In the Matter of James Holmes, Respondent,v.Jana Winter, Appellant,BriefN.Y.November 12, 2013New York County Clerk’s Index No. 30037/13 Court of Appeals of the 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 in Arapahoe County, Colorado, as a Material Witness to Give Testimony Concerning the Intentional Violation of Arapahoe County Judge Sylvester’s Order Limiting Pretrial Publicity by Leaking Privileged and Confidential Information, - against - JANA WINTER, Respondent-Appellant. BRIEF OF AMICI CURIAE (for list of Amici see next page) KATHERINE M. BOLGER LEVINE SULLIVAN KOCH & SCHULZ, LLP Attorneys for Amici Curiae 321 West 44th Street, Suite 1000 New York, New York 10036 Tel.: (212) 850-6100 Fax: (212) 850-6299 Date Completed: August 30, 2013 REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, ABC, INC., ADVANCE PUBLICATIONS, INC., ALLBRITTON COMMUNICATIONS COMPANY, THE AMERICAN SOCIETY OF NEWS EDITORS THE ASSOCIATED PRESS, THE ASSOCIATION OF AMERICAN PUBLISHERS, INC., ATLANTIC MEDIA, INC., BLOOMBERG L.P., COURTHOUSE NEWS SERVICE, COX MEDIA GROUP, LLC, DAILY BEAST COMPANY LLC, DIGITAL MEDIA LAW PROJECT, DOW JONES & COMPANY, INC., THE E.W. SCRIPPS COMPANY, FORBES LLC, GANNETT CO., INC., HEARST CORPORATION, LIN MEDIA, THE NATIONAL PRESS CLUB, THE NATIONAL PRESS PHOTOGRAPHERS ASSOCIATION, NATIONAL PUBLIC RADIO, INC., NBCUNIVERSAL MEDIA, LLC, NEW YORK MEDIA, LLC, THE NEW YORK TIMES COMPANY, THE NEW YORKER, NEWSDAY LLC, THE NEWSPAPER ASSOCIATION OF AMERICA, NORTH JERSEY MEDIA GROUP INC., NYP HOLDINGS, INC., ONLINE NEWS ASSOCIATION, POLITICO LLC, RADIO TELEVISION DIGITAL NEWS ASSOCIATION, REUTERS AMERICA LLC, SOCIETY OF PROFESSIONAL JOURNALISTS THE TRIBUNE COMPANY, and THE WASHINGTON POST. TABLE OF CONTENTS CORPORATE DISCLOSURE STATEMENTS ...................................................... ii TABLE OF AUTHORITIES ..................................................................................... 1i INTEREST OF AMICI ........................................................................................... liii PRELIMINARY STATEMENT ............................................................................... 1 ARGUMENT ............................................................................................................ 3 POINT I THIS COURT SHOULD UPHOLD THE PUBLIC POLICY INTERESTS IN PROTECTING JOURNALISTS FROM COMPELLED DISCLOSURE OF CONFIDENTIAL SOURCES .............................. 3 A. New York Has A Long Tradition of Recognizing the Public Interest in Protecting Reporters' Sources ............................ 3 B. The Court Should Take Into Account The Public Policy of New York -' In Deciding Whether To Enforce The Colorado Subpoena ................. 8 POINT II CONFIDENTIAL SOURCES ARE ESSENTIAL TO NEW YORK JOURNALISTS' NEWSGATHERING BOTH WITHIN THE STATE AND BEYOND ................................ 13 POINT III THE SUBPOENA PLACES AN "UNDUE BURDEN" ON RESPONDENT-APPELLANT ................................ 21 CONCLUSION ....................................................................................................... 24 STATE OF NEW YORK COURT OF APPEALS In the Matter of the Application of James Holmes, Petitioner-Respondent, A Defendant in the State of Colorado for a Subpoena as a Witness, etc., J ana Winter, Respondent-Appellant ) ) ) ) ) ) New York County ) Case No. 30037113 ) ) ) ) CORPORATE DISCLOSURE STATEMENT OF ABC, INC. Pursuant to Section 500.1 (f) of the Rules of Practice for this Court, the undersigned counsel for Amicus Curiae ABC, Inc. certifies that ABC, Inc.' s parent corporation is The Walt Disney Company, a publicly traded corporation. Dated: August 30, 2013 Respectfully Submitted, Katherine M. Bolger{j LEVINE SULLIVAN KOCH & SCHULZ, LLP 321 West 44th Street, Ste 1000 New York, New York 10036 Tel.: (212) 850-6123 Fac.: (212) 850-6299 Email: kbolger@lskslaw.com 11 STATE OF NEW YORK COURT OF APPEALS In the Matter of the Application of James Holmes, Petitioner-Respondent, A Defendant in the State of Colorado for a Subpoena as a Witness, etc., Jana Winter, Respondent -Appe Hant ) ) ) ) ) ) New York County ) Case No. 30037/13 ) ) ) ) CORPORATE DISCLOSURE STATEMENT OF ADVANCE PUBLICATIONS, INC. Pursuant to Section 500.1(t) of the Rules of Practice for this Court, the undersigned counsel for Amicus Curiae Advanced Publications, Inc. ("Advance") certifies that a listing of Advance's parents, subsidiaries and affiliates are listed on the annexed Exhibit "A." Dated: August 30,2013 Respectfully Submitted, Kitherin~~ M. rnnger LEVINE SULLIVAN KOCH & SCHULZ, LLP 321 West 44th Street, Ste 1000 New York, New York 10036 Tel.: (212) 850-6123 Fac.: (212) 850-6299 Email: kbolger@lskslaw.com 111 EXHIBIT A PARENT, SUBSIDIARIES AND AFFILIATES OF ADVANCE PUBLICATIONS, INC. Advance Alabama Media LLC Advance BCI Inc. Advance Central Services Inc. Advance Digital Inc. Advance Executive Payroll, LLC Advance Finance Group LLC Advance Magazine Publishers Inc. Advance New Jersey, LLC Advance Publications of Perry and Juniata Counties, Inc. Advance Publications Private Payroll, LLC advance.net LLC American City Business Journals, Inc. AMPI Journal Properties LLC Ann Arbor Offset LLC AnnArbor.com LLC API Network LLC Australian Pacific (001) Projects Pty. Limited Binningham Business Journal, Inc. The Birmingham News Company The Birmingham News LLC BIZ Books LLC bizjournals.com LLC Blogpayer, Inc. Boston Business Journal, Inc. Business Journal Publications, Inc. Business Journals of Ohio Inc. Business People Publications Limited City Business Journals Network, Inc. CityBusinessiTwin Cities, Inc. CityBusiness/USA LLC CN International Internet LLC CNE Productions LLC CNI Ediciones Holdings Inc. ComCorp, Inc. Conde Nast & National Magazine Distributors Limited IV Conde Nast Advertising (Shanghai) Co., Ltd. Conde Nast Americas L.C. Conde Nast Americas Holdings, Inc. Conde Nast AsialPacific, Inc. Conde Nast Brasil Holding Ltda. Conde N ast (CNI) Ltd. Conde Nast Cultural Enterprise Consulting (Shanghai) Co., Ltd. Conde Nast de Mexico S.A. de C.V. Conde Nast Digital Limited Conde Nast Digital Germany GmbH Conde Nast Entertainment LLC Conde Nast Holdings (HK) Ltd. Conde Nast (India) Private Limited Conde Nast International Inc. Conde N ast International Ltd. Conde N ast Japan LLC G.K. Conde Nast Japan Conde Nast Johansens Limited Conde Nast New Markets Europe! Africa, Inc. The Conde Nast Publications Limited Conde Nast Publications Limited [Hong Kong] Conde Nast Russia LLC Conde Nast Taiwan Publications Limited Conde Nast Treasury Services Ltd. Conde Nast Verlag GmbH Conde Nast ZAO Condenet Iberica, S.L. Condenet.au Pty Limited CondeNettw Limited La Cucina Italiana S.r.I Ediciones Conde Nast S.A. Edizioni Conde Nast GmbH Edizioni Conde Nast S.p.A. The Evening Journal Association Fashion Networks International, LLC FTI Ventures LLC Glamour Magazine (Publishers) Limited The Grand Rapids Press Publishing Company LLC Hemmings Motor News, Inc. The Herald Publishing Company, LLC The Hillsboro Argus Inc. The Huntsville Times Co., Inc. Interculture Communications Inc. Interculture Magazine Co., Ltd. Interculture Publicist Co. Ltd. IPG International LLC The Jersey Journal LLC Lower Broadway Productions LLC Magazine Holdings Limited Magazine Special Projects LLC Mass Publishing Ventures LLC MassLive LLC Media Consortium LLC Media Edition International SNC Mid-South Communications, Inc. The Mobile Press Register, Inc. The Mobile Press Register LLC Montrose GmbH The Muskegon Chronicle Publishing Company LLC Nashville Business Journal, Inc. New Jersey Local News Service LLC New Jersey On-Line LLC New Jersey Press Equipment LLC Newark Morning Ledger Co. Newspaper Special Projects LLC Newsprint Purchasing, LLC Northeast Ohio Marketing Network LLC The Northeast Ohio Media Group LLC Oregon Live LLC Oregonian Publishing Company LLC Oregonian Publishing Properties LLC Pacman Insurance, Inc. The Patriot-News Co. The Patriot-News LLC Penn Jersey Advance Inc. Pharos Publications Limited v The Plain Dealer LLC Plain Dealer Publishing Co. POP, Inc. The Post-Standard LLC Les Publications Conde Nast S.A. Quadratum Publishing USA, Inc. reddit Inc. Regie 56A SNC The Republican Company Rhinebeck Properties LLC St. Louis Business Journal Corp. Servicios Professionales y Administrativos Editorales S.A. de C.V. Special Project Services, LLC The Star-Ledger LLC Staten Island Live LLC Streetwise Media, Inc. Tatler Publishing Company Limited T elevogue Limited The Times of Trenton LLC The Times of Trenton Publishing Corporation The Times-Picayune, L. L. C. Two Coasts Productions LLC Videovogue Limited Vogue Design Limited Vogue Model Agency Limited Vogue Studio Limited Wine & Food Publications Ltd. W oodthorn Economic Consultants LLC Ziplist, Inc STATE OF NEW YORK COURT OF APPEALS In the Matter of the Application of James Holmes, Petitioner-Respondent, A Defendant in the State of Colorado for a Subpoena as a Witness, etc., J ana Winter, Respondent-Appellant ) ) ) ) ) ) New York County ) Case No. 30037113 ) ) ) ) CORPORATE DISCLOSURE STATEMENT OF ALLBRITTON COMMUNICATIONS COMPANY Pursuant to Section 500.1(f) of the Rules of Practice for this Court, the undersigned counsel for Amicus Curiae Allbritton Communications Company ("Allbritton") certifies that a listing of Allbritton's parents, subsidiaries and affiliates are listed on the annexed Exhibit "A." Dated: August 30,2013 Respectfully Submitted, Katherine M. Bolger LEVINE SULLIVAN KOCH & SCHULZ, LLP 321 West 44th Street, Ste 1000 New York, New York 10036 Tel.: (212) 850-6123 Fac.: (212) 850-6299 Email: kbolger@lskslaw.com VI EXHIBIT A • Allbritton Communications Company is a privately held corporation. • Subsidiaries and Affiliates: ACC Licensee, LLC; Allbritton Art Institute; The Allbritton Foundation; Allbritton Communications Company; Allbritton Group, LLC; Allbritton New Media, Inc.; Allbritton Television Productions, Inc.; Allfinco, Inc.; Allholdco, Inc.; Bowie-Sevier Estate LLC; BSE Holdings LLC; Capitol News Company, LLC; CapNY, LLC; Charleston Television, LLC ; Georgetown Carriage House, LLC; Harrisburg Television, Inc.; Irides, LLC; JLA Partners, Inc. ; Jobaro Corporation; KATV, LLC; KTUL, LLC; Lazy Lane Farms, LLC; Parva Stella, L.L.C.; Perfin Corporation; Perpetual Air, LLC; Perpetual Aviation, LLC; Perpetual Capital, LLC; Perpetual Corporation; Perpetual Investments, Inc.; POLITICO LLC; Rail Miniatures, LLC; TV Alabama, Inc.; Vid Agon, LLC; Westfield News Advertiser Holdings, LLC; Westfield News Publishing, Inc.; WSET, Incorporated. Vll STATE OF NEW YORK COURT OF APPEALS In the Matter of the Application of James Holmes, Petitioner-Respondent, A Defendant in the State of Colorado for a Subpoena as a Witness, etc., lana Winter, Respondent-Appellant ) ) ) ) ) ) New York County ) Case No. 30037113 ) ) ) ) CORPORATE DISCLOSURE STATEMENT OF THE ASSOCIATED PRESS, INC. Pursuant to Section 500.1(f) of the Rules of Practice for this Court, the undersigned counsel for Amicus Curiae The Associated Press, Inc. certifies The Associated Press is a global news agency organized as a mutual news cooperative under the New York Not-for-Profit Corporation law. It is not publicly traded. Dated: August 30,2013 Katherine M. Bolger LEVINE SULLIVAN KOCH & SCHULZ, LLP 321 West 44th Street, Ste 1000 New York, New York 10036 Tel.: (212) 850-6123 Pac.: (212) 850-6299 Email: kbolger@lskslaw.com Vl11 STATE OF NEW YORK COURT OF APPEALS In the Matter of the Application of James Holmes, Petitioner-Respondent, A Defendant in the State of Colorado for a Subpoena as a Witness, etc., lana Winter, Respondent-Appellant ) ) ) ) ) ) New York County ) Case No. 30037/13 ) ) ) ) CORPORATE DISCLOSURE STATEMENT OF ATLANTIC MEDIA, INC. Pursuant to Section 500.1(t) of the Rules of Practice for this Court, the undersigned counsel for Amicus Curiae Atlantic Media, Inc. ("Atlantic Media") certifies that a listing of Atlantic Media's parents, subsidiaries and affiliates are listed on the annexed Exhibit "A." Dated: August 30,2013 Respectfully Submitted, ; J J Katherine M. Bolger LEVINE SULLIV AN KOCH & SCHULZ, LLP 321 West 44th Street, Ste 1000 New York, New York 10036 Tel.: (212) 850-6123 Fac.: (212) 850-6299 Email: kbolger@lskslaw.com IX EXHIBIT A Atlantic Media, Inc. • Parent: Atlantic Media, Inc. is a privately held corporation with no parent • Subsidiaries and Affiliates: Atlantic Media, Inc. has no subsidiaries or affiliates x STATE OF NEW YORK COURT OF APPEALS In the Matter of the Application of James Holmes, Petitioner-Respondent, A Defendant in the State of Colorado for a Subpoena as a Witness, etc., Jana Winter, Respondent -Appellant ) ) ) ) ) ) New York County ) Case No. 30037113 ) ) ) ) CORPORATE DISCLOSURE STATEMENT OF BLOOMBERG L.P. Pursuant to Section 500.1 (0 of the Rules of Practice for this Court, the undersigned counsel for Amicus Curiae Bloomberg L.P. certifies that Bloomberg L.P. 