IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA STEVEN J. HATFILL, M.D., Plaintiff, Case No. 1:03-CV-01793 (RBW v. ALBERTO GONZALES ATTORNEY GENERAL, et al., Defendants. REPLY MEMORANDUM IN FURTHER SUPPORT OF MOTION BY NON-PARTY THE NEW YORK TIMES COMPANY TO QUASH SUBPOENA In opposing the motion by non-party The New York Times Company ( the Times to quash his subpoena, Plaintiff never even attempts to answer the central questions presented by the Times motion: why the Times and why now? Instead, Plaintiff s only direct reference to the Times argues (incorrectly that there is no potential conflict between the discovery he belatedly seeks in this case and pre-existing discovery disputes in his on-going libel suit with the Times. Otherwise, Plaintiff s omnibus Opposition to motions filed by a number of news organizations argues that the Court has in effect authorized him to subpoena any press entity that ever reported on the criminal investigation of him. See Pl. s Consolidated Opp n to Media Companies Mots. to Quash ( Opp. [Dkt. 165] at 3. Indeed, Plaintiff goes to great lengths to distract the Court from focusing on the particulars of the Times reporting that is the subject of his discovery demands by attacking monolithically all of the media companies that are the targets of his latest subpoenas. Id. at 1. Plaintiff s attempt to obscure the issues raised by the Times motion should be rejected and the Times subpoena quashed, for three overarching reasons.

First, Plaintiff has not provided any basis for the Court to find the articles and columns that are the subject of the subpoena to the Times (and, by extension, the identity of any government sources who may have provided information in those reports are important to his case. In fact, Plaintiff s own litigation conduct makes it obvious that he has never considered information from the Times to be necessary to his case. Plaintiff has never previously issued any subpoena to the Times or to any Times reporter. Moreover, in deposition after deposition of government officials, Plaintiff s counsel inquired about communications with as many as 37 reporters from other news organizations, without once asking about any of the 11 articles or columns that are the subject of the present subpoena to the Times. Second, it is no mere coincidence that Plaintiff suddenly became interested in probing the Times reporting here only after another federal court refused his request to levy ruinous fines against the Times for protecting its confidential sources, and then granted summary judgment to the Times in Plaintiff s libel suit. The inference that Plaintiff is using a perceived opportunity presented by this Court s March 30 discovery Order to seek another means of continuing his legal assault on the Times shortly after those setbacks is simply inescapable. Moreover, Plaintiff is simply wrong in suggesting that there is no potential impact on his libel case if his discovery request is allowed here, because the Virginia court s summary judgment and privilege rulings remain the subject of pending appeals. Third, Plaintiff is wrong as a matter of procedure when he contends that the Court should reach out now to resolve a source privilege the Times has yet to assert, and in any event that approach would backfire on Plaintiff if followed. The current record before the Court would indisputably require that the Times subpoena be quashed because Plaintiff has done nothing to meet his burden to overcome any source privilege that may be asserted. See Lee v. Dep t of 2

Justice, 413 F.3d 53, 60 (D.C. Cir. 2005 (discussing burden on party seeking discovery from journalists in the face of privilege assertion. Pursuant to the law of this Circuit, when the reporter s privilege concerning confidential sources is asserted, the burden will be squarely on Plaintiff to demonstrate, at a minimum, both his need for discovery from the Times and that he has diligently attempted to exhaust alternative sources of the information he seeks from the Times. See id. at 59. Plaintiff s Opposition makes no showing whatsoever on either account, and the record demonstrates that he has wholly failed to explore any alternative sources of the information contained in the Times reporting. ARGUMENT I. PLAINTIFF S LITIGATION CONDUCT DEMONSTRATES THAT THE TIMES REPORTING IS NOT IMPORTANT TO HIS CLAIMS Plaintiff s 22-page Opposition never actually explains why he previously opted not to seek discovery in this action from the Times or why he needs such discovery now. Instead, Plaintiff appears to proceed on the premise that the Court has given him carte blanche to subpoena any news organization that may have ever reported anything about him. For reasons more fully discussed in the Reply Memorandum of The Associated Press and The Baltimore Sun Company ( AP/Sun Reply, incorporated here by reference, we respectfully submit that is not what the Court authorized, and the Times subpoena should therefore be quashed. With respect to the Times, the record is especially clear that Plaintiff has never believed its reporting need be the subject of discovery in this case. He proceeded for years in this action without ever previously issuing a subpoena to the Times, unlike all of the other news organizations he recently subpoenaed. Even more importantly, Plaintiff has not pursued any discovery about the 11 Times articles and columns listed on the subpoena during any of the numerous depositions he has taken in this action. 3

