Chen v. Federal Bureau of Investigation ( 2023 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
YANPING CHEN,
Plaintiff,
v. Case No. 18-cv-3074 (CRC)
FEDERAL BUREAU OF
INVESTIGATION, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
In 2017, Fox News Network aired a series of investigative reports about Plaintiff Yanping
Chen. The thrust of the stories, principally authored by journalist Catherine Herridge, was that
Ms. Chen had concealed her former membership in the Chinese military on her U.S. immigration
forms and might have been using a professional school she founded in Virginia to funnel valuable
information about the American military to the Chinese government. The reports also contained
materials—including photographs and images of internal government documents—that Chen
alleges were leaked by government personnel to Herridge and Fox, in violation of the Privacy Act.
After extensive discovery and several opinions by this Court, Chen has been unable to identify the
source of the alleged leak. She thus issued subpoenas to Herridge and Fox, seeking to compel
them to reveal their confidential source or sources. Asserting the First Amendment’s qualified
privilege for journalists, and urging the Court to adopt a federal common law newsgathering
privilege, Herridge and Fox moved to quash the subpoenas.
The Court recognizes both the vital importance of a free press and the critical role that
confidential sources play in the work of investigative journalists like Herridge. But applying the
binding case law of this Circuit, the Court concludes that Chen’s need for the requested evidence
overcomes Herridge’s qualified First Amendment privilege in this case. The identity of
Herridge’s source is central to Chen’s claim, and despite exhaustive discovery, Chen has been
unable to ferret out his or her identity. The only reasonable option left is for Chen to ask Herridge
herself.
I. Background
As it has already detailed the factual and procedural background of this case in several
previous opinions, the Court provides only a brief summary here. See Chen v. FBI, 435 F. Supp.
3d 189 (D.D.C. 2020); Chen v. FBI, Case No. 20-mc-107 (CRC), 2020 WL 7668880 (D.D.C. Dec.
24, 2020); Chen v. FBI, Case No. 20-mc-107 (CRC), 2021 WL 6125379 (D.D.C. Nov. 23, 2021);
Chen v. FBI, Case No. 22-mc-0074 (CRC), 2022 WL 17851618 (D.D.C. Oct. 18, 2022). Plaintiff,
Dr. Yanping Chen, founded the University of Management and Technology (“UMT”), an
educational institution that attracted a substantial number of military servicemembers who
attended with tuition assistance from the Department of Defense (“DOD”). Compl. ¶¶ 13, 42.
Beginning in 2010, Chen, a naturalized U.S. citizen, became the focus of an FBI investigation
concerning statements she made on certain immigration forms about her work in China in the
1980s. Id. ¶ 15. As a part of that investigation, the FBI executed search warrants for Chen’s home
and the main office of UMT, seizing materials during both searches. Id. ¶¶ 18, 20.
Prosecutors eventually informed Chen that no charges would be filed against her, but about
a year later, Fox News Network (“Fox”) ran a series of television segments and news articles
about her. The articles, authored by then-Fox reporter Catherine Herridge, focused on Chen’s
alleged ties to the Chinese military and former role as a colonel in the People’s Liberation Army.
Id. ¶¶ 22, 25–31; see Catherine Herridge, Fox News Investigation: DoD-Funded School at Center
of Federal Probes over Suspected Chinese Military Ties, Fox News (Feb. 24, 2017),
https://www.foxnews.com/politics/fox-news-investigation-dod-funded-school-at-center-of-federal-
2
probes-over-suspected-chinese-military-ties. The reporting also included family photographs of
Chen; excerpts from Chen’s immigration forms; and a snippet from what appears to be an FBI
memorandum summarizing an interview conducted for the investigation. Compl. ¶¶ 25–31.
Believing that someone in the government leaked these materials to Herridge and Fox, in
December 2018, Chen filed this Privacy Act lawsuit against the FBI, the Department of Defense
(“DOD”), and two other federal agencies. Compl. ¶ 23. Since then, Chen has endeavored to suss
out the identity of the potential leaker, including by serving scores of document requests,
interrogatories, and requests for admission, taking eighteen depositions of current and former
government employees, issuing over a dozen third-party subpoenas, and obtaining declarations
from 22 government personnel who had a connection to the FBI’s investigation. Opp. to Herridge
Mot. at 2. Through that discovery, Chen has developed a theory for how Herridge and Fox
obtained the allegedly leaked materials: that they came from an internal FBI PowerPoint
presentation created by the lead agent on Chen’s case. Id. at 1. She has also homed in on a few
individuals who, she thinks, may have leaked that PowerPoint—namely FBI special agent
Timothy Pappa (who created the PowerPoint), alleged FBI-informant Stephen Rhoads (who was
an on-the-record source for Herridge’s reporting), and a few other government agents who, at one
time or another, might have possessed the PowerPoint. Id. at 10–11. Despite her efforts, Chen
has been unable to obtain direct evidence that any of them, or any other person, was responsible
for the alleged leak.
Accordingly, Chen now seeks to pursue the one seemingly surefire method to discover
how Herridge and Fox obtained the materials in question: to ask them herself. Chen served Fox
and Herridge with deposition subpoenas in May and June of 2022, respectively. See Notice of
Filing Dep. Subpoena (Herridge deposition subpoena); Fox Mot. to Quash (“Fox Mot.”), Ex. H.
(Fox deposition subpoena). She also served both with subpoenas for documents and
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communications relating to the materials in question. See Herridge Mot. to Quash (“Herridge
Mot.”), Ex. L (Herridge document subpoena); Fox Mot., Ex. G (Fox document subpoena).
Among other things, the document subpoenas ask Herridge and Fox to produce “all Private
Documents and Information in your possession” and to produce documents or communications
“sufficient to identify the individual(s) that transmitted or provided the Private Documents and
Information to you.” Herridge Mot., Ex. L, Schedule A at 6–7. The subpoenas define “Private
Documents and Information” to include “any and all documents and information concerning Dr.
Chen and/or the University that were provided to or obtained by you from a third party and that
were presented in, referred to, or considered in relation to the” Fox reporting on Chen, including in
particular the photographs depicting her, FBI and immigration documents relating to her, and any
“PowerPoint presentation, compilation, and/or report concerning” her. Id. at 3.
