In the Matter of James Holmes, Respondent,v.Jana Winter, Appellant,

Brief

N.Y.November 12, 2013

To Be Argued By: CHRISTOPHER T. HANDMAN (of the bar of the District of Columbia and State of Maryland) By permission of the Court. Time Requested: 15 Minutes APL-2013-00239 New York County Clerk’s Case No. 30037/13 Court of Appeals STATE OF NEW YORK In the Matter of the Application of JAMES HOLMES, Petitioner-Respondent, A Defendant in the State of Colorado for a Subpoena Directing Jana Winter to Appear as a Witness, etc., -against- JANA WINTER, Respondent-Appellant. BRIEF FOR RESPONDENT-APPELLANT d DORI ANN HANSWIRTH THERESA M. HOUSE NATHANIEL S. BOYER BENJAMIN A. FLEMING HOGAN LOVELLS US LLP 875 Third Avenue New York, New York 10022 Telephone: (212) 918-3000 Facsimile: (212) 918-3100 CHRISTOPHER T. HANDMAN SEAN M. MAROTTA HOGAN LOVELLS US LLP 555 Thirteenth Street, N.W. Washington, D.C. 20004 Telephone: (202) 637-5719 Facsimile: (202) 637-5910 Attorneys for Respondent-AppellantSeptember 9, 2013 i STATEMENT REGARDING THE STATUS OF RELATED LITIGATION At the time this brief was filed, Appellant Jana Winter’s motion to quash and for a protective order in the Colorado District Court remained pending. The soonest that court will likely rule on the motion will be January 3, 2014. That is because, in deference to this appeal, the Colorado District Court recently adjourned its hearing on Winter’s motion to that early January date. The Colorado District Court explained that “[g]iven the real possibility that Winter may face indefinite jail time in this case as a remedial sanction for her refusal to disclose her confidential sources, and given further the significant First Amendment interests of Winter and the public, * * * Winter should be afforded the opportunity to exhaust all avenues to obtain appellate relief.” Order Regarding Motion of Non-Party Witness Jana Winter to Vacate the September 30, 2013 Hearing Date (C-53), at 3-4, Colorado v. Holmes, No. 12CR1522 (Colo. Dist. Ct. Sept. 3, 2013).* * Available at http://www.courts.state.co.us/userfiles/file/Court_Probation/18th _Judicial_District/18th_Courts/12CR1522/004/C-53%2009%2003%2013.pdf. ii TABLE OF CONTENTS Page STATEMENT REGARDING THE STATUS OF RELATED LITIGATION ..........................................................................................i TABLE OF AUTHORITIES ................................................................................... iii PRELIMINARY STATEMENT ...............................................................................1 QUESTIONS PRESENTED......................................................................................5 JURISDICTIONAL STATEMENT ..........................................................................5 NATURE OF THE CASE .........................................................................................6 ARGUMENT ...........................................................................................................19 I. THE SUBPOENA SHOULD BE QUASHED BECAUSE COMPELLING WINTER TO REVEAL HER CONFIDENTIAL SOURCES WOULD VIOLATE NEW YORK’S PUBLIC POLICY. ..............................................................19 A. Another State’s Request Under CPL § 640.10(2) May Not Be Honored If Doing So Would Violate This State’s Public Policy........................................................................................19 B. The Colorado District Court’s Request For Winter To Divulge Her Confidential Sources Is Contrary To New York’s Strong Public Policy Of Absolute Protection For Reporters’ Confidential Sources .........................................................27 C. It Is Irrelevant That Winter’s Article Was Reported From Colorado ..............................................................................................39 II. THE APPELLATE DIVISION ERRED AS A MATTER OF LAW BY HOLDING THAT THE HARDSHIP WINTER WILL FACE IF REQUIRED TO BURN HER SOURCES IS IRRELEVANT TO CPL § 640.10(2)’s “UNDUE HARDSHIP” ANALYSIS....................................................................................................46 CONCLUSION........................................................................................................53 iii TABLE OF AUTHORITIES Page CASES: Banco Nacional de Mexico, S.A. v. Societe Generale, 34 A.D.3d 124 (1st Dep’t 2006) .........................................................................45 Barry E. (Anonymous) v. Ingraham, 43 N.Y.2d 87 (1997) ...........................................................................................25 Bourdeaux v. State, Dep’t of Transp., 11 N.Y.3d 321 (2008) .........................................................................................23 Colorado v. Arellano-Avila, 20 P.3d 1191 (Colo. 2001)..................................................................................20 Colorado v. Holmes, No. 12CR1522 (Colo. Dist. Ct. Sept. 3, 2013) .............................................38, 39 Colorado v. Jones, 262 P.3d 982 (Colo. App. 2011).........................................................................38 Commercial Credit Co. v. Higbee, 20 P.2d 543 (Colo. 1933)....................................................................................40 Crair v. Brookdale Hosp. Med. Ctr., 94 N.Y.2d 524 (2000) .........................................................................................26 Curtis, Mallet-Prevost, Colt & Mosle, LLP v. Garza-Morales, 308 A.D.2d 261 (1st Dep’t 2003) .................................................................45, 46 Debra H. v. Janice R., 14 N.Y.3d 576 (2010) .........................................................................................23 DeRose v. N.J. Transit Rail Operations, 165 A.D.2d 42 (3d Dep’t 1991)..........................................................................25 Ehrlich-Bober & Co. v. Univ. of Houston, 49 N.Y.2d 574 (1980) ..................................................................................passim F.A. Straus & Co. v. Canadian Pac. R. Co., 254 N.Y. 407 (1930) .....................................................................................24, 41 TABLE OF AUTHORITIES-Continued Page iv Farrginton v. Pinckney, 1 N.Y.2d 74 (1956) .............................................................................................24 Gagnon v. District Court, 632 P.2d 567 (Colo. 1981)..................................................................................29 In re Connecticut, 179 Misc. 2d 628 (Nassau Cnty. Ct. 1999) ........................................................26 J. Zeevi & Sons, Ltd. v. Gridlays Bank (Uganda) Ltd., 37 N.Y.2d 220 (1975) .........................................................................................22 Kilberg v. Ne. Airlines, 9 N.Y.2d 34 (1961) .................................................................................24, 42, 43 Knight-Ridder Broad., Inc. v. Greenberg, 70 N.Y.2d 151 (1987) .........................................................................................28 Matter of Beach v. Shanley, 62 N.Y.2d 241 (1984) .............................................................8, 27, 29, 34, 49, 51 Matter of Codey v. Capital Cities, Am. Broad. Corp., 183 A.D.2d 126 (1st Dep’t 1992) .......................................................................25 Matter of Codey v. Capital Cities, Am. Broad. Corp., 82 N.Y.2d 521 (1993) ..................................................................................passim Matter of Farber, 394 A.2d 330 (N.J. 1978) .............................................................................37, 38 Matter of Walker, 64 N.Y.2d 354 (1985) ...................................................................................31, 32 Michigan v. Marcy, 283 N.W.2d 754 (Mich. Ct. App. 1979).............................................................47 Milhoux v. Linder, 902 P.2d 856 (Colo. Ct. App. 1995) ...................................................................40 TABLE OF AUTHORITIES-Continued Page v Morris v. Towers Fin. Corp., 916 P.2d 678 (Colo. Ct. App. 1996) .............................................................40, 41 Morrison v. Nat’l Australia Bank Ltd., 130 S. Ct. 2869 (2010)........................................................................................42 N.Y. City Transit Auth. v. Transp. Workers Union of Am., 99 N.Y.2d 1 (2002) .............................................................................................31 Nevada v. Hall, 440 U.S. 410 (1979)......................................................................................40, 41 New York v. O’Neill, 359 U.S. 1 (1959)................................................................................................20 People v. Hawkins, 157 N.Y. 1 (1898) ...............................................................................................31 People v. McCartney, 38 N.Y.2d 618 (1976) ...................................................................................19, 20 Russian Socialist Federated Soviet Republic v. Cibrario, 235 N.Y. 255 (1923) .....................................................................................22, 23 Sachs v. Adeli, 26 A.D.3d 52 (1st Dep’t 2005) ...........................................................................25 Superior Court v. Farber, 94 Misc. 2d 886 (Sup. Ct. N.Y. Cnty. 1978) ......................................................37 Tran v. Kwok Bun Lee, 29 A.D.3d 88 (1st Dep’t 2006) ...........................................................................47 Watts v. Swiss Bank Corp., 27 N.Y.2d 270 (1970) ...................................................................................26, 27 STATUTES: Colo. Rev. Stat. § 13-90-119(3).........................................................................29, 35 TABLE OF AUTHORITIES-Continued Page vi Colo. Rev. Stat. § 16-9-203 .....................................................................................14 CPL § 640.10 ....................................................................................................passim CPL § 640.10(2)................................................................................................passim CPLR § 403(d) .........................................................................................................14 CPLR § 5601(a) .........................................................................................................5 Dom. Rel. §114 ........................................................................................................32 Md. Code Cts. & Jud. Proc. § 9-112(d)(2) ..............................................................43 N.J. Stat. Ann. § 2A:84A-21....................................................................................25 N.Y. Civ. Rights Law § 79-h ...................................................................................25 N.Y. Civ. Rights Law § 79-h(b) ..........................................................................8, 28 RULES: Colo. R. Civ. P. 107(a)(2) ........................................................................................38 Colo. R. Civ. P. 107(b).............................................................................................38 Colo. R. Civ. P. 107(d)(2)........................................................................................39 CONSTITUTIONAL PROVISIONS: U.S. Const. amend. I .........................................................................................passim U.S. Const. amend. VI .............................................................................................20 LEGISLATIVE MATERIALS: Approval Memorandum of Governor Cuomo, 1990 N.Y. Legis. Ann. 2693...............................................................................28 Approval Memorandum of Governor Nelson A. Rockefeller, 1970 N.Y. Legis. Ann. 508.............................................................................9, 28 TABLE OF AUTHORITIES-Continued Page vii OTHER AUTHORITIES: Award Winners and Finalists Presented in 2008, Deadline Club (May 13, 2008) .......................................................................9, 10 Contact Us, The New York Times Company ............................................................7 Contact, The New York Post .....................................................................................7 David Corcoran, Theodore Trautwein, Judge in Landmark Press Case, Dies at 80, N.Y. Times, Sept. 2, 2000 ................................................................38 Robert W. Jones, The Law of Journalism (Washington Law Book Co. 1940).......................................................................7 Laura Kusisto, HuffPo Bloggers Will Soon Shop More at Trader Joe’s, The New York Observer, Jan. 18, 2011 ...............................................................7 McKinney’s Consol. Laws of N.Y. Ann., 80 CPL 620 to 709-Commentaries by Presier (book 11A, 2009)......................26 Restatement (Second) of Conflict of Laws (1971) ...................................................33 Steven Strauss et al., Media.NYC.2020 Final Report, New York State Economic Development Corp. (July 7, 2009) ...........................6 Working at Gawker Media, Gawker Media (Sept. 19, 2011, 10:31 PM)....................................................................................7 1 PRELIMINARY STATEMENT New York has an undeniably strong public policy-the strongest in the Nation, actually-of protecting its journalists from being forced to divulge their confidential sources. Under New York’s Shield Law, no reporter can be compelled to unmask her confidential sources-no matter how vital that information may be to a criminal investigation. That muscular public policy ensures that New York reporters can keep their promises of anonymity to sources, and that sources can speak to reporters without fear of reprisal. New York has long endorsed this public policy for an important reason: By categorically protecting journalists from having to burn their confidential sources, the State ensures that the public’s understanding of the news will be shaped not by official sound bites and platitudes, but by useful and revelatory fact. It is a public policy grounded firmly in democratic self- governance; its fruits are groundbreaking stories like the Pentagon Papers and the reports on the true extent of government surveillance. The principal question in this case is whether New York’s robust public policy of press freedom ends at the state line. Respondent James Holmes-known colloquially as the “Batman killer”-is a suspected mass murderer awaiting trial in Colorado. Upset about revelations contained in a story that Appellant Jana Winter wrote for FoxNews.com, Holmes sought a subpoena from the Supreme Court 2 requiring Winter-a New York journalist working for a New York-based news organization-to travel to Colorado, where she would be asked under oath to reveal the confidential sources cited in her article. As Holmes sees it, any time a litigant like him seeks a reporter’s confidential sources through the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Proceedings, the reporter is at the mercy of whatever protections the foreign state chooses to provide. If the state chooses to provide less protection than New York-or no protection at all-then the reporter is simply out of luck. Below, Holmes rested his case entirely on Matter of Codey v. Capital Cities, American Broadcasting Corp., 82 N.Y.2d 521 (1993). There, a New Jersey prosecutor sought nonconfidential material from a New York news organization, which challenged the subpoena on the grounds that the material was privileged under New Jersey law. This Court held that, as a matter of comity and respect for New Jersey’s judicial processes, it would not presume to tell New Jersey what was privileged under New Jersey law and therefore refused to quash the subpoena. But in holding that evidentiary privileges are generally not for New York courts to decide in Uniform Act proceedings, the Court was careful to carve out a caveat. It warned that its decision “should not be construed as foreclosing the possibility that in some future case a strong public policy of this State, even one embodied in an 3 evidentiary privilege, might justify the refusal of relief under” the Uniform Act. Id. at 530 n.3. That caveat was a necessary one because for over 80 years this Court has held that a well-established public policy of the State must always trump comity. That rule is based on important principles of democratic governance and separation of powers. After all, New York’s courts are bound to implement the State’s public policy as expressed by the Legislature in its statutes. Comity, however, is no more than a voluntarily decision to respect another state’s interests in a particular matter. And if those foreign interests conflict with this State’s core public policies, then courts in this State have no choice: public policy, not comity, controls. That settled rule of New York jurisprudence resolves this case. In contrast to New York’s absolute privilege, Colorado affords its journalists only a qualified protection, one which can be pierced any time a reporter’s sources are material and necessary to a proceeding and a balancing of the interests favors disclosure. That difference is more than one of evidentiary technicalities; it goes to the heart of the differing public policies underlying the two states’ statutes. New York’s Legislature determined that reporters’ confidential sources should be protected absolutely, regardless of the equities of any particular case. Colorado’s Legislature was far less solicitous; it decided to leave the issue up to individual judges on a case-by-case basis. Colorado was certainly entitled to adopt that policy for its 4 journalists, its news organizations, and its populace. But this Court need not- indeed, should not-reflexively implement that peculiar policy here. The Appellate Division though did just that. Even though all five justices below recognized that New York does indeed have a robust public policy against having its journalists divulge their confidential sources, a splintered 3-2 majority dismissed this public-policy objection as an impermissible claim of privilege barred by Codey. As Justice Saxe explained in a vigorous dissent, the majority’s approach fundamentally undermines this State’s public policy. Especially in an era when New York journalists report on matters of public concern all over the nation-and around the world-the majority’s rule would essentially cabin the protections afforded by New York’s public policy to reporters on the Metro desk. This Court should reverse and quash the subpoena. Separate and apart from conflicting with New York’s public policy, the Appellate Division’s opinion erred by categorically refusing to consider the harm to Winter’s career if she is forced to burn her sources. Under the Uniform Act, a request for testimony from another state should be refused if it would impose an “undue hardship” on the witness. Here, Winter’s affidavit explained-without contradiction-that she relies on confidential sources for a living and that it would destroy her career as an investigative journalist were she compelled to reveal them. But the Appellate Division held that the Act is not concerned with such a real and 5 substantial harm; instead, it is concerned solely with trivial hardships like traveling to Colorado. That gets things backwards. If travel can be a legitimate and relevant hardship, then surely the imminent destruction of one’s livelihood can as well. In miscomprehending the appropriate test for “undue hardship,” the Appellate Division erred as a matter of law. This Court should therefore reverse. QUESTIONS PRESENTED 1. Whether New York’s muscular public policy of categorically immunizing reporters from having to reveal their confidential sources trumps the comity that New York courts typically extend other states’ requests for testimony from New York residents in criminal proceedings. 2. Whether it is relevant, when determining whether a New York journalist will suffer an “undue hardship” if she is compelled to testify or produce her notes in an out-of-state criminal proceeding, that the request for testimony and notes would require her to reveal the identities of her confidential sources-and thus destroy her career. JURISDICTIONAL STATEMENT The Appellate Division, First Department entered its decision and order on August 20, 2013. A. 23. Winter served the Appellate Division’s order with notice of entry and noticed her appeal to this Court the next day. A. 24-56. This Court has jurisdiction under CPLR 5601(a) because two justices dissented from the 6 Appellate Division’s decision on questions of law-namely, whether issuing the subpoena for Winter’s testimony and notes regarding her confidential sources was contrary to New York’s public policy and whether the harm the subpoena would inflict on Winter’s career could be considered an “undue hardship” under CPL § 640.10. See Codey, 82 N.Y.2d at 526-527 (CPL § 640.10 special proceeding is a civil action subject to the CPLR’s appealability provisions). Winter preserved these issues in the Supreme Court in her memorandum of law in opposition to Holmes’ application, R. 835-845, and in her briefs to the Appellate Division. Winter App. Div. Opening Br. 22-37, 49-50; Winter App. Div. Reply Br. 4-11, 25-26. NATURE OF THE CASE New York’s Special Relationship with the Media. New York is the “the media capital of the world, home to more than 17,000 media companies employing more than 300,000 people” in New York City alone, including more than 20.4 percent of those employed by domestic magazine publishers and 15.4 percent of those employed by domestic book publishers. Steven Strauss et al., Media.NYC.2020 Final Report, New York State Economic Development Corp. 5 (July 7, 2009); R. 752. Even limited to just journalism, New York is a hotspot for news outlets of all sizes and all platforms. New York-based companies range from new-comers like The Huffington Post and Gawker to historical mainstays like The 7 New York Times and the New York Post.1 New York is also at the forefront of educating the next generation of reporters. The Columbia Graduate School of Journalism, New York University’s Arthur L. Carter Journalism Institute, and Syracuse University’s Newhouse School of Public Communications all teach budding journalists about the standards and ethics of their chosen profession- standards that hold the identity of a reporter’s confidential sources is sacrosanct and cannot be revealed for any reason. See R. 357. New York’s pride of place as the global leader in news is no accident; it dates back to the colonial era. In 1735, publisher John Peter Zenger famously refused to reveal an anonymous contributor’s name when he was charged with seditious libel for publishing a series of anonymous articles critical of the royal governor of the colony. Robert W. Jones, The Law of Journalism 23 (Washington Law Book Co. 1940). His acquittal by a jury of New Yorkers has long been recognized as the fountainhead of the State’s effort to protect newsgathering based on confidential sources. Id. And New York’s historically strong relationship with and protection for the media has continued to this day. As Judge Wachtler has 1 See Laura Kusisto, HuffPo Bloggers Will Soon Shop More at Trader Joe’s, The New York Observer, Jan. 18, 2011, available at http://observer.com/2011/01/ huffpo-bloggers-will-soon-shop-more-at-trader-joes/; Working at Gawker Media, Gawker Media (Sept. 19, 2011, 10:31 PM) http://gawker.com/5784912/working-at- gawker-media; Contact Us, The New York Times Company, http://www.nytco.com/contact_us/ (last visited Sept. 8, 2013); Contact, The New York Post, http://www.nypost.com/contact/ (last visited Sept. 8, 2013). 