Rapp v. Fowler

USDC SDNY

DOCUMENT

UNITED STATES DISTRICT COURT ELECTRONICALLY FILED

SOUTHERN DISTRICT OF NEW YORK DOC #:

KEVIN SPACEY FOWLER, a/k/a KEVIN SPACEY, | DATE FILED: □□□ □□□□□□

Movant,

-against- 22-mc-0063 (LAK)

ADAM VARY,

Respondent,

□□ Be ee ee ee ee ee ee eee HHH HK

ANTHONY RAPP, et ano.,

Plaintiffs,

-against- 20-cv-9586 (LAK)

KEVIN SPACEY FOWLER a/i/a KEVIN SPACEY,

Defendant.

ee ee □□ □□ BB □□ HK

MEMORANDUM OPINION

Appearances:

Jennifer L. Keller

Chase A. Skolnick

Jay P. Barron

KELLER/ANDERLE LLP

Attorneys for Defendant-Movant

Jean-Paul Jassy

JASSY VICK CAROLAN LLP

Attorneys for Respondent

Peter J. Saghir .

Garr, GAIR, CONASON, RUBINOWITZ, BLOOM,

HERSHENHORN, STEIGMAN & MACKAUF

Attorneys for Plaintiff

LEwIs A. KAPLAN, District Judge.

Anthony Rapp claims that Kevin Spacey Fowler, best known as Kevin Spacey,

sexually assaulted him in 1986, when Rapp was a 14 year old boy and Spacey a young man in his

twenties. Neither then was the prominent actor and show business personality that each later

became. Spacey denies that the incident alleged or any other wrongdoing toward Rapp occurred.

Rapp reportedly told no one about this alleged incident for years. But “Rapp’s

frustration, anger, and incredulity with the sexual boundary he said Spacey crossed with him grew”

as “Spacey’s star began to rise through the 1990s and 2000s — including a Tony Award, two Oscars,

a decadelong run as the creative director of the Old Vic theater in London, and six seasons and

counting on the hit Netflix series House of Cards.”' In 2017, Rapp approached Adam Vary, a friend

of Rapp’s since 1999 and then a journalist employed by Buzzfeed, told him of his frustration, and

eventually “went public” with his claim against Spacey. Vary wrote the article, which ultimately

appeared online on October 29, 2017,

As far as the record discloses, there were no witnesses to the alleged incident in

1986.2 Rapp’s case thus relies significantly on his own credibility. So it is unsurprising that Spacey

Adam B. Vary, Actor Anthony Rapp: Kevin Spacey Made a Sexual Advance Toward Me

When ff Was 14, BUZZFEED (Oct. 29, 2017),

https://www.buzzfeednews.com/article/adambvary/anthony-rapp-kevin-spacey-made-sex

ual-advance-when-i-was- 1 4?msclkid=e68def95cf¥al lecaael 890f7494a88F.

See, e.g., Rapp Dep. (Dkt. 167-3, 20-cv-9586), at 69-70.

served subpoenas to take Vary’s deposition and obtain relevant documents from him. Vary,

however, objected to producing any of the requested documents. Although he appeared for

deposition, he declined to answer many pertinent questions concerning his interactions with Rapp

and the reasons for some of his own actions. He sought to justify his unresponsiveness with respect

to all of the requested documents and most of the unanswered questions by referring to a journalist

shield law and First Amendment qualified journalist privilege.

The matter now is before the Court on Spacey’s motion to compel Vary to produce

the documents and to answer the questions, as well as for related relief.

Facts

Discovery Relating to Vary and Rapp

Although Vary declined to produce any documents whatever in response to the

subpoenas, Rapp produced a text exchange between Rapp and Vary that is relevant to the disposition

of this motion. So too are some excerpts from Vary’s deposition.

The October 27, 2017 Text Chain

The aforementioned Rapp-Vary text chain, which occurred just two days prior to the

publication of Vary’s Buzzfeed article, was as follows’:

app wy Sd

Plugging away at the story.

Dkt. 155-1, 20-cv-9586 (emphasis added).

Cool, hope it’s going well. It is!

You are very articulate, which

always helps.

Excellent, I shall leave you to it.

And I’m glad to hear that.

One thing to make you aware of:

We can’t seem to place Spacey at

the Tony’s in 2008. He didn’t

present, and wasn’t nominated,

and there’s no photos we can find.

We don’t doubt he was there, but

we don’t want to nail down a

specific date that Spacey could

then Just flatly deny. We're still

looking, but if we can’t nail it

down, we'll likely say that you saw

him at an industry event or such.

(Similarly, we're also going to

steer away from exact specificity

in the story for the party.)

I asked Adam Pascal if he

remembered Spacey being there,

and he said “I didn’t remember

that *I* was there until you told

me about it.”

Obhhh it could have been the year

of Charlie Brown. That makes

more sense now that I think of it.

That would be 1999, Can you

check that year?

Oh!

Sure!

It thus appears, on a preliminary basis, that Rapp told Vary that Rapp had

encountered Fowler at the Tony Award program in 2008 but that Vary subsequently could not

confirm that Fowler even had been present at that event. Without questioning Rapp’s account, as

the text messages show, Vary suggested that the way to handle this in his story was to (1) avoid

saying that the alleged incident related by Rapp had occurred at the 2008 Tony Award program, and

(2) be vague about where and when the alleged incident had occurred to avoid Spacey “flatly

deny[ing]” the accuracy of the story. Vary went on to suggest that he would “steer away from exact

specificity in the story for the party.”

In due course, Vary’s Buzzfeed story came out. It asserted that the last time that Rapp

had interacted with Spacey was at the 1999 Tony Awards. It did not mention that Rapp previously

had told Vary that he last had interacted with Spacey at the 2008 event.

Vary’s Testimony

Vary of course was asked about this at his deposition. He acknowledged that he and

Rapp have been friends since 1999 and answered several questions about the nature of their

friendship prior to 2017.4 But when he was asked if he had omitted details of Rapp’s account and

allegations in the Buzzfeed story, he refused to answer based on what his lawyer referred to as “the

reporter’s privilege and the reporter’s shield.”’ He did essentially the same thing with respect to all

questions relating to the article and his communications with Rapp that appear in the publicly filed

excerpt from the deposition transcript, claiming among other things that he could not be questioned

See Vary Dep. (Dkt. 1-3, 22-me-0063), at 58-60.