's parent corporation is Bloomberg Inc., which is privately held. Dated: August 30, 2013 Respectfully Submitted, LEVINE SULLIVAN KOCH & SCHULZ, LLP 321 West 44th Street, Ste 1000 New York, New York 10036 Tel.: (212) 850-6123 Fac.: (212) 850-6299 Email: kbolger@lskslaw.com Xl STATE OF NEW YORK COURT OF APPEALS In the Matter of the Application of James Holmes, Petitioner-Respondent, A Defendant in the State of Colorado for a Subpoena as a Witness, etc., Jana Winter, Respondent-Appellant ) ) ) ) ) ) New York County ) Case No. 30037113 ) ) ) ) CORPORATE DISCLOSURE STATEMENT OF COURTHOUSE NEWS SERVICE Pursuant to Section 500.1 (f) of the Rules of Practice for this Court, the undersigned counsel for Amicus Curiae Courthouse News Service ("CNS") certifies that a listing of CNS's parents, subsidiaries and affiliates are listed on the annexed Exhibit "A." Dated: August 30, 2013 Respectfully Submitted, Xll EXHIBIT A COURTHOUSE NEWS SERVICE • Courthouse News Service is a privately held corporation. • Subsidiary: CNS Information Technology Services Philippines, Inc. Xlll STATE OF NEW YORK COURT OF APPEALS In the Matter of the Application of James Holmes, Petitioner-Respondent, A Defendant in the State of Colorado for a Subpoena as a Witness, etc., Jana Winter, Respondent-Appellant ) ) ) ) ) ) New York County ) Case No. 30037113 ) ) ) ) CORPORATE DISCLOSURE STATEMENT OF COX MEDIA GROUP, LLC Pursuant to Section 500.1(f) of the Rules of Practice for this Court, the undersigned counsel for Amicus Curiae Cox Media Group, LLC ("Cox") certifies that a listing of Cox's parents, subsidiaries and affiliates are listed on the annexed Exhibit "A." Dated: August 30,2013 Respectfully Submitted, XIV EXHIBIT A Cox Media Group, LLC • Parent: Cox Enterprises, Inc., a privately held corporation. • Subsidiaries and Affiliates: CCI News Services, Inc., CEI Newsprint, LLC, CMG Corporate Services, Inc., CMG Partner Holdings, Inc., Cox Media Group Ohio, Inc., Cox Newspapers, LLC, Cox Radio, Inc., Cox Reps, Inc. Grand Junction Newspapers, Inc., KIRO-TV, Inc., KTVU, Inc., Miami Daily News, L.L.C., WFTV, Inc., WPIX, Inc., WSOC Television, Inc., WTOV Inc. xv STATE OF NEW YORK COURT OF APPEALS In the Matter of the Application of James Holmes, Petitioner-Respondent, A Defendant in the State of Colorado for a Subpoena as a Witness, etc., Jana Winter, Respondent-Appellant ) ) ) ) ) ) New York County ) Case No. 30037/13 ) ) ) ) CORPORATE DISCLOSURE STATEMENT OF THE DAILY BEAST COMPANY LLC Pursuant to Section 500.1(t) of the Rules of Practice for this Court, the undersigned counsel for Amicus Curiae The Daily Beast Company LLC (formerly known as The NewsweeklDaily Beast Company LLC) ("The Daily Beast") certifies that the Sidney Harman Trust and TDB Holdings, Inc. are the parents of The Daily Beast. TDB Holdings, Inc. is a subsidiary of IAC/lnterActiveCorp ("lAC"), a publicly traded company. lAC holds a controlling interest in The Daily Beast. The Daily Beast has one subsidiary: Newsweek Philippines Inc. XVI A true and correct copy of a listing lAC's subsidiaries, as filed with the U.S. Securities and Exchange Commission with lAC's most recent Form 10-K filing, is annexed hereto as Exhibit "A." The Daily Beast does not have any other parents, subsidiaries or affiliates. Dated: August 30, 2013 Respectfully Submitted, I ""~ Katherine M. Bol r LEVINE SULLIVAN KOCH & SCHULZ, LLP 321 West 44th Street, Ste 1000 New York, New York 10036 Tel.: (212) 850-6123 Fac.: (212) 850-6299 Email: kbolger@lskslaw.com XVll Entity 8831-8833 Sunset, LLC Exhibit A ACllnter ActiveCorp Subsidiaries As of December 31, 2012 About Infonnation Technology (Beijing) Co., Ltd ....................................... . About International ....................................................................................... . About, Inc ...................................................................................................... . Alpha411 Agency Services, LLC. ................................................................. . APN,LLC ..................................................................................................... . AppiianceAppointment.com, LLC ............................................................... . Aqua Acquisition Holdings LLC ................................................................. . Ask Jeeves UK Partnership .......................................................................... . AutoGlassSearch.com, LLC ......................................................................... . AutoRepairLocal, LLC ................................................................................. . Blu Trumpet, LLC ......................................................................................... . Buzz Technologies, Inc ................................................................................. . CashPlay, Inc ................................................................................................. . CH Pacific, LLC ............................................................................................ . ChiroAppointment.com, LLC ....................................................................... . CityGrid Media, LLC .................................................................................... . College Humor Press LLC ............................................................................ .. Comedy News Ventures, Inc ......................................................................... . Connect, LLC ................................................................................................ . Connected Ventures, LLC ............................................................................ . ConsumerSearch, Inc. . ................................................................................. . CraftJack Inc ............................................................................................... .. CrowdedRoom LLC ..................................................................................... . CV Acquisition Corp .................................................................................... . Daily Burn, Inc ............................................................................................ .. DatingDirect.com Limited ........................................................................... .. Diamant Production Services, LLC .............................................................. . Dictionary.com, LLC .................................................................................. .. ECS Sports Fulfillment LLC ....................................................................... .. Electus, LLC ................................................................................................ .. Electus/PYE, LLC ........................................................................................ . Elicia Acquisition Corp ............................................................................... .. ES 1 Productions, LLC .................................................................................. . ES2 Productions, LLC ................................................................................. .. Falcon Holdings II, LLC .............................................................................. . FC & Co ....................................................................................................... . Felix Calls, LLC ........................................................................................... . Five Star Matchmaking Information Technology (Beijing) Co., Ltd ........... .. Florafiora.com, LLC .................................................................................... . FSOV, LLC .................................................................................................. . XVlll Jurisdiction of Formation Delaware People's Republic of China Cayman Islands Delaware Delaware Delaware Delaware Delaware United Kingdom Delaware Delaware Delaware Washington Delaware Delaware Delaware Delaware Maryland Delaware Delaware Delaware Delaware Illinois Delaware Delaware Delaware United Kingdom Delaware California Delaware Delaware California Delaware Delaware Delaware Delaware France Delaware People's Republic of China Delaware Delaware Entity Gym Interactive, LLC .................................................................................. . Hatch Labs, Inc ............................................................................................ . High Line Venture Partners Follow On Fund GP, LLC ................................ . High Line Venture Partners Follow On Fund, L.P ........................................ . High Line Venture Partners GP II, LLC ...................................................... .. High Line Venture Partners GP, LLC ........................................................... . High Line Venture Partners II, L.P ............................................................... . High Line Venture Partners, L.P ................................................................... . HomeAdvisor, Inc ......................................................................................... . HSN Capital LLC ......................................................................................... . HSN Home Shopping Network GmbH ......................................................... . HSN,LLC ..................................................................................................... . HTRF Ventures, LLC .................................................................................... . Humor Rainbow, Inc ..................................................................................... . lAC 19 th St. Holdings, LLC ........................................................................ . lAC Falcon Holdings, LLC .......................................................................... . lAC Family Foundation, Inc ......................................................................... . lAC Search & Media (Canada) Inc ............................................................... . lAC Search & Media (Jersey) Limited .......................................................... . lAC Search & Media Australia Pty. Ltd ....................................................... . lAC Search & Media B.V ............................................................................. . lAC Search & Media Deutschland GmbH .................................................... . lAC Search & Media Europe Limited ........................................................... . lAC Search & Media Hong Kong, Limited .................................................. . lAC Search & Media International, Inc ........................................................ . lAC Search & Media Massachusetts, Inc ..................................................... . lAC Search & Media Technologies Limited ................................................. . lAC Search & Media UK Limited ............................................................... .. lAC Search & Media Washington, LLC ....................................................... . lAC Search & Media, Inc .............................................................................. . lAC Search, LLC .......................................................................................... . lAC Shopping International, Inc. .. ............................................................... . ImproveNet, Inc. . ........................................................................................ .. Insider Pages, Inc. InstantAction, LLC ....................................................................................... . InterCaptiveCorp, Ltd. . ................................................................................ . Internet Shopping Network LLC ................................................................. .. iWon Points LLC ......................................................................................... . Kids Holdings LLC ...................................................................................... . La Centrale des Marches Prives S.a r.!... ....................................................... . Life123, Inc .................................................................................................. . LocaIEyeCare.com, LLC .............................................................................. . LocalPodiatry .com, LLC .............................................................................. . LocaIVets.com, LLC .................................................................................... . M8 East, LLC ............................................................................................... . M8 Singlesnet LLC ...................................................................................... . XIX Jurisdiction of Formation New York Delaware Delaware Delaware Delaware Delaware Delaware Delaware Delaware Delaware Germany Delaware Delaware New York Delaware Delaware Delaware Canada Jersey - Channel Islands Australia Netherlands Germany Ireland Hong Kong Delaware Massachusetts Ireland United Kingdom Washington Delaware Delaware Delaware Delaware Delaware Delaware Bermuda Delaware New York Delaware France Delaware Delaware Delaware Delaware Delaware Delaware Entity M8 West, LLC .............................................................................................. . Match ProfilePro, LLC ................................................................................. . Match.com Canada Ltd ................................................................................. . Match.com Europe Limited .......................................................................... . Match.com Events LLC ............................................................................... . Match.com Global Investments SARL ........................................................ . Match.com Global Services Limited ............................................................ . Match.com HK Limited ............................................................................... . Match.com International Holdings, Inc ........................................................ . Match.com International Ltd ........................................................................ . Match.com Investments, Inc. . ...................................................................... . Match.com Japan KK ................................................................................... . Match.com Japan Networks GK .................................................................. . Match.com LatAm Ltd ................................................................................. . Match.com Nordic AB ................................................................................. . Match.com Offshore Holdings, Ltd ............................................................. . Match.com Pegasus Limited ........................................................................ . Match.com, Inc ............................................................................................. . Match.com, L.L.C ........................................................................................ . Meetic SA ..................................................................................................... . Mindspark Interactive Network, Inc. . .......................................................... . MM LatAm, LLC ......................................................................................... . Mojo Acquisition Corp ................................................................................. . Neu.de GmbH ............................................................................................... . Newsweek Philippines Inc. . ......................................................................... . Nexus Dating Limited .................................................................................. . Notional, LLC .............................................................................................. . NRelate LLC ................................................................................................ . Parperfeito Comunicacao SA People Media, Inc .................. '" .................................................................... . People Media, LLC ...................................................................................... . Performance Vertical Marketing LLC Picnic, LLC .................................................................................................. . Pronto, LLC .................................................................................................. . Rebel Entertainment, Inc. . ............................................................................ . Rio Bravo Productions, LLC ........................................................................ . Riviere Productions ...................................................................................... . Search Floor, Inc .......................................................................................... . ServiceMagic Canada Inc ............................................................................. . ServiceMagic Europe S.a r.l. ........................................................................ . Service Magic GmbH .................................................................................... . ServiceMagic International S.a r.l. ............................................................... . ServiceMagic IP Ireland Limited ................................................................. . Service Magic Limited .................................................................................. . ServiceMagic School Makeover Foundation, Inc ........................................ . Shoebuy.com Europe Limited ...................................................................... . xx Jurisdiction of Formation Delaware Delaware Canada United Kingdom Delaware Luxembourg United Kingdom Hong Kong Delaware United Kingdom Cayman Island Japan Japan United Kingdom Sweden Mauritius United Kingdom Delaware Delaware France Delaware Delaware Delaware Germany Philippines United Kingdom Delaware Delaware Brazil Delaware Arizona Delaware Delaware Delaware Delaware Delaware California California Canada Luxembourg Germany Luxembourg Ireland United Kingdom Colorado England and Wales Entity Shoebuy.com, Inc ......................................................................................... . Shoptouch, Inc .............................................................................................. . Soulmates International, Inc ......................................................................... . Soulmates Limited ........................................................................................ . Soulmates Technology Pty Ltd .................................................................... .. Starnet Interactive Ltd .................................................................................. . Stamet Interactive, Inc. .. ............................................................................. .. StorageReserve.com, LLC ........................................................................... . Styleclick Chicago, Inc. . ............................................................................. .. Styleclick, Inc ............................................................................................... . StylecIick.com Enterprises Inc .................................................................... .. TanningNearYou.com, LLC ........................................................................ .. Targeted Media Solutions LLC .................................................................... . TDB Holdings, Inc ....................................................................................... . The lAC Foundation, Inc ............................................................................ .. The Newsweek/Daily Beast Company LLC ............................................... .. TMC Realty, L.L.C ..................................................................................... .. Triple Threat Marketing, LLC ..................................................................... .. Trustic, Inc. . ................................................................................................. . Tutor.com, Inc ............................................................................................. .. TVRepairMan.com, LLC ............................................................................. . uDate.com Ltd .............................................................................................. . USA Electronic Commerce Solutions LLC ................................................ .. USA Video Distribution LLC ...................................................................... . USANi LLC ................................................................................................ .. USANi Sub LLC ......................................................................................... .. VenuesNearYou.com, LLC ......................................................................... .. Veritas Corporation ...................................................................................... . Veritas, LLC ................................................................................................. . Vimeo, LLC ................................................................................................ .. Wanderspot LLC ......................................................................................... .. Yext Advertising, LLC ................................................................................ .. Yext Countertops, LLC ................................................................................ .. Yext Voice, LLC .......................................................................................... . XXI Jurisdiction of Formation Delaware Delaware Delaware New Zealand New South Wales Australia Israel Delaware Delaware Delaware Delaware California Delaware Delaware Delaware Delaware Delaware Delaware Delaware Delaware Delaware Delaware United Kingdom Delaware Delaware Delaware Delaware Delaware Delaware Delaware Delaware Washington Delaware Delaware Delaware STATE OF NEW YORK COURT OF APPEALS In the Matter of the Application of James Holmes, Petitioner-Respondent, A Defendant in the State of Colorado for a Subpoena as a Witness, etc., Jana Winter, . Respondent-Appellant ) ) ) ) ) ) New York County ) Case No. 30037/13 ) ) ) ) CORPORATE DISCLOSURE STATEMENT OF DOW JONES & COMPANY, INC. Pursuant to Section 500.1(f) of the Rules of Practice for this Court, the undersigned counsel for Amicus Curiae Dow Jones & Company, Inc. ("Dow Jones") certifies that News Corporation, a publicly held company, is the indirect parent corporation of Dow Jones, and Ruby Newco LLC, a subsidiary of News Corporation and a non-publicly held company, is the direct parent of Dow Jones. Dated: August 30, 2013 Respectfully Submitted, ~!i'fr= XXll STATE OF NEW YORK COURT OF APPEALS In the Matter of the Application of James Holmes, Petitioner-Respondent, A Defendant in the State of Colorado for a Subpoena as a Witness, etc., Jana Winter, Respondent-Appellant ) ) ) ) ) ) New York County ) Case No. 30037/13 ) ) ) ) CORPORATE DISCLOSURE STATEMENT OF mE E.W. SCRIPPS COMPANY Pursuant to Section 500.1(t) of the Rules of Practice for this Court, the undersigned counsel for Amicus Curiae The E.W. Scripps Company ("Scripps") certifies that Scripps's parents, subsidiaries and affiliates are listed on the annexed Exhibit "A." Dated: August 30, 2013 Respectfully Submitted, Mwj1~ XX111 EXHIBIT A The E.W. Scripps Company • Parent: The E.W. Scripps Company is a publicly traded company with no parent. • Subsidiaries and Affiliates: Bonita Banner Newspaper Inc.; Boulder Publishing, Inc.; Evansville Courier Company, Inc.; Independent Publishing Company; Knoxville News-Sentinel Company; Memphis Publishing Company; San Angelo Standard, Inc.; Scripps Media, Inc.; Stuart News Company; United Media, Inc. • Joint Ventures: The Denver Newspaper Agency; Prairie Mountain Publishing Company LLP. XXIV STATE OF NEW YORK COURT OF APPEALS In the Matter of the Application of James Holmes, Petitioner-Respondent, A Defendant in the State of Colorado for a Subpoena as a Witness, etc., Jana Winter, Respondent-Appellant ) ) ) ) ) ) New York County ) Case No. 30037/13 ) ) ) ) CORPORATE DISCLOSURE STATEMENT OF FORBES MEDIA, LLC Pursuant to Section 500.1(f) of the Rules of Practice for this Court, the undersigned counsel for Amicus Curiae Forbes Media, LLC ("Forbes") certifies that Forbes's parents, subsidiaries and affiliates are listed on the annexed Exhibit "A." Dated: August 30,2013 Respectfully Submitted, ~HIz~ Kitherine M. B geT LEVINE SULLIVAN KOCH & SCHULZ, LLP 321 West 44th Street, Ste 1000 New York, New York 10036 Tel.: (212) 850-6123 Fac.: (212) 850-6299 Email: kbolger@lskslaw.com xxv EXHIBIT A Forbes Media, LLC • Parent: Forbes Media Holdings LLC, a privately held corporation • Affiliates and Subsidiaries: Forbes Education Holdings LLC, Forbes LLC, F orbes.com LLC XXVI STATE OF NEW YORK COURT OF APPEALS In the Matter of the Application of James Holmes, Petiti oner-Respondent, A Defendant in the State of Colorado for a Subpoena as a Witness, etc., Jana Winter, Respondent -Appe 1 Iant ) ) ) ) ) ) New York County ) Case No. 30037/13 ) ) ) ) CORPORATE DISCLOSURE STATEMENT OF GANNETT CO., INC. Pursuant to Section 500.1(t) of the Rules of Practice for this Court, the undersigned counsel for Amicus Curiae Gannett Co., Inc. certifies that Gannett Co., Inc. is a publicly traded company and has no affiliates or subsidiaries that are publicly owned. Dated: August 30,2013 Respectfully Submitted, t> "j"/ ,{ / AI /('" _____ 'f{, /"\ L' j " " .. -, ---- atherine M. B&lgerc ) LEVINE SULLIV AN KOCH & SCHULZ, LLP 321 West 44th Street, Ste 1000 New York, New York 10036 Tel.: (212) 850-6123 Fac.: (212) 850-6299 Email: kbolger@lskslaw.com XXVll STATE OF NEW YORK COURT OF APPEALS In the Matter of the Application of James Holmes, Petitioner-Respondent, A Defendant in the State of Colorado for a Subpoena as a Witness, etc., Jana Winter, Respondent-Appellant ) ) ) ) ) ) New York County ) Case No. 30037/13 ) ) ) ) CORPORATE DISCLOSURE STATEMENT OF HEARST CORPORATION Pursuant to Section 500.1(t) of the Rules of Practice for this Court, the undersigned counsel for Amicus Curiae Hearst Corporation ("Hearst") certifies that Hearst is privately held by the Hearst Family Trust and has no other parent. None of Hearst's subsidiaries or affiliates is publicly held, with the exception of Fimilac SA (owner of Fitch Group, Inc.), in which Hearst and/or its subsidiaries own a fifty percent interest. Dated: August 30,2013 XXVlll STATE OF NEW YORK COURT OF APPEALS In the Matter of the Application of James Holmes, Petitioner-Respondent, A Defendant in the State of Colorado for a Subpoena as a Witness, etc., Jana Winter, Respondent-Appellant ) ) ) ) ) ) New York County ) Case No. 30037113 ) ) ) ) CORPORATE DISCLOSURE STATEMENT OF LIN MEDIA LLC Pursuant to Section 500.1 (t) of the Rules of Practice for this Court, the undersigned counsel for Amicus Curiae LIN Media LLC ("LIN") certifies that LIN's parents, subsidiaries and affiliates are listed on the annexed Exhibit "A." Dated: August 30,2013 Respectfully Submitted, ) .-Katherine M. Boiger LEVINE SULLIVAN KOCH & SCHULZ, LLP 321 West 44th Street, Ste 1000 New York, New York 10036 Tel.: (212) 850-6123 Fac.: (212) 850-6299 Email: kbolger@lskslaw.com XXIX EXHIBIT A LIN Media LLC • LIN Media LLC is a publicly traded company with no parent. • Subsidiaries and Affiliates: LIN Television Corporation; Indiana Broadcasting, LLC; WAVY Broadcasting, LLC; WIVB Broadcasting, LLC; WTNH Broadcasting LLC; WWLP Broadcasting, LLC; WOOD License Co., LLC; TVL Broadcasting LLC; TVL Broadcasting of Rhode Island, LLC; WUPW Broadcasting, LLC; WDTN Broadcasting, LLC; WNAC Management, LLC; Vaughan Television Management, LLC and 54 Broadcasting, Inc.; WOOD Television LLC; LIN of Alabama, LLC; LIN of Colorado LLC; LIN of New Mexico, LLC; LIN of Wisconsin, LLC; LIN License Company, LLC; Prime land LLC; North Texas Broadcasting LLC; KXTX Holdings LLC; LIN Television of Texas, LP; KXAN LLC; LIN Television of Texas Inc.; LIN Digital Media LLC; LIN Digital LLC; LIN Mobile, LLC; Nami Media, Inc.; HYFN, Inc.; Dedicated Media, Inc. xxx STATE OF NEW YORK COURT OF APPEALS In the Matter of the Application of James Holmes, Petitioner-Respondent, A Defendant in the State of Colorado for a Subpoena as a Witness, etc., J ana Winter, Respondent-Appellant ) ) ) ) ) ) New York County ) Case No. 30037/13 ) ) ) ) CORPORATE DISCLOSURE STATEMENT OF NBCUNIVERSAL MEDIA, LLC Pursuant to Section 500.1(t) of the Rules of Practice for this Court, the undersigned counsel for Amicus Curiae NBCUniversal Media, LLC ("NBC") certifies that NBC's parent is Comcast Corporation. Dated: August 30,2013 Respectfully Submitted, ~!I-U= KatileriIleM. Bol ~ LEVINE SULLIV AN KOCH & SCHULZ, LLP 3 21 West 44th Street, Ste 1000 New York, New York 10036 Tel.: (212) 850-6123 Fac.: (212) 850-6299 Email: kbolger@lskslaw.com XXXl STATE OF NEW YORK COURT OF APPEALS In the Matter of the Application of J ames Holmes, Petitioner-Respondent, A Defendant in the State of Colorado for a Subpoena as a Witness, etc., J ana Winter, Respondent-Appellant ) ) ) ) ) ) New York County ) Case No. 30037113 ) ) ) ) CORPORATE DISCLOSURE STATEMENT OF NEW YORK MEDIA LLC Pursuant to Section 500.l(f) of the Rules of Practice for this Court, the undersigned counsel for Amicus Curiae New York Media LLC ("NYM") certifies that NYM is wholly owned by New York Media Holdings LLC. Dated: August 30, 2013 Respectfully Submitted, Katherine M. Bolger~ LEVINE SULLIV AN KOCH & SCHULZ, LLP 321 West 44th Street, Ste 1000 New York, New York 10036 Tel.: (212) 850-6123 Fac.: (212) 850-6299 Email: kbolger@lskslaw.com XXXll STATE OF NEW YORK COURT OF APPEALS In the Matter of the Application of James Holmes, Petitioner-Respondent, A Defendant in the State of Colorado for a Subpoena as a Witness, etc., J ana Winter, Respondent-Appellant ) ) ) ) ) ) New York County ) Case No. 30037/13 ) ) ) ) CORPORATE DISCLOSURE STATEMENT OF THE NEW YORK TIMES COMPANY Pursuant to Section 500.1(f) of the Rules of Practice for this Court, the undersigned counsel for Amicus Curiae The New York Times Company ("The Times") certifies that a listing of The Times's parents, subsidiaries and affiliates are listed on the annexed Exhibit "A." Dated: August 30, 2013 XXXlll EXHIBIT A The New York Times Company • The New York Times Company is a publicly traded company with no parent. • Subsidiaries and Affiliates: City & Suburban Delivery Systems, Inc.; International Herald Tribune U.S. Inc.; The New York Times Syndication Sales Corporation; NYT Capital, LLC; Midtown Insurance Company; NYT Management Services, Inc.; Globe Newspaper Company, Inc.; Boston Globe Electronic Publishing, Inc.; Globe Specialty Products, Inc.; GlobeDirect, LLC; Retail Sales, Inc.; Worcester Telegram & Gazette Corp.; NYT Shared Service Center, Inc.; International Media Concepts, Inc.; Times On-Line Services, Inc.; International Herald Tribune S.A.S.; International Herald Tribune B.V.; IHT Publishing (India) Private Limited; International Herald Tribune GMBH; International Herald Tribune Ltd.; International Herald Tribune (Singapore) Pte LTD.; International Herald Tribune (Thailand) LTD.; International Herald Tribune (Zurich) GmbH. XXXIV STATE OF NEW