McKevitt, Michael v. Herguth, Robert C. ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 03-2753, 03-2754
MICHAEL MCKEVITT,
Plaintiff-Appellee,
v.
ABDON PALLASCH, et al.,
Defendants-Appellants.
____________
Motions for Stay of Order of the
United States District Court for the
Northern District of Illinois, Eastern Division.
No. 03 C 4218—Ronald A. Guzmán, Judge.
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SUBMITTED JULY 3, 2003—DECIDED JULY 3, 20031
OPINION AUGUST 8, 2003
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Before POSNER, MANION, and ROVNER, Circuit Judges.
POSNER, Circuit Judge. Michael McKevitt is being prose-
cuted in Ireland for membership in a banned organization
and directing terrorism. He asked the district court for an
order pursuant to 28 U.S.C. § 1782 to produce tape re-
cordings that he thinks will be useful to him in the cross-
examination of David Rupert, who according to McKevitt’s
1
With notation that an explanation of the court’s decision
would be forthcoming.
2 Nos. 03-2753, 03-2754
motion is the key witness for the prosecution. The district
court obliged. Its order is directed against a group of
journalists who have a contract to write Rupert’s biography
and who in the course of their research for the biography
interviewed him; the tape recordings that they made of
the interviews and are in their possession are the record-
ings sought in McKevitt’s motion. The journalists ap-
pealed from the district court’s order and asked us to stay
it, which we refused to do, and the recordings were turned
over to McKevitt. We now explain why we refused to
issue the stay. Ordinarily the explaining could await the
decision of the appeal, but not in this case, because the
denial of the stay, and the resulting disclosure of the
recordings to McKevitt, mooted the appeal. Publicis Com-
munication v. True North Communications, Inc., 206 F.3d 725,
727-28 (7th Cir. 2000); compare United States v. Administra-
tive Enterprises, Inc., 46 F.3d 670, 671 (7th Cir. 1995). By the
time an order could be obtained and executed against
McKevitt commanding the return of the recordings, he
would have memorialized the information contained in
them and the information would inevitably become public
at his trial. The appeal was not yet moot, however, when
we denied the stay, and there is no irregularity in a court’s
explaining the ground of a decision after the decision
itself has been made ending the case. See, e.g., FoodComm
Int’l v. Barry, 328 F.3d 300, 302 (7th Cir. 2003); Dela Rosa
v. Scottsdale Memorial Health Systems, Inc., 136 F.3d 1241,
1242 (9th Cir. 1998); Dant v. District of Columbia, 829 F.2d 69,
73 (D.C. Cir. 1987).
Section 1782(a) of the Judicial Code authorizes federal
district courts to order the production of evidentiary
materials for use in foreign legal proceedings, provided the
materials are not privileged. The defendants claim that
the tapes in question are protected from compelled dis-
closure by a federal common law reporter’s privilege
Nos. 03-2753, 03-2754 3
rooted in the First Amendment. See Fed. R. 501. Although
the Supreme Court in Branzburg v. Hayes, 408 U.S. 665(1972), declined to recognize such a privilege, Justice
Powell, whose vote was essential to the 5-4 decision reject-
ing the claim of privilege, stated in a concurring opinion
that such a claim should be decided on a case-by-case
basis by balancing the freedom of the press against the
obligation to assist in criminal proceedings. Id. at 709-10.
Since the dissenting Justices would have gone further than
Justice Powell in recognition of the reporter’s privilege,
and preferred his position to that of the majority opinion
(for they said that his “enigmatic concurring opinion
gives some hope of a more flexible view in the future,”
id. at 725), maybe his opinion should be taken to state
the view of the majority of the Justices—though this is
uncertain, because Justice Powell purported to join Justice
White’s “majority” opinion.
A large number of cases conclude, rather surprisingly
in light of Branzburg, that there is a reporter’s privilege,
though they do not agree on its scope. See, e.g., In re Mad-
den, 151 F.3d 125, 128-29 (3d Cir. 1998); United States v.
Smith, 135 F.3d 963, 971 (5th Cir. 1998); Shoen v. Shoen, 5 F.3d
1289, 1292-93 (9th Cir. 1993); In re Shain, 978 F.2d 850, 852
(4th Cir. 1992); United States v. LaRouche Campaign, 841 F.2d
1176, 1181-82 (1st Cir. 1988); von Bulow v. von Bulow, 811 F.2d
136, 142 (2d Cir. 1987); United States v. Caporale, 806 F.2d
1487, 1504 (11th Cir. 1986). A few cases refuse to recognize
the privilege, at least in cases, which Branzburg was but this
case is not, that involve grand jury inquiries. In re Grand Jury
Proceedings, 5 F.3d 397, 402-03 (9th Cir. 1993); In re Grand
Jury Proceedings, 810 F.2d 580, 584-86 (6th Cir. 1987). Our
court has not taken sides.
