In the Matter of the People, Appellant,v.Conrado Juarez, Defendant. Frances Robles, Nonparty Respondent.BriefN.Y.April 24, 2018APL-2017-00057 New York County Clerk’s Index No. 30222/15 Court of Appeals STATE OF NEW YORK In the Matter of an Application for a Subpoena Ordering the Personal Appearance of Frances Robles as a Material Witness in: PEOPLE OF THE STATE OF NEW YORK, Petitioner-Respondent, - against- CONRADO JUAREZ, Defendant, FRANCES ROBLES, Non-Party Respondent-Appellant. BRIEF AMICI CURIAE OF THE ASIAN AMERICAN JOURNALISTS ASSOCIATION, THE IDA B. WELLS SOCIETY FOR INVESTIGATIVE REPORTING, THE NATIONAL ASSOCIATION OF BLACK JOURNALISTS, AND THE NATIONAL ASSOCIATION OF HISPANIC JOURNALISTS. JOEL KURTZBERG NICOLE LIGON IVAN TORRES CAHILL GORDON & REINDEL LLP Attorneys for Amici Curiae 80 Pine Street New York, New York 10005 (212)701-3000 Printed on Recycled Paper TABLE OF CONTENTS ARGUMENT .5 A JOURNALIST’S NONCONFIDENTIAL, UNPUBLISHED MATERIALS COMPILED IN THE COURSE OF NEWS GATHERING ARE PROTECTED FROM DISCLOSURE UNLESS “CRITICAL OR NECESSARY” TO THE REQUESTING PARTY’S CLAIM A. COURTS HAVE REPEATEDLY READ THE “CRITICAL OR NECESSARY” PRONG AS REQUIRING THAT A CLAIM “VIRTUALLY RISES OR FALLS” WITH THE REQUESTED EVIDENCE B. THE LEGISLATURE INTENDED FOR THE SHIELD LAW TO PROVIDE STRONG PROTECTIONS FOR NONCONFIDENTIAL MATERIALS THE “CRITICAL OR NECESSARY” PRONG SHOULD BE READ TO PROVIDE STRONG PROTECTIONS TO THE PRESS TO ADVANCE THE IMPORTANT POLICY INTERESTS CONTEMPLATED BY THE SHIELD LAW CONCLUSION I. .5 .8 17 II. .20 .27III. li TABLE OF AUTHORITIES Page(s) Cases In re American Broadcasting Cos., Inc., 189 Misc. 2d 805 (Sup. Ct. N.Y. Cty. 2001) passim Andrews v. Andreoli, 92 Misc. 2d 410 (Sup. Ct. Onondaga Cty. 1977). 16 In re Application to Quash Subpoena to National Broadcasting Co., 79 F.3d 346 (2d Cir. 1996) passim Baker v. F & F Investment, 470 F.2d 778 (2d Cir. 1972). .9, lln, 16 Baker v. Goldman Sachs & Co., 669 F.3d 105 (2d Cir. 2012). ,8n Beach v. Shanley, 62N.Y.2d241 (1984) .7 In re Behar, 779 F. Supp. 273 (S.D.N.Y. 1991) .15 Bradosky v. Volkswagen of Am., Inc., 1988 WL 5433 (S.D.N.Y. Jan. 15, 1988) 15 In re Consumers Union of United States Inc., 495 F. Supp. 582 (S.D.N.Y. 1980) Doe v. Cummings, 1994 WL 315640 (Sup. Ct. St. Lawrence Cty. Jan. 18, 1994) Evans v. New York City Sch. Const. Auth., 34 Misc. 3d 1227(A) (Table), 2012 WL 555087 (Sup. Ct., Bronx Cty. 2012). Flynn v. NYP Holdings, Inc, 235 A.D.2d 907 (3d Dep’t 1997) Giuffre v. Maxwell, 221 F. Supp. 3d 472 (S.D.N.Y. 2016) .21 .9,16 .8n, lln .4, 8, lln ■7,9 Guice-Mills v. Forbes, 12 Misc. 3d 852 (Sup. Ct. N.Y. Cty. 2006) .8, lln iii Holmes v. Winter, 22N.Y.3d 300 (2013) .7 In re McCray, Richardson, Santana, Wise, & Salaam Litig., 928 F. Supp. 2d 748 (S.D.N.Y. 2013) 15 O’Neill v. Oakgrove Constr., 71 N.Y.2d 521 (1988) passim In re Paul, 270 Ga. 680 (Ga. 1999). lOn People v. Troiano, 127 Misc. 2d 738 (N.Y. Cty. Ct. Suffolk Cty. 1985). 15n In re Petroleum Products Antitrust Litig., 680 F.2d 5 (2d Cir. 1982) lln Prince v. Fox Television Stations, Inc., 36 Misc. 3d 1235(A), 2012 WL 3705165 (Sup. Ct. N.Y. Cty. 2012). lln, 13n Scott v. Cooper, 227 A.D.2d 463 (2d Dep’t 1996) .9 In re Sheehan, 2008 WL 2148403 (Sup. Ct. N.Y. Cty. May 8, 2008) .9 Silkwood v. Kerr-McGee Corp., 563 F.2d 433 (10th Cir. 1977) lln In re Subpoena Duces Tecum to Ayala, 162 Misc. 2d 108 (Sup. Ct. Queens Cty. 1994) 14 United States v. Burke, 700 F.2d 70 (2d Cir. 1983). lln, 15 United States v. Hendron, 820 F. Supp. 715 (E.D.N.Y. 1993) 14 United States v. LaRouche Campaign, 841 F.2d 1176 (1st Cir. 1988) .21 United States v. Treacy, 639 F.3d 32 (2d Cir. 2011). ,8n Von Bulow v. von Bulow, 811 F.2d 136 (2d Cir.), cert, denied, 481 U.S. 1015 (1987) .6 iv United States ex rel. Vuitton Et Fils S.A. v. Karen Bags, Inc. 600 F. Supp. 667 (S.D.N.Y. 1985) 14 Zerilli v. Smith, 656 F.2d 705 (D.C. Cir. 1981) lln Congressional Materials Governor’s Program Bill #10, Governor’s Bill Jacket, 1990 Ch. 33 18 Memorandum of Governor Mario Cuomo filed with Assembly Bill No. 3226-B, Governor’s Bill Jacket, 1990 Ch. 33 17 N.Y.S. Assembly Debate Transcripts, 1990 Ch. 33, at 28, 70-71 N.Y.S. Senate Debate Transcripts (1990), Ch. 33 (A. 3326-B).... 18, 18n, 19 18, 18n, 19 Constitutional Provisions N.Y. Const, art. I, § 8 .3 U.S. Const, amend. I .3 Internet Sources Ben Kochman, Kalief Browder’s Brother Rallies for Prison Reform in the Bronx,NEW YORK DAILY NEWS (May 25, 2016), available at http://www.nydailynews.com/new-york/kalief- browder-brother-rallies-prison-reform-bronx-article-1.2650153 Bob Burtman, Hard Time, HOUSTON PRESS (Sept. 10, 1998), available at http://www.houstonpress.com/news/hard-time-6567571 .23 .23 Four Cases, FRONTLINE PBS, http://www.pbs.org/wgbh/pages/frontline/shows/case/cases/ (last visited Sept. 18, 2017) .24 The Impact and Influence of News Media Reporting on Crime and Victimization, JUSTICE SOLUTIONS, available at http://mediacrimevictimguide.com/introductionhtml (last visited July 12, 2017) 25n Jennifer Gonnerman, Before the Law, THE NEW YORKER (Oct. 6, 2014), available at http://www.newyorker.com/magazine/2014/10/06/before-the-law .22 Jennifer Gonnerman, Kalief Browder and a Change at Rikers, THE NEW YORKER (Apr. 14, 2015), available at http://www.newyorker.com/news/news-desk/kalief-browder-and-a- change-at-rikers .23 v Jessica Reyes et. al, What Really Caused Delaware’s Prisoners to Revolt at Vaughn Correctional Center, DELAWARE ONLINE (Feb. 17, 2017) available at http://www.delawareonline.com/story/news/local/2017/02/17/what-really-caused-delawares- prisoners-revolt-vaughn-correctional-center/97891292/ Joe Goldeen, Silva Talks about Jail Conditions, Not Charges, THE STOCKTON RECORD (Mar. 9, 2017), available at http://www.recordnet.eom/news/20170309/silva-talks-about-jail- conditions-not-charges Local News in a Digital Age Report, PEW RESEARCH CENTER (Mar. 2015), available at http://www.joumalism.org/files/2015/03/PJ_MediaEcology_completereport.pdf; Michael Schwirtz et al., Governor Cuomo Orders Investigation of Racial Bias in N.Y. State Prisons, N.Y. TIMES (Dec. 5, 2016), available at https://www.nytimes.com/2016/12/05/nyregion/govemor-cuomo-orders-investigation-of- racial-bias-in-ny-state-prisons.html 25n .25n .25n .22 Michael Schwirtz et al., The Scourge of Racial Bias in New York State’s Prisons, N.Y. TIMES (DEC. 3, 2016), available at https://www.nytimes.com/2016/12/03/nyregion/new-york-state- 21-22prisons-inmates-racial-bias.html , Rick Edmonds, A Myth Debunked: Minorities May Now Be Consuming More Local News than Whites, Not Less, POYNTER (Mar. 5, 2015), available at http://www.poynter.org/2015/a- myth-debunked-minorities-may-now-be-consuming-more-local-news-than-whites-not- less/323451/. .25n Robert Arnold, Accused Killer David Conleu Speaks Out in Jailhouse Interview with KPRC 2, KPRC 2 HOUSTON (Aug. 11, 2015), available at http://www.click2houston.com/news/local/harris-county/accused-killer-david-conley-speaks- out-in-jailhouse-interview-with-kprc-2. .25n Law Reviews Steven D. Zansberg, The Empirical Case: Proving the Need for the Privilege, 2 MEDIA LAW RESOURCE CENTER BULL., 145 (2004) 25-26 Vince Blasi, The Newsman’s Privilege: An Empirical Study, 70 MICH. L. REV. 229, 272-73 (1971) 26-27 Statutes Civil Rights Law § 79-h. passim Treatises 44 N.Y. Jur. 2d Disclosure § 132. 