Herridge and Fox moved to quash the subpoenas, relying primarily on the qualified First
Amendment journalist’s privilege. Specifically, Herridge and Fox contend that Chen’s subpoenas
are overbroad, that she has not sufficiently exhausted alternative avenues to identify the alleged
leaker, and, more broadly, that the public interest in maintaining the confidentiality of journalists’
sources outweighs Chen’s personal interest in her Privacy Act suit. Additionally, Herridge and
Fox urge the Court to apply a common law newsgathering privilege to quash the subpoenas.
Having held a hearing, the Court will now address the motions.
II. Legal Standards
The Court “must quash or modify a subpoena” that “requires disclosure of privileged or
other protected matter, if no exception or waiver applies.” Fed. R. Civ. P. 45(d)(3)(A). “The
individual or entity seeking relief from subpoena compliance bears the burden of demonstrating
that a subpoena should be modified or quashed.” U.S. Dep’t of the Treasury v. Pension Benefit
Guar. Corp., 301 F.R.D. 20, 25 (D.D.C. 2014) (quoting Sterne Kessler Goldstein & Fox, PLLC v.
4
Eastman Kodak Co., 276 F.R.D. 376, 379 (D.D.C. 2011)). As relevant here, a “party asserting the
reporter’s privilege . . . bears the burden of showing that it applies in a particular case.” U.S.
Commodity Futures Trading Comm’n v. McGraw-Hill Cos., 507 F. Supp. 2d 45, 50 (D.D.C.
2007). If the information sought by the subpoena falls within the privilege as a threshold matter,
the party seeking the information may nevertheless compel compliance with the subpoena by
showing that the balance of factors set forth in Zerilli v. Smith, 656 F.2d 705 (D.C. Cir. 1981),
warrants disclosure. See Lee v. Dep’t of Justice, 413 F.3d 53, 59–60 (D.C. Cir. 2005); Hutira v.
Islamic Republic of Iran, 211 F. Supp. 2d 115, 119 n.4 (D.D.C. 2002) (“Courts engage in the
[Zerilli] balancing test . . . only after the reporter . . . has demonstrated that the privilege applies.”
(citing Shoen v. Shoen, 5 F.3d 1289, 1296 (9th Cir. 1993))); Goldberg v. Amgen, Inc., 123 F.
Supp. 3d 9, 15 (D.D.C. 2015) (“In other words, if the privilege applies, [the requesting party]
bears the burden of abrogating it.”).
III. Analysis
Herridge and Fox primarily invoke the First Amendment journalist’s privilege. The Court
therefore begins by assessing whether Chen has overcome that privilege, which she does not
dispute applies in the first instance. The Court then assesses whether a federal common law
newsgathering privilege may also warrant quashing the subpoenas.
A. First Amendment Journalist’s Privilege
The D.C. Circuit’s opinion in Zerilli provides the test for applying “a non-party journalist’s
qualified privilege in a civil action such as this one, where testimony of journalists is sought
because government officials have been accused of illegally providing the journalists with private
information.” Lee, 413 F.3d at 59. As a threshold matter, the parties agree that the Zerilli test
governs this case and that the test begins, at least, by considering whether the information Chen
seeks goes to “the heart of the matter” and whether Chen has exhausted “every reasonable
5
alternative source of information.” Id. (quoting Zerilli, 656 F.2d at 713). They disagree, however,
about whether the Zerilli test ends with those two considerations or, instead, requires (or at least
permits) the Court to balance a host of other factors bearing on the parties’ interests and the stakes
of the case. The Court therefore begins by clarifying the contours of the Zerilli inquiry before
proceeding to apply the relevant factors.
1. The Zerilli Framework
Chen asserts that Zerilli established a “two-part test for determining when a Privacy Act
plaintiff seeking information about the disclosure of her protected information is entitled to obtain
that information from a non-party reporter.” Opp. to Herridge Mot. at 14. Those two elements,
she says, are (1) whether the information sought is “central” to her claim and (2) whether she has
exhausted other reasonable avenues of obtaining the information before seeking it from the
journalist. Id. Herridge and Fox counter that the “[a]nalysis under Zerilli does not abruptly end
with a mechanical assessment” of those two factors but rather requires “a broad balancing
analysis,” weighing such considerations as the plaintiff’s personal interest in damages, her
likelihood of success on the merits, the egregiousness of the government’s alleged misconduct,
and the importance of journalism in the context of reporting on national security matters. See
Herridge Mot. at 22–39. In the Court’s view, Zerilli, particularly as interpreted and applied in
Lee, does not contemplate the kind of free-form, anything-goes analysis that Herridge and Fox
seek. To be sure, Zerilli calls for a balancing test and counsels that, properly applied, the test
should result in the privilege “prevail[ing] in all but the most exceptional cases.” 656 F.2d at 712.
But, as the Court will explain, Zerilli also channeled district courts’ discretion by identifying the
specific factors that weigh in the balance.
As here, Zerilli concerned the application of the First Amendment reporter’s privilege to a
Privacy Act suit brought against government officials accused of leaking sensitive information
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about the plaintiffs—transcripts of incriminating conversations obtained during an FBI
investigation—to the Detroit News. Id. at 707–08. In affirming the district court’s denial of the
plaintiffs’ motion to compel the reporter to reveal his source for the transcripts, the D.C. Circuit
first reiterated its previous conclusion that “to determine whether the privilege applies courts
should look to the facts of each case, weighing the public interest in protecting the reporter’s
sources against the private interest in compelling disclosure.” Id. at 712 (citing Carey v. Hume,
492 F.2d 631, 636 (D.C. Cir. 1974)). “In general,” Zerilli explained, courts must “be mindful of
the preferred position of the First Amendment and the importance of a vigorous press.” Id.Accordingly, the rules governing compelled disclosure of confidential sources must “minimize
impingement upon the reporter’s ability to gather news.” Id. Zerilli further predicted that,
properly applying those rules, “the civil litigant’s interest in disclosure should yield to the
journalist’s privilege” in “all but the most exceptional cases.” Id.Zerilli did not, however, end the analysis with that “general” guidance; rather, it proceeded
to identify a “number of more precise guidelines” that “can be applied to determine how the
balance should be struck in a particular case.” Id. at 712–13. First, the court explained that the
“civil litigant’s need for the information he seeks” must be “of central importance,” that is, go to
“the heart of the matter” and be “crucial to his case.” Id. at 713 (quoting Carey, 492 F.2d at 636).