Some of the cases that recognize the privilege, such as
Madden, essentially ignore Branzburg, see 151 F.3d at 128;
4 Nos. 03-2753, 03-2754
some treat the “majority” opinion in Branzburg as actually
just a plurality opinion, such as Smith, see 135 F.3d at 968-
69; some audaciously declare that Branzburg actually created
a reporter’s privilege, such as Shoen, 5 F.3d at 1292, and
von Bulow v. von Bulow, supra, 811 F.2d at 142; see also
cases cited in Schoen at 1292 n. 5, and Farr v. Pitchess, 522
F.2d 464, 467-68 (9th Cir. 1975). The approaches that these
decisions take to the issue of privilege can certainly be
questioned. See In re Grand Jury Proceedings, supra, 810 F.2d
at, 584-86. A more important point, however, is that the
Constitution is not the only source of evidentiary privileges,
as the Supreme Court noted in Branzburg with reference
to the reporter’s privilege itself. 408 U.S. at 689, 706. And
while the cases we have cited do not cite other possible
sources of the privilege besides the First Amendment
and one of them, LaRouche, actually denies, though without
explaining why, that there might be a federal common
law privilege for journalists that was not based on the
First Amendment, see 841 F.2d at 1178 n. 4; see also In re
Grand Jury Proceedings, supra, 5 F.3d at 402-03, other cases
do cut the reporter’s privilege free from the First Amend-
ment. See United States v. Cuthbertson, 630 F.2d 139, 146 n. 1
(2d Cir. 1980); In re Grand Jury Proceedings, supra, 810 F.2d
at 586-88; cf. Gonzales v. National Broadcasting Co., 194 F.3d
29, 36 n. 2 (2d Cir. 1999).
The federal interest in cooperating in the criminal pro-
ceedings of friendly foreign nations is obvious; and it is
likewise obvious that the newsgathering and reporting
activities of the press are inhibited when a reporter cannot
assure a confidential source of confidentiality. Yet that
was Branzburg and it is evident from the result in that
case that the interest of the press in maintaining the confi-
dentiality of sources is not absolute. There is no conceiv-
able interest in confidentiality in the present case. Not
only is the source (Rupert) known, but he has indicated
Nos. 03-2753, 03-2754 5
that he does not object to the disclosure of the tapes of his
interviews to McKevitt.
Some cases that recognize a reporter’s privilege suggest
that it can sometimes shield information in a reporter’s
possession that comes from a nonconfidential source; in
addition to the Madden, Schoen, and La Rouche cases cited
above see Gonzales v. National Broadcasting Co., supra, 194
F.3d at 33; United States v. Burke, 700 F.2d 70, 76, 78 (2d Cir.
1983); United States v. Cuthbertson, supra, 630 F.2d at 147.
Others disagree. United States v. Smith, supra, 135 F.3d at
972; In re Grand Jury Proceedings, supra, 810 F.2d at 584-85.
The cases that extend the privilege to nonconfidential
sources express concern with harassment, burden, using
the press as an investigative arm of government, and so
forth; see the Gonzalez, LaRouche, and Cuthbertson opin-
ions. Since these considerations were rejected by Branzburg
even in the context of a confidential source, these courts
may be skating on thin ice.
Illinois has enacted a statutory version of the reporter’s
privilege. 735 I.L.C.S. 5/8-901; Desai v. Hersh, 954 F.2d 1408,
1412 (7th Cir. 1992). But it has no application to this case.
Section 1782(a) of the Judicial Code provides that “a person
may not be compelled to give his testimony or statement
or to produce a document or other thing in violation of
any legally applicable privilege” (emphasis added). State-
law privileges are not “legally applicable” in federal-ques-
tion cases like this one. Fed. R. Evid. 501; Patterson v.
Caterpillar, Inc., 70 F.3d 503, 506 (7th Cir. 1995). In any
event, while the reporters’ motion included a citation to
the Illinois statute as part of a string cite, it failed to dis-
cuss, even minimally, why the statute should apply here.
As a result, even if the statute were applicable, the report-
ers waived reliance on it. Hojnacki v. Klein-Acosta, 285 F.3d
544, 549 (7th Cir. 2002)
6 Nos. 03-2753, 03-2754
It seems to us that rather than speaking of privilege,
courts should simply make sure that a subpoena duces
tecum directed to the media, like any other subpoena
duces tecum, is reasonable in the circumstances, which is
the general criterion for judicial review of subpoenas. Fed.
R. Crim. P. 17(c); CSC Holdings, Inc. v. Redisi, 309 F.3d 988,
993 (7th Cir. 2002); EEOC v. Sidley Austin Brown & Wood,
315 F.3d 696, 700 (7th Cir. 2002). We do not see why there
need to be special criteria merely because the possessor
of the documents or other evidence sought is a journalist.
See Cohen v. Cowles Media Co., 501 U.S. 663, 669 (1991); New
York Times Co. v. Jascalevich, 439 U.S. 1317, 1322 (1978); cf.