YORK COURT OF APPEALS In the Matter of the Application of James Holmes, Petitioner-Respondent, A Defendant in the State of Colorado for a Subpoena as a Witness, etc., Jana Winter, Respondent-Appellant ) ) ) ) ) ) New York County ) Case No. 30037113 ) ) ) ) CORPORATE DISCLOSURE STATEMENT OF NEWSDA Y LLC Pursuant to Section 500.1(f) of the Rules of Practice for this Court, the undersigned counsel for Amicus Curiae Newsday LLC ("Newsday") certifies that a listing of Newsday's parents, subsidiaries and affiliates are listed on the annexed Exhibit "A." Dated: August 30,2013 Respectfully Submitted, .,/t ". "",c . /ll . r~;'7; ,_ _ Katherine M. Bolge'f LEVINE SULLIVAN KOCH & SCHULZ, LLP 321 West 44th Street, Ste 1000 New York, New York 10036 Tel.: (212) 850-6123 Fac.: (212) 850-6299 Email: kbolger@lskslaw.com xxxv EXHIBIT A Newsday LLC • Parent: CSC Holdings, LLC, which in tum is a subsidiary of Cablevision Systems Corporation, a publicly held company; and Tribune Company. XXXVI STATE OF NEW YORK COURT OF APPEALS In the Matter of the Application of James Holmes, Petitioner-Respondent, A Defendant in the State of Colorado for a Subpoena as a Witness, etc., Jana Winter, Respondent-Appellant ) ) ) ) ) ) New York County ) Case No. 30037113 ) ) ) ) CORPORATE DISCLOSURE STATEMENT OF THE NEW YORKER Pursuant to Section 500.1(t) of the Rules of Practice for this Court, the undersigned counsel for Amicus Curiae The New Yorker certifies that The New Yorker is a national magazine published by Conde Nast, which is a division of Advance Publications, Inc. A listing of Advanced Publications, Inc.' s parents, subsidiaries and affiliates are listed on the annexed Exhibit "A." Dated: August 30, 2013 Respectfully Submitted, /0t?j(~. /{ . /'f:::;. - Katherine M. Bolger LEVINE SULLIVAN KOCH & SCHULZ, LLP 321 West 44th Street, Ste 1000 New York, New York 10036 Tel.: (212) 850-6123 Fac.: (212) 850-6299 Email: kbolger@lskslaw.com XXXVll EXHIBIT A PARENT, SUBSIDIARIES AND AFFILIATES OF THE NEW YORKER Advance Alabama Media LLC Advance BCI Inc. Advance Central Services Inc. Advance Digital Inc. Advance Executive Payroll, LLC Advance Finance Group LLC Advance Magazine Publishers Inc. Advance New Jersey, LLC Advance Publications of Perry and Juniata Counties, Inc. Advance Publications Private Payroll, LLC advance.net LLC American City Business journals, Inc. AMP I Journal Properties LLC Ann Arbor Offset LLC AnnArbor.com LLC API Network LLC Australian Pacific (001) Projects Pty. Limited Birmingham Business Journal, Inc. The Birmingham News Company The Birmingham News LLC BIZ Books LLC bi~ournals.com LLC Blogpayer, Inc. Boston Business Journal, Inc. Business Journal Publications, Inc. Business Journals of Ohio Inc. Business People Publications Limited City Business Journals Network, Inc. CityBusinessiTwin Cities, Inc. CityBusinesslUSA LLC CN International Internet LLC CNE Productions LLC CNI Ediciones Holdings Inc. ComCorp, Inc. Conde Nast & National Magazine Distributors Limited Conde Nast Advertising (Shanghai) Co., Ltd. Conde Nast Americas L.c. Conde Nast Americas Holdings, Inc. Conde Nast AsiaiPacific, Inc. Conde Nast Brasil Holding Ltda. Conde Nast (CNI) Ltd. Conde Nast Cultural Enterprise Consulting (Shanghai) Co., Ltd. Conde Nast de Mexico S.A. de C.V. Conde Nast Digital Limited Conde Nast Digital Germany GmbH Conde Nast Entertainment LLC Conde Nast Holdings (HK) Ltd. Conde Nast (India) Private Limited Conde Nast International Inc. Conde Nast International Ltd. Conde Nast Japan LLC G.K. Conde Nast Japan Conde Nast Johansens Limited Conde Nast New Markets Europe/Africa, Inc. The Conde Nast Publications Limited Conde Nast Publications Limited [Hong Kong] Conde Nast Russia LLC Conde Nast Taiwan Publications Limited Conde Nast Treasury Services Ltd. Conde Nast Verlag GmbH Conde Nast ZAO Condenet Iberica, S.L. Condenet.au Pty Limited CondeNet.tw Limited La Cucina ltaliana S.r.l Ediciones Conde Nast S.A. Edizioni Conde Nast GmbH Edizioni Conde Nast S.p.A. The Evening Journal Association Fashion Networks International, LLC FTI Ventures LLC XXXVlll Glamour Magazine (Publishers) Limited The Grand Rapids Press Publishing Company LLC Hemmings Motor News, Inc. The Herald Publishing Company, LLC The Hillsboro Argus Inc. The Huntsville Times Co., Inc. Interculture Communications Inc. Interculture Magazine Co., Ltd. Interculture Publicist Co. Ltd. IPG International LLC The Jersey Journal LLC Lower Broadway Productions LLC Magazine Holdings Limited Magazine Special Projects LLC Mass Publishing Ventures LLC MassLive LLC Media Consortium LLC Media Edition International SNC Mid-South Communications, Inc. The Mobile Press Register, Inc. The Mobile Press Register LLC Montrose GmbH The Muskegon Chronicle Publishing Company LLC Nashville Business Journal, Inc. New Jersey Local News Service LLC New Jersey On-Line LLC New Jersey Press Equipment LLC Newark Morning Ledger Co. Newspaper Special Projects LLC Newsprint Purchasing, LLC Northeast Ohio Marketing Network LLC The Northeast Ohio Media Group LLC Oregon Live LLC Oregonian Publishing Company LLC Oregonian Publishing Properties LLC Pacman Insurance, Inc. The Patriot-News Co. The Patriot-News LLC Penn Jersey Advance Inc. Pharos Publications Limited The Plain Dealer LLC Plain Dealer Publishing Co. POP, Inc. The Post-Standard LLC Les Publications Conde Nast S.A. Quadratum Publishing USA, Inc. reddit Inc. Regie 56A SNC The Republican Company Rhinebeck Properties LLC 81. Louis Business Journal Corp. Servicios Professionales y Administrativos Editorales S.A. de C.V. Special Project Services, LLC The Star-Ledger LLC Staten Island Live LLC Streetwise Media, Inc. Tatler Publishing Company Limited Televogue Limited The Times of Trenton LLC The Times of Trenton Publishing Corporation The Times-Picayune, L.L.C. Two Coasts Productions LLC Videovogue Limited Vogue Design Limited Vogue Model Agency Limited Vogue Studio Limited Wine & Food Publications Ltd. W oodthorn Economic Consultants LLC Zip list, Inc XXXIX STATE OF NEW YORK COURT OF APPEALS In the Matter of the Application of James Holmes, Petitioner-Respondent, A Defendant in the State of Colorado for a Subpoena as a Witness, etc., Jana Winter, Respondent-Appellant ) ) ) ) ) ) New York County ) Case No. 30037113 ) ) ) ) CORPORATE DISCLOSURE STATEMENT OF NORTH JERSEY MEDIA GROUP INC. Pursuant to Section 500.1(t) of the Rules of Practice for this Court, the undersigned counsel for Amicus Curiae North Jersey Media Group Inc. ("NJMG") certifies that a listing of NJMG's parents, subsidiaries and affiliates are listed on the annexed Exhibit "A." Dated: August 30,2013 Respectfully Submitted, Katherine M. Bolger' LEVINE SULLIV AN KOCH & SCHULZ, LLP 321 West 44th Street, Ste 1000 New York, New York 10036 Tel.: (212) 850-6123 Fac.: (212) 850-6299 Email: kbolger@lskslaw.com xl EXHIBIT A NORTH JERSEY MEDIA GROUP INC. • Parent: North Jersey Media Group Inc. is a privately held company owned solely by Macromedia Incorporated, also a privately held company. • Affiliates: Bergen Record Corporation, Magna Media, Inc., The Bergen Evening Record Corporation, Macromedia Leasing Corporation, and Gateway Communications, Inc. xli STATE OF NEW YORK COURT OF APPEALS In the Matter of the Application of James Holmes, Petitioner-Respondent, A Defendant in the State of Colorado for a Subpoena as a Witness, etc., J ana Winter, Respondent-Appellant ) ) ) ) ) ) New York County ) Case No. 30037/13 ) ) ) ) CORPORATE DISCLOSURE STATEMENT OF NYP HOLDINGS, INC. Pursuant to Section 500.l(f) of the Rules of Practice for this Court, the undersigned counsel for Amicus Curiae NYP Holdings, Inc. ("NYP") certifies that News Corporation is the ultimate parent ofNYP. Dated: August 30, 2013 Respectfully Submitted, K~therine M. B~lget (..) LEVINE SULLIVAN KOCH & SCHULZ, LLP 321 West 44th Street, Ste 1000 New York, New York 10036 Tel.: (212) 850-6123 Fac.: (212) 850-6299 Email: kbolger@lskslaw.com xlii STATE OF NEW YORK COURT OF APPEALS In the Matter of the Application of James Holmes, Petitioner-Respondent, A Defendant in the State of Colorado for a Subpoena as a Witness, etc., Jana Winter, Respondent -Appellant ) ) ) ) ) ) New York County ) Case No. 30037113 ) ) ) ) CORPORATE DISCLOSURE STATEMENT OF POLITICO LLC Pursuant to Section 500.1 (t) of the Rules of Practice for this Court, the undersigned counsel for Amicus Curiae POLITICO LLC ("POLITICO") certifies that a listing of POLITICO's parents, subsidiaries and affiliates are listed on the annexed Exhibit "A." Dated: August 30, 2013 Respectfully Submitted, Katherine M. Bolger LEVINE SULLIVAN KOCH & SCHULZ, LLP 321 West 44th Street, Ste 1000 New York, New York 10036 Tel.: (212) 850-6123 Fac.: (212) 850-6299 Email: kbolger@lskslaw.com xliii EXHIBIT A POLITICO LLC • Parent: POLITICO LLC is wholly-owned by Capitol News Company, LLC a privately held corporation. • Affiliates: ACC Licensee, LLC; Allbritton Art Institute; The Allbritton Foundation; Allbritton Communications Company; Allbritton Group, LLC; Allbritton New Media, Inc.; Allbritton Television Productions, Inc.; Allfinco, Inc.; Allholdco, Inc.; Bowie-Sevier Estate LLC; BSE Holdings LLC; Capitol News Company, LLC; CapNY, LLC; Charleston Television, LLC ; Georgetown Carriage House, LLC; Harrisburg Television, Inc.; Irides, LLC; lLA Partners, Inc. ; lobaro Corporation; KA TV, LLC; KTUL, LLC; Lazy Lane Farms, LLC; Parva Stella, L.L.C.; Perfin Corporation; Perpetual Air, LLC; Perpetual Aviation, LLC; Perpetual Capital, LLC; Perpetual Corporation; Perpetual Investments, Inc.; Rail Miniatures, LLC; TV Alabama, Inc.; Vid Agon, LLC; Westfield News Advertiser Holdings, LLC; Westfield News Publishing, Inc.; WSET, Incorporated. xliv STATE OF NEW YORK COURT OF APPEALS In the Matter of the Application of James Holmes, Petitioner-Respondent, A Defendant in the State of Colorado for a Subpoena as a Witness, etc., Jana Winter, Respondent-Appellant ) ) ) ) ) ) New York County ) Case No. 30037/13 ) ) ) ) CORPORATE DISCLOSURE STATEMENT OF TRIBUNE COMPANY Pursuant to Section 500.1(t) of the Rules of Practice for this Court, the undersigned counsel for Amicus Curiae Tribune Company certifies that Tribune Company is a privately held company. Dated: August 30, 2013 Respectfully Submitted, iath~rine M. Borger LEVINE SULLIVAN KOCH & SCHULZ, LLP 321 West 44th Street, Ste 1000 New York, New York 10036 Tel.: (212) 850-6123 Fac.: (212) 850-6299 Email: kbolger@lskslaw.com xlv STATE OF NEW YORK COURT OF APPEALS In the Matter of the Application of James Holmes, Petitioner-Respondent, A Defendant in the State of Colorado for a Subpoena as a Witness, etc., Jana Winter, Respondent-Appellant ) ) ) ) ) ) New York County ) Case No. 30037/13 ) ) ) ) CORPORATE DISCLOSURE STATEMENT OF REUTERS AMERICA LLC Pursuant to Section 500.1(t) of the Rules of Practice for this Court, the undersigned counsel for Amicus Curiae Reuters America LLC ("Reuters") certifies that a listing of Reuters' parents, subsidiaries and affiliates are listed on the annexed Exhibit" A." Dated: August 30, 2013 Respectfully Submitted, xlvi EXHIBIT A Reuters America LLC • Parent: Thomson Reuters Corporation, which in tum is a subsidiary of The Woodbridge Company Limited. • Subsidiaries and Affiliates: FX Alliance, Inc.; FX Alliance, LLC; FX Alliance Active Trading Inc.; FX Alliance Active Trading (UK) Limited; FX Alliance Holdings Limited; FX Alliance International, LLC; FX Alliance Limited; FXALL International (Mumbai) Private Limited; Lipper Inc.; Hedge W orId; StarMine Corporation; Thomson Financial Vestek; Thomson Financial; Thomson Global Markets Inc.; Tradeweb Markets LLC; Tradeweb LLC; Dealerweb Inc.; Rafferty Capital Markets, LLC; Reuters Limited; Reuters Television Limited; Reuters Australia Pty. Ltd.; Reuters Hong Kong Limited; Reuters Italia SpA; Reuters Japan Ltd; Reuters SA; Reuters Services SARL; Reuters Singapore Pte Limited; Thomson Reuters (Markets) Deuschland GmbH; Thomson Financial Ltd.; Thomson Financial S.A.; Thomson Financial SA; Thomson Financial S.r.l.; Legal Systems Holding Company Inc.; Round Table Group, Inc.; Silicon Valley Expert Witness Group, Inc.; Elite Information Systems, Inc.; Elite Information Systems, Inc.; West Publishing Corporation; Complinet Group Limited; Complinet UK Limited; Complinet Inc.; Complinet Group Ltd. - Dubai; Thomson Reuters Intellectual Property & Science; xlvii MarkMonitor Holdings Inc.; MarkMonitor Inc.; Thomson Derwent Inc.; Manatron, Inc.; Paisley Consulting Inc.; Practitioners Publishing Co.; TaxStream LLC. xlviii STATE OF NEW YORK COURT OF APPEALS In the Matter of the Application of James Holmes, Petitioner-Respondent, A Defendant in the State of Colorado for a Subpoena as a Witness, etc., Jana Winter, Respondent -Appellant ) ) ) ) ) ) New York County ) Case No. 30037113 ) ) ) ) CORPORATE DISCLOSURE STATEMENT OF WP COMPANY LLC D/B/A THE WASHINGTON POST Pursuant to Section 500.1(t) of the Rules of Practice for this Court, the undersigned counsel for Amicus Curiae WP Company LLC (d/b/a The Washington Post) ("The Washington Post") certifies that The Washington Post is a wholly- owned subsidiary of The Washington Post Company, a publicly held corporation. Berkshire Hathaway, Inc., a publicly held company, has a 10 percent or greater ownership interest in The Washington Post Company. xlix Dated: August 30, 2013 Respectfully Submitted, 1 TABLE OF AUTHORITIES Page(s) Cases Beach v. Shanley, 62 N.Y.2d 241,476 N.Y.S.2d 765 (1984) ........................................................... 7 Matter of Codey [Capital Cities, Am. Broadcasting Corp.], 82 N.Y.2d 521,605 N.Y.S.2d 661 [1993] ................................................... 1,2,8 In re Consumer Union of U.S., Inc., 495 F. Supp. 582 (S.D.N.Y. 1980) ..................................................................... 10 Gonzales v. National Broadcasting Co., Inc., 194 F.3d 29 (2d Cir. 1999), aff'd, 175 F.R.D. 57 (2d Cir 1999) ......................... 9 In re Holmes v. Jana Winter, --- N.Y.S.2d ----, 2013 WL 4414784 (1st Dep't Aug. 20,2013) ........... 1,4, 8,23 Immuno A G. v. Moor-Jankowski, 77 N.Y.2d 235,566 N.Y.S.2d 906 (1991) ........................................................... 5 Matter of Magrino, 226 A.D.2d 218,640 N.Y.S.2d 545 [1st Dept 1996] ........................................... 2 McIntyre v. Ohio Elections Com 'n, 514 U.S. 334 (1995) ............................................................................................. 4 NY. Times Co. v. United States, 403 U.S. 713 (1971) ........................................................................................... 20 O'Neill v. Oak grove Const., Inc., 71 N.Y.2d 521, 528 N.Y.S.2d 1 (1988) ............................................... 5,9, 10, 13 People v. James E. Holmes, Case No. 12CR1522 (Colo. Dist. Ct. Arap. Cnty filed July 20,2012) .............. 11 Wen Ho Lee v. u.s. Dept. of Justice, Case No. 99-3380 (TPJ) (D. D.C. 2004) .......................................... 