If the requested information is of central importance, “then the argument in favor of compelled
disclosure may be relatively strong.” Id.
Zerilli then added a second consideration—the “efforts made by the litigants to obtain the
information from alternative sources”—which the court explained was “also of central
importance.” Id. “Even when the information is crucial to a litigant’s case, reporters should be
compelled to disclose their sources only after the litigant has shown that he has exhausted every
reasonable alternative source of information.” Id. That reasonable exhaustion requirement, the
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court added, would reflect the “values resident in the protection of the confidential sources of
newsmen.” Id. (quoting Carey, 492 F.2d at 638).
Last, Zerilli explained that courts must mind the distinction “between civil cases in which
the reporter is a party, as in a libel action, and cases in which the reporter is not a party.” Id. at
714. If “the journalist is a party, and successful assertion of the privilege will effectively shield
him from liability,” that fact will “weigh somewhat more heavily in favor of disclosure,” as
application of the privilege in such circumstances, particularly in libel cases, “would effectively
prevent recovery” most of the time. Id. Even so, the court emphasized that this third factor must
be balanced against the “other relevant factors” recounted in the opinion—such as whether the
information sought is crucial for the plaintiff’s case—to determine whether “the privilege should
prevail.” Id.
“Applying these guidelines to the facts of the case,” Zerilli concluded that the district court
did not abuse its discretion by upholding the assertion of the First Amendment privilege. Id.
(emphasis added). Although the suit was “not frivolous” and the information sought was “crucial”
to the case, Zerilli held that the plaintiffs had “not fulfilled their obligation to exhaust possible
alternative sources of information,” noting in particular the plaintiffs’ failure to depose individuals
the Government identified as either possessing or knowing a great deal about the allegedly leaked
transcripts. Id. at 714–15 (citing failure to depose “the four employees who had the greatest
knowledge about the logs”). Zerilli thus prescribed a balancing test, but it did not give district
courts free rein to populate that test with whatever factors they please. Rather than judge in the
abstract “the civil litigant’s interest” against “the public interest in protecting a newspaper’s
confidential sources,” Zerilli instructed courts to weigh three “more precise guidelines” of “central
importance” to the balancing analysis. Id. at 712–713.
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That courts must tailor the balancing test to those central factors identified in Zerilli is
confirmed by the D.C. Circuit’s subsequent application of the analysis in Lee v. Department of
Justice, 413 F.3d 53 (D.C. Cir. 2005). There, as here, the court considered the application of the
First Amendment reporter’s privilege to a Privacy Act claim stemming from an alleged leak by
government personnel of sensitive personal information about the plaintiff. Id. at 55–56. After
making hundreds of written discovery requests and deposing twenty government officials, the
plaintiff finally issued subpoenas to the journalists who had published the information. Id. at 56.
Applying Zerilli, the district court denied the journalists’ motions to quash the subpoenas, and the
D.C. Circuit affirmed in relevant part.1 Id. at 55, 57.
Zerilli, Lee explained, “provides for a non-party journalist’s qualified privilege in a civil
action such as this one, where testimony of journalists is sought because government officials have
been accused of illegally providing the journalists with private information.” Id. at 59. After
acknowledging Zerilli’s consideration of the distinction between cases in which the reporter is a
party and those in which the reporter is not a party, id. 57 n.1, Lee proceeded to identify the two
remaining “guidelines [for] determining when a court can compel a non-party journalist to testify
about a confidential source”—namely, whether the information sought goes to “the heart of the
matter” and whether the litigant has exhausted “every reasonable alternative source of
information,” id. at 59 (quoting Zerilli, 656 F.2d at 713).
Emphasizing that “the protections of the Privacy Act do not disappear when the illegally
disclosed information is leaked to a journalist, no matter how newsworthy the government official
1
The Circuit vacated the district court’s contempt order as to one of the reporters not based
on the Zerilli analysis but rather because it found no clear and convincing evidence that that
reporter had actually violated the district court’s discovery order requiring the journalists to
truthfully answer questions regarding the identities of the alleged leakers. Id. at 56, 63–64.
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may feel the information is,” Lee applied “the factors laid out in Zerilli” to find that the district
court “did not abuse its discretion in requiring the journalists to testify.” Id. at 60. Without the
“identities of the leakers,” the court reasoned, the plaintiff’s ability “to show the other elements of
the Privacy Act claim, such as willfulness and intent, will be compromised.” Id. As to
exhaustion, Lee observed that “the number of depositions necessary for exhaustion must be
determined on a case-by-case basis” and concluded that, although the plaintiff “did not depose
every individual who conceivably could have leaked the information,” such absolute exhaustion is
not necessary. Id. at 61. Requiring exhaustion of “every individual who could have had any kind
of access to the information regardless of other evidence that the deponents on whom [the
plaintiff] focused were in fact the sources of the leaks,” the court continued, would impose an
“unreasonable burden of discovery” on Privacy Act plaintiffs. Id.
Like Zerilli, then, Lee did not apply a free-form balancing of interests but rather struck the
balance between private and public interests by reference to the specific factors identified in
Zerilli—the centrality of the requested discovery and the exhaustion of reasonable alternatives. To
be sure, the Court does not read Lee and Zerilli to prohibit district courts from considering
additional factors. For instance, as Herridge points out, Zerilli also observed at the outset of its
balancing analysis that “appellants’ suit” there was “not frivolous.” Zerilli, 656 F.2d at 714; see
Herridge Reply at 9. One of Zerilli’s chief sources for its balancing test, Carey v. Hume, 492 F.2d
631 (D.C. Cir. 1974), likewise noted that “the facts disclosed by the record” there were
“inadequate to support a conclusion that” the plaintiff’s likelihood of ultimate success on the
merits was so remote “that no purpose would be served by disclosure of the identity of the
sources.” Id. at 638. These comments are fairly read to contemplate some limited consideration
of the merits of a Privacy Act plaintiff’s underlying claim, at least insofar as requiring disclosure
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in a frivolous suit would serve “no purpose.”2 But consideration of a lawsuit’s patent futility is a
far cry from the full-blown preview of summary judgment briefing that Herridge and Fox seek
here. Moreover, Carey itself cautioned against such an extensive interrogation of the merits at this
stage of a case, observing that there had “been no motion by appellant for summary judgment” and
“thus no showing of facts bearing upon the likelihood” of plaintiff’s success on the merits, and
emphasizing that the court did not “intimate any opinion as to” whether the plaintiff “will
ultimately prevail.” Id. at 637–38. In any case, whether or not Carey and Zerilli suggest that some
consideration of the merits in frivolous cases might be permitted, Lee’s affirmance of the district
court based on balancing centrality and exhaustion alone suggests that those factors will be
dispositive in the mine-run of cases.