8 summed up, New York has “long provided one of the most hospitable climates for the free exchange of ideas,” traceable to the fact that “[i]n the 19th century a large portion of the publishing industry was established in New York and the State began to serve as a cultural center for the Nation.” Matter of Beach v. Shanley, 62 N.Y.2d 241, 255-256 (1984) (Wachtler, J., concurring). And it is a status New York “still enjoys.” Id. The State’s rich history of protecting media freedoms has also been recognized in its positive law. Under the New York Shield Law, no professional journalist can be held in contempt “for refusing or failing to disclose any news obtained or received in confidence or the identity of the source of any such news,” even when the “identity of a source of such material or related material gathered by a [journalist] * * * is * * * highly relevant to a particular inquiry of government.” N.Y. Civ. Rights Law § 79-h(b). In other words, New York protects a journalist’s confidential sources unequivocally and absolutely. It is a protection grounded in New York’s social, economic, and historic ties to the media. As Governor Rockefeller explained when he signed the Shield Law, that bold initiative made “New York State-the Nation’s principal center of news gathering and dissemination-the only state that clearly protects the public’s right to know and the First Amendment rights of all legitimate newspapermen, reporters and 9 television and radio broadcasters.” Approval Memorandum of Governor Nelson A. Rockefeller, 1970 N.Y. Legis. Ann., at 508. James Holmes, the Aurora Shootings, and Holmes’ Notebook. On July 20, 2012, James Holmes entered a midnight screening of The Dark Knight Rises at a movie theater in Aurora, Colorado and opened fire, killing 12 and wounding over 70 others. R. 336-337. Holmes was apprehended at the scene and later charged with the 12 killings and 144 other felonies. R. 74, 362. The Aurora shootings shocked the nation and have generated widespread media attention. Between July 20 and July 30, 2012 alone, there were 7,891 articles in Westlaw’s “News, All” database regarding Holmes and his crimes. R. 352. In the wake of Holmes’ depravity, many were left asking “why?” This case is about Jana Winter’s attempts to answer that question. Winter is a professional journalist who lives and works in New York. R. 335. After working in India as a freelance reporter and documentary filmmaker, Winter obtained her master’s degree from Columbia University’s Graduate School of Journalism. Id. Winter was then hired by the New York Post, where she received a Deadline Club Award from the New York chapter of the Society of Professional Journalists, R. 335-336, which “recognize[s] the best in New York area journalism.” Award Winners and 10 Finalists Presented in 2008, Deadline Club (May 13, 2008).2 After working at the Post for two years, Winter was hired by Fox News as an investigative reporter for FoxNews.com. R. 335-336. At Fox News, Winter primarily covers the crime beat and has developed a specialty in reporting on mass killings. R. 336. As all-too-recent history demonstrates, the facts surrounding these terrible crimes, their underlying causes, the ensuing criminal investigations, the scars that these tragedies leave on their victims and local communities, and the policies that can and should be adopted to prevent them, are matters of critical public concern. R. 351. But neither the public nor policy makers can meaningfully discuss these important issues unless they have the facts. And in cases like these, the facts often only come out through the tireless efforts of investigative reporters like Winter. A journalist’s ability to go beyond official press releases and uncover the facts that authorities, corporations, or even just private individuals might prefer be kept hidden-the very definition of an investigative reporter-depends almost entirely on the journalist’s ability to cultivate and maintain relationships with sources. R. 346-348. And in many cases, a source will not come forward unless his or her identity is protected. For this reason, journalists take as an article of faith that they cannot disclose the identities of confidential sources. R. 336, 338, 357. 2 Available at http://www.deadlineclub.org/archives/105. 11 Winter is no different. During the course of her career, Winter’s ability to gather news has hinged on her ability to earn a source’s trust-trust that she can often earn only by promising the source confidentiality. R. 336. And Winter’s promises to her sources have paid off. By using confidential sources-and keeping them confidential-Winter has frequently been able to break news about important public issues that would not come to light otherwise. Id. As reports of the Aurora shootings broke, Fox News assigned Winter to cover the story. R. 336-337. Following up on a tip, Winter learned that before the massacre, Holmes had sent a package to a psychiatrist at the University of Colorado. R. 159-160. Just after he was taken into custody, however, Holmes asked to have the package returned. R. 160. Fearing that the package might be a bomb, Colorado authorities conducted a massive search of the University of Colorado campus on July 23, 2012 with multiple teams of first responders from various jurisdictions and agencies. R. 225-226. Several hours into the search, Holmes’ package was located in a campus mailroom, opened, and found to contain a notebook. R. 125-128; 133-134. As part of her coverage, Winter wrote an article-Movie Massacre Suspect Sent Chilling Notebook to Psychiatrist Before Attack-which was published on FoxNews.com on July 25, 2012. R. 341-343. Winter’s article quoted an unidentified “law enforcement source” as stating that the notebook was “ ‘full of 12 details about how [Holmes] was going to kill people’ ” and included “ ‘drawings and illustrations of the massacre.’ ” R. 342. That same source also suggested that the package containing Holmes’ notebook had been in the University of Colorado mailroom since July 12. Id. Winter’s article also cited a “second law enforcement source” as stating that authorities obtained a warrant from a Colorado judge to seize and open the package after it was discovered. Id. Winter was only able to learn about the notebook’s contents and the circumstances surrounding its discovery by promising her sources anonymity. R. 337. The contents of Holmes’ notebook-and whether they may have been a warning that, if discovered earlier and heeded, could have prevented the massacre-were issues of significant public concern. R. 351. Winter was far from the only journalist to report on the notebook and its contents. Indeed, she was far from the only reporter to attribute information regarding the notebook to unnamed sources. Winter’s competitors, starting on the same day as Winter’s article, published dozens of news reports describing the recovery of Holmes’ package and its contents and attributing their information to unnamed sources. R. 351-352; see also R. 392-471 (stories from CBS, NBC, MNSBC, and CNN). Colorado Proceedings Regarding the Notebook. On July 23, 2013, before news of the notebook broke, the Colorado District Court entered an order prohibiting law enforcement officials from making any extrajudicial statement if 13 the official knows or should know that the statement “will have a substantial likelihood of prejudicing [the] criminal proceeding.” R. 867. Two days later- after the notebook was discovered and the same day Winter’s story ran-Holmes sought and obtained an order specifically limiting the extrajudicial statements law enforcement could make about the notebook. R. 709-710, 715. Two months after Winter’s article was published, Holmes moved for unspecified sanctions. Holmes alleged that law enforcement had violated the District Court’s pre-trial publicity orders by speaking to Winter about the notebook and that those violations somehow “undermined Mr. Holmes’ rights to due process and a fair trial by an impartial jury.” R. 372-374. Then, on December 10, the Colorado court held an evidentiary hearing whose goal was to lay the necessary foundation for Holmes to compel Winter to reveal her confidential sources’ identities. As Holmes’ counsel explained, “[a]ny inquiry into whether a reporter or journalist privilege would be entertained in the state of Colorado would involve us having to prove that we could not obtain this information by any other means.” R. 122-123. Holmes therefore used the hearing to call officers who he thought might be Winter’s sources, “ask them what their contact with the package was, ask them if they were the source of the leak or if they knew who the source of the leak was, accept their sworn answers, and then decide how to proceed after that.” R. 123. In total, Holmes called fourteen officers and submitted affidavits from six others. 14 R. 62. Each witness who took the stand testified that he or she was not Winter’s source and did not know who was. Id. Holmes Seeks Winter’s Testimony. Five weeks after the hearing, Holmes sought a certificate under Colorado’s version of the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Proceedings. Colo. Rev. Stat. § 16-9-203. If granted, the certificate would allow Holmes to apply for a New York subpoena to compel Winter to testify and to “produce to the Court her notes from her conversations with the sources mentioned in her article.” R. 55-58. The Colorado District Court issued the certificate the next day. R. 64-66. The Colorado court concluded that there was no other way to discover the names of Winter’s law enforcement sources and that Winter’s testimony was material to the Colorado proceedings because Winter’s report “implicated [Holmes’] constitutional rights to a fair trial, to a fair and impartial jury, and to due process.” R. 65-66.3 Certificate in hand, Holmes commenced a special proceeding in the Supreme Court by order to show cause on February 22, 2013. R. 69-70; see CPLR § 403(d). In his application for a subpoena in New York-like in his motion for the certificate in Colorado-Holmes sought to compel Winter’s testimony and 3 Winter strongly disagrees with these conclusions and is contesting them in the Colorado proceedings. But the important point for present purposes is that the Colorado court made the findings, not their accuracy. Infra 35-36. 