in his New Yorker article: “Two years ago, Saperstein,

was ambushed near Kissufim; Palestinian gunfire tore off two fingers of his remaining hand. He

had the presence of mind to push down on the accelerator, and struck a Palestinian gunman.”

Motion to Quash at 8. Goldberg argues therefore that his deposition testimony is neither relevant

nor central to Saperstein’s case. Id.

       Defendants however provide two different rationales for their seeking to depose

Goldberg. First, defendants argue that Goldberg’s testimony is needed to demonstrate bias.

According to defendants, they “subpoenaed Mr. Goldberg for deposition in this matter because

Mr. Goldberg had conversations with the Plaintiff both prior to and after the attack at issue which

will be admissible at trial to show that the Plaintiff is biased against Defendants, and which the

jury in this matter may properly consider in evaluating the Plaintiff’s credibility as a witness and

his motive for bringing this lawsuit.” Defs. Opp. at 2. Defendants later add that they “do not

wish to depose Mr. Goldberg to establish the facts surrounding the attack at issue, but to elicit


                                                     6
evidence of bias in the form of statements made by the Plaintiff and his wife to Mr. Goldberg.”

Id. at 16.

        Second, defendants argue that because Saperstein, in his deposition, offered a different

recollection of the statements attributed to him by Goldberg or outright denied that they were

made, defendants should now be able to complete the impeachment of Saperstein by taking

Goldberg’s deposition. See Defendants’ Notice Regarding the Deposition of Moshe Saperstein

[#10] at 2-9.

                         a.      Bias

        Contrary to Goldberg’s claim that “testimony about any statements Mr. Saperstein may

have made to Mr. Goldberg allegedly suggesting a bias against defendants is manifestly

irrelevant, and far from the kind of ‘central’ testimony going to ‘the heart of the matter’ required

to overcome the reporter’s privilege,”5 evidence of bias is always relevant. As noted by the

Supreme Court, “[p]roof of bias is almost always relevant because the jury, as finder of fact and

weigher of credibility, has historically been entitled to assess all evidence which might bear on

the accuracy and truth of a witness’ testimony.” United States v. Abel, 469 U.S. 45, 52 (1984).

See also North Carolina Right to Life, Inc. v. Leake, 231 F.R.D. 49, 51 (D.D.C. 2005) (“The bias

that is relevant, however, is that of a witness or party in the case, not of an unrelated non-party.”)

(emphasis added). Given the political nature of Saperstein’s claims against defendants, that they

engaged in acts of terrorism against Jewish civilians, evidence of his bias may be significant to

defendant’s impeachment of Saperstein’s credibility by establishing that his action against the PA

is politically motivated as the acts of a man who despises the PA. See Motion to Quash at


        5
             Motion to Quash at 10.

                                                  7
Attachment 6 (Third Amended Complaint).

        It hardly follows, however, that merely because evidence of Saperstein’s bias, obtained

through Goldberg’s testimony, is admissible that Goldberg’s deposition can therefore be

compelled. Irrespective of the profession of the intended deponent, discovery even of relevant

evidence is subject to the balancing calculus, articulated in Rule 26 of the Federal Rules of Civil

Procedure, that measures value against burden. Thus, discovery of relevant evidence will be

prohibited if:

        1.       The evidence is unreasonably cumulative or duplicative.

        2.       The evidence can be obtained from some other source that is more convenient,

                 less burdensome or less expensive.

        3.       The party seeking the evidence has had ample opportunity to obtain the

                 information through discovery in the action.

        4.       The burden or expense of the proposed discovery outweighs its likely benefit,

                 considering the needs of the case, the amount in controversy, the parties’

                 resources, the importance of the issues at stake in the action and the importance of

                 the discovery in resolving the issues.

Fed. R. Civ. P. 26(b)(2)(C).

        The court notes further that there is a curious unreality about defendants’ request to

explore Saperstein’s bias towards defendants. Is some one pretending that Saperstein, while

seeming to like the PA, harbors a secret bias against it? It is obvious that Saperstein has strong

views about the propriety of Jewish settlements on the West Bank and in Gaza and has all but

shouted his views, including his dislike of the PA, from the roof tops. According to Goldberg, in


                                                   8
his deposition, Saperstein stated the following:

       1.      He referred to Palestians as “Ahmads”, a pejorative equivalent to calling a Jew a

               “Hymie.”

       2.      He described a spokeman for the PA as a suit and tie wearing monkey.

       3.      He stated that he supported destroying a playground in Gaza, abandoned to the

               Palestinians, because it was meant originally for Jewish children.

       4.      He stated that he loved Meir Kahane, an opponent of the peace process who was

               so truculent in his expression of hatred of the Palestinians that he was expelled

               from the Knesset.

       5.      He wrote a letter to Time magazine, in which he questioned why other Jews did

               not react with respect to the actions of an Israeli who murdered 29 Muslims and

               wounded another 150 while they were worshiping at a mosque.

       6.      He stated that he finds the Oslo Accords (“the Accords”) offensive because they

               represented an agreement between Israel and the PA that contemplated the

               establishment of a Palestinian state in the West Bank and Gaza. He also stated

               that the Accords represent the abandonment by Israel of land that was meant for

               the Jews.