Reading Zerilli and Lee to require a balancing test focused primarily, even if not
exclusively, on centrality and exhaustion (and, where applicable, whether the journalists are
parties or non-parties) also accords with the approach of other courts in this district. Take Hatfill
v. Gonzales, 505 F. Supp. 2d 33 (D.D.C. 2007). Although the court there rejected “[a]s an initial
matter” the non-party journalists’ arguments that “the disclosures at issue” did not violate the
Privacy Act, id. at 37–39, it then explained that Lee provided “direct and unequivocal guidance
and instruction” for the plaintiff’s motion to compel responses from the journalists, holding that
the plaintiff had “satisfied both prongs of the Zerilli guidelines necessary to defeat the journalists’
qualified privilege,” id. at 40–43. In later rejecting the journalists’ request that the court recognize
a federal common law reporters’ privilege, the court concluded that requiring courts to balance the
2
Indeed, some consideration of the merits of a plaintiff’s case may also factor into the
analysis of the centrality of the sought-after information; if an obvious flaw will prevent a plaintiff
from succeeding on her Privacy Act claim, then it might be said that the leaker’s identity does not
go to “the heart of the matter.” Zerilli, 656 F.2d at 713 (quoting Carey, 492 F.2d at 636).
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private interest, measured by the harm the leak caused, against the public interest in
newsgathering, measured by the leaked information’s value—the same considerations invoked by
Herridge and Fox here—would be “inherently unworkable,” putting courts in the position of
judging “the newsworthiness of” a reporter’s story. Id. at 46–47 & n.8 (quoting Lee v. Dep’t of
Justice (Lee II), 401 F. Supp. 2d 123, 139 (D.D.C. 2005)). Herridge correctly observes that there
is some variation in how other courts have categorized or numbered the relevant factors. But the
weight of authority is that Zerilli and Lee set forth the applicable considerations and did not give
trial courts free rein to consider private and public interests in disclosure in the abstract. See, e.g.,
Tripp v. Dep’t of Def., 284 F. Supp. 2d 50, 55 (D.D.C. 2003) (describing factors to be considered
as centrality, exhaustion, “whether the journalist” is a party, and “whether the information sought
is confidential or non-confidential in nature”); Hutira, 211 F. Supp. 2d at 119, 121–22 & n.8
(listing centrality and exhaustion as primary considerations, although exhaustion was dispositive,
and noting that “the Court was unable to find any case in this circuit that suggests that it should
appraise the underlying civil action so as to decide whether it is worth abrogating the privilege”);
Goldberg, 123 F. Supp. 3d at 16 (“Courts must consider two main factors in deciding whether to
compel a journalist to provide evidence.”); id. at 17 (evaluating “the two Zerilli factors”); In re
Subpoena to Goldberg, 693 F. Supp. 2d 81, 85 (D.D.C. 2010) (explaining that Zerilli “articulated a
three-part test to determine the appropriate balance between the litigant’s interest in the
information and the public’s interest,” composed of centrality, exhaustion, and party-non-party
status); McGraw-Hill Cos., 507 F. Supp. at 50 (“The balancing test requires evaluation of two
factors: (1) the need for the information and (2) whether the party seeking the information has
exhausted all reasonably available alternative sources.”).3
3
Herridge cites Grunseth v. Marriott Corp., 868 F. Supp. 333 (D.D.C. 1994), as an
example of a court looking beyond the factors identified in Zerilli to consider also the relative
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Before applying the Zerilli test to the facts at hand, the Court emphasizes that restricting
the test largely to the “precise guidelines” set forth in that case “does not leave journalists without
protection.” Lee, 413 F.3d at 60. Herridge and Fox worry that if the Zerilli test mainly boils
down to consideration of centrality and exhaustion, then Privacy Act plaintiffs “will eventually get
access to confidential sources in every case,” contrary to Zerilli’s admonition that the privilege
should prevail “in all but the most exceptional cases.” Herridge Mot. at 3 (quoting Zerilli, 656
F.2d at 712); see also id. at 23–24. Vigilant application of the centrality and exhaustion factors,
however, should ensure that compelled disclosure will be the exception, not the rule. For one,
ensuring that the requested information is central to a plaintiff’s claim, even in Privacy Act cases,
will preclude overly broad subpoenas that reach further into the journalist’s privilege than is
required. Moreover, it is no easy task to exhaust all reasonable alternative sources of information.
Many of the cases cited above concluded that plaintiffs had failed to do just that. See, e.g., Hutira,
211 F. Supp. 2d at 121–22; Tripp, 284 F. Supp. 2d at 60–61; In re Subpoena to Goldberg, 693 F.
Supp. 2d at 88. In the Court’s view, it is likely that, when forced to exhaust all reasonable
alternatives, plaintiffs will often be able to identify the source of a journalist’s reporting without
resort to the journalist. And even where the Zerilli factors favor disclosure, “the usual
requirements of relevance, need, and limited burdens on the subpoenaed person still apply.” Lee,
“societal interest[s]” implicated by a request for disclosure of a journalist’s source, id. at 335–36
(after analyzing the three Zerilli factors, observing that the case did not involve “election fraud, or
governmental corruption, or any other issue that affects the fundamental validity of the electoral
process” but only the plaintiff’s demand for damages). Grunseth’s consideration of societal
interests unmoored from the Zerilli factors, however, is inconsistent with both Lee’s analysis and
the trend in this district. And as explained below, even if the Court were to analyze such
considerations, Chen’s interest in enforcing the Privacy Act here implicates public interests to a
greater degree than the gubernatorial candidate in Grunseth who sought to identify sources of a
newspaper report that he had an extramarital affair. Id. at 334.
