Lee v. Department of Justice
| Decision Date | 16 November 2005 |
| Docket Number | No. Civ.A. 99-3380(RMC).,Civ.A. 99-3380(RMC). |
| Citation | 401 F.Supp.2d 123 |
| Parties | Wen Ho LEE, et al., Plaintiffs, v. DEPARTMENT OF JUSTICE, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Allyson Newton Ho, Washington, DC, Brian A. Sun, Jones Day, Los Angeles, CA, Charles Kevin Marshall, Thomas C. Green, Frank R. Volpe, Joseph R. Palmore, Mark D. Hopson, Sidley Austin Brown & Wood, Washington, DC, Luan K. Phan, O'Neill, Lysaght & Sunn LLP, Santa Monica, CA, Betsy Alexandra Miller, Jones Day, Washington, DC, for Plaintiffs.
Ann L. Weismann, Citizens for Responsibility and Ethics, Anthony Joseph Coppolino, Elizabeth J. Shapiro, U.S. Department of Justice, Marcia N. Tiersky, Department of Justice, Civil Division, Charles D. Tobin, Ethan Ray Arenson, Holland & Knight, LLP, Washington, DC, Donald John Mulvihill, Cahill Gordon & Reindel LLP, Washington, DC, Floyd Abrams, Joel Kurtzberg, Cahill, Gordon & Reindel LLP, New York, NY, Lee J. Levine, Levine Sullivan Koch & Schulz, LLP, Washington, DC, David A. Schulz, Levine Sullivan Koch & Schulz, LLP, New York, NY, Seth D. Berlin, Levine Sullivan & Koch, LLP, Kevin T. Baine, Kevin Hardy, Williams & Connolly LLP, Washington, DC, for Defendants.
The Court considers Plaintiff Wen Ho Lee's request to hold Walter Pincus, a Pulitzer Prize-winning reporter for The Washington Post and a non-party to this lawsuit, in civil contempt. In the underlying action, Dr. Lee accuses various federal agencies of violating his rights under the Privacy Act of 1974, 5 U.S.C. § 552a (2000), by "leaking" information about him to the news media in order to cover up their own security failures at Los Alamos National Laboratory. Mr. Pincus is one of six reporters to whom Dr. Lee issued deposition subpoenas. On June 29, 2004, this Court granted Dr. Lee's motion to compel further deposition testimony from Mr. Pincus after Mr. Pincus refused to answer questions concerning the identity of his sources. Although Mr. Pincus appeared for a second deposition, he continued to refuse to answer questions about the identity of his confidential sources, asserting that such information was protected by a "reporter's privilege." Dr. Lee subsequently filed an Application for an Order to Show Cause Why Non-Party Journalist Walter Pincus Should Not Be Held in Civil Contempt ("Pl.'s App."), which this Court granted on January 4, 2005.
After careful consideration of the parties' briefs, oral arguments, and the entire record, this Court finds that the information that Mr. Pincus refuses to disclose is not protected by a reporter's privilege under the First Amendment or the common law. As there is clear and convincing evidence that Mr. Pincus refused to provide answers to deposition questions concerning the identity of his sources despite this Court's June 29, 2004, Order to do so, Mr. Pincus will be held in civil contempt.
Dr. Wen Ho Lee, a scientist who was employed by the Department of Energy ("DOE"), was investigated by the Federal Bureau of Investigation ("FBI") and the DOE on suspicion of espionage on behalf of the People's Republic of China from 1996 to 1999. Lee v. Dep't of Justice, 413 F.3d 53, 55 (D.C.Cir.), reh'g en banc denied, 2005 WL 2874940 (D.C.Cir. Nov.2, 2005). The criminal investigation led to Dr. Lee's imprisonment in solitary confinement for nine months in 1999. Pl.'s App. at 3. The Government never sought to prosecute Dr. Lee for espionage, however, and in December 1999 Dr. Lee was indicted on 59 counts of mishandling computer files at Los Alamos National Laboratory. See Lee, 413 F.3d at 55. Subsequently, the Government withdrew 58 counts, Dr. Lee pled guilty to one count of mishandling computer files, and Dr. Lee was sentenced to time served.1 Id.
The Lee investigation was first reported in The Wall Street Journal on January 7, 1999, and then by Mr. Pincus in The Washington Post on February 17, 1999. Id. On March 6, 1999, The New York Times published an article concerning the investigation of a Chinese-American computer scientist at Los Alamos, but the article did not identify Dr. Lee by name. Id. However, on March 9, 1999, both The New York Times and The Washington Post, in another article authored by Mr. Pincus, identified Dr. Lee by name and discussed details of the investigation in reliance on numerous anonymous Government sources. Pl.'s App. at 6. Journalists from The Los Angeles Times, the Cable News Network ("CNN"), the Associated Press, and various other media outlets also reported on the Lee investigation, similarly relying on information from anonymous Government sources. Id. Once the Government's investigation shifted from charges of espionage to mishandling of computer files, both The New York Times and CNN published articles citing anonymous Government sources to support allegations that Dr. Lee had mishandled important computer codes for nuclear weapons by downloading them to an unsecured computer. Id. at 7.