Because Plaintiff always anticipated that he might want to move to compel reporters to identify their sources at some point in this litigation, from the onset of discovery he sought to build a record showing that he had exhausted alternative means of identifying reporters sources, as the reporter s privilege requires. See Lee, 413 F.3d at 60-61 (discussing exhaustion requirement; see also Declaration of John B. O Keefe ( O Keefe Decl., Ex. 12 at 134:4-9 (Plaintiff s counsel describing to a witness the exhaustion exercise that was the basis for his questions about contacts with specific reporters and news organizations other than the Times. As a result, Plaintiff deposed more than two dozen current and former FBI or DOJ employees whose knowledge of the anthrax investigation or interactions with the press make them potential sources of reporters. 1 In those depositions Plaintiff never inquired about any of the Times articles or columns at issue in this subpoena, even as he inquired about whether the witnesses were sources of information for various news reports from other press entities. Specifically: In at least twelve depositions, the witness was shown two exhibits, one listing 15 news organizations and another listing 37 reporters. Plaintiff s counsel then inquired about whether the witness had provided information about Plaintiff to any of the organizations or reporters on these lists. See, e.g., O Keefe Decl. Exs. 1 (Adams Dep. at 122:21-127:1; 4 (Carey Dep. at 158:4-169:20; 8 (Fitzgerald Dep. at 85:4-98:7; 9 (Garrett Dep. at 21:21-23:12; 10 (Harp Dep. at 70:20-84:19; 12 (Kohl Dep. at 134:4-137:6; 13 (Kortan Dep. at 221:15-225:7; 14 (Lambert Dep. at 50:16-63:11; 15 (Murray Dep. at 190:6-195:20; 16 (Reynolds Dep. at 41:11-45:18; 17 (Roth Dep. at 43:10-46:22; & 19 (Stockham Dep. at 170:11-172:4. These two exhibits do not include either the Times or its reporters. See id., Exs. 21 & 22. In other instances, rather than present these lists, Plaintiff s counsel orally recited the names of specific reporters to a witness or presented the witness with copies of specific news reports (in some cases reviewing dozens of articles or reporters, each time asking whether the witness had been a source, with respect to information about Plaintiff, for the particular reporter or news report. See, e.g., 1 Those witnesses include Dwight Adams, John Ashcroft, David Ayres, Thomas Carey, Barbara Comstock, Mark Corallo, Arthur Eberhart, James Fitzgerald, Bradley Garrett, Van Harp, David Israelite, Kenneth Kohl, Michael Kortan, Richard Lambert, Peter Murray, Robert Mueller, James Reynolds, Robert Roth, Bryan Sierra, Rex Stockham, and Debra Weierman. 4

id., Exs. 3 (Ayres Dep. at 266:8-274:4; 7 (Eberhart Dep. at 67:17-94:25; 11 (Israelite Dep. at 171:6-179:8; 18 (Sierra Dep. at 69:12-80:12, 196:15-264:13; 20 (Weierman Dep. 323:14-460:10. Again, not once in these depositions was any article or column that is the subject of the Times subpoena introduced or discussed in any way. In the very few instances when the name of a Times reporter came up during a deposition, it was not in reference to any of the articles at issue in this subpoena. For example, a few witnesses were asked briefly about a September 5, 2002, Times article by David Johnston, which reported that several senior law enforcement officials expressed embarrassment over an e-mail sent from the DOJ Office of Domestic Preparedness to Louisiana State University stating that the university should cease and desist using Plaintiff for work on DOJ-funded programs. See, e.g., id., Exs. 5 (Comstock Dep. at 205:16-207:10; 6 (Corallo Dep. at 127:3-131:21 & 18 (Sierra Dep. at 143:11-144:22; see also id., Ex. 2 (Ashcroft Dep. at 251:15-252:20 (discussing whether the e-mail caused the witness embarrassment. Plaintiff s counsel also asked at least one witness whether he was the source for a September 17, 2005, article published by the Times. See e.g., id., Ex. 1 (Adams Dep. at 174:5-177:22 (discussing deposition Exhibit 332. Neither article is among those that are the subject of the subpoena at issue here. Simply put, Plaintiff has quite deliberately never before pursued any discovery about the Times reporting, even though he had every opportunity to do so. This discovery record requires two conclusions. First, Plaintiff at the very least has not diligently pursued discovery from the Times. His blanket assertion that the media companies concede he has been diligent in pursuing discovery about sources, Opp. at 16, is utterly false with respect to the Times. Second, the total absence of any prior effort to obtain discovery from or about the Times confirms that the articles that are the subject of the present subpoena do not fall within Plaintiff s own definition of what is potentially important for this litigation. Accordingly, for each of these reasons the Court should quash the Times subpoena as beyond the permissible scope of discovery. See Fed. R. Civ. P. 26(b(2(C ( The frequency or extent of use of the discovery methods... shall be limited by the court if it determines that... the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought... or... the burden... of the proposed discovery outweighs its likely 5