16 vi INTEREST OF AMICI Amici are organizations of journalists that seek to ensure fair and accurate press coverage of communities of color and media accessibility for minority groups. The input of amici may be valuable to this Court because of their experience analyzing issues regarding First Amendment rights and racially-based policy concerns and because of their direct interest in protecting the freedom of the press, especially as it pertains to jailhouse interviews. This case requires this Court to determine the scope of the New York Shield Law in a case involving both a journalist and a defendant of color. Amici's perspective on this important question should inform the Court’s decision on whether to enforce a subpoena directed at a New York joumalist. Subpoenas, whether they seek journalists’ non-confidential material, confidential sources, or verification of published statements, threaten the neutrality and independence of journalists, casting them as agents of discovery in lawsuits that do not involve them. When, as here, unpublished notes of a journalist engaged in investigative reporting are demanded, the specter of enforcing that subpoena causes a chill among future interviewees who may have valuable information about matters of public concern but may be unwilling to speak with reporters if they think what is said will end up in court. If reporters are seen not as independent journalists but as research tools of the government, potential interviewees will be 1 less likely to speak with the press about newsworthy stories. And when important information is withheld from the press, it is the public that suffers the loss. As this applies to jailhouse interviews, minority communities are especially likely to suffer this loss. The descriptions of amici are as follows: • The National Association of Hispanic Journalists (NAHJ) is dedicated to the recognition and professional advancement of Hispanics in the news in¬ dustry. Established in April 1984, NAHJ created a national voice and uni¬ fied vision for all Hispanic journalists. • The National Association of Black Journalists (NABJ) is an organization of journalists, students, and media-related professionals that provides quality programs and services to and advocates on behalf of black journalists worldwide. Founded by 44 men and women on December 12, 1975 in Washington, D.C., NABJ is the largest organization of journalists of color in the nation. • The Asian-American Journalists Association (AAJA) is a nonprofit pro¬ fessional and educational organization with members across the United States and in Asia. Founded in 1981, AAJA’s mission is to encourage Asian Americans and Pacific Islanders (AAPIs) to enter the ranks of journalism, increase the number of AAPI news managers and executives, and work for fair and accurate coverage of AAPIs. AAJA is an alliance partner in UNITY Journalists, along with the Native American Journalists Association and the National Association of LGBT Journalists. • The Ida B. Wells Society for Investigative Reporting is a trade organiza¬ tion dedicated to increasing and retaining reporters and editors of color in the field of investigative reporting. The organization also seeks to educate news organizations and journalists on how the inclusion of diverse voices can raise the caliber, impact and visibility of investigative journalism to promote transparency and good government. The Society is housed at the City University of New York Graduate School of Journalism in New York City. 2 PRELIMINARY STATEMENT This Court has long recognized that the expansive language of New York Constitution, Article I, Section 8 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,”’ require “particular vigilance by the courts of this State in safeguarding the free press against undue interference.” O’Neill v. Oakgrove Constr., 71 N.Y.2d 521, 528-29 (1988). Those broad protections extend a qualified privilege, under Article I, Section 8 and the First Amendment of the United States Constitution, that “bars coerced disclosure of resource materials . . . which are obtained or otherwise generated in the course of newsgathering or news¬ preparing activities,” unless the moving litigant satisfies a tripartite test, requiring a showing that the materials sought are (1) highly material, (2) critical [or necessary] to the litigant’s claim, and (3) not otherwise available. Id. at 527. In 1990, the New York State Legislature codified those constitutionally-required protections in the Shield Law, N.Y. Civil Rights Law § 79-h(c), applying them to both civil and criminal proceedings. Despite the language quoted above about the breadth of these protections, the Government seeks a narrow reading of the “critical or necessary” prong that would, in the Government’s own words, find that “in any criminal case, and espe¬ cially in a murder case” that “any and all statements made by the defendant per- 3 taining to the crime” are “fundamentally critical to the prosecution.” Brief for Ap¬ pellant (“App. Br.”) at 39. That proposed reading, however, is at odds with legisla¬ tive intent, this Court’s precedents, and the significant body of federal and state cases that have repeatedly held - as the Appellate Division correctly did here - that the critical or necessary prong is not satisfied unless a claim “virtually rises or falls” with the requested evidence. See, e.g., In re Application to Quash Subpoena to National Broadcasting Co., 79 F.3d 346, 351, 352 (2d Cir. 1996) (listing cases); Flynn v. NYP Holdings, Inc, 235 A.D.2d 907, 908 (3d Dep’t 1997) (holding plain¬ tiffs subpoena for nonconfidential materials failed to overcome Shield Law pro¬ tection since plaintiff had not proved that his “claim ‘virtually rises or falls with the admission or exclusion of the proffered evidence’”). The Government does not and cannot even argue it has satisfied that stand¬ ard. Rather, it argues that despite “plainly ha[ving] a prima facie case” in light of the defendant’s confession and other corroborative proof, App. Br. at 48, it should be able to compel production of notes from a jailhouse interview of the defendant from New York Times reporter Frances Robles. Under the Government’s reading, the “critical or necessary” requirement would be satisfied by a mere showing that the information sought “supports]” a criminal litigant’s theory at trial, even if the litigant has other compelling evidence supporting that theory. Id. at 34. 