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413 F.3d at 60. In short, the Court is less troubled by Herridge and Fox’s parade of horribles,
particularly since there appears to have been no such widespread fallout since Lee.4
2. Centrality
The Court now turns to the first Zerilli factor: whether the information sought by Chen’s
subpoenas goes to “the heart of” her Privacy Act claim. Lee, 413 F.3d at 59 (quoting Zerilli, 656
F.2d at 713). The document subpoena to Herridge consists of four requests:
REQUEST NO. 1:
Produce all Private Documents and Information in your possession, in the form in which
you received them.
REQUEST NO. 2:
Produce all Documents and Communications comprising, reflecting, or relating to
transmission or provision of the Private Documents and Information to you.
REQUEST NO. 3:
Produce Documents or Communications sufficient to identify the individual(s) that
transmitted or provided the Private Documents and Information to you.
REQUEST NO. 4:
Produce all Communications between or among, you, on the one hand, and, on the other
hand, Stephen Rhoads and/or Timothy Pappa.
Herridge Mot., Ex. L, Schedule A at 6–7. The phrase “Private Documents and Information,” in
turn, is defined to include “any and all documents and information concerning Dr. Chen and/or the
University that were provided to or obtained by you from a third party and that were presented in,
referred to, or considered in relation to” Fox’s broadcasts and news stories that contained the
allegedly leaked information about Chen. Id. at 3. The document subpoena to Fox includes four
similar requests. Fox Mot., Ex. G, Schedule A at 7. Herridge and Fox contend that these
4
In his dissent from the denial of rehearing en banc in Lee, Judge Tatel expressed a
concern similar to the one raised by Herridge and Fox, but they point to no evidence that the
floodgates to journalists’ notepads have opened in the eighteen years since then. See Lee v. Dep’t
of Justice, 428 F.3d 299, 301–02 (D.C. Cir. 2005) (Tatel, J., dissenting from denial of reh’g en
banc).
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subpoenas are overbroad as written because they would require disclosure of every document or
piece of information obtained from anyone relating to Chen or her university, whether or not the
documents or information bear any relation to the alleged release of records protected under the
Privacy Act. Herridge Mot. at 17.
The Court agrees with Herridge and Fox that, as drafted, the subpoenas sweep beyond the
information that is central to Chen’s case. “As in Zerilli, the relevant information is the identity of
the individuals who may have leaked information in violation of the Privacy Act,” and without
that information, Chen’s “ability to show the other elements of the Privacy Act claim, such as
willfulness and intent, will be compromised.” Lee, 413 F.3d at 60. Read at their broadest,
however, the subpoenas could require the disclosure of all of Herridge’s sources who contributed
information to her reporting, even if that information is not protected by the Privacy Act.
But this overbreadth does not doom Chen’s requests. The Court has authority under Rule
45 to “quash or modify” a subpoena, Fed. R. Civ. P. 45(d)(3)(A), and “when appropriate,” courts
should “consider the possibility of modifying the subpoena rather than quashing” it, Est. of
Klieman v. Palestinian Auth., 293 F.R.D. 235, 240 (D.D.C. 2013) (quoting Northrop Corp. v.
McDonnell Douglas Corp., 751 F.2d 395, 403 (D.C. Cir. 1984)). Here, Herridge and Fox’s
counsel suggested at oral argument that the centrality factor would not be an obstacle for Chen if
the subpoenas are “cut down to focus only on the deposition for the . . . identity of the source or
sources” who provided Herridge with the material purportedly covered by the Privacy Act,
namely, the photographs of Chen, the FBI interview reports, the immigration or naturalization
documents, and the PowerPoint presentation created by Agent Pappa. Hearing Transcript at 9; see
also Herridge Mot., Ex. L, Schedule A at 3 (listing relevant documents). The Court thus finds that
the centrality factor favors disclosure if, as discussed below, the Court quashes the other
subpoenas but enforces Chen’s deposition subpoena of Herridge.
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3. Exhaustion of Alternatives
Next, Zerilli and Lee require that “reporters should be compelled to disclose their sources
only after the litigant has shown that he has exhausted every reasonable alternative source of
information.” Zerilli, 656 F.2d at 713; accord Lee, 413 F.3d at 59. Although the exhaustion
requirement is “very substantial,” “there are some limits to the obligation to pursue alternative
sources.” Zerilli, 656 F.2d at 714. A Privacy Act plaintiff need not, for instance, “depose every
individual who conceivably could have leaked the information” or “who could have had any kind
of access to the information regardless of other evidence that the deponents on whom [she]
focused were in fact the sources of the leaks and were denying it.” Lee, 413 F.3d at 61. To that
end, litigants need not “be made to carry wide-ranging and onerous discovery burdens where the
path is . . . ill-lighted.” Id. (alteration in original) (quoting Carey, 492 F.2d at 639). Nor does
Zerilli “require proof positive that the knowledge exists nowhere else on earth but in the minds of
the journalists and their anonymous confidants.” Lee v. U.S. Dep’t of Justice (Lee III), 287 F.
Supp. 2d 15, 23 (D.D.C. 2003). The number of depositions or extent of other discovery required
for “reasonable” exhaustion “must be determined on a case-by-case basis,” considering such
factors as the efforts already undertaken, the burden of further discovery, and the likelihood that it
would uncover the relevant information. Lee, 413 F.3d at 60–61.
