In re Grand Jury Subpoenas
| Decision Date | 15 August 2006 |
| Docket Number | No. CR 06-90225 JSW.,CR 06-90225 JSW. |
| Citation | 438 F.Supp.2d 1111 |
| Court | U.S. District Court — Northern District of California |
| Parties | IN RE GRAND JURY SUBPOENAS to Mark Fainaru-Wada and Lance Williams |
Eve Burton, The Hearst Corp., New York, NY, Floyd Abrams, Cahill Gordon & Reindel, New York, NY, Gregory Lindstrom, Latham & Watkins LLP, San Francisco, CA, Jonathan R. Donnellan, Kristina E. Findikyan, The Hearst Corp., New York, NY, Sadik Harry Huseny, Latham & Watkins LLP, San Francisco, CA, Steven M. Bauer, San Francisco, CA, Susan Buckley, Cahill Gordon & Reindel, New York, NY, for Mark Fainaru-Wada, Lance Williams.
Brian D. Hershman, Atty. Gen., Los Angeles, CA, for U.S.
ORDER DENYING MOTION TO QUASH SUBPOENAS
This matter comes before the Court upon consideration of the motion to quash subpoenas filed by Mark Fainaru-Wada ("Fainaru-Wada") and Lance Williams ("Williams") (collectively "Movants"). Having considered the parties' pleadings, the brief filed by Amicus Curiae,1 relevant legal authority, and having had the benefit of oral argument, the Court HEREBY DENIES the motion to quash.2
This case arises out of a series of articles published in the San Francisco Chronicle (the "Chronicle"), authored by movants Mark Fainaru-Wada ("Fainaru-Wada") and Lance Williams ("Williams") (collectively "Movants"). The articles relate to the Bay Area Laboratory Co-Operative ("BALCO"), its principals, and two of its distributors (the "BALCO defendants"), and the Government's investigation into the distribution of steroids and performance enhancing drugs to a number of prominent athletes. (See generally, Affidavit of Jonathan R. Donnellan ("Donnellan Aff."), Exs. 1-11, 26-30, 32)3 Movants began reporting on the BALCO investigation in or around October 2003. (Donnellan Aff., Ex. 1.)
On February 12, 2004, the BALCO defendants were indicted and charged with, inter alia, conspiracy to distribute and possess with intent to distribute anabolic steroids, and possession with intent to distribute anabolic steroids and the aiding and abetting thereof. (Id., Ex. 16.) On February 27, 2004, Judge Illston, the presiding judge in the BALCO case, held a trial setting conference. At that conference, the Government turned over approximately 2,000 pages of grand jury transcripts on the condition that the transcripts would be subject to a protective order. On March 8, 2004, Judge Illston approved the Stipulated Protective Order (the "Protective Order") submitted by the parties. Under the terms of that Protective Order, the parties were precluded from disseminating to the press any "Sealed Material," the definition of which specifically grand transcripts. (Donnellan Aff., Ex. 23 (Protective Order, ¶¶ 1.a, 2, 3).) The Protective Order provided that a violation "may be punishable by contempt of court, whatever other sanction the Court deems just, and/or any other sanctions which are legally available." (Id., ¶ 7.) The grand jury transcripts also would have been subject to the secrecy provisions of Federal Rule of Criminal Procedure 6(e).4
On June 23, 2004, the Chronicle published articles, authored by Movants, reporting on and quoting testimony given to the grand jury during the course of the BACO investigation. (Donnellan Aff., Exs. 26-27.) In July 2004, the parties in the BALCO case submitted declarations to Judge Illston regarding their handling of the grand jury transcripts. (Hershman Decl., Ex. AA.) According to Movants, in the summer and fall of 2004, the Government asked them to disclose voluntarily "confidential source information and material related to [their] investigation of BACO." (See Fainaru-Wada Aff., ¶ 10; Williams Aff., ¶ 12.) Movants declined to do so. (Id.)
On December 2 and 3, 2004, Movants again authored and published articles reporting on and quoting grand jury testimony from the BALCO investigation. (Donnellan Aff., Exs. 28-30.) Movants attest that they used confidential sources, as they have done during the course of their careers, to write each of the articles in which they disclosed grand jury testimony. Movants also attest to the important part they believe confidential sources play in their roles as journalists. (Fainaru-Wada Aff., ¶¶ 15-7; Williams Aff., ¶¶ 5-9.)
On December 3, 2004, Judge Illston issued a notice to the parties that the matter of the leaks of grand jury transcripts had been referred to the United States Department of Justice "for investigation, either internally or if necessary through independent counsel, to determine the source of the disclosures." (Donnellan Aff., Ex. 75.)