4 As organizations that support press freedom, particularly for minority jour¬ nalists and communities, amici are concerned that the Government’s cramped read¬ ing of the Shield Law is both inconsistent with governing law and would result in harm to journalists and the public. This concern is escalated for minority communi¬ ties, where coverage of the type at issue here often uncovers newsworthy stories that have been the engine of positive social change. The Court should reject the Government’s proposed reading of the Shield Law and affirm the holding below on the ground that the “critical or necessary” prong of the qualified privilege has not been satisfied because the Government’s case does not “rise or fall” with the material sought. ARGUMENT A JOURNALIST’S NONCONFIDENTIAL, UNPUBLISHED MATERIALS COMPILED IN THE COURSE OF NEWS GATHERING ARE PROTECTED FROM DISCLOSURE UNLESS “CRITICAL OR NECESSARY” TO THE REQUESTING PARTY’S CLAIM I. This Court has long acknowledged that a nonqualified privilege applies to the forced disclosure of nonconfidential unpublished materials and research pre¬ pared in connection with a news story. O’Neill, 71 N.Y.2d 521. In 1990, the New York State Legislature codified that constitutionally-required privilege by amend¬ ing the Shield Law to cover nonconfidential material. N.Y. Civil Rights Law § 79- h. Federal courts in New York have recognized similar protections under the First 5 Amendment of the United States Constitution. Von Bulow v. von Bulow, 811 F.2d 136, 143 (2d Cir.), cert, denied, 481 U.S. 1015 (1987). Under the qualified privi¬ lege, journalists are shielded from forced disclosure of nonconfidential materials unless the requesting party clearly and specifically shows the information sought (1) is highly material and relevant to the litigation, (2) is critical or necessary to presenting a defense or maintain a claim, and (3) is not available from an alterna¬ tive source. N.Y. Civil Rights Law, § 79-h(c); O’Neill, 71 N.Y.2d at 527. At issue here is the scope of the “critical or necessary” requirement. In its effort to compel production of a reporter’s interview notes with the defendant, the Government reads that requirement very narrowly, arguing it should be satisfied any time the information sought “supports]” a criminal litigant’s theory at trial. even if other compelling evidence supporting that theory exists. App. Br. at 34. If that view were correct, then all journalist notes from jailhouse interviews could be compelled as a matter of course in every criminal case. That is, of course, precise¬ ly the Government’s argument. See id. at 39 (“It blinks reality to suppose that in any criminal case, and especially in a murder case, any and all statements made by the defendant pertaining to the crime are not fundamentally critical to the prosecu¬ tion.”). That reading, however, is not and should not be the law. Such a narrow reading of the protections afforded by the qualified privilege is inconsistent with 6 legislative intent and runs afoul of extensive precedent - from this Court and oth¬ ers - interpreting the protections afforded by the Shield Law rigorously. See Holmes v. Winter, 22 N.Y.3d 300, 307-08 (2013) (“New York has a long tradition, with roots dating back to the colonial era, of providing the utmost protection of freedom of the press. ... In furtherance of this historical tradition, the legislature adopted the Shield Law in 1970.”); Beach v. Shanley, 62 N.Y.2d 241, 245 (1984) (“In enacting the so-called ‘Shield Law,’ the Legislature expressed a policy ac¬ cording reporters strong protection against compulsory disclosure of their sources or information obtained in the news-gathering process”). Courts interpreting the Shield Law have rejected the Government’s narrow reading of the “critical or nec¬ essary” prong, finding compelled disclosure of nonconfidential material proper “‘only as a last resort,”’ Giuffre v. Maxwell, 221 F. Supp. 3d 472, 479-80 (S.D.N.Y. 2016), and where the petitioner’s claim “virtually rises or falls” with the requested evidence. National Broadcasting, 79 F.3d at 351-52. This Court should reject the Government’s unreasonably narrow reading of the Shield Law’s protec¬ tions and adopt the “last resort” and “virtually rises or falls” standard applied by both the Appellate Division in this case and in the overwhelming majority of courts to consider the issue. 7 COURTS HAVE REPEATEDLY READ THE “CRITICAL OR NECESSARY” PRONG AS REQUIRING THAT A CLAIM “VIRTUALLY RISES OR FALLS” WITH THE REQUESTED EVIDENCE A. As the Government concedes, no courts (other than the trial court in this case) have read the Shield Law as proposed here, and the overwhelming majority of courts have ruled that “to find unpublished news to be critical or necessary with¬ in the meaning of § 79-h, there must be a finding that the claim for which the in¬ formation is to be used ‘virtually rises or falls with the admission or exclusion of the proffered evidence.”’1 National Broadcasting, 79 F.3d at 351-52 (listing cas¬ es); Flynn, 235 A.D.2d at 908 (holding plaintiffs subpoena for nonconfidential materials failed to overcome Shield Law protection since plaintiff had not proved that his “claim ‘virtually rises or falls with the admission or exclusion of the prof¬ fered evidence”’); Guice-Mills v. Forbes, 12 Misc. 3d 852, 856 n.3 (Sup. Ct. N.Y. Cty. 2006). “‘The test is not merely that the material be helpful or probative, but 1 Appellant incorrectly argues that subsequent to the Second Circuit’s ruling in United States v. Treacy, 639 F.3d 32 (2d Cir. 2011), the Second Circuit stopped applying this standard. Compare App. Br. at 47-48 with Baker v. Goldman Sachs & Co., 669 F.3d 105, 108 (2d Cir. 2012) (“To determine that unpublished news is either ‘critical or neces¬ sary within the meaning of § 79-h, there must be a finding that the claim for which the information is to be used virtually rises or falls with the admission or exclusion of the proffered evidence.’”); see also Evans v. New York City Sch. Const. Auth., 34 Misc. 3d 1227(A) (Table), 2012 WL 555087, at *1 (Sup. Ct., Bronx Cty. 2012) (providing in 2012 that “[t]he Second Circuit has held that to meet the burden of establishing that the infor¬ mation sought is necessary or critical to the maintenance of the claim, a party must estab¬ lish that its claim virtually rises or falls with the admission or exclusion of the prof[f]ered evidence” and applying this standard). 