       7.      He stated that there can be no separate states of Israel and Palestine and that the

               idea of Palestinians having control of Gaza angers him.

Jeffrey Golberg’s Response to Defendants’ Notice Regarding the Deposition of Moshe
Saperstein (“Goldberg’s Response”) [#11] at 2-3.

       Given these statements, and under the balancing calculus required by Rule 26, probing



                                                   9
Goldberg’s recollections of other similar conversations with Saperstein will only produce

evidence that is “unreasonably cumulative or duplicative.” Fed. R. Civ. P. 26(b)(2)(C)(i). Given

what Saperstein has already said, it surely is to pile Pilion upon Ossa. Moreover, as Goldberg’s

points out, no one is challenging the fact that Saperstein was injured in the manner in which he

claims. It has been my experience in handling similar cases that the true question presented is

how Saperstein will establish that the PA was responsible for the attack,6 which in turn is likely

dependent on expert testimony from a historian, political scientist, or economist who will opine

on the PA’s complicity in the attack. If my supposition is right, Saperstein’s bias will not be an

important issue “at stake in the litigation” and discovery from Goldberg about that bias will have

little importance. See Fed. R. Civ. P 26(b)(2)(C)(iii).

                       b.     Impeachment

       With regard to defendants’ argument that they should be permitted to take Goldberg’s

deposition in order to complete Saperstein’s impeachment, the fact is that Goldberg has already

attested that he truthfully recorded what Saperstein said. See Motion to Quash, Attachment 1

(Declaration of Jeffrey Goldberg) at 2. Taking his deposition to have him repeat that is a waste

of everyone’s time.

                2.     Exhaustion

       Goldberg also argues that defendants could not have exhausted all other sources for this

information regarding the attack in 2002. Motion to Quash at 10. Defendants have failed to show

that they have “exhausted every reasonable alternative source of information” relating to any

negative bias Saperstein and his wife may harbor towards Arabs generally and towards


       6
           See Motion to Quash at 10-11.

                                                10
defendants specifically. In his article, Goldberg acknowledges that he and Saperstein were

colleagues at the Jerusalem Post. Defs. Opp., Attachment 1 at 2. Given Saperstein’s outspoken

nature, it is likely that other colleagues in addition to Goldberg were also aware of his views;

Saperstein can hardly be accused of keeping them a secret. In addition, Saperstein’s own

writings are a source of potential evidence regarding his biases. See Reply Memorandum in

Support of Non-Party Jeffrey Goldberg’s Motion to Quash Subpoena and/or for a Protective

Order at 7 n.3 (identifying numerous articles authored by Saperstein about the Israeli-Palestinian

conflict). These sources are certainly “more convenient, less burdensome or less expensive”7

than Goldberg’s deposition and exploring them first is preferable to implicating a reporter’s First

Amendment rights.

                   3.      Journalist as Third Party

         It must also be recalled that a more demanding weighing of these factors is imperative

when the burden is sought to be imposed upon a third party.8 This is so whether the third party is

a reporter, or a butcher, baker or candlestick maker. When judged by this calculus, and a

heightened regard for the burden to be imposed upon a third party, the motion to compel clearly

fails.

         B.        At Common Law

         In a footnote, Goldberg argues in the alternative that there is a reporter’s or journalists’s



         7
             Fed. R. Civ. P. 26(b)(2)(C)(i).
         8
         See, e.g., Exxon Shipping Co. v. U.S. Dep’t of Interior, 34 F.3d 774, 779 (9th Cir.
1994); Premier Election Solutions, Inc. v. Systest Labs Inc., No. 09-CV-1822, 2009 WL
3075597, at *3 (D. Colo. Sept. 22, 2009); In re: Motion to Compel Compliance with Subpoena
Direct[ed] to Dep’t of Veteran Affairs, 257 F.R.D. 12, 18 (D.D.C. 2009).

                                                       11
privilege in the common law. See Motion to Quash at 11 n.7. That Goldberg chose to discuss

the existence of a common law reporter’s privilege in a footnote is telling in that the authority

cited for such a privilege is Judge Tatel’s concurrence in In re Grand Jury Subpoena, Judith

Miller, 397 F.3d 964, 986-87 (D.C. Cir. 2005), cert. denied 545 U.S. 1150 (2005).

Concurrences, however, are not binding authority and have no precedential effect. In any event,

having determined above that Goldberg does have a qualified reporter’s privilege which

defendants have failed to overcome, and that the burden of taking Goldberg’s testimony

outweighs what little use and significance it might have, the court need not consider further the

existence of any such privilege at common law.

                                         CONCLUSION

       Whether one relies on cases pertaining to discovery from reporters or on a simple and

straightforward analysis of the factors identified in Rule 26, the case against forcing Goldberg to

give his deposition is appreciably stronger than the case for permitting it. The Motion to Quash

will therefore be denied.

       An Order accompanies this Memorandum Opinion.


                                                                       Digitally
                                                                       signed by John
                                                                       M. Facciola
                                                                       Date:
                                                                       2010.03.15
                                                      ___________________________ -04'00'
                                                                       09:22:36
                                                      JOHN M. FACCIOLA
                                                      UNITED STATES MAGISTRATE JUDGE



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