On April 19, 2006, in the course of that investigation, the Government issued subpoenas requiring Movants to appear before the grand jury and to produce documents regarding the source of the grand jury transcripts disclosed in the articles. (Id., Exs. 77, 78.) According to Movants, they received these subpoenas on or about May 5, 2006. (Fainaru-Wada Aff., ¶ 10; Williams Aff., ¶ 12.) Movants filed the instant motion to quash on May 31, 2006.
In addition to the facts recounted by the Court above, Movants submit affidavits from a number of journalists who also attest to the important role that confidential sources play in their news coverage. (See Affidavits of Carl Bernstein and Jack Nelson.) Movants further submit affidavits from parents whose children have committed suicide apparently as a result of steroid usage. (See Affidavits of Denise A. Garibaldi, Ph.D. and Donald Hooton.) Finally, Movants submit numerous articles, transcripts from televisions shows, and legislation that has been introduced and passed regarding steroid usage, to demonstrate the response to their articles and to demonstrate that the articles heightened public interest and awareness of the issue of steroid use and abuse. (See, e.g., Donnellan Aff., Exs. 13-15, 24-25, 33-73; see also Affidavits of Roger Blake, Congressman John E. Sweeney, Francis Vincent, Jr., and Gary Wadler, M.D.) The Government, in turn, submits evidence regarding its investigation into the leaks and its efforts to obtain this information from sources other than the Movants. (Hershman Decl., Ex. EE-GG; Hershman Reply Declaration, Ex. 1.)
The Court does not intend to discount any of this evidence by not addressing it more specifically in this Order and has considered it carefully in reaching its conclusions. However, it intends its analysis to focus on the legal issue presented— namely whether or not Movants are entitled to withhold the identity or identities of their confidential source or sources. Additional facts necessary to the analysis are set forth in the remainder of this Order.
At the outset, the Court reiterates its views, as expressed at the hearing, that both parties' arguments raise important policy considerations and concerns. On one side is the role that members _of the press play in bringing issues to the forefront of public attention, which may lead to changes in policy or the law.
The First Amendment protections for the press embodied in [the First] Amendment are designed to "preserve an untrammeled press as a vital source of public information," Grosjean v. Am. Press Co., 297 U.S. 233, 250, 56 S.Ct. 444, 80 L.Ed. 660 (1936), ensuring that the press "could bare the secrets of government and inform the people," New York Times Co. v. United States, 403 U.S. 713, 717, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) (Black, J., concurring). As the Supreme Court recognized in New York Times v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), there is "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open."
United States v. Libby, 432 F.Supp.2d 26, 43 (D.D.C.2006). Indeed, the Supreme Court has noted that "the free press has been a mighty catalyst in awakening public interest in governmental affairs, exposing corruption among public officers and employees and generally informing the citizenry of public events and occurrences ...." Estes v. Texas, 381 U.S. 532, 539, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965). Without question, confidential sources often are essential in assisting the press in that task. However, the "the First Amendment does not invalidate every incidental burdening of the press that may result from the enforcement of civil or criminal statutes of general applicability." Branzburg v. Hayes, 408 U.S. 665, 682, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972).
On the other side is the role that the grand jury, and its concomitant rules of secrecy, play in our criminal justice system. The grand jury
is an investigatory body charged with the responsibility of determining whether or not a crime has been committed. Unlike this Court, whose jurisdiction is predicated on a specific case or controversy, the grand jury "can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not." The function of the grand jury is to inquire into all information that might possibly bear on its investigation until it has identified an offense or has satisfied itself that none has occurred. As a necessary consequence of its investigatory function, the grand jury paints with a broad brush. "A grand jury investigation `is not fully carried out until every available clue has been run down and all witnesses examined in every proper way to find if a crime has been committed.'"
United States v. R. Enterprises, 498 U.S. 292, 297, 111 S.Ct. 722, 112 L.Ed.2d 795 (1991) (emphasis added) (citations omitted). However, Id. (citations omitted).
The Court finds itself bound by the law governing this case to subordinate ...
To continue reading
Request your trial
-
Protecting the cloak and dagger with an illusory shield: how the proposed Free Flow of Information Act falls short.
...the First Amendment did not protect Judith Miller and Philip Shenon's telephone records from disclosure); In re Grand Jury Subpoenas, 438 F. Supp. 2d 1111 (N.D. Cal. 2006) (finding that the grand jury's interest in the source of information outweighed reporters' confidentiality agreement wh......