8 whether or not . . . the action may be presented without it.’” Baker, 669 F.3d at 108; Doe v. Cummings, 1994 WL 315640, at *1 (Sup. Ct. St. Lawrence Cty. Jan. 18, 1994). Put differently, courts traditionally “requir[e] disclosure of nonconfi- dential material only as a ‘last resort.’” Giuffre, 221 F. Supp. 3d at 480; see also In re Sheehan, 2008 WL 2148403 (Sup. Ct. N.Y. Cty. May 8, 2008) (defendant in medical malpractice action seeking reporter’s interview with plaintiff failed critical or necessary prong where he “has not submitted any evidence that [the reporter’s] testimony goes to the heart of [plaintiffs] claim”). The Government incorrectly argues that such a reading would essentially make the qualified privilege “in almost all cases be as absolute as the protection for confidential sources.” App. Br. at 48. But that is clearly not the case. The privi¬ lege is qualified, not absolute, even when read strictly. Courts have read the privi¬ lege as providing considerable, but not complete, protection from disclosure. The “virtually rises or falls” interpretation has not been interpreted as providing abso¬ lute protection and has been satisfied in some cases. See, e.g., Scott v. Cooper, 227 A.D.2d 463, 464-65 (2d Dep’t 1996) (finding requested testimony of reporter “critical or necessary” where action was based on reporter’s article and defendant denied making the statements attributed to him in reporter’s article). In fact, in arguing there is a “fundamental right to present all relevant evi¬ dence of a criminal defendant’s guilt” and that “the qualified privilege must yield 9 to the [prosecutor’s] paramount interests in presenting all relevant evidence and ef¬ fective cross-examination” where the sought-after information “does not remotely involve confidential sources,” App. Br. at 7, 50, the Government asks this Court to diminish the privilege so that it will rarely provide protection in criminal cases.2 The privilege requires that the interests of the party seeking disclosure from jour¬ nalists interests be “balance[d]” against “the countervailing need to prevent the un¬ due diversion of journalistic effort and disruption of press functions, to maintain the tradition in this state of providing the broadest possible protection to [secure] the sensitive role of gathering and disseminating news of public events and to as¬ sure particular vigilance by the courts if this state in safeguarding the free press against undue interference.” In re American Broadcasting Cos., Inc., 189 Misc. 2d 805, 808 (Sup. Ct. N.Y. Cty. 2001) (citation and internal quotation marks omitted). The Government’s reading does not provide “the broadest possible protection” to the press; it practically provides no protection at all for nonconfidential infor¬ mation in criminal cases involving confessions. App. Br. at 39 (“It blinks reality to suppose that in any criminal case, and especially in a murder case, any and all 2 Similar attempts to diminish protections afforded by other states’ shield laws have been rejected. See, e.g., In re Paul, 270 Ga. 680, 687 (Ga. 1999) (holding, in a case concern¬ ing Georgia’s shield law, that “the state does not need the reporter’s testimony to prepare or present its case to the jury concerning [defendant’s] mental state when he confessed to police” where police had already presented evidence on this point, including two vide¬ otaped confessions). 10 statements made by the defendant pertaining to the crime are not fundamentally critical to the prosecution.”). Courts have resoundingly rejected such a reading and have repeatedly re¬ fused to enforce subpoenas for nonconfidential materials that would be useful for trying a criminal case unless the petitioning party’s claim “virtually rises or falls with the admission or exclusion of the proffered evidence.” American Broadcast¬ ing, 189 Misc. 2d at 808. For example, in American Broadcasting,3 a New York state court denied enforcement of a criminal defendant’s subpoena where the re¬ quested materials offered cumulative evidence and “maintenance of [defendant’s] claim, defense or proof of a material issue” did not depend on the requested evi¬ dence. Id. at 807. The defendant, who had been indicted for his alleged involve- 3 The Government’s brief alleges state cases that rely on federal cases adopting the “vir¬ tually rises or falls” standard “are of no persuasive authority” (App. Br. at 47), because the Second Circuit has not adopted the “critical or necessary” prong at all in cases involv¬ ing nonconfidential information. See id. at 47-48. We disagree. This standard has been adopted by numerous state courts in still-standing decisions considering the New York Shield Law. See, e.g., Prince v. Fox Television Stations, Inc., 36 Misc. 3d 1235(A) (Ta¬ ble), 2012 WL 3705165 (Sup. Ct. N.Y. Cty. 2012) (applying this standard to the Shield Law); Flynn, 235 A.D.2d at 908 (same); American Broadcasting, 189 Misc. 2d 805, 808 (Sup. Ct., N.Y. Cty. 2001) (same); Guice-Mills, 12 Misc. 3d at 856 n.3 (same); Evans, 34 Misc. 3d 1227(A) (Table), 2012 WL 555087 (same). Moreover, the Government’s ar¬ gument ignores the fact that O’Neill, which established the three-part test later codified by the legislature, relied on the very federal cases the Government rejects. Compare United States v. Burke, 700 F.2d 70, 78 (2d Cir. 1983) (relying on Baker v. F & F In¬ vestment, 470 F.2d 778, 783-85 (2d Cir. 1972); In re Petroleum Products Antitrust Litig., 680 F.2d 5 (2d Cir. 1982); Zerilli v. Smith, 656 F.2d 705 (D.C. Cir. 1981); and Silkwood v. Kerr-McGee Corp., 563 F.2d 433 (10th Cir. 1977) for the appropriate standard to apply when litigants seek to subpoena materials from a reporter), with O’Neill, 71 N.Y.2d at 527 (same). 11 ment with Mafia activities, subpoenaed American Broadcasting Companies (“ABC”) demanding production of various materials - including notes - relating to ABC’s interview of Sean Richard, a government informant who had former in¬ volvement in defendant’s alleged criminal schemes. Id. In the interview, “Richard apparently discussed the allegations in the indictment, and his and others’ partici¬ pation in this criminal enterprise.” Id. at 806. Although ABC aired several minutes of the interview, the subpoena sought “disclosure of the un-aired [por¬ tions] of the interview.” Id. ABC moved to quash the subpoena, arguing that the demanded material was protected by New York’s Shield Law. The New York Su¬ preme Court first found “no doubt that the Richard interview [wa]s relevant to the indictment to be tried” since it covered, among other things, “the activities of the defendant” as they related to the relevant criminal enterprise. Id. at 807. The Court then considered whether the requested materials were “<2 last resort’ for de¬ fendant; i.e., whether defendant would be unable to state his defense without the materials. Id. at 808 (emphasis in original). Finding that defendant’s already- possessed evidence of the aired portions of the interview sufficiently supported de¬ fendant’s claim, and noting that defendant failed to “demonstrate that the un-aired portions of the interview are necessary to the maintenance of his claim, defense or proof of a material issue,” the Court granted ABC’s motion to quash. Id. at 807. Thus, because it was not apparent that the claim for which the information was to 12 be used “‘virtually rises or falls with the admission or exclusion of the proffered evidence,’” the balance was struck in favor of the press. Id. at 808. Accordingly, the Court refused to waive protections afforded by the Shield Law and denied dis¬ closure. Id.4 Similarly, in National Broadcasting, the Second Circuit considered whether the Shield Law protected unpublished video out-takes that “ might contain ... in¬ consistent statements, which c[ould] be used either as admissions or for impeach¬ ment purposes by [the defendant] in [the underlying] litigation.” 