14, 15,21,22 Ii Statutes Colo. Rev. Stat. § 13-90-119 (3) ...................................................... ................ passim N.Y. Civil Rights Law § 79-h ...................................................... .................... passim Uniform Act to Secure Attendance of \Vitnesses from Without the State in Criminal Case, CPL § 640.10 ...................................................................... passim lii Interest of Amici Amici are all news organizations that publish information or represent the interests of those that do. The input of amici may be valuable to this Court because of their experience analyzing legal issues that touch on First Amendment rights, and because of their direct interests in protecting the freedom of the press. This case requires this Court to consider how the public policy of the state, as seen in the actions taken over the years by the courts and Legislature, should inform its decision on whether to enforce a subpoena to one of its citizens. Subpoenas, whether they seek journalists' confidential sources, non- confidential material or verification of published statements, threaten the neutrality and independence of the news media, casting them as agents of discovery in lawsuits that do not involve them. And when, as here, the subpoena does demand the identity of a confidential source, the specter of enforcing that subpoena causes a chill among all future sources who may have valuable information about matters of public concern, but need an assurance of confidentiality before sharing their information. If those sources never come forward, it is the public that suffers the loss. In addition, compelled testimony causes undue hardship on the reporter by placing her at a Morton's Fork - requiring her to choose incarceration or the likely loss of her livelihood. The individual descriptions of each of the amici are as follows: liii The Reporters Committee for Freedom of the Press The Reporters Committee for Freedom of the Press is a voluntary, unincorporated association of reporters and editors that works to defend the First Amendment rights and freedom of information interests of the news media. The Reporters Committee has provided representation, guidance and research in First Amendment and Freedom of Information Act litigation since 1970. As advocates for the rights of the news media and others who gather and disseminate information to the public, the Reporters Committee has a strong interest in ensuring that journalists' ability to credibly promise confidentiality to sources remains uninhibited. ABC, Inc. ABC, Inc., alone and through its subsidiaries, owns and operates, inter alia, ABC News, abcnews.com and local broadcast television stations, including W ABC-TV in New York City, which regularly gather and report news to the public. Programs produced and disseminated by ABC News include "World News with Diane Sawyer," "20/20," "Nightline," "Good Morning America" and "This Week." Advance Publications, Inc. Advance Publications, Inc., directly and through its subsidiaries, publishes 18 magazines with nationwide circulation, newspapers in over 20 cities and weekly Ii" business journals in over 40 cities throughout the United States. It also owns many Internet sites and has interests in cable systems serving over 2.3 million subscribers. Allbritton Communications Company Allbritton Communications Company is the parent company of entities operating ABC-affiliated television stations in the following markets: Washington, D.C.; Harrisburg, Pa.; Birmingham, Ala.; Little Rock, Ark.; Tulsa, Okla.; and Lynchburg, Va. In Washington, it operates broadcast station WJLA-TV, the 24- hour local news service, NewsChannel 8 and the news web sites WJLA.com and TBD.com. An affiliated company operates the ABC affiliate in Charleston, S.C. American Society of News Editors With some 500 members, American Society of News Editors ("ASNE") is an organization that includes directing editors of daily newspapers throughout the Americas. ASNE changed its name in April 2009 to American Society of News Editors and approved broadening its membership to editors of online news providers and academic leaders. Founded in 1922 as American Society of Newspaper Editors, ASNE is active in a number of areas of interest to top editors with priorities on improving freedom of information, diversity, readership and the credibility of newspapers. Iv The Associated Press The Associated Press ("AP") is a global news agency organized as a mutual news cooperative under the New York Not-For-Profit Corporation law. AP's members include approximately 1,500 daily newspapers and 25,000 broadcast news outlets throughout the United States. AP has its headquarters and main news operations in New York City and has staff in 321 locations worldwide. AP reports news in print and electronic formats of every kind, reaching a subscriber base that includes newspapers, broadcast stations, news networks and online information distributors in 116 countries. The Association of American Publishers, Inc. The Association of American Publishers, Inc. ("AAP") is the national trade association of the U.S. book publishing industry. AAP'S members include most of the major commercial book publishers in the United States, as well as smaller and nonprofit publishers, university presses and scholarly societies. AAP members publish hardcover and paperback books in every field, educational materials for the elementary, secondary, postsecondary and professional markets, scholarly journals, computer software and electronic products and services. The Association represents an industry whose very existence depends upon the free exercise of rights guaranteed by the First Amendment. lvi Atlantic Media, Inc. Atlantic Media, Inc. is a privately held, integrated media company that publishes The Atlantic, ~National Journal, Quartz and Government Executive. These award-winning titles address topics in national and international affairs, business, culture, technology and related areas, as well as cover political and public policy issues at federal, state and local levels. The Atlantic was founded in 1857 by Oliver Wendell Holmes, Ralph Waldo Emerson, Henry Wadsworth Longfellow and others. Bloomberg L.P. Bloomberg L.P., based in New York City, operates Bloomberg News, which is comprised of more than 1,500 professionals in 145 bureaus around the world. Bloomberg News publishes more than 6,000 news stories each day, and The Bloomberg Professional Service maintains an archive of more than 15 million stories and multimedia reports and a photo library comprised of more than 290,000 images. Bloomberg News also operates as a wire service, syndicating news and data to over 450 newspapers worldwide with a combined circulation of 80 million people in more than 160 countries. Bloomberg News operates the following: cable and satellite television news channels broadcasting worldwide; WBBR, a 24-hour business news radio station that syndicates reports to more than 840 radio stations Ivii worldwide; Bloomberg Markets and Bloomberg Businessweek magazines; and Bloomberg.com, which receives 3.5 million individual user visits each month. Courthouse News Service Courthouse News Service is a California-based legal news service for lawyers and the news media that focuses on court coverage throughout the nation, reporting on matters raised in trial courts and courts of appeal up to and including the U.S. Supreme Court. Cox Media Group, LLC Cox Media Group, LLC is an integrated broadcasting, publishing, direct marketing and digital media company. Its operations include 15 broadcast television stations, a local cable channel, a leading direct marketing company, 85 radio stations, eight daily newspapers and more than a dozen non-daily print publications and more than 100 digital services. Daily Beast Company LLC The Daily Beast was founded in 2008 as the vision of Tina Brown and lAC Chairman Barry Diller. Curated to avoid information overload, the site is dedicated to breaking news and sharp commentary. Tina Brown, former editor of Tatler, Vanity Fair, The New Yorker & Talk, author of the 2007 NY Times best-seller The Diana Chronicles and founder of the annual Women in the World summit, serves as editor-in-chief of the site which regularly attracts over 16 million unique online Iviii visitors a month and is the winner of two consecutive Webby awards for 'best news' site. Digital Media Law Project Digital Media Law Project ("DMLP") provides legal assistance, education and resources for individuals and organizations involved in online and citizen media. DMLP is jointly affiliated with Harvard University's Berkman Center for Internet & Society, a research center founded to explore cyberspace, share in its study and help pioneer its development, and the Center for Citizen Media, an initiative to enhance and expand grassroots media. Dow Jones & Company, Inc. Dow Jones & Company, Inc., a global provider of news and business information, is the publisher of The Wall Street Journal, Barron's, MarketWatch, Dow Jones Newswires, and other publications. Dow Jones maintains one of the world's largest news gathering operations, with 2,000 journalists in more than fifty countries publishing news in several different languages. Dow Jones also provides information services, including Dow Jones Factiva, Dow Jones Risk & Compliance, and Dow Jones VentureSource. Dow Jones is a News Corporation company. lix The E. W. Scripps Company The E.W. Scripps Company is a diverse, 131-year-old media enterprise with interests in television stations, newspapers, local news and infonnation websites and licensing and syndication. The company's portfolio of locally focused media properties includes: 19 TV stations (ten ABC affiliates, three NBC affiliates, one independent and five Spanish-language stations); daily and community newspapers in 13 markets; and the Washington-based Scripps Media Center, home of the Scripps Howard News Service. ForbesLLC Forbes LLC is the publisher of Forbes and other leading magazines, including Forbes Life and Forbes Asia, as well as an array of investment newsletters and the leading business website, Forbes.com. Forbes has been covering American and global business since 1917. Gannett Co., Inc. Gannett Co., Inc. is an international news and infonnation company that publishes 82 daily newspapers in the United States, including USA TODAY, as well as hundreds of non-daily publications. In broadcasting, the company operates 23 television stations in the U.S. with a market reach of more than 21 million households. Each of Gannett's daily newspapers and TV stations operates Internet Ix sites offering news and advertising that is customized for the market served and integrated with its publishing or broadcasting operations. Hearst Corporation Hearst Corporation is one of the nation's largest diversified media companies. Its major interests include the following: ownership of 15 daily and 38 weekly newspapers, including the Albany Times Union, Houston Chronicle and San Francisco Chronicle; over 300 magazines around the world; 29 television stations, which reach a combined 180/0 of U.S. viewers; ownership in leading cable networks, including Lifetime, A&E and ESPN; business publishing, including a fifty percent interest in Fitch Ratings; and Internet businesses, television production, newspaper features distribution and real estate. LIN Media LIN Television Corporation d/b/a LIN Media, along with its subsidiaries, is a local multimedia company that owns, operates or services 43 network-affiliated broadcast television stations, interactive television stations and niche websites and mobile platforms in 23 U.S. markets, including properties in Portland, Ore., Buffalo, N.Y., and New Haven, Conn. The National Press Club The National Press Club is the world's leading professional organization for journalists. Founded in 1908, the Club has 3,100 members representing most lxi major news organizations. The Club defends a free press worldwide. Each year, the Club holds over 2,000 events, including news conferences, luncheons and panels, and more than 250,000 guests come through its doors. The National Press Photographers Association The National Press Photographers Association ("NPPA") is a 501(c)(6) non- profit organization dedicated to the advancement of visual journalism in its creation, editing and distribution. NPPA's approximately 7,000 members include television and still photographers, editors, students and representatives of businesses that serve the visual journalism industry. Since its founding in 1946, the NPP A has vigorously promoted the constitutional rights of journalists as well as freedom of the press in all its forms, especially as it relates to visual journalism. National Public Radio, Inc. National Public Radio, Inc. is an award-winning producer and distributor of noncommercial news programming. A privately supported, not-for-profit membership organization, NPR serves a growing audience of more than 26 million listeners each week by providing news programming to 285 member stations that are independently operated, noncommercial public radio stations. In addition, NPR provides original online content and audio streaming of its news programming. NPR.org offers hourly newscasts, special features and 10 years of archived audio and information. lxii NBCUniversal Media, LLC NBCUniversal Media, LLC is one of the world's leading media and entertainment companies in the development, production and marketing of news, entertainment and information to a global audience. Among other businesses, NBCUniversal Media, LLC owns and operates the NBC television network, the Spanish-language television network Telemundo, NBC News, several news and entertainment networks, including MSNBC and CNBC, and a television-stations group consisting of owned-and-operated television stations that produce substantial amounts of local news, sports and public affairs programming. NBC News produces the "Today" show, "NBC Nightly News with Brian Williams," "Dateline NBC" and "Meet the Press." New York Media, LLC New York Magazine covers, analyzes, comments on, and defines the news, politics, culture, entertainment, lifestyle, fashion, and personalities that drive New York City. New York Magazine, founded in April 1968, reaches 1.8 million readers each week and is published by New York Media, LLC. The New York Times Company The New York Times Company is the publisher of The New York Times, The Boston Globe, and International Herald Tribune and operates such leading news websites as nytimes.com and bostong10be.com. lxiii The New Yorker The New Yorker is an award-winning magazine of general interest, published weekly in print, digital, and online. Its writers regularly use information provided by sources, confidential