Matter of Subpoena Duces Tecum to Evans

[*1] Matter of Subpoena Duces Tecum to Evans 2012 NY Slip Op 50269(U) Decided on January 13, 2012 Supreme Court, Bronx County Schachner, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 13, 2012
Supreme Court, Bronx County

In re Subpoena Duces Tecum to Third Party Heidi Evans GREGORY HODGE, Plaintiff, NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY, CITY OF NEW YORK, DEPARTMENT OF EDUCATION OF CITY OF NEW YORK, THE BOARD OF EDUCATION OF CITY OF NEW YORK, and ADMIRAL CONSTRUCTION, LLC, Defendants

GREGORY HODGE, Plaintiff, - against -

against

NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY, CITY OF NEW YORK, DEPARTMENT OF EDUCATION OF CITY OF NEW YORK, THE BOARD OF EDUCATION OF CITY OF NEW YORK, and ADMIRAL CONSTRUCTION, LLC, Defendants





305815/11



Defendants: Paul J. Zola, Esq.

Attorney for Third Party Heidi Evans: Anne B. Carroll, Esq., Deputy General Counsel for Daily News, LP

Larry S. Schachner, J.

This motion by the Daily News LP to quash the subpoena served by defendants on one of its reporters, Heidi Evans, is decided as follows:

The underlying lawsuit involves a trip and fall by plaintiff, Gregory Hodge, the school principal, outside of his school, The Frederick Douglass Academy. The subpoena asks for:

All notes, recordings, outtakes, e-mails, facsimile transmissions, documents, interviews, photos, and/or materials in your possession or control, relied upon or created by Heidi Evans and/or the Daily News or its agents, employees, or representatives, in drafting the article entitled "School's out for Frederick Douglass principal Gregory Hodge: Tough-love head retiring after 31 years," published on or about July 13, 2011.

In moving to quash the subpoena the Daily News cites New York Civil Rights Law section 79-h(c) commonly known as the [*2]Shield Law. The above statute extends a qualified privilege against compelled disclosure of non confidential, unpublished news material. The statute provides in relevant part that:

"[N]o professional journalist or newscaster ... shall be adjudged in contempt by any court in connection with any civil or criminal proceeding ... for refusing or failing to disclose any unpublished news obtained or prepared by a journalist or newscaster in the course of gathering or obtaining news ... unless the party seeking such news has made a clear and specific showing that the news: (i) is highly material and relevant; (ii) is critical or necessary to the maintenance of a party's claim, defense or proof of an issue material thereto; and (iii) is not obtainable from any alternative source."

Based upon the record before the court, the motion to quash the subpoena is granted. Defendants have not met their burden imposed by the Shield Law. There has been no clear and specific showing that the material defendants seek to compel is` critical or necessary to their defense. The Second Circuit has held that to meet the burden of establishing that the information sought is necessary or critical to the maintenance of the claim, a party must establish that its claim virtually rises or falls with the admission or exclusion of the proferred evidence. Application to Quash Subpoena to National Broadcasting Co., 79 F3d 346 (2d Cir 1996). Counsel seeks this material for impeachment purposes, not to maintain its defense. Certainly, this is not critical or necessary to the defense of this action. In addition, as discovery is in its infancy, defendants have not met their burden that the material is not obtainable from any alternative source. Defendants' remedy for plaintiff's alleged failure to comply with discovery is to move to compel under Article 31 of the CPLR, not to seek the subject material by the within subpoena.

Accordingly, the motion to quash the subpoena is granted.

Dated: January 13, 2012____________________________

LARRY S. SCHACHNER, JSC