79 F.3d at 350 (emphasis added) (citation and internal quotation marks omitted). The district court had previously found that the material contained in the out-takes was “critical and necessary to [the] defense,” since the defendant “w[ould] be able to use these 4 This case is similar to the one here because while Robles’ unpublished interview notes may be relevant and helpful to the requesting party’s claim, the requesting party has failed to show that its clam virtually rises and falls with the unpublished portions of the interview. Indeed, like in American Broadcasting, portions of Juarez’s interview with Robles have already been published and are readily available for use by the prosecution. Additionally, the prosecution has access to a videotaped confession by defendant that “has been found admissible at trial and . . . includes statements consistent with other evi¬ dence in this case.” R237-38. The prosecution has provided no indication that the pub¬ lished portions of the interview and the videotaped confession are insufficient to satisfy its evidentiary needs. Rather, the prosecution fully acknowledges that even without dis¬ closure of the requested materials, “the People plainly have a prima facie case against the defendant Juarez, given his confession and the corroborative proof.” App. Br. at 48. As American Broadcasting, and other New York cases illustrate, where a requesting party’s “moving papers are silent as to how the records they have obtained thus far . . . are whol¬ ly and completely inadequate to establishing their claims,” the party has failed to demon¬ strate that the requested information is “critical and necessary to the maintenance of their suit.” Prince, 36 Misc. 3d 1235(A), 2012 N.Y. Slip Op. 51616(U), at *7. 13 statements in its defense” if they proved useful. Id. Reversing, the Second Circuit explained that ‘“critical or necessary’ as used in the statute must mean something more than ‘useful.’” Id. at 351. “The test is not merely that the material be help¬ ful or probative, but whether or not the defense of the action may be presented without it.” Id. (citation and internal quotation marks omitted).5 Likewise, National Broadcasting and other New York cases demonstrate that a non-party press subpoena issued merely in the hope or expectation (e.g., “ might contain” (79 F.3d at 350 (emphasis added))) of obtaining a prior incon¬ sistent statement or other helpful information is insufficient to overcome the quali¬ fied privilege. See United States v. Hendron, 820 F. Supp. 715, 718 (E.D.N.Y. 1993); United States ex rel. Vuitton Et Fils S.A. v. Karen Bags, Inc., 600 F. Supp. 667, 669 (S.D.N.Y. 1985); In re Subpoena Duces Tecum to Ayala, 162 Misc. 2d 108, 114 (Sup. Ct. Queens Cty. 1994) (“Mere speculation without demonstrative factual corroboration is legally insufficient to impinge upon the First Amendment safeguards embodied within Civil Rights Law § 79-h.”). Thus, the prosecution’s claim that disclosure is warranted because “if Robles had notes from her interview, they might be relevant for defendant’s cross-examination of Robles” must fail. App. Br. at 16 (emphasis added). 5As these cases make clear, if the “critical or necessary” prong meant what the Govern¬ ment says it means here, it would add nothing to the “highly material and relevant” prong. That cannot be right. 14 Consistent with the balancing approach, numerous New York courts have found that, when materials sought from a reporter would be “cumulative of other evidence, it cannot be ‘necessary or critical’ to an action” and, thus, any interest in disclosure is necessarily weaker than the interests for conferring protection. See In re Behar, 779 F. Supp. 273, 275 (S.D.N.Y. 1991); In re McCray, Richardson, San¬ tana, Wise, & Salaam Litig., 928 F. Supp. 2d 748, 758 (S.D.N.Y. 2013) (finding request for non-edited film outtakes unnecessary and noncritical where defendants “already have evidence that prior sworn testimony by [plaintiffs] contrasts with the edited versions of events displayed in the film” as “any statements contained in the outtakes would be cumulative” (citation and internal quotation marks omitted)); Bradosky v. Volkswagen of Am., Inc., 1988 WL 5433, at *3 (S.D.N.Y. Jan. 15, 1988) (denying disclosure where “usefulness [of the requested evidence] would only be cumulative”); United States v. Burke, 700 F.2d 70, 78 (2d Cir. 1983) (up¬ holding reporter’s First Amendment privilege where information sought from the reporter’s work papers would be merely cumulative).6 Moreover, precedent direct¬ ly indicates that state courts applying the Shield Law must consider “whether the 6 Federal court cases evaluating cumulative evidence under the First Amendment privi¬ lege provide useful guidance for evaluating evidence under the New York Shield Law, as the First Amendment privilege presents an “identical” standard. National Broadcasting, 79 F.3d at 353; People v. Troiano, 127 Misc. 2d 738, 743 (N.Y. Cty. Ct. Suffolk Cty. 1985) (noting that the First Amendment and the Shield Law use “[t]he same ‘three¬ pronged’ test,” requiring showing that the information is highly material and relevant, necessary or critical to maintenance of the claim, and not obtainable from other available sources). 