Here, Chen’s request to compel disclosure of the leaker’s identity from Herridge and Fox
has come at “the end, and not the beginning, of the inquiry.” Zerilli, 656 F.2d at 713 (quoting
Carey, 492 F.2d at 638). Chen has served the defendants in this case with 67 requests for
production of documents, 67 interrogatories, and 57 requests for admission. Opp. to Herridge
Mot. at 2. She has taken eighteen depositions of current and former government employees,
including four 30(b)(6) depositions of FBI employees, issued thirteen third-party subpoenas, and
obtained 22 declarations from other government personnel who were either part of or aware of the
16
underlying investigation into Chen. Id. In particular, she has deposed both FBI Agent Pappa—the
creator of the PowerPoint Chen believes to be the source of the leaked material—and Stephen
Rhoads—Herridge’s on-the-record source who was privy to Pappa’s work, who, in an email
intended to prompt a Congressional investigation into Chen, boasted that “[n]obody on the planet
[knew] more about this case than” he, and who proclaimed that he had “documents, emails,
recordings and pictures that nobody else has.” Id., Ex. 25 (cleaned up). During her depositions of
other government employees, moreover, Chen also asked if they had any idea who might have
provided the private documents used in Herridge’s reporting. See, e.g., id., Ex. 17 at 164
; id., Ex. 18 at 248
; id., Exs. 20 & 21
; id., Ex. 32 at 129
. In a word, Chen’s pursuit of discovery has been probing, yet she has been unable to
ascertain the alleged leaker’s identity. Indeed, her efforts have been far more extensive than those
of the plaintiffs in Zerilli, who had made no attempt to depose any of the individuals who were
most familiar with or who had access to documents from the investigation there. 656 F.2d at 714–
15; see also Tripp, 284 F. Supp. 2d at 59 (upholding privilege where “the party seeking to compel
disclosure has made no effort whatsoever, or insufficient efforts, to obtain the information sought
from alternative sources, or has made conclusory claims that the information cannot be obtained
from other sources”); In re Subpoena to Goldberg, 693 F. Supp. 2d at 88 (requiring litigant to seek
out other sources that could “likely” provide requested information); Goldberg, 123 F. Supp. 3d at
20 (pointing out failure to seek “information from the obvious alternative sources”).
17
Despite Chen’s efforts, Herridge and Fox identify several stones they believe she must turn
to exhaust reasonable alternative sources. Particularly in light of the extensive discovery Chen has
already undertaken, however, the Court does not believe further exploration of any of these
additional sources offers more than a speculative prospect of identifying the source of the leak.
First, Herridge and Fox insist that Chen should have secured a comprehensive list of—and
either deposed or sought declarations from—all FBI personnel who might have had access to
Agent Pappa’s PowerPoint
. That group, they say, would include
. Herridge Mot. at 18.
But Chen did try, unsuccessfully, to identify the relevant subset of those individuals who accessed
the PowerPoint from that location. See Opp. to Herridge Mot., Ex. 30 at 29 (FBI 30(b)(6)
deponent stating that
); id., Ex. 11 at 6 (FBI response to interrogatory stating that the
). In any event, requiring Chen to seek depositions or declarations from every person
who nominally had access —without any evidence that
those individuals actually did access the PowerPoint (or, for that matter, were aware of its
existence)—would be contrary to Lee’s instruction that plaintiffs need not depose every individual
“who could have had any kind of access to the information.” 413 F.3d at 61.
Similarly speculative is Herridge and Fox’s argument that Chen should have further
pursued information about individuals who
. Specifically, Herridge and Fox point to
.
18
See Herridge Mot. at 19; Opp. to Herridge Mot., Ex. 30 at 100. They also point to
to his
supervisors. Herridge Mot. at 18; id., Ex. P at 90–91, 178–79. , Herridge
and Fox contend that Chen should have identified and deposed (or sought declarations from)
.
The foundation for such suppositions, however, is far too shaky. Although Pappa stated in
his deposition that he believed
, he also
emphasized
Opp. to Herridge Mot., Ex. 5 at 214. At best, he could not recall
Id. at 215; see also
id. at 217 (Pappa stating he could not recall
); id. at 228–29 (Pappa stating that he could not recall
); id. at 298 (Pappa stating he did not
recall ). One
recalled that but also remembered that
. Opp. to Herridge Mot., Ex. 33 at 28.
Id., Ex. 14 at 88–91. As lukewarm as these leads are, Chen nevertheless attempted to
19
ascertain the identities of through the FBI’s 30(b)(6) deponent, who stated
. Id., Ex. 30 at 35–
36, 38. In short, Chen did conduct follow-up discovery to ascertain
, and in any case, Herridge and Fox have identified nothing in the record to suggest it is
reasonably likely someone from accessed, absconded with, or leaked the
PowerPoint.
Finally, the Court is unpersuaded by the remaining specters Herridge and Fox cite as
potential recipients of the PowerPoint. They point to the possibility that Agent Pappa might have
given a copy of the PowerPoint to employee named
to convey to (whom Chen deposed). But
. Id., Ex. 13. And testified that he could not
. Id., Ex. 15 at 86–87. Herridge and Fox cite
another email in which a , requested that
Pappa send based on the PowerPoint to
. Herridge Mot. at 18–19. But neither nor another recipient of that email, both of
whom Chen deposed, could say , Opp. to
Herridge Mot., Ex. 16 at 114; id., Ex. 32 at 65, nor is there any reason to believe
, had any contact with or reason to leak to Herridge. Last,
Herridge and Fox cite
. Herridge Mot., Ex. R. Once again, Chen asked
in his deposition. He replied that
20
. Opp. to
Herridge Mot., Ex. 32 at 110–11.
To summarize, none of the potential leads on which Herridge and Fox rely amounts to
anything more than speculation that some government officials might have seen or potentially had
access to the alleged Privacy Act materials in this case. Moreover, far from amounting to “a
reasonably well-defined number of possible alternative sources,” Goldberg, 123 F. Supp. 3d at 18,
the number of potential sources Herridge and Fox would require Chen to exhaust would balloon to
, all without any
non-speculative evidence that they ever possessed, let alone leaked, the relevant materials. To
require Chen to pursue these “ill-lighted” paths after the extensive discovery she has already
conducted, and when evidence suggests that other individuals (such as Rhoads) both had access to
the Chen investigation and an interest in publicizing it, see Opp. to Herridge Mot., Ex. 18 at 90–
91, 184–86; id., Ex. 25, would read the word “reasonable” out of Zerilli’s exhaustion requirement.
This factor, accordingly, tilts sharply in Chen’s favor.
4. Reporter’s Status
Next, as instructed by Zerilli, the Court considers the distinction between cases in which
“the reporter is a party” and those “in which the reporter is not a party.” 656 F.2d at 714. As
Zerilli explained, this factor can point strongly in favor of disclosure when the reporter is a party
and “successful assertion of the privilege will effectively shield him from liability,” as in libel
cases that require proof of actual malice. Id. Herridge and Fox are not parties to this case, so
Zerilli’s concern about the “equities” does not decisively favor disclosure. At the same time,
neither does that fact weigh against disclosure. Indeed, Lee acknowledged that the reporters there
21
were all non-parties and yet did not hesitate to affirm the district court’s disclosure ruling based on
the weight of the centrality and exhaustion factors there. 413 F.3d at 57 n.1.