On December 20, 1999, Dr. Lee brought suit against the United States Department of Justice ("DOJ"), the DOE, and the FBI, alleging that each defendant had improperly disclosed personal information about him and the investigation in violation of the Privacy Act.2 Id. at 4. The heart of Dr. Lee's complaint is that "in connection with their investigations of suspected espionage at Los Alamos National Laboratory and a simultaneous public relations campaign to ameliorate damaging publicity about security lapses, the defendant agencies disclosed information pertaining to [him] by name, without obtaining his consent or assuring its accuracy, to persons not authorized to receive it, namely the news media." Lee v. Dep't of Justice, 287 F.Supp.2d 15, 16-17 (D.D.C.2003) (Jackson, J.) ("Discovery Order"). Dr. Lee alleges that employees of the defendant agencies illegally leaked information to the press concerning his and his wife's employment histories, their financial transactions, details about their trips to Hong Kong and China, details concerning the Government investigation and interrogation, and purported results from polygraph tests. Lee, 413 F.3d at 56. He has requested damages in the amount of $1,000 per Privacy Act violation in addition to reasonable attorney's fees and costs. Id.
Dr. Lee's Privacy Act lawsuit was stayed during his criminal case. On July 31, 2001, this Court entered an order permitting unrestricted discovery. Dr. Lee made at least 420 written discovery requests to the Government defendants — 295 requests for production, 74 special interrogatories, and 51 requests for admission. Pl.'s App. at 9. However, Dr. Lee "was largely rebuffed by assertions of law enforcement privilege and learned nothing identifying the source of the leaks." Lee, 413 F.3d at 56. In October 2001, Dr. Lee began deposing Government officials whom he identified as likely to have relevant information based on the Government's responses to his written discovery requests. He deposed six employees from the DOE,3 six officials from the DOJ4 and eight FBI officials.5 Id. Despite Dr. Lee's extensive written discovery requests and focused depositions of Government officials likely to have relevant knowledge, he was unable to obtain information concerning the source of the leaks. Id.
In August of 2002, Dr. Lee issued subpoenas to journalists James Risen and Jeff Gerth of The New York Times, Robert Drogin of The Los Angeles Times, H. Josef Hebert of the Associated Press, and Pierre Thomas of CNN seeking testimony and documents concerning the identity of the leakers. Id. Each of these journalists filed motions to quash their subpoenas on the grounds of a reporter's privilege to refuse to reveal confidential news sources. Discovery Order, 287 F.Supp.2d at 17. On October 9, 2003, Judge Thomas Penfield Jackson issued an order denying each of the five journalists' motions to quash and ordering them to sit for depositions and to "truthfully answer questions as to the identity of any officer or agent of defendants ... who provided information to them directly about Wen Ho Lee, and as to the nature of the information so provided." Id. at 25.
In rejecting the journalists' assertions of privilege, the Court relied on the D.C. Circuit's decision in Zerilli v. Smith, 656 F.2d 705 (D.C.Cir.1981), which "laid out guidelines for balancing First Amendment interests with a litigant's need for information when a plaintiff seeks to subpoena a non-party journalist in the context of a civil action." Lee, 413 F.3d at 56-57. Zerilli recognized "a limited privilege upon which a reporter might withhold testimony on First Amendment grounds if it would compromise a confidential news source." Discovery Order, 287 F.Supp.2d at 18. However, a plaintiff can overcome this qualified privilege and compel a journalist to reveal the identity of his or her confidential sources if (1) the information sought goes "to the heart of" the plaintiff's case and (2) the plaintiff has exhausted "every reasonable alternative source of information" before seeking testimony from the journalist(s). Zerilli, 656 F.2d at 713; cf. Lee v. Dep't of Justice, No. 04-5301, 2005 WL 2874940, at *2-3 (D.C.Cir. Nov.2, 2005) () (arguing for a different interpretation of Zerilli) ("Lee (Denial of Rehearing)"). Judge Jackson determined that Dr. Lee had clearly met both Zerilli requirements to overcome the journalists' qualified privilege, and that at this stage in the litigation "only [the journalists] can testify as to whether defendants were the sources for the various news stories." Discovery Order, 287 F.Supp.2d at 22.
Despite Judge Jackson's order, the journalists continued to assert a reporter's privilege and refused to answer any questions concerning the identities of their sources when they appeared for...
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