15 testimony [or documents] solicited from the journalist, not otherwise privileged [are] . . . cumulative” in determining whether to waive statutory protection. An¬ drews v. Andreoli, 92 Misc. 2d 410, 422-23 (Sup. Ct. Onondaga Cty. 1977). Where, as here, the requesting party can present its argument by relying on defend¬ ant’s videotaped confession and corroborating evidence, including the published portions of the interview, the interview notes constitute additional evidence that adds little beyond what is illustrated in the already-available evidence and are not “critical or necessary.” See Doe, 1994 WL 315640, at *1 (“The test is not merely that the material be helpful or probative, but whether or not ... the action may be presented without it." (emphasis added)); National Broadcasting, 79 F.3d at 351 (same); Baker, 669 F.3d at 108 (same); 44 N.Y. Jur. 2d Disclosure § 132 (“If the material sought is . . . not essential to the maintenance of the litigant’s claim, . . . disclosure may not be compelled.” (emphasis added)). Indeed, the Government fully acknowledges that, even without disclosure of the requested materials, “the People plainly have a prima facie case against the defendant Juarez, given his con¬ fession and the corroborative proof.” App. Br. at 48.7 7 To the extent the Government’s need for the interview notes were to change as the trial progressed - e.g., because of arguments raised by the defense - the trial court could reconsider whether the “critical or necessary” prong had been satisfied. The Govern¬ ment’s approach, which requires production of the interview notes in anticipation of the strength of potential arguments from the defense, requires production prematurely, i.e., before the requisite showing that the material is “critical or necessary” has been made. 16 In contrast to the extensive case law supporting Robles’ interpretation of the Shield Law, the Government cites no cases - not one - that adopts its narrow reading. This Court should not accept the Government’s invitation to be the first court to adopt such a narrow reading of the protections afforded by the Shield Law. B. THE LEGISLATURE INTENDED FOR THE SHIELD LAW TO PROVIDE STRONG PROTECTIONS FOR NONCONFIDENTIAL MATERIALS The Shield Law’s legislative history makes clear that the protections for nonconfidential materials were intended to be much stronger than the Government suggests. Section 79-h(c) was amended in 1990 to provide explicit protection for nonconfidential material by codifying the three-part test adopted in O’Neill, 71 N.Y.2d at 526. The 1990 amendment was enacted to “strengthen New York’s Shield Law” and “to advance First Amendment values by protecting journalists from improper requests for information or disclosure of sources.” Memorandum of Governor Mario Cuomo filed with Assembly Bill No. 3226-B, Governor’s Bill Jacket, 1990 Ch. 33 (explaining that the amendment “resolve[d] . . . questions [concerning the scope of protection afforded to non-confidential materials] in favor of a free and unfettered press”). In particular, during the Senate floor debate on the 1990 amendment, the bill’s sponsor in the Senate, Senator Goodman, explained that the three-part test protecting a journalist’s nonconfidential material was de¬ signed, in part, to strike the appropriate balance with a litigant’s rights, and to: 17 [M]ake certain that the press is not chilled in its search for infor¬ mation, and that those who talk to the press are not chilled .... [Al¬ so,] to put a stop to the niggling harassment which the press is now undergoing because a bunch of wise guys have decided that rather than do their own home work in the preparation of litigation, that they’re going to use the press to do their homework . . . [which will] prevent the reporters who are supposed to be out on the beat looking at us with jaundiced eye . . . [from performing] the prime mission which they undertake, collecting the news. N.Y.S. Senate Debate Transcripts (1990), Ch. 33 (A. 3326-B), at 1875-78. See al¬ so Governor’s Program Bill #10, Governor’s Bill Jacket, 1990 Ch. 33 (noting that the Amendment “codifies the Shield Law, the three-part test adopted in O’Neill, and makes clear that the same test applies to criminal proceedings”). In codifying O’Neill’s three-part test, legislators for and against the 1990 Amendment understood the proposed standard to be a high bar,8 and those in favor cited many of the same policy considerations cited by this Court in O’Neill and ex¬ panded on above. For example, statements from sponsors from both houses cited the need to avoid making the press an “investigative arm of the government” and “to protect the press from harassment.” See Senate Debate Transcripts, 1990 Ch. 33, at 1824, 1828, 1878; N.Y.S. Assembly Debate Transcripts, 1990 Ch. 33, at 28, 70-71. The debates over the 1990 Amendment evidence a clear attempt by the 8 Compare 1990 Ch. 33, NYS Assembly at 56 (“It is not just relevant but, in fact, it is central to the outcome of the case, and I believe most importantly, cannot be obtained from any other individual or any other source.”), with 1990 Ch. 33, at 1860 (“The stand¬ ard of proof prosecutors and defendants must meet before they can review non- confidential information, that such information is highly material and critical or necessary is unreasonably high.”). 18 Legislature to set the bar as high as they could without potentially infringing on criminal defendants’ Sixth Amendment rights: I think it can reasonably be anticipated, therefore, under this bill that the courts will strictly interpret the three-part test for litigants in civil proceedings and perhaps for prosecutors as well in criminal actions. [Nonetheless,] [criminal defendants will be given a wide range in gaining evidence from the press that might be needed in their defense. See Senate Debate Transcripts, 1990 Ch. 33, at 1827 (Senator Good¬ man) (emphasis added). That the legislative history expressly provides that the three-part test, includ¬ ing the “critical or necessary” prong, should be interpreted “strictly ... for prose¬ cutors ... in criminal actions,” id., indicates that the prosecution’s position - that “any and all statements made by the defendant pertaining to the crime are . . . fun¬ damentally critical to the prosecution” - flies in the face of legislative intent. App. Br. at 39. The legislative history does, however, provide support for the more protective “virtually rises or falls” standard. See N.Y.S. Assembly Debate Tran¬ scripts, 1990 Ch. 33, at 56 (explaining that the three-part test requires evidence to be “not just relevant but, in fact, it is central to the outcome of the case” (emphasis added)). This Court should interpret “critical or necessary” using this standard in accordance with legislative intent. 19 II. THE “CRITICAL OR NECESSARY” PRONG SHOULD BE READ TO PROVIDE STRONG PROTECTIONS TO THE PRESS TO ADVANCE THE IMPORTANT POLICY INTERESTS CONTEMPLATED BY THE SHIELD LAW The Shield Law was passed to protect journalists’ ability to freely report news and information to the public. See Section I. Forced disclosure of even non- confidential material by journalists creates a chilling effect that threatens to deter sources from coming forward with important information.9 It is in large part the independence and neutrality of journalists that engenders trust sufficient for sources to come forward. If journalists become - or are perceived to be - inves¬ tigative adjuncts of litigants, that trust will wither. Moreover, forced disclosure of nonconfidential material may discourage some reporters and editors with more limited resources from investigating and exposing matters at issue in litigation. Rather, those reporters and editors will opt to concentrate their efforts on other sto¬ ries, where they will not be subject to the expense and inconvenience of complying with subpoenas. 