See, e.g., id. at 119.

about any information he had gathered that had not been published in the story.

The Document Requests

The document subpoena with which we are concerned contained twenty-nine

requests. Broadly speaking, it sought all documents concerning Vary’s communications with Rapp

and his attorneys, claims by Rapp of sexual misconduct or assault by anyone, communications with

others about sexual encounters with Rapp, and communications by Vary with specific other persons

about Rapp.’

Vary produced no documents in response to the document subpoena save two pages

of text messages with Rapp’s counsel. Rather, he objected to each and every request “to the extent

that it calls for material protected from disclosure by the Reporter’s Privilege/Shield.”

Prior Proceedings Relating to Vary

Spacey issued three subpoenas to Vary. The second, dated December 6, 2021, sought

production of thirty categories of documents and purportedly was issued by the court in the Central

The questions that he refused to answer or, in one case, answered incompletely are set out

in the Joint Stipulation. See Dkt. 1-1, 22-mc-0063, at 8-35. In each case, the interposed

objection in words or substance was: “Objection. To the extent that it calls for the disclosure

of unpublished material, objection on the basis of the reporter’s privilege and the reporter’s

shield.” In some cases, this was followed by “Instruct the witness not to answer” and/or “He

may answer if he believes he can.”

See Scolnick Decl. Ex. 4 (Dkt. 1-7, 22-mc-0063), at 3-6.

Scolnick Decl. Ex. 4 (Dkt. 1-2, 22-mc-0063) 4 5.

See, e.g., Joint Stipulation (Dkt. 1-1, 22-mc-0063), at 61.

District of California,'® evidently on the theory that Vary was located in Los Angeles. No copy of

the first is in the record, but it was issued on November 4, 2021, and it too purportedly was issued

by the Central District, and contained the same document requests. As Vary’s deposition took place

on December 16, 2021,"' the logical conclusion is that his appearance was compelled by the first

subpoena, as the second did not seek his testimony.’

Following the deposition, at which Vary declined to answer a great many questions

largely on the basis of a claim of reporter’s privilege, Vary’s counsel reiterated a previous objection

that the subpoena had been issued out of the Central District of California rather than the Southern

District of New York, where underlying action is pending.’® In this he was correct, as Fed. R. Civ.

P. 45(a}(2) expressly provides that “[a] subpoena must issue from the court in which the action is

pending.” Accordingly, Fowler on December 29, 2021 issued and served a document subpoena out

of this Court that was identical to the second subpoena save that it dropped one of the thirty original

document requests. Vary produced no documents pursuant to the New York subpoena either, filing

objections to all of the requests.

In early February, Fowler moved in the Central District of California for an order

compelling Vary to sit for a further deposition to answer the questions that he previously declined

to answer (and reasonable follow up questions) and to produce the subpoenaed documents. On

16

December 6, 2021 Subpoena (Dkt. 1-4, 22-mc-0063), at 3-5.

Vary Dep. (Dkt. 1-14, 22-mc-0063), at 2.

1Z

Vary produced no documents pursuant to either of these subpoenas.

13

Dkt. 1-1, at 7.

February 22, 2022, the Central District transferred that motion to this Court pursuant to Federal

Rule 45(f).

As noted, any subpoena issued to obtain testimony or evidence in this action was

required by Fed. R. Civ. P. 45(a)(2) to have been issued by this Court. In these circumstances, with

respect to the first two subpoenas — those issued by the Central District of California — “the Southern

District of New York must be considered the issuing court.”"" In any case, Vary appeared for and

testified pursuant to the first subpoena and thus waived any objection he may have had to its validity

based on its issuance by the incorrect court.

The Present Motion

Regardless of the kerfuffle about the issuance of the first two subpoenas, the present

motion was filed in the Central District of California under Fed. R. Civ. P. 45(d)(2)(B)() and

transferred to this court pursuant to Rule 45(f}. The motion therefore is before this Court in all

respects.

The substance of the motion centers on the availability and scope of the two

journalistic protections Vary invoked in refusing to provide discovery: the federal “reporter’s

privilege” and state-law “reporter’s shield” protections.

In Camera /nspection

In view of Vary’s vague boilerplate objections, failure to produce a privilege/work

14

Moon Min. Farms, LLC v. Rural Community Ins. Co., 301 F.R.D. 426, 428-29 (N.D. Cal,

2014) (quoting Wultz v. Bank of China, Lid., 304 F.R.D. 38, 43 (D.D.C. 2014) (internal

quotation marks omitted)); see UBS Secur. LLC v. Third Eye Capital Corp, No. CV

14-3997 FMO (MANx), 2014 WL 12613381, at *3 (C.D. Cal. Oct. 21, 2014).

product log, and failure to articulate a basis on which the Court might assess the nexus between any

documents withheld and the protections invoked, the Court ordered in camera inspection of the

withheld materials in order to inform its analysis of whether the material should not be produced to

Fowler notwithstanding Vary’s failure to establish a valid entitlement to privilege.

On June 7, 2022, Vary submitted to chambers the following:

1, Five USB sticks numbered USB#1 through USB#5 containing various

document files. USB#1 contains Vary’s “unpublished, non-confidential

material.” USB#2 contains the “unpublished, confidential material.” USB#3

contains “attorney-client communications from November 4, 2021... to

May 31, 2022.” USB#4 contains “non-privileged documents.” USB#5

contains “documents reflecting communications between Vary and his...

mother, father, sister and cousin,” none of whom “played any role in the

reporting of the articles about Fowler or Rapp.”

2, A copy of a declaration of Vary in opposition to Fowler’s motion.

3. A purported log said to “concern[| confidential source information.”

4, A purported privilege log said to “concern[] attorney-client communications

and attorney work product.”

5. A transmittal letter dated June 6 from Vary’s counsel that describes the

materials just referred to and containing case citations and some legal

argument. The letter bears the legend “Under Seal For /n Camera Review

Pursuant to Court Order, Dkt. 17, 22-mc-00063.” The letter indicates that

copies of the letter were emailed to counsel for plaintiff and defendant

“without attachments, under seal, attorneys’ eyes only.” (Emphasis added).