benefit, taking into account the needs of the case... and the importance of the proposed discovery in resolving the issues [at stake in the litigation]. ; see also Fed. R. Civ. P. 26(c & 45(c(3. II. THE RELATIONSHIP BETWEEN THE BELATED DISCOVERY SOUGHT HERE AND PLAINTIFF S PENDING LIBEL CASE FURTHER WARRANTS QUASHING THE TIMES SUBPOENA Plaintiff s Opposition does not even attempt to portray as mere coincidence the issuance of the Times subpoena shortly after his recent setbacks in the defamation suit. Plaintiff argues only that a ruling by this Court to compel the Times to reveal its confidential sources would not be inconsistent with rulings in the libel case. Opp. at 19-21. Even on this point, Plaintiff is simply wrong. Plaintiff treats his libel suit as if it were over, never mentioning that the rulings to which he refers are the subject of pending appeals to the United States Court of Appeals for the Fourth Circuit. Those appeals squarely address both the grant of summary judgment and the district court s order compelling the Times to reveal its confidential FBI sources. With respect to the Times sources, one issue on appeal is whether the trial court correctly held that the law of Virginia governed the scope of the reporter s privilege, rather than the law of either New York or Maryland, which absolutely bar discovery of reporters confidential sources. Plaintiff s effort here would, if successful, circumvent the impact of any adverse decision by the Fourth Circuit holding that Plaintiff is not permitted to obtain the Times sources in the libel case. Through this parallel litigation, Plaintiff seeks the benefit of a different privilege law (i.e., federal law which is not absolute, and therefore hopes to win a disclosure ruling with respect to the very same sources that are the subject of litigation in his libel case. While differences in the applicable privilege laws and facts would not make rulings in the libel case preclusive here, Plaintiff s subpoena nonetheless invites just the sort of duplicative 6

litigation that the Supreme Court has deemed contrary to sound judicial policy. Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976. Moreover, the potential for mischief goes beyond the possibility of inconsistent rulings in the event that the Fourth Circuit were to reverse the summary judgment ruling, and remand Plaintiff s libel case for trial, as Plaintiff urges it to do. For example, if Plaintiff were to force disclosure here, might Plaintiff ask this Court to levy sanctions against officers of the company who are to be witnesses in the libel case? Might Plaintiff then seek to present to the jury in his libel case evidence of any sanctions levied here in an effort to impeach the Times? The potential for mischief is obvious. In addition, Plaintiff s own arguments reinforce the inference that what he also seeks here is a second run at the Times in the event that his appeal in the Fourth Circuit proves fruitless. Plaintiff quotes at length arguments from the Times counsel in the libel case (who also represent the Times here that monetary sanctions would only be potentially appropriate against a third party held in civil contempt. Opp. at 20-21. But that is precisely our point. Having failed to obtain such a penalty in the libel lawsuit, Plaintiff is now attempting to seize a perceived opportunity to litigate against the Times here as a third party and obtain the relief he was denied across the river. And, as more fully discussed in the AP/Sun Reply, Plaintiff s claim that he has no monetary incentive to do so is simply wrong, which further highlights the impropriety of making a post-judgment run at the Times in this case. See AP/Sun Reply Mem. at 10-11. Given Plaintiff s complete absence of any prior interest in the Times throughout discovery in this case, and the service of this subpoena very shortly after the termination of the libel case in the trial court, the conclusion that this subpoena is being issued for reasons other 7

than normal efforts to obtain discovery is inescapable. For this reason as well, the subpoena should be quashed. III. THE COURT SHOULD IGNORE PLAINTIFF S OBFUSCATION OF PRIVILEGE ISSUES OR RECOGNIZE THAT HIS POSITION WOULD REQUIRE QUASHING THE TIMES SUBPOENA As the AP/Sun Reply explains more fully, Plaintiff misstates the privilege question raised by the Times motion to quash. It both ignores the privilege arguments the Times did raise, and improperly seeks to urge the Court to overcome a source privilege that has not yet been asserted. See AP/Sun Reply Mem. at 12-15. However, if the Court were nonetheless to reach the source privilege issue, it plainly would be required to quash the subpoena to the Times. In addition to the reasons stated in the AP/Sun Reply, the record in this action conclusively demonstrates that Plaintiff has not even attempted to exhaust alternative sources for the information requested from the Times, having failed to question even one single witness about whether they were a source for any of the Times articles at issue. See, e.g., Riley v. City of Chester, 612 F.2d 708, 717 (3d Cir. 1979 (contempt vacated where potential alternative source was questioned in detail, but never asked about specific leak to specific reporter; In re Special Proceedings, 291 F. Supp. 2d 44, 47 (D.R.I. 2003 (special prosecutor deposed or interviewed fourteen witnesses about the specific leak in question, aff d, 373 F.3d 37 (1st Cir. 2004. Accordingly, for this reason as well, the Court should grant the Times motion to quash Plaintiff s subpoena. CONCLUSION For the foregoing reasons, and for the separate reasons stated in the AP/Sun Reply, which are hereby incorporated by reference, the Times motion to quash should be granted. 8

May 29, 2007 Respectfully submitted, LEVINE SULLIVAN KOCH & SCHULZ, L.L.P. By /s/ David A. Schulz (DC Bar No. 459197 Nathan Siegel (DC Bar No. 446253 Chad R. Bowman (DC Bar No. 484150 1050 17th Street, N.W., Suite 800 Washington, DC 20036 (202 508-1100 Attorneys for The New York Times Company 9