15 production of “her notes from her conversations with the two law enforcement sources mentioned in her article” regarding the notebook. R. 70. In opposing Holmes’ application, Winter argued that issuing the requested subpoena would contravene New York’s strong public policy of protecting journalists’ confidential sources, R. 837-845, and would impose an undue hardship on her. R. 835-836. In support, Winter submitted an affidavit from Mark Feldstein, a veteran investigative reporter and professor of journalism at the University of Maryland. R. 344-358. Feldstein is an expert in both the methods for sourcing investigative news and the harm caused by subpoenas seeking journalists’ confidential sources. R. 347-350. He explained that as an investigative journalist, Winter must rely on confidential sources to “bring important facts to the public record, while at the same time offering citizens a more meaningful understanding of how institutions throughout society affect them.” R. 355. Indeed, “[m]ost investigative reporting of any significance is impossible without the use of confidential sources.” R. 350. Feldstein also explained that if Winter was subpoenaed and revealed the identities of her sources for her story about Holmes’ notebook, it “could mean the end of her career as an investigative journalist.” R. 357. That was no hyperbole; Feldstein explained that a journalist who burns a source is “highly unlikely to be trusted by any other sources in the future, making it nearly impossible [for the journalist] to 16 continue to report the news effectively.” Id. And even beyond the subpoena’s impact on Winter, Feldstein noted-based on his own experience and academic studies-a subpoena seeking a reporter’s confidential sources “poison[s] the atmosphere so as to make insightful, interpretive reporting more difficult” for all news organizations, not just the one whose reporter has been subpoenaed. R. 356 (internal quotation marks and citation omitted). The Orders Below. The Supreme Court (Larry Stephen, J.) heard argument, R. 883-898, and granted Holmes’ application in a brief, oral opinion on March 7, 2013. R. 890-892. The court concluded that “Winter’s testimony is material and necessary to resolve the issues regarding the alleged violation of [the Colorado District Court’s] protective order, which bans law enforcement officials from leaking any information about the case that might be prejudicial to the defendant, Mr. Holmes.” R. 890. The court also concluded-without elaboration-that Winter’s appearance would not be an undue hardship on her because Holmes had “agreed to pay all expenses” and because the court found “that her appearance there would not be an undue hardship, including issues about public policy.” R. 891. And only after prodding by Winter’s counsel did the court add that it did not “think there is a public policy implication” created by the New York Shield Law’s strong protections for journalists’ confidential sources. R. 892. 17 Winter appealed to the Appellate Division, R. 31-33, where a sharply divided panel affirmed the Supreme Court’s decision to issue the subpoena in a 3-2 decision. All five justices agreed that New York has a strong public policy of protecting reporters’ confidential sources. A. 6 (majority); A. 17-18 (dissent). They disagreed, however, as to the relevance of that strong public policy to the subpoena’s validity. The majority, in an opinion by Justice Clark, concluded that Winter’s contentions regarding the Shield Law were matters of “privilege” that she was required to raise in Colorado District Court. A. 4-5. The majority also reasoned that New York’s public policy was not implicated because there was no “absolute certainty” that Winter would be compelled to divulge her sources-the Colorado court might always uphold Winter’s claim of privilege under Colorado’s more limited protections for journalists. A. 6-7. Finally, the majority disagreed that the harms to Winter’s career from her being compelled to reveal her sources had any relevance to the “undue hardship” analysis under CPL § 640.10; “undue hardship,” the majority asserted, “does not involve an analysis of the potential consequences if [Winter] exercises privilege in” Colorado. A. 5. Justice Saxe, joined by Justice Acosta, dissented. A. 10-23. Justice Saxe explained that this Court’s statement in Codey that “a strong public policy of this State, even one embodied in an evidentiary privilege, might justify the refusal of relief under CPL 640.10” was tailor-made for this case, where New York’s public 18 policy-embodied in the Shield Law-is demonstrably more protective of journalists’ rights than Colorado’s more porous conditional privilege. A. 17. Justice Saxe therefore rejected the majority’s conclusion that the Shield Law’s protections were merely an issue of privilege that Winter should be required to raise in Colorado. A. 19. Justice Saxe also disagreed with the majority’s assertion that the clash between New York’s and Colorado’s public policy was not implicated in this case because Winter may ultimately succeed in warding off Holmes’ request for her testimony under Colorado’s qualified privilege. A. 19-20. As Justice Saxe explained, the Colorado District Court had already concluded-in issuing the certificate calling for Winter’s testimony-that it “considers [Winter’s] identification of her confidential sources to be important, relevant and necessary for the protection of [Holmes’] constitutional trial rights.” A. 20 (emphasis omitted). The only way Winter could avoid revealing her sources, then, is if she prevailed under Colorado’s nebulous balancing test-one that attempts to weigh her First Amendment interests against Holmes’ constitutionally protected trial rights as a defendant. Id. Justice Saxe thus concluded that the majority’s demand for “absolute certainty” failed “to acknowledge the near certainty that the Colorado court will reject [Winter’s] privilege claim and compel her to provide the identities 19 of her confidential sources, leaving her to face either a contempt order and incarceration, or the loss of her reputation as a journalist.” Id. Finally, Justice Saxe disagreed with the majority’s holding that the harms to Winter’s career could not be an “undue hardship” warranting denial of relief. A. 22-23. “Nothing in CPL 640.10(2),” noted Justice Saxe, “limits the concept of ‘undue hardship’ to the unpleasantness or cost of travel.” A. 23. Justice Saxe concluded that “the probable result of incarceration or the loss of [Winter’s] livelihood is far more of a ‘hardship’ ” than the travel-related cost and investment of time the majority artificially limited itself to and warranted quashing the subpoena. Id. This appeal followed. A. 24-25. ARGUMENT I. THE SUBPOENA SHOULD BE QUASHED BECAUSE COMPELLING WINTER TO REVEAL HER CONFIDENTIAL SOURCES WOULD VIOLATE NEW YORK’S PUBLIC POLICY. A. Another State’s Request Under CPL § 640.10(2) May Not Be Honored If Doing So Would Violate This State’s Public Policy. CPL § 640.10 is New York’s enactment of the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Proceedings. People v. McCartney, 38 N.Y.2d 618, 619-620 (1976). Enacted by all 50 states, the District of Columbia, Puerto Rico, and the Virgin Islands, the Act is a “reciprocal statute” that “provides detailed * * * procedures whereby a party to a criminal 20 proceeding in one State can either obtain the presence of a witness residing in another State or can compel the production of evidence located in another State.” Codey, 82 N.Y.2d at 525-526; see also New York v. O’Neill, 359 U.S. 1, 4 (1959) (detailing the history of the Uniform Act). The process afforded by CPL § 640.10, however, is a matter of Legislative grace, not constitutional right. Absent procedures like those in the Uniform Act, criminal defendants have no ability-and states have no power-to compel non- party, out-of-state citizens to testify in criminal proceedings. McCartney, 38 N.Y.2d at 621 (“[A] State is not constitutionally required by the Sixth Amendment guarantee of compulsory process to compel the attendance of witnesses beyond its jurisdiction over whom it has no subpoena power.”); Colorado v. Arellano-Avila, 20 P.3d 1191, 1193 (Colo. 2001) (“Without an explicit grant of authority * * * a Colorado court may not procure the testimony of parties outside its jurisdiction.”). This Court’s construction of CPL § 640.10 in this case, then, is not “a question of constitutional dimension, but, rather, one of statutory construction.” McCartney, 38 N.Y.2d at 621. This Court last interpreted CPL § 640.10 in Codey. There, a New Jersey grand jury sought the American Broadcasting Company’s outtakes from its interview with a basketball player involved in a point-shaving scheme. 82 N.Y.2d at 524. Although the player’s identity was confidential when the report aired- 21 ABC showed the player in silhouette and disguised his voice-the player later voluntarily testified before the grand jury, admitting that he was ABC’s confidential source. Id. The player could not remember, however, everything he had said to ABC’s reporter in their 30-minute interview. Id. The New Jersey grand jury therefore sought ABC’s nonconfidential outtakes-the portions of the interview ABC did not air-to obtain a full picture of what the player had previously told others about the scheme. Id. ABC resisted New Jersey’s CPL § 640.10 application for a subpoena, arguing that the material was privileged under New Jersey’s qualified privilege for nonconfidential, unpublished newsgathering material. Id. at 525. This Court held that the question of whether the outtakes were privileged under New Jersey law was irrelevant to whether the subpoena should issue. Id. at 530. It emphasized that “the interests of comity and respect for a sister State’s investigative processes” counseled against New York courts turning hearings on CPL § 640.10 applications into mini-trials on issues of privilege that “will inevitably have to be litigated again anyway during the course of the demanding State’s criminal proceeding[s].” Id. at 529-530. Furthermore, requiring a New York court to adjudicate whether ABC’s outtakes were privileged under New Jersey’s shield law-as ABC had asked the Supreme Court to do-would make little sense because “the courts of [New Jersey] are better qualified” to make that determination, “both because of their 22 superior familiarity with local law and because of their direct access to the parties or the facts in the underlying controversy.” Id. at 530. Thus, New York courts should generally limit themselves to whether the evidence is “ ‘material and necessary’ ” and whether compelling the witness to testify would impose an “ ‘undue hardship’ ” on the witness, leaving issues of privilege to the demanding state. Id. at 530-531. But in reaching its holding, this Court was careful to carve out a caveat. The Court cautioned that its decision “should not be construed as foreclosing the possibility that in some future case a strong public policy of this State, even one embodied in an evidentiary privilege, might justify the refusal of relief under CPL § 640.10 even if the ‘material and necessary’ test set forth in the statute is satisfied.” Id. at 530 n.3. That caveat was a wise and necessary one. For over 80 years this Court has recognized a “rule that [this State’s] public policy must always prevail over comity” of the sort that drove the decision in Codey. Russian Socialist Federated Soviet Republic v. Cibrario, 235 N.Y. 255, 263 (1923). And it is a rule that this Court has adhered to time and again: “where there is a conflict between [New York’s] public policy and application of comity, [this State’s] own sense of justice and equity as embodied in [its] public policy must prevail.” J. Zeevi & Sons, Ltd. v. Gridlays Bank (Uganda) Ltd., 37 N.Y.2d 220, 228 (1975); accord Ehrlich-Bober & Co. v. 23 Univ. of Houston, 49 N.Y.2d 574, 580 (1980) (“Today in New York the determination of whether effect is to be given foreign legislation is made by comparing it to our own public policy; and our policy prevails in case of conflict.”). That this State’s public policy must always prevail over comity-based respect for other states’ processes is inherent in the definition of comity. As this Court has explained, “the doctrine of comity ‘does not of its own force compel a particular course of action. Rather, it is an expression of one State’s entirely voluntary decision to defer to the policy of another.’ ” Debra H. v. Janice R., 14 N.Y.3d 576, 600 (2010) (citation omitted); accord Bourdeaux v. State, Dep’t of Transp., 11 N.Y.3d 321, 326 (2008). And there are often good reasons for New York courts to make a voluntary decision to respect another State’s policy prerogatives. Affording comity “may be perceived as promoting uniformity of decision, as encouraging harmony among participants in a system of co-operative federalism, or as merely an expression of hope for reciprocal advantage in some future case.” Ehrlich-Bober, 49 N.Y.2d at 580. In other words, New York courts may choose to “do justice that justice may be done in return.” Cibrario, 235 N.Y. at 258. In the typical CPL § 640.10 proceeding, the case for comity is usually clear. As an explicitly reciprocal statute-the Uniform Act’s procedures are only available if both the sending state and demanding state have adopted it, CPL 24 § 640.10(2)-the Act counsels in favor of New York courts respecting other states’ requests for New York witnesses so that New York might have ready access to other states’ citizens when New York is the requesting state. See Codey, 82 N.Y.2d at 530. Moreover, respect for other states’ judicial processes typically means that New York courts should assume that other states will fairly adjudicate claims of privilege asserted by New York citizens. See id. But no matter how strong the case for comity may be in a given situation, the practical benefits of comity cannot trump the public policy of this State. In New York, “[t]he power to determine what the policy of the law shall be rests with the Legislature within constitutional limitations, and when it has expressed its will and established a * * * policy, courts are required to give [it] effect.” F.A. Straus & Co. v. Canadian Pac. R. Co., 254 N.Y. 407, 413-414 (1930) (emphasis added); accord Farrginton v. Pinckney, 1 N.Y.2d 74, 82 (1956). And in applying these principles, this Court has refused to accord comity to all manner of acts from other jurisdictions, including other states’ damages caps,4 other states’ governmental immunities,5 and even foreign courts’ adoption decrees.6 In each case, the guiding 4 Kilberg v. Ne. Airlines, 9 N.Y.2d 34, 40 (1961) (declining to apply Massachusetts’ damages cap in New York tort suit because the cap was “completely contrary to our public policy”). 5 Ehrlich-Bober, 49 N.Y.2d at 581 (declining to apply Texas’ limitation on venues where a Texas state agency may be sued because doing so would be contrary to 25 principle was the same: “In cases of conflict between foreign [public policy] and New York public policy, New York public policy must prevail.” Sachs v. Adeli, 26 A.D.3d 52, 55 (1st Dep’t 2005). In Codey, there was no conflict between New York and New Jersey’s public policies because both states recognized a qualified privilege for a journalist’s nonconfidential outtakes. Compare N.Y. Civ. Rights Law § 79-h, with N.J. Stat. Ann. § 2A:84A-21; see also Matter of Codey v. Capital Cities, Am. Broad. Corp., 183 A.D.2d 126, 133 (1st Dep’t 1992) (noting that New York and New Jersey’s shield laws are substantially the same, “eliminating any issues of policy conflicts between the two jurisdictions”). Although the two states’ privileges may have differed in the details, see Codey, 82 N.Y.2d at 530, the public policies underlying them were sufficiently similar such that there was no conflict requiring this Court to refuse comity to the New Jersey certificate. See id. at 530 n.3. New York’s “very strong public policy of assuring ready access to a forum of redress of injuries arising out of transactions spawned here”); see also DeRose v. N.J. Transit Rail Operations, 165 A.D.2d 42, 44-45 (3d Dep’t 1991) (declining to apply New Jersey’s Tort Claims Act in New York tort suit because “New Jersey does not offer New York residents similar protection” as New York’s Court of Claims Act). 6 Barry E. (Anonymous) v. Ingraham, 43 N.Y.2d 87, 94-95 (1997) (refusing to recognize Mexican adoption decree because the Mexican court only engaged in a “perfunctory examination into the interests of the child,” contrary to “one of [New York’s] strongest public policies”-“the welfare of its children”). 26 This reading of Codey is not our invention. The practice commentaries recognize that in Codey “the Court was not directly confronted with a situation where evidence that would be privileged by statute under New York law would be completely unprotected in the demanding state” because “it so happened that the demanding state had a law similar to our[s] in that regard.” McKinney’s Consol. Laws of N.Y. Ann., 80 CPL 620 to 709-Commentaries by Presier (book 11A, 2009). One lower-court case, too, has held that Codey’s footnote 3 is meant to apply in cases such as this, where “a demanding State does not recognize or have similar safeguards to protect the integrity of a fundamental evidentiary privilege.” In re Connecticut, 179 Misc. 2d 628, 628 (Nassau Cnty. Ct. 1999). And our reading of Codey is in accord with this Court’s cases about the interplay between public policy and comity. Where another state’s public policy is in accord with New York’s in principle, but expressed in a different way, this Court will defer to the other state’s implementation of the public policy, as it did in Codey. See Crair v. Brookdale Hosp. Med. Ctr., 94 N.Y.2d 524, 530-531 (2000) (according comity to the Virginia and Maryland tort claims acts because, although “New York has a somewhat different procedure for suits against the State in our Court of Claims, * * * a requirement of filing a notice of claim with a governmental entity as a condition precedent to suit is not against New York’s public policy”); Watts v. Swiss Bank Corp., 27 N.Y.2d 270, 279 (1970) (“Recognition [of a foreign 27 judgment] will not be withheld merely because the choice of law process in the rendering jurisdiction applies a law at variance with that which would be applied under New York choice of law principles.”). In short, Codey does not hold that CPL § 640.10 proceedings are categorically exempt from this Court’s universal rule that New York’s public policy always trumps comity. Instead, as Codey’s footnote 3 recognizes, the question simply did not arise on Codey’s facts. As a consequence, if the Colorado District Court’s request for Winter to appear in Colorado with her notes, identify her confidential sources, and give testimony regarding her conversations with them, R. 64-66, is contrary to New York public policy, it cannot be honored. And that is true no matter how strong the tug of comity is in other CPL § 640.10 cases. B. The Colorado District Court’s Request For Winter To Divulge Her Confidential Sources Is Contrary To New York’s Strong Public Policy Of Absolute Protection For Reporters’ Confidential Sources. In the Appellate Division, all five justices agreed that New York’s Shield Law “represents a strong public policy and the long history of vigilantly safeguarding freedom of the press.” A. 6 (majority); A. 17-18 (dissent). That conclusion was a sound one. This Court recognized in Beach that “[i]n enacting the * * * ‘Shield Law,’ the Legislature expressed a policy according reporters strong protection against compulsory disclosure of their sources or information obtained in the news-gathering process.” 62 N.Y.2d at 245. And in expressing 28 that policy, “the Legislature * * * presumably debated the efficacy of granting broad protections to the press, weighed the competing policy considerations, and reached a formulation that in its view serves the best interest of the public,” making the strong protections of the Shield Law a public policy of the State. Knight-Ridder Broad., Inc. v. Greenberg, 70 N.Y.2d 151, 155 (1987). Legislative history confirms that the Legislature understood the Shield Law to reflect a public policy of the highest order. When Governor Rockefeller signed the Shield Law, he made clear that the law protected public, as well as journalistic, interests: “A representative democracy, such as ours, cannot exist unless there is a free press both willing and able to keep the public informed of all the news.” Approval Memorandum of Governor Nelson A. Rockefeller, 1970 N.Y. Legis. Ann., at 508. Indeed, the Legislature has remained actively involved in reasserting New York’s public policy of absolute protection for journalists’ sources. Two decades after the Shield Law’s passage, the Legislature amended subdivision (b) to clarify that there is an “[a]sbolute protection for confidential news.” N.Y. Civ. Rights Law § 79-h(b) (emphasis added). In his signing memorandum, Governor Cuomo explained the amendment’s purpose was to respond to “decisions of the Court of Appeals [that raised questions about] the scope of the Shield Law.” Approval Memorandum of Governor Cuomo, 1990 N.Y. Legis. Ann., at 2693. And the 29 Legislature’s response was loud and clear. It would “resolve[] those questions in favor of a free and unfettered press.” Id.; see also Beach, 64 N.Y.2d at 250 (noting that the current version of the Shield Law “embodies the Legislature’s intent to grant a broad protection”). In contrast with New York’s strong public policy of absolutely protecting journalists’ confidential sources, Colorado has taken a more equivocal approach. For most of its history, Colorado recognized no protection for journalists, holding that any time a confidential source’s identity is “relevant to the subject matter” in a case, a reporter may be compelled to divulge it. Gagnon v. District Court, 632 P.2d 567, 569 (Colo. 1981). And when the Colorado Legislature acted in 1990, it enacted only a qualified privilege for confidential sources, one that may be abrogated any time the party seeking disclosure shows by a “preponderance of the evidence” that (1) “the news information is directly relevant to a substantial issue involved in the proceeding,” (2) “the news information cannot be obtained by other reasonable means” and (3) “a strong interest of the party seeking to subpoena the newsperson outweighs the interests under the first amendment to the United States constitution of such newsperson in not responding to a subpoena and of the general public in receiving news information.” Colo. Rev. Stat. § 13-90-119(3). Thus, unlike the categorical protection in New York’s Shield Law, the Colorado Shield Law is plagued by the hopeless indeterminacy that often 30 accompanies a qualified privilege. Under Colorado’s qualified privilege, confidential sources and journalists alike cannot predict with meaningful certainty whether a court, prodded by an aggressive litigant, will someday pry into their exchanges. But an absolute privilege is just that-it provides both journalist and source with absolute assurance that no court, under any circumstance, will invade the sanctity of the confidential