10

In briefing this motion, Fowler reiterates that he does not seek any communications

from confidential sources.’°

Discussion

Fed. R. Evid. 501 and Reporter’s Shield Laws — New York Law Governs Here

At the outset, the parties disagree emphatically as to the source(s) of law governing

this motion. Vary insists that he enjoys absolute protection from disclosure under California’s

reporter’s shield’® and that his documents here are protected to the same extent by the First

Amendment. Spacey rejoins that if any shield law applies on these facts, it is New York’s.

Asa threshold matter, the Court first must ask whether either shield law is relevant

to this motion. Fed. R. Evid. 501 provides that privilege claims in federal court are governed by

federal common law unless the U.S. Constitution, a federal statute, or a rule of the U.S. Supreme

Court provides otherwise, except that “in a civil case, state law governs privilege regarding a claim

or defense for which state law supplies the rule of decision.”””

While state law indeed supplies the rule of decision for each of Rapp’s claims in the

underlying civil action, there remains the question of whether either state’s reporter’s shield is a law

that “governs privilege.” Clearly, California’s is not. The California Supreme Court has held

15

See Dkt. 21, 22-mc-0063, at I.

16

See CALIF, CONST. ART, I, §2(b); CALIF. EVID, CODE § 1070(a).

17

Id.

1]

explicitly that “the [California] shield law by its own terms” is “not a privilege.”’* It is well-

established that Rule 501 does not look to state law on nonprivilege immunities even where such

protections may be understood colloquially as “privileges” — as is commonly the case with attorney

work-product protection, for example."

New York’s shield law, on the other hand, uniformly is understood by New York

courts to be a law governing privilege.” The statute codifies both (a) an absolute privilege

protecting journalists from compelled disclosure of unpublished source identities and news obtained

or received in confidence and (b) a qualified privilege for nonconfidential newsgathering material.”'

18

New York Times Co. v. Superior Ct, 51 Cal.3d 453, 456 (1990),

19

See Condon v. Stephan Mach. Corp., No. 90 CIV. 0283 (PKL), 1990 WL 311599, at *3 n.1

(S.D.N.Y. June 18, 1990) (“Pursuant to [Rule 501], the Court is required to apply state law

to questions of privilege in diversity cases. However, [the party claiming privilege] has

asserted only the work product doctrine of Rule 26(b)(3), which is commonly recognized as

a qualified immunity and not a privilege.”); see also Frontier Ref, Inc. v. Gorman-Rupp

Co., 136 F.3d 695, 702-03 (10th Cir. 1998); Milinazzo v. State Farm Ins. Co., 247 F.R.D.

691, 698-99 (S.D. Fla. 2007); Bowne of New York City, Inc. v. AmBase Corp., 150 F.R.D.

465, 471 (S.D.N.Y, 1993); Retail Brand All, Ine. v. Factory Mut. Ins. Ce., No. 05 CIV.

1031 RJHHBP, 2008 WL 622810, at *3 (S.D.N.Y. Mar. 7, 2008).

20

In contrast to the California Supreme Court, the New York Court of Appeals made clear that

New York’s shield law codifies rules of “privilege” rooted in the state constitution. People

y. Combest, 4 N.Y.3d 341, 345 (2005) (“We first recognized a journalist's privilege in

nonconfidential news in O'Neill vy Oakgrove Constr., Inc. (71 NY2d 521 [1988]}, where we

determined that our state constitutional guarantee of freedom of the press requires the

protection of a qualified privilege when a party to a civil lawsuit seeks nonconfidential

information from a news organization.... In 1990, the Legislature enacted Civil Rights

Law § 79-h (c) to codify our three-pronged test.”). O’Neill and the subsequently amended

shield law revised prior interpretations of the statute that had declined to treat it as a law

governing privilege. See, eg, Apicella v. McNeil Lab’ys, inc., 66 F.R.D. 78, 83-84

(E.D.N.Y. 1975) (“Since no state privilege is created, the state rule has only a limited effect

... under Rule 501 of the Federal Rules of Evidence, (citations omitted).

21

See, e.g., Holmes v. Winter, 22 N.Y 3d 300, 316 (2013); see also Giuffre v. Maxwell, 221

F, Supp. 3d 472, 476 (S.D.N.Y. 2016).

12

Accordingly, New York’s shield law has been held to apply in federal court through Rule 501 even

where the claim does not involve compelled disclosure of confidential sources.”

The Court notes that the conceptual boundary between “privilege” and nonprivilege

evidentiary rules is not susceptible to clear-cut or mechanical rules. As one legal scholar recently

has observed, whether a particular evidentiary rule is classifiable as a “privilege” orbits a

combination of “common features [that] help to distinguish them from other rules of evidence —

specifically, their breadth, power, and extraordinary costs.””* While there is no settled and definitive

test for when a rule of evidence rises to the level of a “privilege” under either New York or

California law, their respective high courts’ classifications are binding here. Whether or not a rule

of evidence operates as a “privilege” is a matter of legal consequence, not semantics.”

In sum, the Court need not embark on the potentially perplexing choice-of-law

inquiry the parties invite in their briefs,’ substantially because there is no “true” or “actual” conflict

22

See, ¢e.g., Giuffre, 221 F. Supp. 3d at 476.

23

Rebecca Wexler, Privacy As Privilege: The Stored Communications Act and Internet

Evidence, 134 HARV. L. REV. 2721, 2748 (2021); id. at 2748-49 (noting that “privileges”

often are distinguishable as rules that apply “to every stage of a case, from investigations by

law enforcement or criminal defense counsel, to grand jury proceedings, to pretrial, trial, and

postconviction proceedings,” “shield information from distribution to foreign tribunals,”

“block not merely the admissibility of evidence in court but also litigants’ ability to compel

the production of information for their own review” and “can shield information from

warrants, subpoenas, and discovery orders” as well as wiretapping).

24

See Geoffrey C. Hazard, Jr., An Historical Perspective on the Attorney-Client Privilege, 66

CALIF. L. REV. 1061, 1085 (1978) (noting that the choice of “definition of [a] privilege will

express a value choice between protection of privacy and discovery of truth and the choice

of either involves the acceptance of an evil--betrayal of confidence or suppression of truth”).

25

For instance, although both parties appear to assume that California’s choice-of-law rules

apply, the Court knows of no authority that supplies a reasoned answer to the question of

whether a Rule 45 transfer obligates the transferee court to employ the transferor forum’s

13

of laws in these circumstances under either state’s choice-of-law regime.”® And even if there were

a conflict requiring a weighing of interests with respect to Vary’s privilege claim, the totality of

contacts and interests relevant to this subpoena strongly favor New York, where Buzzfeed was

headquartered at the time Vary —~ then a Buzzfeed employee — prepared and published his article

about Rapp — a New York resident.”’