and non-confidential, to report on matters of state, national, and international importance. NewsdayLLC Newsday LLC ("Newsday") is the publisher of the daily newspaper, Newsday, and related news websites. Newsday is one of the nation's largest daily newspapers, serving Long Island through its portfolio of print and digital products. Newsday has received 19 Pulitzer Prizes and other esteemed awards for outstanding journalism. Newspaper Association of America Newspaper Association of America ("NAA") is a nonprofit organization representing the interests of more than 2,000 newspapers in the United States and Canada. NAA members account for nearly 90% of the daily newspaper circulation in the United States and a wide range of non-daily newspapers. The Association focuses on the major issues that affect today's newspaper industry, including protecting the ability of the media to provide the public with news and information on matters of public concern. lxiv North Jersey Media Group Inc. North Jersey Media Group Inc. ("NJMG") is an independent, family-owned printing and publishing company, parent of two daily newspapers serving the residents of northern New Jersey: The (Bergen County) Record, the state's second- largest newspaper, and The (Passaic County) Herald News. NJMG also publishes more than 40 community newspapers serving towns across five counties, including some of the best weeklies in the state. Its magazine group produces high-quality glossy magazines, including (201) Best of Bergen, nearly a dozen community- focused titles and special-interest periodicals, such as The Parent Paper. The company's Internet division operates many news and advertising websites and online services associated with the print pUblications. NYP Holdings, Inc. NYP Holdings, Inc., a News Corporation company, is the publisher of the New York Post, the oldest continuously published daily newspaper in the United States. Online News Association Online News Association ("ONA") is the world's largest association of online journalists. ONA' s mission is to inspire innovation and excellence among journalists to better serve the public. ONA's more than 2,000 members include news writers, producers, designers, editors, bloggers, technologists, photographers, lxv academics, students and others who produce news for the Internet or other digital delivery systems. ONA hosts the annual Online News Association conference and administers the Online Journalism Awards. ONA is dedicated to advancing the interests of digital journalists and the public generally by encouraging editorial integrity and independence, journalistic excellence and freedom of expression and access. POLITICO LLC POLITICO LLC is a nonpartisan, Washington-based political journalism organization that produces a series of websites, video programming and a newspaper covering politics and public policy. Radio Television Digital News Association Radio Television Digital News Association ("RTDNA") is the world's largest and only professional organization devoted exclusively to electronic journalism. RTDNA is made up of news directors, news associates, educators and students in radio, television, cable and electronic media in more than 30 countries. RTDNA is committed to encouraging excellence in the electronic journalism industry and upholding First Amendment freedoms. Reuters America LLC Reuters, the world's largest international news agency, is a leading provider of real-time multi-media news and information services to newspapers, television lxvi and cable networks, radio stations and websites around the world. Through Reuters.com, affiliated websites and multiple online and mobile platforms, more than a billion professionals, news organizations and consumers rely on Reuters every day. Its text newswires provide newsrooms with source material and ready- to-publish news stories in twenty languages and, through Reuters Pictures and Video, global video content and up to 1,600 photographs a day covering international news, sports, entertainment, and business. In addition, Reuters publishes authoritative and unbiased market data and intelligence to business and finance consumers, including investment banking and private equity professionals. Society of Professional Journalists Society of Professional Journalists ("SPJ") is dedicated to improving and protecting jOUlllalism. It is the nation's largest and most broad-based journalism organization, dedicated to encouraging the free practice of journalism and stimulating high standards of ethical behavior. Founded in 1909 as Sigma Delta Chi, SPJ promotes the free flow of information vital to a well-informed citizenry, works to inspire and educate the next generation of journalists and protects First Amendment guarantees of freedom of speech and press. Tribune Company Tribune Company operates broadcasting, publishing and interactive businesses, engaging in the coverage and dissemination of news and entertainment lxvii programmmg. On the broadcasting side, it owns 23 television stations, a radio station, a 24-hour regional cable news network and "Superstation" WGN America. On the publishing side, Tribune publishes eight daily newspapers - Chicago Tribune, Hartford (Conn.) Courant, Los Angeles Times, Orlando Sentinel (Central Florida), The (Baltimore) Sun, The (Allentown, Pa.) Morning Call, (Hampton Roads, Va.) Daily Press and Sun-Sentinel (South Florida). The Washington Post WP Company LLC (d/b/a The Washington Post) publishes one of the nation's most prominent daily newspapers, as well as a website, www.washingtonpost.com. that is read by an average of more than 20 million unique visitors per month. lxviii Counsel for amici . Bruce D. Brown Gregg P. Leslie The Reporters Committee for Freedom of the Press 1101 \J\Tilson Blvd., Ste 1100 Arlington, VA 22209-2100 John Zucker Indira Satyendra ABC, Inc. 77 W. 66th Street New York, NY 10023 Richard A. Bernstein Sabin, Bermant & Gould LLP 4 Times Square, 23rd Floor New York, NY 10036 Counsel for Advance Publications. Inc. Jerald N. Fritz Senior Vice President Legal and Strategic Affairs and General Counsel Allbritton Communications Company 1000 Wilson Blvd., Suite 2700 Arlington, VA 22209 Kevin M. Goldberg Fletcher, Heald & Hildreth, PLC 1300 N. 17th St., 11th Floor Arlington, VA 22209 Counselfor American Society of News Editors lxix Karen Kaiser Associate General Counsel The Associated Press 450 W. 33rd Street New York, NY 1000 I Jonathan Bloom Weil, Gotshal & Manges LLP 767 Fifth Avenue New York, NY 10153 Counsel for The Association of American Publishers, Inc. Bruce L. Gottlieb Aretae Wyler Atlantic Media, Inc. 600 New Hampshire Ave., NW Washington, DC 20037 Randy L. Shapiro Global Media Counsel Bloomberg L.P. 731 Lexington Avenue New York, NY 10022 Rachel Matteo-Boehm Bryan Cave LLP 560 Mission Street, Suite 2500 San Francisco, CA 94105 Counsel for Courthouse News Service Lance Lovell Managing Attorney, Disputes Cox Media Group, LLC 6205 Peachtree Dunwoody Road Atlanta, GA 30328 Maya Menendez Deputy General Counsel The Daily Beast Company LLC 555 W. 18th St., 2nd Floor New York, NY 10011 Jeffrey P. Hermes Digital Media Law Project Berkman Center for Internet & Society 23 Everett St., 2nd Floor Cambridge, MA 02138 Mark H. Jackson Jason P. Conti Dow Jones & Company, Inc. 1211 Avenue of the Americas 7th Floor New York, NY 10036 David M. Giles Vice President! Deputy General Counsel The E.W. Scripps Company 312 Walnut St., Suite 2800 Cincinnati, OH 45202 Kai Falkenberg Editorial Counsel Forbes LLC 60 Fifth Avenue New York, NY 10011 Barbara W. Wall Vice President!Senior Associate General Counsel Gannett Co., Inc. 7950 Jones Branch Drive McLean, VA 22107 lxx Jonathan Donnellan Hearst Corporation Office of General Counsel 300 W. 57th St., 40th Floor New York, NY 10019 Joshua N. Pila Senior Counsel LIN Media 1 W. Exchange St. - 5A Providence, RI 02903 Charles D. Tobin Holland & Knight LLP 800 17th Street, NW Suite 1100 Washington, DC 20006 Counsel for The National Press Club Mickey H. Osterreicher 1100 M&T Center, 3 Fountain Plaza, Buffalo, NY 14203 Counsel for National Press Photographers Association Denise Leary Ashley Messenger National Public Radio, Inc. 1111 North Capitol St. NE Washington, D.C. 20002 Amanda Leith Media Counsel NBCUniversal Media, LLC 30 Rockefeller Plaza New York, NY 10112 David S. Korzenik Miller Korzenik Sommers LLP 488 Madison Avenue New York, NY 10022 Counsel for New York Media, LLC David McCraw V.P./ Assistant General Counsel The New York Times Company 620 Eighth Avenue New York, NY 10018 Lynn Oberlander General Counsel The New Yorker 4 Times Square New York, NY 10036 Dina Sforza Cablevision Systems Corporation 1111 Stewart Ave. Bethpage, NY 11714 Kurt Wimmer Covington & Burling LLP 1201 Pennsylvania Ave., NW Washington, DC 20004 Counsel for Newspaper Association of America Jennifer Borg General Counsel North Jersey Media Group Inc. P.O. Box 75 Hackensack, NJ 07602 Eugenie C. Gavenchak NYP Holdings, Inc. 1211 Avenue of the Americas New York, NY 10036 1xxi Jonathan D. Hart Dow Lohnes PLLC 1200 New Hampshire Ave., NW Washington, DC 20036 Counsel for Online News Association Jerald N. Fritz Vice President and General Counsel POLITICO LLC 1000 Wilson Blvd., Suite 2700 Arlington, VA 22209 Kathleen A. Kirby Wiley Rein LLP 1776 K St., NW Washington, DC 20006 Counsel for Radio Television Digital News Association Gail C. Gove Chief Counsel, News Reuters America LLC 3 Times Square, 20th Floor New York, NY 10036 Bruce W. Sanford Laurie A. Babinski Baker & Hostetler LLP 1050 Connecticut Ave., NW Suite 1100 Washington, DC 20036 Counsel for Society of Professional Journalists Karen H. Flax Assistant General Counsell Publishing & Litigation Tribune Company 220 E. 42nd St., Suite 400 New York, NY 10017 John B. Kennedy James A. McLaughlin Ka1ea S. Clark The Washington Post 1150 15th Street, N.W. Washington, D.C. 20071 lxxii Preliminary Statement This case is about whether New York courts should enforce a Colorado subpoena to Respondent-Appellant Jana Winter, a New York based journalist, which would require Ms. Winter to reveal the name of her confidential source or face prison. As the First Department majority held, "the question presented is whether the Supreme Court erred in its determination to enforce a subpoena under the Uniform Act to Secure Attendance of Witnesses from Without the State in Criminal Cases (CPL 640.10) when the witness's testimony potentially involves the assertion of privilege provided by Civil Rights Law § 79-h(b)." In re Holmes v. Jana 'Winter, --- N.Y.S.2d ----, 2013 WL 4414784, at * 1 (1 st Dep't Aug. 20, 2013). Despite recognizing that "New York's Shield Law (Civil Rights Law § 79h-[b] ) continues to represent a strong public policy and the long history of vigilantly safeguarding freedom of the press," id. at *2 (citation omitted), the three member majority concluded that Ms. Winter's reliance on New York Civil Rights Law ~ 79-h (the "Shield Law") "is unavailing. The narrow issue before the Supreme Court was whether respondent should be compelled to testify, and privilege and admissibility are irrelevant for this determination (see Matter of Codey [Capital Cities, Am. Broadcasting Corp.), 82 N.Y.2d 521,528-530, 605 N.Y.S.2d 661, 666-668 [1993]; Matter ofMagrino, 226 A.D.2d 218,640 N.Y.S.2d 545 [1 st Dept 1996] )." (citations in original) With respect, the majority decision of the First Department was in error because it failed to apply this Court's directive that lower courts can consider whether there is a strong public policy - "even one embodied in an evidentiary privilege" - that would justify withholding a subpoena that otherwise met the statutory requirements of § 640.10. Codey v. Capital Cities, American Broadcasting Corp., 82 N.Y.2d 521, 530 n.3, 605 N.Y.S.2d 661,667 n.3 (1993). In Code.v, this Court upheld a New Jersey subpoena for a broadcast reporter's outtakes because New Jersey's strong Shield Law was not inconsistent with New York law. Footnote three, in which the Court left open the consideration of public policy interests, was meant for situations precisely like this one, where Colorado provides a much lesser degree of protection than New York. The dissenting opinion more properly applied the Codey standard, correctly concluding that "New York's public policy, as reflected in this state's Shield Law (Civil Rights Law § 79-h[b] ), is violated when a court of this state directs a reporter to appear in another state, where the purpose of requiring her appearance is to obtain from her the identity of her confidential sources, and where there is a substantial possibility that the demanding court will issue such a directive." Id., at *3. In addition, in his dissent, Judge Saxe also concluded that the Petitioner's 2 application for a subpoena should have been denied under the framework of the Uniform Act to Secure Attendance of Witnesses from Without the State because there would be 'undue hardship' to Ms. Winter were the Colorado subpoena to be enforced, remarking, "[t]he hardship to respondent if she is compelled to testify is far more than three days of travel, a hotel stay, and missing work; it is nothing short of undermining her career, the very means of her livelihood." Id. at *9. The amici, whose employees and members regularly gather, publish, broadcast, produce and distribute news and information write to provide this Court with further information regarding the way in which the strong New York state policy embodied in the Shield Law is of critical importance to reporting the news in the American republic and to further discuss the undue hardship faced by reporters who are forced to choose between incarceration and the continuation of their careers. ARGUMENT POINT I THIS COURT SHOULD UPHOLD THE PUBLIC POLICY INTERESTS IN PROTECTING JOURNALISTS FROM COMPELLED DISCLOSURE OF CONFIDENTIAL SOURCES A. New York Has A Long Tradition of Recognizing the Public Interest in Protecting Reporters' Sources. All of the Justices of the First Department below correctly concluded that the New York State Shield Law embodies a strong public policy of the State of j New York to safeguard the rights of free speech and free expression. In re Holmes, 2013 WL 4414784, at *1, *4. Their conclusion is inescapable: the tradition of freedom of expression and of the press in New York dates back at least to 1735, when a New York jury acquitted newspaper publisher John Peter Zenger of the crime of seditious libel for publishing opinions critical of the colonial governor. Zenger was prosecuted after refusing to reveal the author of the articles, and the case, which established truth as a defense to libel, is widely considered the cornerstone of American press freedom. See, e.g., McIntyre v. Ohio Elections Com 'n, 514 U.S. 334,361 (1995) ("Although the [Zenger] case set the Colonies afire for its example