5. Other Factors and Considerations
For the reasons discussed above, the Court does not read Zerilli or Lee to require either a
full-bore analysis of Chen’s likelihood of success on the merits of her Privacy Act claim or an
assessment of the public and private interests at play beyond the factors discussed above. But, for
the sake of completeness, the Court briefly explains here why Herridge and Fox’s arguments along
these lines likely would not change the outcome here in any event.
The Court will group Herridge and Fox’s remaining arguments into two considerations.
First, they maintain that their First Amendment interests outweigh Chen’s interest in pursuing her
Privacy Act claim because, in their view, she will be unable to obtain damages at the end of the
day, either because Chen’s alleged damages were caused by the Defense Department’s
independent decision to cut off tuition assistance to her university or because much (but not all) of
Fox’s reporting on her was derived from sources that do not implicate the Privacy Act. Herridge
Mot. at 26–34. To these arguments, it is sufficient to repeat Zerilli’s observation that Chen’s “suit
is not frivolous.” 656 F.2d at 714. The Court need not, and does not, decide now whether
Herridge and Fox are correct that Chen is barred from pursuing damages based on the Defense
Department’s revocation of tuition assistance, as those are not the only damages Chen alleges she
suffered. She also seeks economic damages for consulting fees and reputation management
services she claims to have incurred to remediate the harm caused by the Fox reporting. Opp. to
Herridge Mot., Ex. 34 at 2; cf. Fleck v. Dep’t of Veterans Affs. Off. of Inspector Gen., 596 F.
Supp. 3d 24, 57 (D.D.C. 2022) (“Legal fees that a plaintiff incurs to protect against the effects of
an agency’s Privacy Act violations are cognizable damages under Section 552a(g)(4).”). She
seeks further damages for lost profits, a sum that might include lost business opportunities without
22
regard to the loss of tuition assistance from the Defense Department. Opp. to Herridge Mot., Ex.
34 at 2; Compl. ¶ 56 (“The illegal leak of personal information has diminished Dr. Chen’s income,
limited her professional opportunities, and decreased the value of the university that she wholly
owns and into which she has invested the last two decades.”).
Even if Chen may ultimately have to distinguish between damages caused by the leak of
information covered by the Privacy Act—such as the compromising photographs of herself and
her husband—and not by other information in the Fox reporting that was either not so protected or
was publicly available, the Court cannot say at this juncture that she will be unable to do so,
particularly without expert opinions that could be crucial to that analysis. Indeed, even if Herridge
and Fox are correct that only the photographs that appeared in the reporting could serve as the
basis for Privacy Act damages—a question the Court does not decide—the Court does not doubt
that the images of Chen holding or wearing a Chinese military uniform could have given the Fox
reporting more traction than it otherwise would have had and caused Chen more damage than she
otherwise would have suffered. A picture, after all, “is worth a thousand words.” Andy Warhol
Found. for the Visual Arts v. Goldsmith, 143 S. Ct. 1258, 1295 (2023) (Kagan, J., dissenting).
Were the photographs here irrelevant, moreover, the Court wonders why Herridge would have
thought to include them in her reporting, notwithstanding the rather obvious legal implications of
doing so. Although the Court does not intimate “any opinion as to whether” Chen “will ultimately
prevail,” the current record does not support the conclusion “that no purpose would be served by
disclosure of the identity of the sources.” Carey, 492 F.2d at 638.
Second, Herridge and Fox urge the Court to conclude that Chen’s “purely parochial,
private interest” in her Privacy Act claim, absent evidence that the government “smeared an
innocent person,” simply does not outweigh the First Amendment interest in promoting a robust
free press, particularly in the area of reporting on national security. Herridge Mot. at 26, 34–39.
23
At the outset, the Court rejects the assertion that Chen’s Privacy Act claim implicates only her
own personal interests. To make out a Privacy Act claim, a litigant must show that the
government’s disclosure of covered material was “intentional or willful,” 5 U.S.C. § 552a(g)(4),
and Congress has recognized the weightiness of such willful disclosures by creating a private right
of action to deter them. Nor does the Court read Lee, Hatfill, or any of the other D.C. Circuit
cases discussing the reporter’s privilege to turn on whether the Privacy Act plaintiff was
wrongfully “smeared” by government leaks or, to paraphrase Herridge and Fox’s argument, “had
it coming.” For good reason: The Privacy Act protects not just Chen but all private citizens,
whether blameworthy or blameless, from the risk that government officials might be tempted to
abuse their access to sensitive information by leaking materials intended to embarrass particular
individuals.
Of course, the Court does not question the vital role of a free press in “bar[ing] the secrets
of government and inform[ing] the people.” N.Y. Times Co. v. United States, 403 U.S. 713, 717
(1971) (Black, J., concurring). But here, if Herridge and Fox are correct that only a few (in their
view, insignificant) elements of their stories even implicated the Privacy Act, then that press
function, including the reliance on confidential sources, need not have come into conflict with
Chen’s statutory privacy rights at all. And, at the end of the day, the binding precedent of this
Circuit does not permit this Court to cast aside all the “more precise guidelines” analyzed above
based solely on the abstract “importance of a vigorous press.” Zerilli, 656 F.2d at 712–13.
* * *
The Court is mindful both “of the preferred position of the First Amendment,” Zerilli, 656
F.2d at 712, and of the fact that “the protections of the Privacy Act do not disappear when the
illegally disclosed information is leaked to a journalist, no matter how newsworthy the
government official may feel the information is,” Lee, 413 F.3d at 60. As described above, the
24
two most important factors identified by Zerilli and Lee point decidedly in Chen’s favor. The
subpoenas, as modified, go to the heart of her Privacy Act claim, and she has exhausted all but the
speculative alternative sources of information suggested by Herridge and Fox. That Herridge and
Fox are not parties to the case does not outweigh those factors, nor do their concerns about the
extent of Chen’s damages or the importance of Herridge’s work. Accordingly, balancing the
foregoing factors, the Court concludes that Chen has overcome the qualified First Amendment
privilege in this case.