A second threshold question concerns the extent to which the federal reporter’s

choice-of-law analysis. As a general matter, “the law applicable subsequent to a transfer

depends on the statutory provision pursuant to which the transfer was made.” Caribbean

Wholesales & Serv. Corp. y. US JVC Corp., 855 F. Supp. 627, 629 (S.D.N.Y. 1994),

itlustrative of this point is that a Section 1404(a) transfer requires the transferee court to

apply the state law of the transferor forum, while a Section 1406 transfer for improper venue

does not.

26

Even where the relevant state laws differ in material respects, California’s choice-of-law

analysis weighs the states’ relative interests only where there is a “true conflict” — in other

words, where the states’ respective “interest[s] in the application of [their] own law under

the circumstances of the particular case” actually diverge. Kearney v. Salomon Smith

Barney, Inc.,39 Cal Ath 95, 107-08 (2006) (emphasis added). Only if “the court finds that

there is a true conflict” will it “carefully evaluate[] and compare[] the nature and strength of

the interest of each jurisdiction in the application of its own law.” Jd. Similarly, New

York’s choice-of-law analysis first asks whether an “actual conflict” exists. See Jn re

Allstate Ins. Co., 81 219, 223 (1993). In New York, an “actual” conflict exists only

when the applicable law from each jurisdiction provides for different substantive rules and

where those rules have the potential to affect significantly the outcome of the case. See Dish

Network Corp. v. Ace Am. Ins, Co,, 431 F. Supp, 3d 415, 422 (S.D.NLY. 2019), aff'd, 21

F.Ath 207 (2d Cir. 2021). The Circuit thus has emphasized that differences in the law must

be “relevant” and portend a “significant possible effect on the outcome of the trial.” Fin,

One Pub. Co. v. Lehman Bros. Special Fin., 414 F.3d 325, 331 @d Cir. 2005) (emphasis in

original}. As discussed above, California’s reporter shield falls outside the purview of Fed.

R, Evid, 501’s state-law exception and thus cannot affect the outcome of this case.

27

Where a true conflict exists, New York courts look to see which jurisdiction has the greatest

interest in the litigation using a “center of gravity” or “grouping of contacts” approach.

Maryland Cas. Co. v. Cont’l Cas. Co., 332 F.3d 145, 151 (2d Cir. 2003) (citing Auten v.

Auten, 308 N.Y. 155, 160 (1954)). In California, if the court finds a true conflict, “it

carefully evaluates and compares the nature and strength of the interest of each jurisdiction

in the application of its own law ‘to determine which state’s interest would be more impaired

if its policy were subordinated to the policy of the other state[,]’ and then ultimately applies

‘the law of the state whose interest would be the more impaired if its law were not applied.””

Kearney, 39 Cal.4th at 108 (quoting Bernhard v. Harrah's Club, 16 Cal.3d313, 320 (1976)).

14

privilege remains independently operative in the scenario where the New York reporter’s shield

statute applies through Fed. R. Evid. 501. In Gonzales v. National Broadcasting Co.,” the Circuit

expressly declined to “decide whether the [federal] privilege is founded in the Constitution,” noting

that its past decisions on this question “have expressed differing views on whether the journalists’

privilege is constitutionally required, or rooted in federal common law.””’ If the federal reporter’s

privilege is derived entirely from the First Amendment, it follows that the Federal Rules of Evidence

could not displace it. If it is derived entirely from the federal common law of privilege, then Rule

501’s text makes clear that the federal rule would cease to apply.

In this case, such an inquiry is obviated by the fact that the relevant protections

supplied by the New York reporter’s shield are inclusive of and broader than those supplied by the

federal privilege. This is true as to both confidential-source and nonconfidential newsgathering

material on these facts, With respect to the former, New York’s shield law provides an “absolute”

protection from disclosure whereas federal law provides only a qualified privilege that can be

overcome. Similarly, the Circuit has made clear that the federal privilege for nonconfidential

newsgathering material is subsumed within the protections afforded by the New York statute. Prior

to Gonzales, the protections applicable to nonconfidential newsgathering material through the

federal privilege and the New York statute were “identical.”*° Gonzales, however, upended that

28

194 F.3d 29 (2d Cir. 1999).

29

Id. at 35 n.6.

30

Id. at 34 (noting that “the contours of the privilege under federal law [had been] ‘identical’

to those under the applicable New York statute” with respect to nonconfidential

newsgathering material) (quoting Jn re Application to Quash Subpoena to Nat. Broad. Co.,

Inc., 79 F.3d 346, 353 (2d Cir. 1996)); see also United States v. Cutler, 6 F.3d 67 (2d

Cir.1993).

15

symmetry by narrowing the federal privilege. Whereas both protections once were overcome only

by a clear and specific showing that the information sought was “(i) highly material and relevant;

(ii) critical or necessary to the maintenance of a party’s claim, defense, or proof of a material issue;

and (iii) not obtainable from_an alternate source,””! the Circuit retethered the federal privilege to a

“less demanding” standard, one that asks only whether the materials at issue are (1) of “likely

relevance to a significant issue in the case” and (2) “not reasonably obtainable from other available

sources.”*” Accordingly, because the protections afforded by the New York statute are in all

respects broader than those potentially applicable here through the federal privilege, it is immaterial

whether and to what extent the First Amendment exerts independent force in these circumstances.

Application of New York Law

Vary Acted as “Professional Journalist” Covered by the New York Reporter's Shield

New York’s shield law extends, in relevant part, to the “professional journalist,”

defined as someone who “for gain or livelihood, is engaged in gathering, preparing, collecting,

writing, editing, filming, taping or photographing ofnews intended for a newspaper, magazine, news

agericy, press association or wire service or other professional medium or agency which has as one

of its regular functions the processing and researching of news intended for dissemination to the

public.” The Circuit has acknowledged that the New York statute and the federal reporter’s

privilege are motivated by an identical “paramount public interest”: that of maintaining “a vigorous,

31

United States v. Burke, 700 F.2d 70, 77 (2d Cir. 1983).

Gonzales, 194 F.3d at 36.