United States v. Ahn, 231 F.3d 26, 37 (D.C. Cir. 2000). The
approach we are suggesting has support in Branzburg
itself, where the Court stated that “grand jury investigations
if instituted or conducted other than in good faith, would
pose wholly different issues for resolution under the
First Amendment. Official harassment of the press under-
taken not for purposes of law enforcement but to disrupt
a reporter’s relationship with his news sources would
have no justification. Grand juries are subject to judicial
control and subpoenas to motions to quash. We do not
expect courts will forget that grand juries must operate
within the limits of the First Amendment as well as the
Fifth.” 408 U.S. at 707-08.
When the information in the reporter’s possession does
not come from a confidential source, it is difficult to see
what possible bearing the First Amendment could have
on the question of compelled disclosure. If anything, the
parties to this case are reversed from the perspective of
freedom of the press, which seeks to encourage publica-
tion rather than secrecy. Florida Star v. B.J.F., 491 U.S. 524,
533-34 (1989). Rupert wants the information disclosed; it
is the reporters, paradoxically, who want it secreted. The
Nos. 03-2753, 03-2754 7
reason they want it secreted is that the biography of him
that they are planning to write will be less marketable
the more information in it that has already been made
public.
In other words, the reporters are concerned about
McKevitt’s “appropriating” their intellectual property in
the tape recordings and by doing so reducing the value
of that property. Disputes over intellectual property, as the
Supreme Court just reminded us, are not profitably con-
ducted in the idiom of the First Amendment. Eldred v.
Ashcroft, 123 S. Ct. 769, 788-89 (2003). They are the subject
of specialized bodies of law regulating intellectual proper-
ty, such as copyright law or, of particular relevance here,
the common law of misappropriation, most famously
exemplified by International News Service v. Associated Press,
248 U.S. 215 (1918). That decision no longer is legally
authoritative because it was based on the federal courts’
subsequently abandoned authority to formulate common
law principles in suits arising under state law though
litigated in federal court. But the doctrine it announced
has been adopted as the common law of a number of states,
including Illinois, Board of Trade v. Dow Jones & Co., 456
N.E.2d 84, 88 (Ill. 1983), and could in any event influence
the formulation of federal common law evidentiary privi-
leges.
The Associated Press and the International News Ser-
vice competed in gathering news to be published in news-
papers. Barred during much of World War I by British
and French censors from sending war dispatches to the
United States, INS would paraphrase AP’s war dispatches
published in east coast newspapers and was able to pub-
lish the paraphrases in west coast newspapers at the same
hour because of the difference in time zones, and in east
coast newspapers only a few hours later. There was no
8 Nos. 03-2753, 03-2754
copyright infringement, because INS was copying the
facts reported in AP’s dispatches rather than the dis-
patches themselves and anyway AP had not bothered to
copyright its dispatches. Nevertheless in International News
Service v. Associated Press the Supreme Court held that AP
was entitled to enjoin INS’s copying as a form of unfair
competition, since INS was trying to reap where AP had
sown.
The present case is sharply different, since McKevitt has
no commercial motive in “stealing” the defendant report-
ers’ work product. And yet to the extent that such “thefts”
can be anticipated, the incentive to gather information, in
this case for the projected biography, will be diminished,
just as INS’s copying AP’s dispatches might have impaired
AP’s incentive to incur the expense of gathering news
about the war. Recent cases, however in recognition of the
nebulousness of misappropriation doctrine, place tight
limitations on it. This is how the Second Circuit, in an
influential opinion interpreting New York common law,
stated the elements of the doctrine: “(i) the plaintiff gener-
ates or collects information at some cost or expense; (ii) the
value of the information is highly time-sensitive; (iii) the
defendant’s use of the information constitutes free-riding on
the plaintiff’s costly efforts to generate or collect it; (iv) the
defendant’s use of the information is in direct competition
with a product or service offered by the plaintiff; (v) the
ability of other parties to free-ride on the efforts of the
plaintiff would so reduce the incentive to produce the
product or service that its existence or quality could be
substantially threatened.” National Basketball Association v.
Motorola, Inc., 105 F.3d 841, 852 (2d Cir. 1997) (citations
omitted). The meat is in (v), with (i) through (iv) identifying
the conditions in which the criterion stated in (v) is likely to
be satisfied. It seems, then, that legal protection for the
Nos. 03-2753, 03-2754 9
gathering of facts is available only when unauthorized
copying of the facts gathered is likely to deter the plaintiff,
or others similarly situated, from gathering and disseminat-
ing those facts.
We are far from that in the present case. No showing has
been made, or would be plausible, that the reporters
will have to abandon the Rupert biography if the infor-
mation contained in the recordings of their interviews
with him is made public. It is a consideration that a dis-
trict court might properly consider in deciding on a chal-
lenge to a subpoena, but it would add nothing to the
court’s consideration to analyze it in legal categories
drawn from the First Amendment. And in this case it
provides no support for the reporters’ claim.
The district judge’s grant of the order to produce the
tape recordings for use in the Irish trial was clearly sound,
and so the stay of the order was properly denied. The
appeal is dismissed as moot.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-8-03