B. Common Law Newsgathering Privilege
Although most of the parties’ briefing is devoted to the qualified First Amendment
privilege, Herridge and Fox also urge the Court to recognize a newsgathering privilege under
federal common law. See Herridge Mot. at 39–45; Fox Mot. at 13–14. For the same reasons
stated by Judge Collyer in Lee II and Judge Walton in Hatfill, the Court declines to recognize a
federal common law newsgathering privilege here.
Herridge and Fox contend that the relationship between a journalist and her confidential
source is “rooted in the imperative need for confidence and trust” and serves important public
ends. Herridge Mot. at 40–41 (quoting Jaffee v. Redmond, 518 U.S. 1, 10 (1996)). But to
“qualify as an exception from the general rule disfavoring testimonial privileges requires a public
good transcending the normally predominant principle of utilizing all rational means for
ascertaining the truth.” Hatfill, 505 F. Supp. 2d at 44 (alterations and internal quotation marks
omitted) (quoting Jaffee, 518 U.S. at 9). The “transcendent importance of a free press is that
reporters can report the news and express opinions without fear of Government oppression or
interference,” and the use of confidential sources is “not a sine qua non of journalism but only an
important and useful tool.” Lee II, 401 F. Supp. 2d at 141; accord Hatfill, 505 F. Supp. 2d at 45.
25
Moreover, “[u]nlike the psychotherapist’s privilege recognized in Jaffee, ‘the likely
evidentiary benefit that would result from the denial of the [reporter’s] privilege’” could be
substantial. Hatfill, 505 F. Supp. 2d at 45 (second alteration in original) (quoting Jaffee, 518 U.S.
at 11). Even if not absolute, a common law privilege that would preclude disclosure of a
confidential source in a case such as this one, which the Court has found satisfies the Zerilli and
Lee test, would “circumvent” this Circuit’s First Amendment privilege case law and would risk
undermining “the fundamental purpose of the Privacy Act” of “discourag[ing] the kind of
[alleged] leaks that are at issue in this action.” Lee II, 401 F. Supp. 2d at 139, 141–42. Moreover,
as noted above, the balancing of interests contemplated by Herridge and Fox’s proposed common
law privilege “would create a subjective and elastic standard whose outcome could not be
predicted,” saddling district courts with the “daunting and well-nigh impossible task” of
determining “whether the harm caused by leaked information outweighs the ‘value’ of that
information to the citizenry.” Id. at 139. Given that this Circuit already has a well-established
First Amendment privilege that both protects journalists’ interests and channels judicial discretion
in balancing that interest against evidentiary need, Herridge and Fox fail to “demonstrate with a
high degree of clarity and certainty that” their proposed privilege “will effectively advance a
public good” relative to these potential drawbacks. Id. at 137 (quoting In re Sealed Case, 148 F.3d
1073, 1076 (D.C. Cir. 1998)).
To be sure, as Herridge and Fox point out, almost all of the states have adopted some form
of reporter’s privilege, although the contours of those protections vary significantly from state to
state. See In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141, 1157–58 (D.C. Cir. 2006)
(Sentelle, J., concurring). That factor weighs somewhat in favor of recognizing a similar federal
common law privilege. But “exceptions to the demand for every man’s evidence are not lightly
created nor expansively construed, for they are in derogation of the search for truth.” United
26
States v. Nixon, 418 U.S. 683, 710 (1974). For that reason, “new privileges should be created
sparingly and with caution.” Lee II, 401 F. Supp. 2d at 136. And, although not dispositive,
recognizing the common law privilege Herridge and Fox seek would stand in some tension with
the Supreme Court’s pronouncement that “the common law recognized no such privilege,” at least
in the criminal context. Branzburg v. Hayes, 408 U.S. 665, 698 (1972); see id. at 685 (“At
common law, courts consistently refused to recognize the existence of any privilege authorizing a
newsman to refuse to reveal confidential information to a grand jury.”). Accordingly, the Court
will not create a federal common law newsgathering privilege here.
C. Sequencing of Discovery
The Court must tackle one last question—Fox’s arguments that the subpoenas to it should
be quashed as duplicative of the Herridge subpoenas, at least until discovery efforts are exhausted
with respect to her. Fox contends that Zerilli’s exhaustion requirement demands that Chen seek
discovery from Herridge first and that requiring Fox to submit to a deposition would be
unnecessarily cumulative and duplicative under Federal Rule of Civil Procedure 26(b)(2)(C). Fox
Mot. at 12–13, 14–16. Although Chen contends that Herridge and Fox may be able to provide
different materials relevant to her claim, she does not oppose sequencing discovery to require
Fox’s compliance with the subpoenas only if the discovery sought from Herridge is incomplete.
Opp. to Fox Mot. at 18–19.
The Court agrees with this proposed approach. The “names of the sources who leaked
information about Dr. [Chen] to the media are central to [her] Privacy Act claim[],” and Chen’s
subpoena to depose Herridge is “directly targeted at obtaining” that information. Hatfill, 505 F.
Supp. 2d at 49. Until Chen has exhausted her efforts to obtain the alleged leaker’s identity from
Herridge, she will not have exhausted reasonable alternative sources sufficient to require Fox to
submit to a subpoena as well. Id. Of course, “depending upon the outcome of the reporter’s
27
deposition[], it may be necessary for the Court to revisit in the future whether corporate
representatives of” Fox “should be compelled to provide deposition testimony.” Id. But, at least
for now, the Court believes it prudent to proceed one step at a time.
Accordingly, the Court will grant Herridge’s motion insofar as it defers enforcement of
Chen’s document subpoena and cabins her deposition subpoena, but it will otherwise deny her
motion. Consistent with this opinion, Chen may depose Herridge regarding the identity and intent
of the source or sources of the documents and images allegedly provided to her in violation of the
Privacy Act, and any non-privileged other matters relevant to her Privacy Act claim. The Court
will grant Fox’s motion, without prejudice to Chen renewing her subpoenas to Fox in the event
Herridge cannot provide the information she seeks.
IV. Conclusion
For these reasons, it is hereby
ORDERED that [Dkt. Nos. 94 & 96] Catherine Herridge’s Motion to Quash is
GRANTED in part and DENIED in part. It is further
ORDERED that [Dkt. Nos. 95 & 97] Fox News Network’s Motion to Quash is
GRANTED.
SO ORDERED.
CHRISTOPHER R. COOPER
United States District Judge
Date: August 1, 2023
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