33

N.Y. CIV. RIGHTS LAW § 79-h(a)(6) (McKinney).

16

ageressive and independent press.”** The Circuit has held also that those “who gather and publish

information because they have been commissioned to publish in order to serve the objectives of

others who have a stake in the subject of the reporting are not acting as an independent press.”°°

It therefore follows that the matter of Vary’s independence from Rapp is material to whether he falls

within the New York reporter’s shield’s ambit in this case.

As discussed in further detail below, a number of the documents Vary withheld from

Fowler raise serious questions about the reliability of Vary’s reporting and his independence from

Rapp. To be sure, those questions do not arise merely from the fact that Vary and Rapp apparently

have been personal friends since 1999. Rather, what calls Vary’s independence into question is the

messages to Rapp and other documents indicating Vary’s willingness to shape the story to Rapp’s

objectives, to overlook or massage unverified details, or to directly advise Rapp on public relations

strategy. These statements go far beyond a “point of view” about the subject matter. In some

instances, they come close to painting Vary as a commissioned agent.

That said, the Court credits for these purposes several instances in which Vary

appears to have refused to depart from the editorial process for Rapp, including by refusing an overt

request by Rapp to review a pre-publication draft of the story. The Court sees no indication that

Vary made changes to the final story at Rapp’s urging, attempted to circumvent his editors, or

34

Chevron Corp. v. Berlinger, 629 F.3d 297, 306 (2d Cir. 2011) (holding that the federal

reporter’s privilege is “intended to protect the public’s interest in being informed by ‘a

vigorous, aggressive and independent press’”) (quoting and adding emphasis to von Bulow

y. von Bulow, 811 F.2d 136, 144 (2d Cir.1987)); Baker v. F and F Inv., 470 F.2d 778, 782

(2d Cir. 1972) (noting that New York state law reflects the same “paramount public interest

in the maintenance of a vigorous, aggressive and independent press capable of participating

in robust, unfettered debate over controversial matters, an interest which has always been a

principal concern of the First Amendment’).

35

Berlinger, 629 F.3d at 308.

17

sought any special treatment for Rapp vis-a-vis Buzzfeed. Nor has it encountered any evidence of

financial ties linking Vary and Rapp, although Vary appears to have separately courted

compensation in connection with a documentary about Fowler where the filmmakers sought Vary’s

assistance in connecting to potential victims. Still, in all the circumstances, the Court is satisfied

Vary acted as a “professional journalist” as defined by this particular statute.

Vary’'s Confidential-Source Materials Subject to Absolute Protection

The Court first must determine what if any of the material Vary has designated

“confidential source” information warrants that classification under New York law. To the extent

that Vary was acting as a professional journalist, the statute affords him an absolute privilege from

disclosing any “news obtained or received in confidence or the identity of the source of any such

news coming into [his] possession in the course of gathering or obtaining news for publication.”**

In his sealed submission to the Court, Vary identified and segregated the “documents

containing unpublished, confidential material protected from disclosure by the reporter’s shield”

on a single external drive (“USB#2”). The Court notes at the outset that USB#2 principally is

organized into fourteen successively numbered folders referring to fourteen different confidential

sources, labeled “CS1” through “CS14,” respectively. However, the folder marked “CS12" on

USB#2 contains no files.

As his cover letter explains, Vary elected to “redact[] or remove[]” certain

information from the i# camera submission on the ground that the unredacted documents would

——__

N-Y. Civ, RIGHTS LAW § 79-h(b) (McKinney 2011); Baker v. Goldman Sachs & Co., 669

F.3d 105, 107 @d Cir. 2012). Fowler has clarified also that he is not seeking

confidential source materials.

18

“identifly] confidential sources” to the Court. At the outset, the Court is inclined to agree with Vary

that “disclos[ing] identifying confidential source information” absent a legal obligation to do so

could “irreparably harm his career as a professional journalist.””? But it observes also that Vary’s

in camera document production and redactions do in fact identify several of his purportedly

confidential sources. For example, three of the supposedly confidential sources are immediately

identifiable because Vary included unredacted copies of identical emails or text messages clsewhere

in his submission. That his submission in many places is internally inconsistent as to whether a

particular document represents confidential-source or nonconfidential newsgathering material adds

difficulty to the Court’s task on this motion.

A key question on this motion is when and whether confidential-source protection

carries over to information obtained in confidence by some third-party who later relays that

information to ajournalist. The plain text of the statute, which is silent as to intermediaries, extends

simply to all “news obtained or received in confidence.’ As the text itself makes plain, what

matters is whether confidentiality attaches at point at which the journalist “obtain[s]” or “receive[s]”

the information. In other words, statutory protection does not attach solely because information at

some point upstream of the reporter has traveled in confidence. Rather, Section 79-h(b) is

concerned solely with the nature of the relationship between the journalist and the person from

whom he ot she obtains information, whatever its content. So much is confirmed by the final clause,

which clarifies that absolute protection attaches “notwithstanding that the information was not

a7

Vary Cover Letter, at 2.

38

N.Y. CIV. RIGHTS LAW § 79-h(b) (McKinney).

19

solicited by the journalist or newscaster prior to disclosure to such person.””

As aresult, New York courts have interpreted Section 79-h(b) to require direct or

indirect evidence of an express or implied agreement or understanding that confidential material will

not be disclosed.*” An understanding or agreement can be implied only where it is reasonable to

conclude that both the journalist and the source, from their acts and conduct and the circumstances,

mutually intended for the source’s identity or information to remain confidential. In other words,

even if it were apparent that a source desires to remain anonymous or avoid disclosure, the requisite

“cloak of confidentiality” still may be absent if the source does not “rely upon [the journalist] to

shield” the information.”

This point is illustrated by WBAI-FM v. Proskin,”* which determined that

confidentiality was lacking where a radio station had received an anonymous phone call advising

of the location of a pseudonymous letter about an imminent bomb threat.” Even though the source

39

Id.

48

See, e.g., Knight-Ridder Broad., Inc. y. Greenberg, 70 N.Y.2d 151, 156-59 (1987), In re

Pennzoil Co., 108 A.D.2d 666, 666 (1985); see also Hennigan v. Buffalo Courier Express

Co., Inc,, 85 A.D.2d 924 (4th Dept. 1981}; People v. LeGrand, 67 A.D.2d 446 (2d Dept.

1979).