9 Additionally, if the privilege for nonconfidential source material is undermined, the flow of information derived from confidential sources would also be at risk. Any prospective confidential source who observed the press being constantly ensnared by litigants’ subpoenas could reasonably question the reliability of the media’s assurances that secrets will be kept. Also, nonconfidential sources over time frequently evolve into reliable confidential sources when the repeated contacts between reporter and source engender trust and confidence. Thus, deterrence of today’s nonconfidential source may amount to the complete loss of tomorrow’s confidential informant. 20 To protect these interests, disclosure of nonconfidential information must be a rarity. As the First Circuit observed: We discern a lurking and subtle threat to journalists and their employ¬ ers if disclosure of outtakes, notes, and other unused information, even if nonconfidential, becomes routine and casually, if not cavalier¬ ly, compelled. To the extent that compelled disclosure becomes commonplace, it seems likely indeed that . . . choices as to subject matter [will be] made[] which could be keyed to avoiding disclosure requests or compliance therewith rather than to the basic function of providing news and comment. United States v. LaRouche Campaign, 841 F.2d 1176, 1182 (1st Cir. 1988); see al¬ so In re Consumers Union of United States Inc., 495 F. Supp. 582, 586 (S.D.N.Y. 1980). These concerns are especially present for investigative jailhouse interviews. Jailhouse interviews oftentimes fall under the purview of local reporters catering to minority communities. Ensuring that jailhouse interviews and the local news out¬ lets typically engaged in producing this type of content receive the utmost protec¬ tion is extremely important for members of minority communities, as jailhouse in¬ terviews have been the impetus for significant societal change. Several examples of valuable reporting on jailhouse interviews follow, with the lattermost example concerning reporting done by a local outlet. In 2016, The New York Times reported on racial bias in New York state pris¬ ons in a widely-distributed article. See Michael Schwirtz et al., The Scourge of Racial Bias in New York State’s Prisons, N.Y. TIMES (Dec. 3, 2016), available at 21 https://www.nytimes.com/2016/12/03/nyregion/new-york-state-prisons-inmates- racial-bias.html. Relying on data collected during numerous interviews with jail- house inmates, the publication exposed extensive and disproportionate use of vio¬ lent discipline against inmates of color. The article discussed only several exam¬ ples of such conduct in New York prisons, omitting reference to many other inci¬ dents that interviewees likely wished to keep private for fear of retaliation. Two days after the article’s publication, Governor Cuomo announced that he was ‘“di¬ recting the state inspector general to investigate the allegations of racial disparities in discipline in state prisons and to recommend appropriate reforms for immediate implementation.”’ Michael Schwirtz et al., Governor Cuomo Orders Investigation of Racial Bias in N.Y. State Prisons, N.Y. TIMES (Dec. 5, 2016), available at https://www.nytimes.eom/2016/12/05/nyregion/govemor-cuomo-orders- investigation-of-racial-bias-in-ny-state-prisons.html. In another article, a reporter conducted several interviews with inmate Kalief Browder, a black teenager who had been imprisoned - mostly in solitary con¬ finement - for three years on Rikers Island without a trial for allegedly stealing a backpack. Jennifer Gonnerman, Before the Law, THE NEW YORKER (Oct. 6, 2014), available at http://www.newyorker.com/magazine/2014/10/06/before-the-law. The article drew widespread attention to Browder’s case and exposed systematic issues with speedy trial failures and solitary confinement policies. Indeed, word of 22 Browder’s story prompted rallies for prison reform, see, e.g., Ben Kochman, Kalief Browder’s Brother Rallies for Prison Reform in the Bronx, NEW YORK DAILY NEWS (May 25, 2016), available at http://www.nydailynews.com/new-york/kalief- browder-brother-rallies-prison-reform-bronx-article-1.2650153, and led Mayor de Blasio to advance an initiative to “reduce the number of people held in [New York’s] jails.” Jennifer Gonnerman, Kalief Browder and a Change at Rikers, THE NEW YORKER (Apr. 2015), available14, at http://www.newyorker.com/news/news-desk/kalief-browder-and-a-change-at- rikers. Browder, who initially “was reluctant” to be interviewed, understandably felt a deep distrust towards the criminal justice system. It is likely that he would have refused to participate in these valuable interviews if he had reason to see the reporter as merely a potential agent or discovery tool for the government. Similarly, jailhouse interviews conducted by the Houston Press provided valuable insight into failures in the trial process and resulted in publication of an influential article. Bob Burtman, Hard Time, HOUSTON PRESS (Sept. 10, 1998), available at http://www.houstonpress.com/news/hard-time-6567571. In Septem¬ ber 1998, after a series of interviews with Roy Criner, a man convicted of raping and murdering a sixteen-year-old girl, a Houston Press reporter became convinced that the prosecution negligently disregarded a piece of evidence that could prove Criner’s innocence. Relying on information learned from the interviews, the re- 23 porter published a widely-publicized article suggesting that the case overlooked a cigarette butt that was smoked by the real perpetrator of the crime and contained testable DNA. The article prompted a district court to reconsider the initial verdict. In a unanimous decision overturning Criner’s conviction, the court concluded that “[t]he person who smoked the cigarette was also the person whose semen was identified in [the victim] - and this person was not Roy Criner.” Four Cases, FRONTLINE PBS, http://www.pbs.org/wgbh/pages/frontline/shows/case/cases/ (last visited Sept. 18, 2017). Ultimately, because Criner trusted that the reporter would only publish certain information shared in their interviews (as opposed to, for ex¬ ample, potentially embarrassing information about why he was near the crime sce¬ ne or other material that Criner wished to keep private), he was willing to come forward with his story. If Criner had reason to believe, however, that the reporter was a potential participant in the very system that wrongfully convicted him, it is likely he would still be incarcerated for a crime he did not commit while a wrong¬ doer continued to pose a threat to