of a jury refusing to convict a defendant of seditious libel against Crown authorities, it also signified at an early moment the extent to which anonymity and the freedom of the press were intertwined in the early American mind.") Courts in New York have repeatedly recognized that the speech and press freedoms guaranteed in the New York Constitution have for almost two centuries been treated as broader than in the U.S. Constitution: This State, a cultural center for the Nation, has long provided a hospitable climate for the free exchange of ideas .... That tradition is embodied in the free speech guarantee of the New York State Constitution, beginning with the ringing declaration that '[ e ] very citizen may freely speak, write and publish ... sentiments on all subjects.' Those words, unchanged since the adoption of the constitutional provision in 1821, reflect the deliberate choice of the New York State Constitutional Convention not to follow the 4 language of the First Amendment, ratified 30 years earlier, but instead to set forth our basic democratic ideal of liberty of the press in strong affirmative terms .... Thus, whether by the application of 'interpretive' (e.g., text, history) or 'noninterpretive' (e.g., tradition, policy) factors, the 'protection afforded by the guarantees of free press and speech in the New York Constitution is often broader than the minimum required by' the Federal Constitution. Immuno AG. 1'. Moor-Jankowski, 77 N.Y.2d 235,249,566 N.Y.S.2d 906,913 (1991) (internal citations omitted). The Court of Appeals has made clear that this distinction is significant and imposes a duty of vigilance on courts: The expansive language of our State constitutional guarantee, its formulation and adoption prior to the Supreme Court's application of the First Amendment to the States, the recognition in very early New York history of a constitutionally guaranteed liberty of the press, and the consistent tradition in this State of providing the broadest possible protection to the sensitive role of gathering and disseminating news of public events all call for particular vigilance by the courts of this State in safeguarding the free press against undue interference. O'Neill v. Oak grove Const., Inc., 71 N.Y.2d 521,528-9,528 N.Y.S.2d 1,4-5 (1988) (internal citations omitted). Nowhere is a commitment to freedom of the press more evident than in the state's Shield Law, which, after several amendments, now provides for absolute protection when confidential sources and information are implicated. See New York Civil Rights Law § 79-h. In enacting the shield statute in 1970, the New York State Legislature expressed its support for the notion that confidential sources 5 are essential to a thriving press. The Shield Law's bill jacket includes an article explaining the interests in protecting confidential sources: The reason a reporter keeps his sources confidential - and should be assisted in doing so - is well known inside the communications media but, alas, it is not generally known outside our profession. The reason is four-fold: First, it is a basic tradition of journalism dating back to '" Zenger and the victory that he won so sensationally .... Second, confidentiality is the newspaperman's proper trade secret, which insures that his reservoir of news sources will not dry up; indeed, that the rivulets of information will keep flowing. Third, the protection of news sources is in the best interest of the infonnant and also, of course, of the general public, not to mention its vital importance to the medium. Fourth, confidentiality is not merely a matter of reporter convenience but something vital in the practice of a free press. Governor's Bill Jacket, L 1970, ch. 615, at 15. In explaining the well-recognized principles upon which the statute was enacted, Gov. Nelson A. Rockefeller stated that "[fJreedom of the press is one of the foundations upon which our form of government is based. 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." Memorandum of Gov. Nelson A. Rockefeller, Governor's Bill Jacket, L 1970, ch. 615, pp. 91-92. Rockefeller also emphasized the unique strength of the statute: "This 'Freedom of Information Bill for Newsmen' will make 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 television and radio broadcasters." Id. Notwithstanding the clear and unequivocal support for the protection of confidential sources embodied in the Shield Law, courts in New York began to limit the statute's reach contrary to the intent of the legislature soon after it was enacted. See Beach v. Shanley, 62 N.Y.2d 241, 250, 476 N.Y.S.2d 765,769 (1984) (describing holdings by a number of courts that the state reporter shield law provided less than an absolute privilege). In response, the legislature first revised the statute in 1975 to explicitly prevent grand juries from seeking contempt charges against journalists who refuse to identify their confidential sources. ld. Renewed efforts to undermine the purpose of the shield statute led the legislature to once again amend the law in 1981. ld. The sponsor of the bill, Assemblyman Steven Sanders, explained that its primary purpose was to "correct loopholes and fill gaps in the existing statute," which was necessary because "[ c lase history makes it abundantly clear that the courts have been all too often disinclined to follow the letter or even the spirit of the existing law. This bill reinforces the original provisions and expands on them definitively." Memorandum of Assemblyman Steven Sanders, Governor's Bill Jacket, L 1981, ch. 468, p. 1. The Legislature significantly strengthened the statute again in 1990 to state that there is absolute protection for confidential sources and information: Exemption of professional journalists and newscasters from contempt: Absolute protection for confidential news. Notwithstanding the provisions of any general or specific law to the contrary, no professional journalist ... shall be adjudged in contempt by any court in connection with any civil or 7 criminal proceeding ... for refusing or failing to disclose any news obtained or received in confidence, or the identity of the source of any such news coming into such person's possession in the course of gathering or obtaining news .... N.Y. Civ. R. Law § 79-h(b); see also L. 1990, ch. 33, § 1. This history of robust protection of the news media from colonial times through the legislature's repeated efforts to strengthen the New York Shield Law show that New York's commitment to protection of confidential sources is the ingrained public policy of this State. The First Department was, therefore, correct in recognizing the importance of this policy in the decision below, In re Holmes, 2013 WL 4414784, at *1, *4. B. The Court Should Take Into Account The Public Policy of New York In Deciding Whether To Enforce The Colorado Subpoena The majority of the First Department, however, erred in failing to follow this Court's directive in Codey that "a strong public policy of this State, ... embodied in evidentiary privilege ... justif[ies] the refusal of relief under CPL 640.10 even [though] the 'material and necessary' test set forth in the statute is satisfied." Codey, 82 N.Y.2d at 530, n. 3, 605 N.Y.S.2d, n. 3. This Court should correct that error. Historically, this Court has recognized the significant burden on the freedom and independence of the press created by a subpoena seeking news gathering materials, holding that privilege protections are extended to journalists because the 8 "autonomy of the press would be jeopardized if resort to its resource materials, by litigants seeking to utilize the newsgathering efforts of journalists for their private purposes, were routinely permitted." O'Neill, 71 N.Y.2d at 526, 528 N.Y.S.2d at 3 (citation omitted). Following this Court's lead, other courts in this state have acknowledged that, without the New York Shield Law, journalists would be unduly burdened by requests from the government or other litigants and diverted from the important tasks of gathering and reporting the news. Id. at 526-27; In re Brown & Williamson Tobacco Corp., 24 Med. L. Rep. 1720, 1996 WL 350827, at *3 (Sup. Ct. N.Y. Cnty. Feb. 28, 1996) ("Attempts to obtain evidence from [journalists] as nonparties would, if unrestrained, subject news organizations to enormous depletions of time and resources as well as seriously impede their ability to obtain materials from confidential sources."). Consequently, state and federal courts in New York have long recognized that allowing litigants free rein to compel discovery from reporters - even where no confidential source is implicated - diminishes the flow of information to the public in a number of ways, for instance, by - deterring sources who might otherwise be willing to speak to the press. See, e.g., Gonzales v. National Broadcasting Co., Inc., 194 F.3d 29,35 (2d Cir. 1999), ajJ'd, 175 F.R.D. 57 (2d Cir 1999) (recognizing that exposing newsroom 9 files to litigant scrutiny increases the risk that "potential sources [will be] deterred from speaking to the press, or insist[ ] on remaining anonymous"); - burdening the press with unacceptable costs of subpoena compliance. See, e.g., O'Neill, 71 N.Y.2d at 526-27,528 N.Y.S.2d at 3 (noting that "because journalists typically gather information about accidents, crimes, and other matters of special interest that often give rise to litigation, attempts to obtain evidence [from the press] would be widespread if not restricted on a routine basis"); and - discouraging journalists from reporting on matters that are likely to be the subject of litigation. See, e.g., In re Consumer Union of us., Inc., 495 F. Supp. 582, 586 (S.D.N.Y. 1980) (finding that compelled disclosure of a magazine's unpublished information would inhibit its "coverage of provocative issues important to the public"). The decision by the majority of the First Department in this case not to consider the public policy here is, therefore, inconsistent with this Court's precedent. And that error is likely to cause grave consequences to Ms. Winter. Unlike New York law, which would have protected Winter from a subpoena with an absolute privilege, Colorado law, if applicable, is not nearly so clear. Journalists are only given a qualified privilege under that state's shield law, and the privilege can be overcome if the person seeking information can prove by a preponderance of the evidence: "(a) That the news information is directly relevant 10 to a substantial issue involved in the proceedings; (b) That the news information cannot be obtained by any other reasonable means; and (c) That a strong interest of the party seeking to subpoena the news person outweighs the interests under the First Amendment to the United States Constitution of such news person in not responding to a subpoena and of the general public in receiving news information." Colo. Rev. Stat. § 13-90-119 (3). While the balancing of the competing interests should weigh in Ms. Winter's favor, the subjective nature of each of the elements of this test means that journalists cannot reliably promise confidentiality. Compared to the clear, unambiguous absolute privilege in New York's law, the Colorado law falls well short of protecting the interests New York has long recognized. Furthermore, the Colorado trial court has made it clear that in this case sustaining the privilege is far from certain. On April 8, 2013, Arapahoe County, Colorado Judge Carlos A. Samour Jr. decided to reserve, on ripeness grounds, ruling on whether to order Winter to testify until after deciding the privileged status of the notebook. I As Judge Samour stated, should the Holmes notebook 1 See Order Regarding Jana Winter's Second Ripeness Contention Raised in Support of Her Motion to Quash Subpoena and for Protective Order (C-26(a)), signed on April 8, 2013, People v. James E. Holmes, Case No. 12CR1522 (Colo. Dist. Ct. Arap. Cnty filed July 20, 2012), available at http://www.courts.state.co.us/userfiies/file/Court_Probationl18th_Judicial_Districtl18th_Court sl12CR1522/002/20 13 _04_ 08%20Ordet>1020Reagarding%20J ana%20Winters%20Second%20 11 become admissible, "it may well prove to be a critical piece of evidence in this case .... Of course, the more significant any admissible contents of the notebook are, the more significant the credibility of one or more of the [detectives who denied releasing the notebook] is likely to be at trial." ld. Thus, the need for the subpoena will tum on the defendant's interest in questioning the credibility of an investigator, which itself is dependent on how he pleads. Under these circumstances, Colorado's qualified privilege law (if applicable) provides little, if any, certainty as to whether Ms. Winter will be protected from compelled disclosure. The strong interest in ensuring that journalists can credibly promise confidentiality to sources is not one of mere convenience. The ability to foster and maintain confidential relationships with sources is crucial to effective reporting. Often, as is the case here, the information at issue includes matters of profound public importance, and this state's legislative commandment to respect the confidentiality of journalists' communications with their sources has been vital to ensuring that the news media can effectively perform its constitutionally protected role of gathering information and disseminating it to the public. Ms. Winter should not be involuntarily converted into an investigator for a defense team seeking the identities of individuals who may have disclosed Ripeness%20Contention%20Raised%20in%20Support%20of'l1020her%2OMotion%20to%20Q uash%20Sub%20and%20for%20Protective%200rder%20C-26a.pdf. 12 information related to the Holmes trial. See, e.g., O'Neill, 71 N.Y.2d at 526, 528 N.Y.S.2d at 3 ("The autonomy of the press would be jeopardized if resort to its resource materials by litigants seeking to utilize the news gathering efforts of journalists for their private purposes, were routinely permitted."). In the absence of even a cursory consideration of the public policy protecting such journalist- source relationships embodied in New York's Shield Law, journalists would constantly be at risk of being subpoenaed. The strong public policy in averting that outcome should have been considered and warrants this Court's reversal of the First Department decision. POINTll CONmDEN~SOURCESARE ESSENTIAL TO NEW YORK JOURNALISTS' NEWSGATHERING BOTH WITHIN THE STATE AND BEYOND In addition, the practical importance to New York-based journalists of being able to rely on the New York Shield law in the gathering and reporting of the news cannot be overstated. These journalists frequently report on matters of national importance occurring outside the state. In many cases, they rely on confidential sources in order to publish such stories. The interests of