41

See Knight-Ridder Broad., Inc., 70 N.Y.2d at 156.

42

42 A.D.2d 5 (3d Dept.1973).

43

Id. at 7; see also People v. Korkala, 99 A.D.2d 161, 165 (1st Dept. 1984) (Mmoting that a

“provision contained in the initial version of the [proposed1981 Amendments] that would

have eliminated the ‘cloak of confidentiality’ requirement for invoking the Shield Law was

deleted from the version finally passed”); People v. Bova, 118 Misc. 2d 14, 19 (Sup. Ct.

Kings Cnty. 1983) (“The 1981 amendment to the Shield Law, which extended the protection

of the statute to unsolicited information, did not negate the ‘cloak of confidentiality’

requirement, Protection of unsolicited news is fully compatible with the confidentiality

requirement.”).

20

clearly “took pains to conceal his identity,” the source’s unilateral desire or action to remain

confidential did not give rise even to an implicit confidential relationship.

At the outset of this analysis, the Court observed that, with the sole exception of an

interview transcript in which Rapp discusses Confidential Source 4 (“CS4”), nothing in Vary’s

submissions — including Vary’s declaration and cover letter — indicates that any of the information

on USB#2 that Vary received from Rapp himself was obtained “in confidence.” As audio recordings

make clear, Rapp was well aware of Vary’s principal aim, which was “telling your [i.e., Rapp’s]

story.” And, with the sole exception of the interview transcript pertaining to CS4," nothing in

Vary’s in camera production remotely implies that Rapp had different expectations of Vary when

identifying or discussing these purportedly confidential sources than he did with respect to the

dozens of other people and events he identified by name during the same interviews.

To be sure, that some of Vary’s withheld documents are absolutely protected

confidential-source materials is immediately apparent. There can be no serious doubt that the

submissions for Confidential Sources 1, 2, 3, 4, 8, 11 and 13 should not be disclosed. In the cases

of CS1, CS2, and CS3, the withheld materials make clear that all three sources sought and obtained

an express verbal assurance of confidentiality at the outset of their respective conversations with

Vary. Similarly, the documents corresponding to CS9 and CS11, respectively, are text threads in

which the source made clear that he or she would share information with Vary only on the condition

that he receive it “off the record” or not for publication. And in the cases of CS4, CS8 and CS13,

4g

The relevant interview transcript contains a timestamp and bolded, capitalized text reading

“OFF THE RECORD” immediately before Rapp shared identifying information about and

the sexual orientation of a friend from high school. The Court notes also that the identifying

information in this document was highlighted, not redacted, and therefore disclosed to the

Court.

21

the understanding is implicit in Vary’s allusions to anonymizations or a notation that the

conversation had moved “off the record.”

CS5, CS6, and CS7 are entirely different matters. For one, the materials submitted

in connection with these sources are not communications between Vary and the supposedly

confidential sources. Rather, they are communications between Vary and third persons about those

aforementioned “sources.” In none of those cases does the Court discern any indication that the

third person was acting as a necessary intermediary or agent between the designated source and

Vary.

With respect to each of these three sources, Vary submitted only a single document.

The document marked CS5 is a half-page of interview notes from one of Vary’s follow-up

conversations with Rapp that appears to detail other reports of sexual assault by Fowler not

involving Rapp. In contrast to Vary’s interview notes indicating that Rapp provided information

about CS4 in confidence, no part of the CS5 material is marked confidential or off the record, nor

does any part of Vary’s declaration, source log, or other materials offer any details or circumstances

permitting the court to conclude that Rapp discussed CS5 under a cloak of confidentiality. Indeed,

Vary’s own declaration explicitly states that he “promised Rapp that [he] would not reveal the

identity of a person [Rapp] described” in “one instance” only — quite obviously, that instance was

the portion of the interview discussing CS4.”°

The sole document submitted for CS6 is an email exchange between Rapp and CS6

that Rapp appears to have forwarded to Vary unsolicited. Here, too, nothing in the email thread or

anywhere else in Vary’s in camera submission implies that Rapp relayed those messages to Vary

45

Vary decl. at 2 (emphasis added),

22

in confidence or that Vary had reached an understanding or agreement with CS6 directly.

As for CS7, Vary offers what appears to be a copy of a mass email from a House of

Cards production company representative to certain show personnel about sexual harassment

training. Again, nothing in Vary’s submission suggests where, from whom, or how he obtained a

copy or screenshot of that email, much less that the person who provided it did so under the cloak

of confidentiality. Plainly, the Court is without any sufficient basis on which to confer confidential-

source protection to the materials associated with CS5, CS6, or CS7.

CS10 and CS14 present the only close questions as to the availability of confidential-

source protection. The single document marked CS10 is a copy of a text message exchange between

Vary and an “industry source.” Similarly, the sole document submitted for CS14 ts a text message

conversation thread between Vary and a Buzzfeed colleague to whom he had sent a partial

screenshot of an incomplete email exchange purportedly between CS14 and Vary. Vary, however,

failed to submit the complete email exchange to the Court. In both instances, nothing about the

message or its context indicates that CS10, CS14, or Vary were under the impression that the

information was received in confidence.

Still, Vary avers in his declaration that “[flor the confidential sources that [he]

communicated with directly, [he] made promises to those confidential sources not to disclose those

sources’ identifying information.”

To be sure, it is possible to establish confidential-source protection solely on the basis

of a reporter’s sworn statements. To interpret Section 79-h(b) to require a writing or some other

extrinsic proof of agreement in every case would gut the statute, especially since in the most

sensitive cases the absence of such a record may be essential to securing the confidential source’s

safety.