society. Because a significant amount of influential reporting via jailhouse interviews comes from local outlets (e.g., the lattermost article discussed above), it is im¬ portant for the Court to consider how adopting an overly-broad interpretation of “critical or necessary” here could negatively affect coverage of potentially impact¬ ful jailhouse interviews and the minority communities that rely on local news for 24 this kind of content.10 Local reporters and news outlets are especially vulnerable in discovery disputes, because they typically lack the resources needed to challenge subpoena demands through extensive litigations. Indeed, studies show that less- established reporters who are “thorough” and “committed to social causes” (e.g., local reporters) “felt the effect of a subpoena threat more acutely than did then- more experienced colleagues,” with nearly 10% of these reporters stating that 10 Local news serves a critical role to minority communities as minorities are especially likely to turn to local news as their primary source of information. Local News in a Digi¬ tal Age Report, PEW RESEARCH CENTER (Mar. 2015), available at http://www.joumalism.org/files/2015/03/PJ_MediaEcology_completereport.pdf; Edmonds, A Myth Debunked: Minorities May Now Be Consuming More Local News than Whites, Not Less, POYNTER (Mar. 5, 2015), available at http://www.poynter.org/2015/a- myth-debunked-minorities-may-now-be-consuming-more-local-news-than-whites-not- less/323451/. Local outlets often utilize jailhouse interviews to provide critical reporting on local crime and on otherwise unreported issues concerning localized criminal justice issues. The Impact and Influence of News Media Reporting on Crime and Victimization, JUSTICE SOLUTIONS, available at http://mediacrimevictimguide.com/introduction.html (last visited July 12, 2017) (“Local media in particular have a responsibility to explain how [criminal and juvenile justice] systems work, whether they are accomplishing their goals and how well they promote public safety, while respecting the needs of victims and witnesses.” In achieving this aim, reporters covering local crime or localized criminal justice issues will conduct interviews to learn “facts” while also “captur[ing] the [inter¬ viewee’s] feelings, emotions, and opinions, as well as details about the interview sub¬ ject’s appearance, expressions, and environment.”); see, e.g., Joe Goldeen, Silva Talks about Jail Conditions, Not Charges, THE STOCKTON RECORD (Mar. 9, 2017), available at http://www.recordnet.com/news/20170309/silva-talks-about-jail-conditions-not-charges (local press reporting on jailhouse interview); Robert Arnold, Accused Killer David Con- leu Speaks Out in Jailhouse Interview with KPRC 2, KPRC 2 HOUSTON (Aug. 11, 2015), available at http://www.click2houston.com/news/local/harris-county/accused-killer- david-conley-speaks-out-in-jailhouse-interview-with-kprc-2 (same); Jessica Reyes et. al, What Really Caused Delaware’s Prisoners to Revolt at Vaughn Correctional Center, DELAWARE http://www.delawareonline.com/story/news/local/2017/02/17/what-really-caused- delawares-prisoners-revolt-vaughn-correctional-center/97891292/ (same). Rick (Feb.ONLINE 17, 2017) available at 25 “their ability to cover a story had been hampered in the previous 18 months because of the subpoena threat.” Steven D. Zansberg, The Empirical Case: Prov¬ ing the Need for the Privilege, 2 MEDIA LAW RESOURCE CENTER BULL., 145, 148 n.3 (2004); Vince Blasi, The Newsman’s Privilege: An Empirical Study, 70 MICH. L. REV. 229, 272-73 (1971). This contrasts with more established reporters, who affirmatively answered the same question approximately half as frequently. Id. Interpreting these results, Columbia Law Professor Vince Blasi explained that in addition to financial considerations, the adverse impact of the press subpoena threat is that it makes the uniquely ‘“insightful, interpretive reporting’” done using methods like jailhouse interviews more difficult by “‘compromising the reporter’s independent or compatriot status’” in the eyes of the interviewee. See Zansberg, The Empirical Case: Proving the Need for the Privilege, 2 MEDIA LAW RESOURCE CENTER BULL., 148 n.3. In fact, data indicates that reporters believe their coverage of investigations and stories concerning minority groups are among the most hin¬ dered by the possibility of being subpoenaed. Blasi, The Newsman’s Privilege: An Empirical Study, 70 MICH. L. REV. at 271 (providing that 13.1% of reporters af¬ firmatively responded that their coverage of minority groups in the past 18 months was adversely affected by the possibility of being subpoenaed and 12.8% of re¬ porters responded affirmatively regarding their coverage of investigations, but only 26 8.5% of reporters answered affirmatively regarding coverage of financial stories; 9.1% for government stories; and 9.2% for general assignments). Thus, the more welcoming courts are to press subpoenas seeking disclosure of nonconfidential jailhouse interview materials, the less likely it is that local out¬ lets can continue to provide the same level of investigative journalism and cover¬ age of stories pertinent to minority communities. To protect the press’s ability to freely cover important topics of interest from various perspectives (including jail- house interviews), the Court should adopt a narrow interpretation of the “critical or necessary” prong and deny the prosecution’s subpoena. in. CONCLUSION Existing case law, legislative history, and policy considerations all support this Court construing the “critical or necessary” prong of the Shield Law as afford¬ ing strong protections to journalists. Consistent with the relevant case law and leg¬ islative intent, this Court should find that the “critical or necessary” prong requires that production of nonconfidential materials cannot be compelled unless a claim “virtually rises or falls” with the requested evidence. Because the Government does not meet this standard here, this Court should affirm the Appellate Division’s decision quashing the subpoena. 27 Dated: September 21,2017 New York, N.Y. ispectfudy submitted Joel Kurtzberg' Nicdle Ligon itan Torres CAHILL GORDON & REINDEL LLP 80 Pine Street New York, New York 10005 (212) 701-3000 28 Printing Specification Statement I certify that the word count for this brief is 6,999, excluding the Table of Contents and Table of Authorities. The word processing system used to prepare this brief and to calculate the word count was Microsoft Word 2010. The brief is printed in Times New Roman, a serifed, proportionally spaced typeface. The type size is 14 points in the text and headings and 13 points in the footnotes. Dated: September 19, 2017 New York, N.Y. submitted,>ectJ Joe|Kurtzberg CAHILL GORDON ko Pine Street New York, New York 10005' (212) 701-3000 ;iNDEL LLlV