relationship. This fundamental difference yields fundamentally different results in the real world. Where a State promises journalists and sources absolute protection, the public is likely to hear more about matters of profound public importance. R. 355-357. In other words, New York’s legislature-but not Colorado’s-has specifically eliminated any chance of hesitancy by sources, reporters, editors, or any other media participant by making New York’s protections for journalists’ confidential sources absolute. Id. Below, Winter argued that this stark difference between the two states’ shield laws was a fundamental difference in public policy-one where New York’s public policy had to prevail. Winter App. Div. Opening Br. 31-37. But the Appellate Division majority-like the Supreme Court before it-dismissed Winter’s argument as merely an attempt to litigate in New York the question of whether her sources were privileged. A. 4-6; R. 891. That characterization was incorrect. In dismissing Winter’s contentions about New York’s public policy as merely claims of privilege, the majority 31 conflated two related-but distinct-concepts: the specific legal rules in this State’s statutes and the public policies of this State embodied in those legal rules and statutes. It is inevitable, of course, that specific legal rules and the public policy expressed by those rules are closely intertwined. This Court has held as far back as the 19th century that when determining New York’s public policy, the Court “must look to the law as expressed in statute.” Ehrlich-Bober, 49 N.Y.2d at 580 (emphasis added); see also N.Y. City Transit Auth. v. Transp. Workers Union of Am., 99 N.Y.2d 1, 7 (2002) (observing that “ ‘public policy considerations [are] embodied in statute or decisional law’ ”) (citation omitted); People v. Hawkins, 157 N.Y. 1, 12 (1898) (“[W]hen we speak of the public policy of the state, we mean the law of the state, whether found in the Constitution, the statutes or judicial records * * *.”). But the two are not the same thing. A request for relief can violate New York’s public policy as expressed in its statutes even when it does not violate any specific provision of those statutes. Take, for instance, Matter of Walker, 64 N.Y.2d 354 (1985). There, a decedent bequeathed all his “personal property” to his adopted children. Id. at 357. Based on that provision, the decedent’s children argued they were entitled to their adoption decrees, which were in the decedent’s possession at the time of his death and which would reveal the identity of their birth mother. Id. at 356. This Court concluded that the gift of all “personal property” encompassed the adoption 32 decrees the children demanded. Id. at 358. But the Court nonetheless refused to honor the testamentary gift, citing New York’s strong public policy against allowing access to adoption records except for extraordinary cause-a policy embodied, in part, in Domestic Relations Law § 114. Id. at 360. The Court freely admitted that Section 114 did not apply by its terms. After all, Section 114 applies only to adoption records made and maintained by New York courts, and the decrees at issue in Walker were issued by Illinois courts. Id. Moreover, those decrees had issued long before Section 114 was even enacted. Id. But the Court nonetheless emphasized that “[t]he policy underlying [Section 114] is pertinent” because the adopted children had “called upon the New York courts to define the rights of parties to this proceeding.” Id. at 361 (emphasis added). The Court therefore “properly consider[ed] the social judgments embodied in our statutes.” Id. And it held that because the decedent’s children’s request for their adoption decrees contravened New York’s public policy of protecting the privacy of those records, “the machinery of the courts [was] not available” to order the transfer. Id. at 361. Critical to the question now before this Court here, the Walker Court rejected the dissent’s view that a testamentary gift was contrary to public policy “only if it directly violates a statutory prohibition.” Id. at 359. Instead, public policy would prevent the courts from ordering the transfer of a testamentary gift if 33 the gift is “contrary to the social judgment on the subject implemented by statute.” Id. Just so here. New York’s Shield Law does not operate extraterritorially to tell a Colorado court what privileges it must and must not recognize. See Restatement (Second) of Conflict of Laws § 139 (1971) (issues of privilege are generally resolved according to the laws of the forum state). But the New York Shield Law nonetheless embodies this State’s strong public policy of protecting journalists from being forced to divulge their confidential sources-a policy in sharp conflict with Colorado’s porous and equivocal privilege. Supra 29-30. And because the Colorado District Court and Holmes ask the courts of this state to issue a subpoena that will reveal Winter’s confidential sources-a subpoena that is “contrary to the social judgment on the subject implemented by” the Shield Law- “the machinery of [New York’s] courts is not available to them for that purpose.” Walker, 64 N.Y.2d at 359, 361. When the Appellate Division majority eventually addressed the clash between New York and Colorado’s public policies, it dismissed the conflict on the ground that “the facts presented on this record do not establish with absolute certainty that the Colorado District Court will require the disclosure of [Winter’s] confidential sources.” A. 6-7. Presumably, the majority believed that because Winter may prevail on her motion to quash in the Colorado District Court under 34 Colorado’s more limited shield law, there was no need for New York’s courts to step in. But the majority’s soothing assurance ignores that the Shield Law is meant to protect reporters from even the possibility of their confidential sources being revealed, misstates the record, and forgets New York’s dismal history with similar assurances in the past. Contrary to the majority’s belief, it violates New York’s public policy to issue a subpoena that even threatens to require Winter to burn her confidential sources. That, after all, is the point of an absolute privilege. It assures journalists and their sources that no matter the facts in a particular case, a journalist will not be required to divulge the identities of sources she has committed to keep secret based on an individual trial judge’s subjective weighing of the equities. As this Court has explained, “ ‘[t]he threat to a newsman of being charged with contempt and of being imprisoned for failing to disclose his information or its sources can significantly reduce his ability to gather vital information.’ ” Beach, 62 N.Y.2d at 249-250 (quoting N.Y. Legis. Ann. 1970, p. 508) (emphasis added); see also R. 356-357 (summarizing the chilling effects of subpoenas for confidential sources). Regardless of whether Winter will prevail on her motion to quash in Colorado, then, it is contrary to New York’s public policy for the Supreme Court to issue a subpoena that threatens Winter with a contempt citation for failing to reveal her 35 confidential sources. And because it is contrary to New York’s public policy for the Supreme Court to do so, it should not have. See supra 19-27. In any event, even if the likelihood of Winter succeeding on her motion mattered, the Appellate Division majority erred in focusing on whether it was “absolute[ly] certain” that Winter will be forced to testify. A. 6-7. The majority cited no case for its absolute-certainty standard. What’s more, the majority ignored the “near certainty that the Colorado Court will reject [Winter’s] privilege claim” and force her to reveal her confidential sources. A. 20 (Saxe, J., dissenting). Recall that for the Colorado District Court to pierce Winter’s qualified privilege under the Colorado Shield Law, it must conclude (1) Winter’s sources are “directly relevant to a substantial issue involved in the proceeding,” (2) Winter’s sources “cannot be obtained by other reasonable means,” and (3) Holmes’ interest in seeking Winter’s testimony “outweighs the interests under the first amendment to the United States constitution of [Winter] in not responding to a subpoena and of the general public in receiving news information.” Colo. Rev. Stat. § 13-90-119(3). The Colorado court already made the first two findings in its certificate calling for Winter’s testimony. First, the certificate recites that it “is a serious issue” that Winter’s sources possibility violated the District Court’s pre-trial publicity order and “implicate[s] [Holmes’] constitutional rights to a fair trial, to a fair and impartial jury, and to due process.” R. 83. Second, the certificate states that there 36 “is no other witness * * * nor any other documentation that could provide the names of the law enforcement agents who may have provided information to Jana Winter.” Id. This congruity between the certificate’s findings and the prongs of the Colorado Shield Law’s test to pierce a reporter’s privilege is no accident. Holmes’ counsel stated at the December 10 evidentiary hearing that its purpose was to lay the groundwork for overcoming the Colorado reporters’ privilege that Winter would likely-and did-assert. R. 122-123. Although Winter is contesting these conclusions in the Colorado proceedings, they remain the operative conclusions in the record on appeal before this Court. See CPL § 640.10(2) (the facts stated in the requesting court’s certificate “shall be prima facie evidence of all facts stated therein”). The only thing standing between Winter and an order compelling her to testify as to her sources, then, is a finding by the Colorado District Court that Holmes’ interests outweigh Winter’s and the public’s. A. 20. And-at least on the record before the Supreme Court-that finding is likely. As the dissent below observed, having concluded that Winter’s “identification of her confidential sources to be important, relevant and necessary for the protection of [Holmes’] constitutional trial rights,” it is unlikely that the Colorado District Court will “conclude that what it views as [Holmes’] strong interest in protecting his 37 constitutional rights is outweighed by” Winter’s First Amendment right and the public’s interests in receiving news information. Id. The majority’s supposedly comforting statement that Winter may prevail on her claim of privilege in Colorado rings particularly hollow in light of New York’s past history with similar pronouncements. In Superior Court v. Farber, 94 Misc. 2d 886, 888 (Sup. Ct. N.Y. Cnty. 1978), the Supreme Court rejected a New York Times reporter’s claim that a New Jersey prosecutor’s CPL § 640.10 application should be denied because New York’s absolute privilege for the identities of reporters’ confidential sources was significantly broader than New Jersey’s qualified one. The Supreme Court reasoned that it need not intervene because “no substantive right, constitutional or statutory, would be forfeited were [the reporter] to submit to New Jersey’s jurisdiction”; New Jersey would surely “protect the statutory entitlements of New York citizens.” Id. As it turned out, the Supreme Court’s trust was misplaced. When the reporter appeared in New Jersey and was held in contempt for refusing to testify, the New Jersey Supreme Court applied New Jersey law and held that the limited protection provided by New Jersey’s shield law was subordinate to the New Jersey