23

At the same time, a conclusory declaration such as Vary’s is insufficient and

unpersuasive. The declaration contains no specific facts about these individual sources, much less

facts on which the Court could find that an agreement or understanding formed between particular

individuals. It is entirely devoid of information suggesting the scope, timing, or contours of the

purported promises, and even where it is clear from the documents themselves that Vary

“communicated .. . directly” with a purported confidential source, the submissions are without

context as to the nature of those relationships, reason(s) why the sources desired or sought

confidentiality, or anything else that might allow the Court to divine an agreement by “common

sense.”””° That these facts are missing raises additional questions (1) in light of Vary’s failure to

submit the complete correspondence for CS14 (as opposed to the partial screenshot he previously

shared with his colleague via text) and (2) because CS10 suggests that the confidential

communication in question was one transmitted — rather than “obtained or received” -- by Vary. It

appears from the latter submission that CS10 sought from Vary a copy of a shooting script from

Gore, an unreleased film starring Fowler. Vary apparently agreed to share it on the condition that

the document “remain with [CS510],” to which the source replied: “That’s great. [’m a tomb.” Of

course, the CS10 and CS14 documents may be protected from disclosure for other reasons. But the

Court cannot conclude any more from Vary’s in camera submission than it could from his

46

See, e.g., Trump v. O’Brien, 403 N.J. Super. 281, 300 (App. Div. 2008) (applying New York

law) (holding that confidential-source protection attached where journalist “attested to the

fact that sources sought confidentiality because of fear of retribution” and where, in light of

the facts proffered, “common sense supports the sources’ desire for confidentiality since, if

identified, it appears inevitable that they would be named as defendants in Trump’s

defamation suit and would likely suffer additional personal and economic consequences”);

of. In re Application of Dack, 101 Misc. 2d 490, 502 (Sup. Ct. Monroe Cnty. 1979) (“The

affidavits submitted by reporters ... are conspicuous in their absence of any descriptions of

the circumstances surrounding the imparting of the witnesses’ statements. .. . Suffice it to

say that respondents have failed to meet their burden of establishing confidentiality.”).

24

boilerplate subpoena responses that those materials fall within Section 79-h(b).

In sum, the Court concludes that both the identifies of and the redacted information

appearing on USB#2 in the documents marked CS1, CS2, CS3, CS4, CS8, CS9, CS11, and C13,

respectively, are subject to absolute protection under Section 79-h(b) of the New York reporter’s

shield.” In contrast, there is no proper or persuasive basis to afford those protections to the

identities or documents associated with CS5, CS6, CS7, CS10, CS12, and CS14, respectively. Still,

as discussed below, the bulk of the documents Vary improperly has designated as “confidential

source” material remains protected by the statute’s qualified privilege for nonconfidential

newsgathering material, albeit under a different standard.

Vary’s Nonconfidential Newsgathering Materials

The bulk of the remaining materials — including all documents on USB#2 not subject

to confidential-source protection — are subject to the reporter’s shield’s qualified privilege for

nonconfidential news and news sources, The Court concludes that the following are protectable as

“news ... not obtained or received in confidence”*: (1) all source identities and documents

appearing on USB#1 except (a) communications with Rapp prior to 2017, (b) communications

between Vary and attorneys concerning Fowler’s subpoena, and (c) 2021 communications with

Darlow Smithson Productions concerning Vary’s prospective involvement in the documentary film

about Spacey; (2) all source identities and documents appearing on USB#2; and (3) one file of 2017

oo

By the same token, any direct communications or notes of interviews with those sources also

fall outside the scope of Fowler’s subpoena.

48

N.Y. Civ. RIGHTS LAW § 79-h(c) (McKinney).

25

Rapp-Vary text messages that appears to have been mistakenly included on USBH4.”

The question thus becomes whether Fowler has overcome the qualified privilege as

to any portion of the nonconfidential newsgathering material. To do so, he must show that the

material “(i) is highly material and relevant; (iD is critical or necessary to the maintenance of a

party’s claim, defense or proof of an issue material thereto; and (iii) is not obtainable from any

alternative source,” and in a manner capable of supporting “clear and specific findings” that those

requirements have been met.*”

The dispositive issue here is whether any portion of Vary’s nonconfidential

newsgathering material “is critical or necessary to the maintenance of a party's claim, defense or

proof of an issue material thereto.”°! While the New York Court of Appeals has yet to interpret this

particular portion of Section 79-h(c),”* the Circuit has adopted an interpretation that requires a clear

and specific 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.’”*? The test is “not merely that the

49

As the Court has noted already, Vary designated USB #1 for the “unpublished, non-

confidential material” and USB#2 for the “unpublished, confidential material.” USB#4 is

marked simply “non-privileged documents.” The Rapp-Vary text thread that appears on

USB#4 is duplicative of messages already included on USB#1.

50.

N.Y, Civ. RIGHTS LAW § 79-h(c) (McKinney); see Matter of Perito v. Finklestein, 51 A.D.3d

674, 675 (2d Dept. 2008); Flynn v. NYP Holdings, 235 A.D.2d 907, 908 3d Dept. 1997).

BE

N.Y. Civ. RIGHTS LAW § 79-h(c) (McKinney).

52

See People v. Juarez, 31 N.Y.3d 1186, 1203 (2018) (Rivera, J., dissenting) (“This Court has

not previously cpined on the proper standard to use to assess whether a party has fulfilled

the ‘critical or necessary’ prong for the disclosure of information enjoying a qualified

privilege.”).

33

In ve Application to Quash Subpoena to Nat. Broad. Co., Inc., 79 F.3d 346, 351 (2d Cir.

1996) (quoting United States v. Marcos, No. 87 CR 598, 1990 WL 74521, at *3 (S.D.NLY.

26

material be helpful or probative, but whether or not the defense of the action may be presented

without it."

Fowler argues principally that the subpoenaed records are necessary to proper

evaluation of Rapp’s credibility. While the Court certainly expects that the claims and defenses in

this case are likely to rise or fall on questions of credibility generally, it notes also the lingering

doubt surrounding whether credibility is ever a proper basis for overcoming the qualified privilege,

even where credibility is “the central issue in the case.”** What is more, even if this case does rise

or fall on the issue of Rapp’s credibility, as indeed is likely, it still would require a sizeable leap to

hold that it rises or falls on the admission or exclusion of Vary’s documents. Generally speaking,

it is more difficult to establish that such disclosure is critical or necessary to maintaining an action

where the movant seeks unpublished statements of an opposing party, rather than those given by the

movant him or herself.** Although Fowler already is in possession of text messages indicating that

Vary may have had a motive to omit or change details to protect Rapp from later being contradicted

about inaccurate statements, he is not in a position to show how the undisclosed materials — at least

those falling within the qualified newsgathering privilege — would render Rapp’s claim non-viable.

June 1, 1990)).

54

fnre Application to Quash Subpoena to Nat. Broad. Co., inc., 79 F.3d at 351 (quoting Doe

v. Cummings, No. 91-346, 1994 WL 315640, at *1 (Sup. Ct. St. Lawrence Cnty, Jan. 18,

1994)) (emphasis added).