the public in receiving an uninhibited flow of information and this state's historic commitment to protecting confidential source relationships would be seriously undermined ifCPL § 640.10 can be used to compel a New York journalist to appear in another state to answer 13 questions about her news gathering activities without any consideration of how such requests square with protection for confidential source relationships. The late Pulitzer Prize-winning reporter Jack Nelson covered the civil rights movement and the affairs of six different presidential administrations, and "utilized and protected confidential sources throughout a career of more than 50 years" for the Los Angeles Times. Providing testimony by affidavit in the Wen Ho Lee matter, Nelson stated that "[w]ithout these sources, the Los Angeles Times would have been unable to report numerous such stories involving corruption or governmental abuses." Aff. of Jack Nelson ~6, Wen Ho Lee v. Us. Dept. of Justice, Case No. 99-3380 (TPJ) (D. D.C. 2004). The examples cited by Nelson include stories disclosing aspects of the Watergate break-in and its aftermath during the Nixon administration, the cover-up attempts in the Iran-Contra affair during the Reagan administration, and details of the Monica Lewinsky scandal in the Clinton White House. Id. Nelson maintained that government interference with confidential relationships "undoubtedly would have a ripple effect, silencing whistleblowers and other government employees who might otherwise cooperate with the press in exposing government wrongdoing." Id. ~7. Similarly, award-winning ABC News reporter Pierre Thomas, who has covered such national news stories as the 1993 World Trade Center bombing and the campaign finance probes during the Clinton administration, explained in the 14 same proceeding the harm that occurs when journalists' confidential communications with their sources are threatened: Based on my years as a journalist, I believe that compelling reporters to testify about conversations with confidential sources or to reveal any potentially identifying information about those sources, such as where they work, would seriously jeopardize the ability of reporters to obtain information on a confidential basis. Sources would "dry up" and refrain from risking the possibility that, if they furnish information to a journalist, the journalist may later be compelled to unwillingly assist others in identifying them .... Moreover, even if the source's identity comes to be known because of a legal compulsion, any reporter revealing the information about the source immediately would be perceived as dishonorable, biased and potentially, an ally of the party compelling the disclosure. Aff. of Pierre Thomas, ~12, ~14, Wen Ho Lee v. US. Dept. of Justice, Case No. 99-3380 (TPJ) (D. D.C. 2002). Reporters and their advocates have repeatedly written and testified about the importance of confidential sources to journalism, arguing that the full scope of news stories hinging on information gleaned from confidential sources is underestimated. See, e.g., RonNell Andersen Jones, Avalanche or Undue Alarm? An Empirical Study of Subpoenas Received by the News Media, 93 MINN. L. REv. 585, 594-625 (2008) (chronicling legislative efforts from 1929 to 2008 to enact a federal reporter's privilege and the news media's testimony in support of those efforts); Steven D. Zansberg, The Empirical Case: Proving The Needfor the Privilege, 2 Media Law Resource Center Bull. 145 (2004) ("Taken together, this evidence points to the conclusion that without constitutional protection afforded to 15 reporters and other news gatherers against compelled disclosure of their sources and other unreported information, the American people would inevitably be deprived of the information necessary to be self-governing citizens."). Several empirical studies have supported these claims. A landmark 1971 study by then University of Michigan Law School professor Vincent Blasi, for instance, found that more than one quarter of reports on government affairs depended on the use of confidential sources. Vincent Blasi, The Newsman's Privilege: An Empirical Study, 70 MICH. L. REv. 229 (1971). A decade later, a survey of Pulitzer Prize nominees found that more than half of respondents to the study from journalists nominated for the coveted prize in 1982 stated that they used confidential information "routinely" or "frequently." John E. Osborn, The Reporter's Confidentiality Privilege: Updating the Empirical Evidence after a Decade o/Subpoenas, 17 COLUM. HUM. RTS. L. REv. 57, 79 (1985). Significantly, every single reporter who responded to Osborn's survey had used confidential sources or information in the prior ten years. Id. at 72. A similar study of Florida journalists found that in 1974, 100% of respondents relied on confidential sources - a figure that remained largely unchanged one decade later, with 97% of respondents in 1984 reporting that they relied on confidential sources. Byron S1. Dizier, Reporters' Use o/Confidential Sources, 1974 and 1984: A Comparative Study, NEWSPAPER RESEARCH JOURNAL 44-50 (1985). 16 The reliance on confidential sources as a basis for providing the public with newsworthy information on the affairs of government is so fundamental that several leading news organizations have formalized ethical codes and procedures to be employed in situations where a reporter is both negotiating and honoring pledges of confidentiality. See, e.g., Radio Television Digital News Association, Code of Ethics, available at http://www.rtdna.org/uploads/files/code%200f%20ethics.pdf (stating that "[ c ]onfidential sources should be used only when it is clearly in the public interest to gather or convey important information or when a person providing information might be harmed. Journalists should keep all commitments to protect a confidential source."); American Society of Newspaper Editors, Statement of Principles, art. VI, available at http://asne.org/content.asp?pl=24&sl=171&contentid=171 ("Pledges of confidentiality to news sources must be honored at all costs, and therefore should not be given lightly. Unless there is clear and pressing need to maintain confidences, sources of information should be identified."); Society of Professional Journalists, SPJ Code of Ethics, available at http://www.spj.org/ethicscode.asp ("Always question sources' motives before promising anonymity. Clarify conditions attached to any promise made in exchange for information. Keep promises."); see also The New York Times 17 Company, Confidential News Sources Policy, available at http://www.nytco.com/company/business _ units/sources.html. Countless news stories on matters of profound local and national importance are often produced by journalists working for media outlets in New York. Everything from exposes on hazardous workplaces and unsafe products to exclusive reports on corporate wrongdoing and criminal activity have been brought to the public's attention, in many cases, thanks to information gathered by New York journalists from confidential sources. Consider the following examples: - Two reporters working for the Wall Street Journal relied on several unnamed sources dubbed "Our Mutual Friend" and "Jim" to reveal how one of this country's largest corporate accounting frauds was perpetrated at the Houston-based energy, commodities, and services company Enron. See Rebecca Smith and John Emschwiller, 24 Days: How Two Wall Street Journal Reporters Uncovered the Lies that Destroyed Faith in Corporate America (2003). - Relying on confidential sources, The New York Times revealed that the National Security Agency had been monitoring phone calls and email messages into and out of the United States involving suspected al-Qaida operatives without seeking approval from federal courts. James Risen & Eric Lichtblau, Bush Lets u.s. Spy on Callers Without Courts, N.Y. TIMES, Dec. 16,2005, at AI. 18 - Based in part on information from confidential sources, The New York Times and other news organizations reported on the use of harsh interrogation tactics against terrorism suspects in U.S. custody. See, e.g., Scott Shane, David Johnston & James Risen, Secret u.s. Endorsement o/Severe Interrogations, N.Y. TIMES, Oct. 4, 2007, at AI. Such news coverage precipitated a wide-ranging public debate that prompted Congress to prohibit certain interrogation tactics entirely and led to the promulgation of an executive order repudiating many of them. See Detainee Treatment Act of2005, Pub. L. No. 109-148, §§ 1001-06, 119 Stat. 2680 (2005); Exec. Order No. 13,491, 74 Fed. Reg. 4893 (Jan. 22, 2009). - Using graphic photographs in the possession of U.S. Army officials and a classified report that was "not meant for public release," CBS News and New Yorker magazine contributing writer Seymour Hersh documented accounts of abuse of detainees at Abu Ghraib prison in Iraq. See Seymour M. Hersh, Torture at Abu Ghraib, The New Yorker, May 10, 2004, at 42,43. After these incidents became public, other military sources who had witnessed abusive behavior came forward but often only "on the condition that they not be identified because of concern that their military careers would be ruined." See, e.g., Todd Richissin, Soldiers' Warnings Ignored, BALT. SUN, May 9, 2004, at Al (interviewing anonymous soldiers who witnessed abuse at Abu Ghraib); see also Miles Moffeit, Brutal Interrogation in Iraq, DENVER POST, May 19, 2004, at Al (relying on 19 confidential "Pentagon documents" and an interview with a "Pentagon source with knowledge of internal investigations into prisoner abuses"). - The Pentagon's secret history of America's involvement in Vietnam, which famously became known as the "Pentagon Papers," was provided to the news media by a confidential source. See N.Y. Times Co. v. United States, 403 U.S. 713 (1971). In refusing to enjoin publication of the information, several U.S. Supreme Court Justices suggested that the newspapers' sources may well have broken the law by turning over the materials. Id. at 754 (Harlan, J., dissenting). Nonetheless, "[i]n revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and trusted they would do." Id. at 717 (Black, J., concurring). These examples represent just a fraction of the stories published every day that are dependent on the relationships built between reporters and their confidential sources. To select any subset of examples for this Court's consideration necessarily excludes hundreds of others which also help shape a compelling picture of how vital the role of confidential sources - and the protection of such relationships through vehicles such as the New York Shield Law - is to the work of journalists in keeping the public informed of important events and controversies. 20 POINT TIl THE SUBPOENA PLACES AN "UNDUE BURDEN" ON RESPONDENT-APPELLANT In addition, as Judge Saxe highlighted in the dissent, the burden on reporters called to testify about the identities of their confidential is extreme. Accordingly, even if the Court were to conclude that New York public policy did not apply here, it should deny the request to enforce the Colorado subpoena on the grounds that compliance therewith imposes an "undue hardship" on Ms. Winter and so fails to satisfy the Uniform Act to Secure the Attendance of Witnesses from Without the State. See CPL 640.1 0[2] In her affidavit, submitted in this case, Ms Winter swore that [H]aving to testify will jeopardize my ability to perform my job during the time that I am away and, irrevocably, in my relationships with future sources. I am an Investigative Reporter, and one of the most fundamental truths of my profession is that most investigative reporting cannot be accomplished without confidential sources. If I am forced to reveal the identities of persons whom I have promised to shield from public exposure, simply put, I will be unable to function effectively in my profession. I rely on the trust of my sources every single day and my career will be over if I am forced to disclose the identities of my sources. Affidavit of Jana Winter, sworn to the 4th day of March 2013. The "fundamental truth" discussed by Ms. Winter has also been sworn to by other reporters facing the choice of revealing their sources and losing their careers or losing their liberty. In the Wen Ho Lee matter, for example, Walter Pincus, a highly respected national 21 security journalist for The Washington Post who has won both the Polk Award and the Pulitzer Prize, submitted a declaration in which he swore that "I cannot identify my confidential sources for these articles without violating my commitments that I made to those individuals to maintain their anonymity. Those commitments were a condition of my interviews with these individuals. If I had not promised them anonymity, they would not have provided me the infonnation I was able to report. If I were to breach my commitment to these sources, even under Court order, I could no longer function effectively and with accuracy in reporting on matters of intelligence and national security." Aff. of Walter Pincus ,-r22, Wen Ho Lee v. u.s. Dept. of Justice, Case No. 99-3380 (TPJ) (D. D.C. 2004). In the same case, Scott Armstrong, a Washington Post journalist and a professor of journalism, submitted a declaration swearing that "most journalists operate on the assumption that they will not reveal sources even under the possibility of being held in contempt for refusing to comply with an order to reveal their sources." Aff. of Scott Armstrong, ~19, Wen Ho Lee v. u.s. Dept. of Justice, Case No. 99-3380 (TPJ) (D. D.C. 2004). In short, an order of the kind contemplated by the Colorado court places Ms. Winter at the fork of a very treacherous road. If the Colorado court compels her to testify, one path leads to imprisonment and the other to the end of her career. This is an undue hardship to be sure. For this reason, Judge Saxe was correct in 22 concluding that "the probable result of incarceration or the loss of her livelihood is far more of a "hardship" than those minor considerations." In re Holmes, 2013 WL 4414784 at *7. 23 CONCLUSION This Court, mindful of the importance of the free flow of information in this republic and the cardinal role of the residents of the State of New York in gathering and publishing the news, has long been a staunch defender of the rights of freedom of speech and of the press. Because the majority decision of the First Department in this case is inconsistent with that important precedent, amici respectfully request that this Court reverse the First Department's order. Dated: August 30, 2013 Respectfully submitted, LEVINE SULLIV AN KOCH & SCHULZ, LLP By: Katherine M. Bolger LEVINE SULLIVAN KOCH & SCHULZ, LLP 321 West 44th Street, Ste 1000 New York, New York 10036 Tel.: (212) 850-6123 Fac.: (212) 850-6299 Email: kbolger@lskslaw.com 24