Constitution’s provision calling for compulsory production of testimony and documents in criminal trials. Matter of Farber, 394 A.2d 330, 337 (N.J. 1978). And the New Jersey Supreme Court did not so much as mention the New York 38 Supreme Court’s assurance that the New Jersey courts would implement the public policy underlying the New York Shield Law. Ultimately, the New York Supreme Court’s miscalculation cost the reporter 40 days in county jail and his employer, The New York Times, $285,000 in fines. See David Corcoran, Theodore Trautwein, Judge in Landmark Press Case, Dies at 80, N.Y. Times, Sept. 2, 2000. The same threat looms here. If Winter is compelled to testify in Colorado, it is nearly certain the Colorado District Court will apply Colorado’s less protective shield law to Winter’s testimony and find that Holmes’ constitutionally protected trial rights trump Winter’s First Amendment interest in not testifying. See Farber, 394 A.2d at 337. And if that occurs, it will be “too late for this Court to address whether [Winter] is protected by [New York’s] Shield Law.” A. 20 (Saxe, J., dissenting). Under Colorado law, if the District Court denies her motion to quash and for a protective order, it will order her to answer Holmes’ questions about the identities of her law enforcement sources. If Winter refuses, she can be held in direct contempt, see Colo. R. Civ. P. 107(a)(2), and summarily punished without further proceedings. See Colo. R. Civ. P. 107(b); Colorado v. Jones, 262 P.3d 982, 988 (Colo. App. 2011). As for what the punishment will be, the Colorado District Court just recently observed that Winter faces indefinite jail time; so long as she refuses to divulge her confidential sources, she risks remaining incarcerated in Colorado. Order Regarding Motion of Non-Party Witness Jana Winter to Vacate 39 the September 30, 2013 Hearing Date (C-53), at 4 n.1, Colorado v. Holmes, No. 12CR1522 (Colo. Dist. Ct. Sept. 3, 2013)7; see also Colo. R. Crim. P. 107(d)(2). In short, Winter is at the point of no return in Colorado. If the orders below are affirmed and Winter’s motion in Colorado is denied, Winter will either have to divulge her sources and destroy her reputation as an investigative reporter or disobey the Colorado court’s order and go to jail. New York’s public policy will go unvindicated and there will be nothing that this Court will be able to do about it. The Court should act now and quash the subpoena. C. It Is Irrelevant That Winter’s Article Was Reported From Colorado. Holmes argued below that New York’s rule of applying its own public policy when it conflicts with that of other states should not govern here because it would “allow journalists to ensconce themselves in New York to intentionally elude legal process even in the states from which they directly obtain information, the states in which they directly report information, and the states from which they profit, both personally, professionally, and financially.” Holmes App. Div. Br. 20. Holmes’ parade of horribles, however, ignores the ubiquity of refusing to accord comity to requests by other states that violate the forum state’s public policy, the 7 Available at http://www.courts.state.co.us/userfiles/file/Court_Probation/18th _Judicial_District/18th_Courts/12CR1522/004/C-53%2009%2003%2013.pdf. 40 realities of national news reporting in a 24-hour news cycle, and New York’s special relationship with the media. Past practice confirms that Holmes’ breathless concerns are more imagined than real. Since the Founding, states have universally refused to accord comity to out-of-state requests that violate their strong public policies without creating the lawless havens Holmes fears. Indeed, Colorado, like New York, will not accord comity to another state’s policies in a Colorado action where they are “contrary to the settled public policy of Colorado.” Commercial Credit Co. v. Higbee, 20 P.2d 543, 544 (Colo. 1933); accord Milhoux v. Linder, 902 P.2d 856, 861 (Colo. Ct. App. 1995). In fact, Colorado has refused to accord comity to a New York venue provision in a contract between a New York company and its Colorado employee, concluding that the venue clause “contravene[d] the strong public policy embodied in the Colorado Wage Claim Act.” Morris v. Towers Fin. Corp., 916 P.2d 678, 679 (Colo. Ct. App. 1996). But Colorado’s rejection of the contract clause in Morris has caused no great upheaval in New York-Colorado relations, nor did it make Colorado a haven for lawless employees seeking to shirk their contractual obligations with New York companies. There is a reason for that. Each state understands that in our federal system of co-equal sovereigns, comity for one another’s laws is the default presumption, but “ ‘when (as without doubt must occasionally happen) the interest or policy of 41 any state requires it to restrict the rule, it has but to declare its will, and the legal presumption is at once at an end.’ ” Nevada v. Hall, 440 U.S. 410, 426 (1979) (citation omitted). Such an allowance respects the sovereign policy prerogatives of both New York and Colorado. The people of Colorado have “consented to a system in which their State is” willing to sacrifice the rights of reporters and the public to the orderly operation of the judicial process. See id. “But the people of [New York], who have had no voice in [Colorado’s] decision, have adopted a different system.” Id. Each is valid. But this Court has no power to subject Winter-its citizen-to the public policy of Colorado, in which Winter had no say, any more than the Colorado court had the ability to subject the employee in Morris to the public policy of New York, in which the employee had no say. Far from causing chaos, a decision upholding New York’s strong public policy of protecting reporters’ confidential sources will further the fundamental truth that “[i]n this Nation each sovereign governs only with the consent of the governed.” Id. at 426. This Court-like the courts of Colorado-must hew to the public policy expressed by the governed’s elected representatives first, and accord comity to the laws of other states second. See F.A. Straus & Co., 254 N.Y. at 413- 414. Although that rule may cause some interstate friction in a handful of cases, our democratic system tolerates no other result. 42 Moreover, the mere fact that Winter reported her article from Colorado cannot be enough to strip her of New York’s public policy protections. In every case presenting a conflict between comity and public policy, there is necessarily some interest asserted by another jurisdiction-otherwise there would be no conflict to resolve. But New York’s public policy would be a “craven watchdog indeed if it retreated to its kennel whenever some [other state’s interest] is involved in the case.” Morrison v. Nat’l Australia Bank Ltd., 130 S. Ct. 2869, 2884 (2010). That is particularly true when it comes to protecting reporters’ sources. Being part of the contemporary national news media necessarily entails reporting on events that take place outside the State and relying on non-New York sources. As a result, unless they aspire to only the Metro section, New York journalists like Winter must engage in on-the-ground reporting in states like Colorado. If a New York reporter can be stripped of her protections under New York’s public policy simply because the reporter crossed state lines, New York’s robust public policy in favor of confidential sourcing will become a dead letter for all but the most parochial stories. Thankfully, this Court rejected that result over 50 years ago. In Kilberg v. Northeast Airlines, this Court refused to apply Massachusetts’ draconian damage caps to a suit by a New York resident’s estate alleging negligence in a Massachusetts air disaster. 9 N.Y.2d at 39. The Court explained that “[m]odern 43 conditions make it unjust and anomalous to subject the traveling citizen of this State to the varying laws of other States through and over which they move.” Id. After all, a New Yorker traveling by air may find himself in a state “he never intended to cross into” as a result of “entirely fortuitous” events. Id. As a consequence, New York’s courts “should if possible provide protection for our own State’s people against unfair and anachronistic treatment” by the laws of other states. Id. New York-based reporters’ movements, like those of the air traveler in Kilberg, are necessarily dictated by forces outside their control. It is happenstance that Winter ended up in Colorado-with its qualified privilege-to report on Holmes’ killing spree. Had Holmes massacred 12 and wounded over 70 in a movie theater in Maryland-which coincidentally has a Shield Law that provides an absolute protection for reporters’ confidential sources8-Winter would have reported from Maryland. To hold that New York’s public policy of protecting reporters from having to reveal their confidential sources gives way every time a story happens to break in a state with less protection for the media is to abdicate this Court’s obligation to ensure that New Yorkers enjoy the benefits of New York’s public policies when they travel and work outside the state. See Kilberg, 9 N.Y.2d at 39. 8 See Md. Code Cts. & Jud. Proc. § 9-112(d)(2). 44 The need to protect New York’s public policy in favor of confidential sourcing is particularly acute here, given New York’s special relationship with the media. As we have explained, New York is the media capital of the world and a hub for national reporting on issues of profound public importance. Supra 6-9. If New York is to maintain that status, New York courts must vigilantly protect New York’s public policy of protecting its reporters’ confidential sources. Otherwise, New York may find its media companies decamp to more protective states or- worse-cut back their reporting on topics of national interest. New York courts have recognized before that the need to maintain New York as a hospitable forum for national industries justifies robust enforcement of New York’s public policy, even when doing so denies comity to other states. In Ehrlich-Bober, this Court refused-on public policy grounds-to extend comity to a Texas statute limiting the venues where a Texas university could be sued on contracts. “New York’s recognized interest in maintaining and fostering its undisputed status as the preeminent commercial and financial nerve center of the Nation and the world” justified “a very strong policy of assuring ready access to a forum for redress of injuries arising out of transactions spawned here.” 49 N.Y.2d at 581. The Court emphasized that New York’s status as “a convenient forum which dispassionately administers a known, stable, and commercially sophisticated body of law may be considered as much an attraction to conducting business in 45 New York as its unique financial and communications resources.” Id. And if New York were to sacrifice its status as the preeminent forum for the resolution of commercial disputes in the name of comity, that “would impose an intolerable burden on the major financial institutions which make their homes in New York and which provide services to State and local governments nationwide as well as to many foreign countries.” Id. at 582. In other words, Ehrlich-Bober recognized that refusing to enforce New York’s public policy in the name of comity would do a disservice not only to New York’s financial industries, but also the clients they served throughout the nation and throughout the world. And Ehrlich-Bober was no one-off statement. The Appellate Division has routinely invoked its teachings to refuse to accord comity to other states’ more-restrictive commercial practices.9 9 See Curtis, Mallet-Prevost, Colt & Mosle, LLP v. Garza-Morales, 308 A.D.2d 261, 270 (1st Dep’t 2003) (refusing to “throw into doubt the extent to which an arbitration agreement will be enforced whenever the transaction or the parties have some connection to a foreign country” and “reaffirm[ing] New York’s long-settled law and public policy favoring arbitration, thereby helping to maintain New York’s central role in the economy of the nation and the world”); Banco Nacional de Mexico, S.A. v. Societe Generale, 34 A.D.3d 124, 130 (1st Dep’t 2006) (holding that “[a]s a primary financial center and a clearinghouse of international transactions, the State of New York has a strong interest in maintaining its preeminent financial position in protecting the justifiable expectation of the parties who choose New York law as the governing law of a letter of credit” and refusing to accord comity to a Mexican injunction). 46 The same concerns are present here. New York’s media companies do not congregate in New York merely because of New York’s unique location and communications capabilities. Instead, those companies recognize that New York has a settled, uniquely protective public policy that respects and protects journalists’ confidential sources. If that public policy can be discarded anytime a New York- based journalist reports on a story outside of New York’s borders, New York will find its role as the media capital of the world threatened. In this age of fast and reliable Internet communications, a news room can operate as effectively out of Washington, D.C. as it does New York City. This Court should therefore reaffirm that New York’s strong public policy of protecting journalists’ confidential sources will not yield “whenever * * * the parties have some connection to” another jurisdiction, and quash the subpoena. Curtis, 308 A.D.2d at 270. II. THE APPELLATE DIVISION ERRED AS A MATTER OF LAW BY HOLDING THAT THE HARDSHIP WINTER WILL FACE IF REQUIRED TO BURN HER SOURCES IS IRRELEVANT TO CPL § 640.10(2)’s “UNDUE HARDSHIP” ANALYSIS. Separate and apart from the fact that it violates New York’s public policy, the subpoena should be quashed because it imposes an undue hardship on Winter. Under CPL § 640.10(2), even if a witness’s testimony is “material” and “necessary” to an out-of-state criminal proceeding, a subpoena may still be denied if it would cause “undue hardship to the witness to be compelled to attend and testify in the prosecution or a grand jury investigation in the other state.” And although the 47 “undue hardship” analysis ultimately depends on the facts of each case, see Codey, 82 N.Y.2d at 530-531, the Appellate Division has held that it may include “any familial, monetary, or job-related hardships.” Tran v. Kwok Bun Lee, 29 A.D.3d 88, 93 (1st Dep’t 2006). The majority below recognized as much. A. 5-6. But it then asserted-without explanation-that “undue hardship does not involve an analysis of the potential consequences if [Winter] exercises privilege in” Colorado. A. 5. That was an error of law that warrants reversal. The majority cited no case for its categorical refusal to consider the harm to Winter’s career if she were forced to reveal her confidential sources. But there is one to the contrary. In Michigan v. Marcy, 283 N.W.2d 754, 755-756 (Mich. Ct. App. 1979), the Delaware Attorney General sought testimony under the Uniform Act from a Michigan-licensed polygraph examiner regarding a confession he allegedly obtained from a client. The Michigan Court of Appeals observed that the polygraph examiner’s testimony was privileged under Michigan’s unique polygrapher-privilege statute, which “represent[ed] a declaration by the Legislature of the policy of the State of Michigan, a policy which the courts of this state have a duty to enforce.” Id. at 757. Moreover, the Michigan court recognized that granting the requested subpoena would put the polygrapher in the “unenviable position” of “los[ing] his polygrapher’s license” if he testified or being “subject to a contempt charge if he refused.” Id. at 757 n.3. Requiring the polygrapher to 48 decide “whether to lose his liberty or to risk losing his livelihood” therefore “would most certainly work a hardship upon him, a factor which militate[d] against granting the petition.” Id. Winter faces the exact same dilemma as the polygrapher in Marcy. Her Supreme Court affidavit stated-without contradiction-that she relies on confidential sources for her livelihood and that revealing her sources would destroy her career as an investigative journalist. R. 336, 339. And Winter’s fears about the effect revealing her sources would have on her career was supported by the similarly uncontradicted affidavit of Mark Feldstein, a professor of investigative journalism with over 20 years in the field. R. 347-348, 357. Requiring Winter to decide whether to face a contempt sanction and lose her liberty or reveal her sources and lose her livelihood is undoubtedly a hardship on her. And regardless of whether Winter will ultimately be forced to testify, just being targeted by an active subpoena for confidential sources imposes a significant hardship on her. As Feldstein explained, the mere existence of subpoenas like those allowed by the orders below deters would-be sources from coming forward and sharing news of great significance and sensitivity. R. 357. The Appellate Division erred by categorically refusing to consider these hardships in its analysis. The best that can be said for the opinion below is that it assumes that Winter is being compelled only to testify, not burn her sources. A. 5-6. But that is wrong 49 twice over. First, in focusing only on the requirement that Winter testify, the Appellate Division majority forgot that the subpoena also calls for Winter to produce her notes from her conversations with her confidential sources. R. 878. Thus, even if the majority could assume-against all the evidence-that Winter might not have to testify about her confidential sources, it would still need to take into account the hardship caused by Winter producing the notes of her conversations with her confidential sources. And even restricted to Winter’s anticipated testimony, the only testimony from Winter that might conceivably be “material” or “necessary” to any topic in the Colorado proceedings is the identity of her confidential sources. A. 15, 20-21; see also R. 65 (identifying the “source of the information in Jana Winter’s article” as the reason Winter “has become a material and necessary witness in this case”). Holmes cannot use Winter’s ability to identify her confidential sources to satisfy the “material” and “necessary” prongs of CPL § 640.10(2) and then dismiss the consequences of Winter doing just that when it comes to the “undue hardship” prong of the same statute. Indeed, this Court rejected similar arguments in Beach. There, like here, the party seeking the reporter’s testimony claimed that the reporter’s motion to quash a grand jury subpoena pursuant to the Shield Law was premature because the reporter had yet to testify and had yet to produce his notes from his conversations 50 with those sources. 62 N.Y.2d at 247. This Court disagreed. First, it held that the motion to quash was “not premature insofar as the subpoena demanded that [the reporter] produce his notes, records, and other physical materials that may be privileged under the Shield Law.” Id. at 248. Second, the Court held that although a motion to quash a grand jury subpoena is usually premature before the witness has been asked a question that calls for privileged information, the motion was not premature in the reporter’s case, because-like here-the “entire focus of the Grand Jury’s inquiry would be on the identity of [the reporter’s] confidential source and other information that [the reporter] obtained in the course of his journalistic activities.” Id. There was no need for the reporter to “go through the formality of appearing before the Grand Jury” before the Court ruled on the privilege’s applicability. Id. at 248-249. The same is true here. Compelling Winter to appear before the Colorado District Court and turn over notes of her conversations with her sources imposes a hardship on her, regardless of whether Winter is forced to testify about the same topics. See id. at 248. Moreover, because the only reason Winter has been asked to testify in Colorado is to reveal her sources, there would be no point to forcing her to appear merely to give her “name, address, and occupation before refusing to answer any questions.” Id. at 248-249. Indeed, the harm to Winter here would be even greater than the harm to the reporter in Beach. In Beach, the requesting 51 party’s arguments went only to the timing of when the court would resolve the reporter’s objections. The District Attorney claimed the Shield Law analysis should take place after the reporter was asked a question calling for privileged information, whereas the reporter claimed that would be a pointless process given that the only thing of substance the prosecutor intended to ask was who the reporter’s source was. This Court resolved that procedural question in favor of the reporter in Beach. Here, far more is at stake. Unless this Court passes on Winter’s claims regarding public policy now, it never will. Once Winter is compelled to travel to Colorado and testify, “it will be too late for this Court to address whether [Winter] is protected by the Shield Law” and the public policy embodied in it. A. 20 (Saxe, J., dissenting); see also supra 38-39. But the majority’s refusal to consider the burden on Winter if she is forced burn her sources conflicts with more than just precedent; it upsets common sense as well. The Appellate Division majority seems to have accepted that if Fox News had threatened to fire Winter for being away from work to testify in Colorado, that would qualify as an undue hardship. A. 5. But the majority categorically refused to consider that forcing Winter to testify about her confidential sources would destroy her reputation and thus her career as an investigative journalist-a more severe hardship than just being fired for absenteeism. If, as the majority appeared to agree, “undue hardship” includes “any * * * job-related hardships,” A. 5, surely 52 the end of Winter’s career as a journalist qualifies. As the dissent below accurately observed, “[n]othing in CPL § 640.10(2) limits the concept of ‘undue hardship’ to the unpleasantness or costs of travel.” A. 23. In artificially narrowing the relevant burdens, the Appellate Division majority erred as a matter of law. CONCLUSION For the foregoing reasons, the Appellate Division's order should be reversed and the subpoena quashed. In the alternative, the Appellate Division's order should be reversed and the case remitted for proper consideration of whether the subpoena imposes an "undue hardship" on Winter. By: Dated: September 9,2013 53 Respectfully submitted, HOGAN LOVELLS US LLP CHRISTOPHER T. HANDMAN* SEAN MAROTTA 555 Thirteenth Street, N.W. Washington, D.C. 20004 (202) 637-5791 chris.handman@hoganlovells.com DORI ANN HANS WIRTH THERESA M. HOUSE NATHANIEL S. BOYER BENJAMIN A. FLEMING 875 Third Avenue New York, New York 10022 (212) 918-3000 dori.hanswirth@hoganlovells.com Counsel for Respondent-Appellant Jana Winter * Admitted pro hac vice