35

Giufire v. Maxwell, 221 F, Supp. 3d 472, 479-80 (S.D.NLY. 2016); see fn re Am. Broad.

Companies, Inc., 189 Misc.2d 805, 808 (Sup. Ct. N.Y. Cnty. 2001) C[T]he privilege may

yield only when the party seeking the material can define the specific issue, other

than general credibility, as to which the sought-after interview provides truly necessary

proof”).

56

See, e.g., People v. Combest, 4 N.Y.3d 341 (2005).

27

The Court already has determined on summary judgment that Fowler’s defense is viable even

without those materials. The New York Legislature amended the shield law to create a qualified

privilege so that nonconfidential material would be subject to disclosure only as “a fast resort.””’

Accordingly, at least under the Second Circuit’s present interpretation of Section 79-h(c), Fowler

cannot overcome Vary’s qualified privilege as to the abovementioned newsgathering materials.

Attorney-Client Privilege and Work-Product Protection Not at Issue

The Court need not determine here whether Vary’s communications with his, Rapp’s,

or Buzzfeead’s attorneys are protected by the attorney-client privilege, since the attorney

communications he submitted all are outside the scope of the subpoena. For that reason, Vary need

not produce the attorney communications included on USB#] or USB#4 nor any document

appearing on USB#3 save for the privilege log.

Materials Not Privileged or Protected

Having identified those portions of the withheld material properly “protected from

disclosure by the Reporter’s Privilege/Shield,”°* what remains at this juncture are the materials on

USB#4 (other than the attorney communications and the 2017 Rapp-Vary text messages), Vary’s

pre-2017 communications with Rapp and 2021 messages regarding the Fowler documentary on

USB#1, and all of USB#5. As the Court noted earlier, Vary’s in camera submission identifies

57

in re Am. Broad. Companies, Inc., 189 Misc. 2d 805, 808 (Sup. Ct. N.Y. Cnty. 2001)

(emphasis in original).

58

See, e.g., Joint Stipulation (Dkt. 1-1, 22-mc-0063), at 61.

28

USB#4 simply as “non-privileged documents.” And because Vary already has segregated the

nonconfidential and confidential news materials on USB#1 and USB#2, respectively, it is not clear

whether Vary even intends to assert that any of the materials on USB#4 is subject to any privilege

or other substantive immunity. Nevertheless, the Court has no difficulty concluding that nearly all

of them are not, principally because they are available already to Fowler or to the public. Indeed,

the majority of the documents are public court filings and final versions of published news articles.

Others plainly are irrelevant in that they have no discernible connection to Rapp, Fowler, or any

portion of the subpoena. Ultimately, the Court is satisfied that Vary need not produce any

documents on USB#4 aside from two files of Twitter messages between Vary and the representative

from Darlow Smithson Productions, as those messages are referenced in and belong to the USB#1

email exchange about the Fowler documentary.

Vary’s pre-2017 communications with Rapp and the 2021 messages about the Fowler

documentary are a different story. First, it should go without saying that those documents are

wholly unrelated to newsgathering. Nothing in the pre-2017 exchanges between Rapp and Vary

suggests a professional relationship or the prospect of future reporting on Rapp. Meanwhile, the

messages about the Fowler documentary are simply about whether Vary might take on a paid role

in connection with that film, separate from his employment as an entertainment writer. Both

documents are relevant to Rapp’s credibility in connection with his publicly reported account of

what transpired in 1986. To be sure, netther Vary’s credibility nor the accuracy of his reporting is

a focus of this motion. But whether Vary had a motive to omit or change details to protect Rapp

from later being contradicted about an inaccurate statement plainly is germane to Fowler’s defense

29

here, particularly in light of the text messages already produced by Rapp.”

Lastly, also relevant is a brief text exchange between Vary and Vary’s father on

USB#5, which contains “documents reflecting communications between Vary and his... mother,

father, sister and cousin,” none of whom “played any role in the reporting of the articles about

Fowler or Rapp.” Obviously, what Vary’s family members think about his reporting or about Kevin

Spacey has no bearing on the merits of Rapp’s suit. One of the messages, however, is relevant for

a different reason, namely that it alludes to a negative interaction among Vary, Vary’s father, and

Fowler at a restaurant prior to publication of the 2017 Buzzfeed story. The Court concludes that this

message and incident are relevant to the reliability of Vary’s reporting on Rapp and therefore Rapp’s

credibility — on which this entire case turns,

The Court reaches its conclusion that the aforementioned documents comfortably

satisfy Rule 45’s relevance threshold in part as a function of its extensive in camera review, which

yielded new questions about the reliability and independence of Vary’s reporting on Rapp’s

allegation. While those questions were insufficient to place Vary outside the ambit of the New York

reporter’s shield, they certainly make more relevant any potential motives to obscure unverifiable

or inaccurate information that Rapp may have recounted to Vary when initially deciding to go

public.

Vary’s Objections to the Document Requests

As noted earlier, Vary objected to all of the document requests. He repeated the same

59

Indeed, the questions going to Vary’s pre-2017 ties to Rapp were among the comparatively

few that Vary answered and to which his attorney did not object at the deposition. See Vary

Dep. (Dkt. 1-3, 22-mc-0063), at 58-60.

30

boilerplate with respect to each, objecting

“to the extent that it calls for material protected from disclosure by the attorney-

client privilege, the attorney work product doctrine, and any other applicable

privilege or doctrine [and]... to the extent it calls for the disclosure of material

protected from disclosure by the right to privacy [and]... as vague, ambiguous,

overbroad and unduly burdensome [and] . . . to the extent that it calls for material

that is publicly available and/or equally accessible to the Subpoenaing Party [and]

... to the extent that it calls for material not in Vary’s possession, custody or control

[and ... ] to the extent that it calls for material that is not relevant and/or not

reasonably calculated to lead to the discovery of admissible evidence [and] . . . on

the grounds that the burden associated with searching for and producing potentially

responsive materials, if any, is not proportionate to the relevance, if any, of the

requested material.”

This course warrants comment quite apart from the issues discussed above,

As an initial matter, an objection to a request “to the extent that” it calls for

something meeting a particular description or is framed in an allegedly objectionable way is useless

because it informs neither the requesting party nor the Court of what if anything, has been withheld.

It thus leaves everyone at sea as to whether there is something to litigate about and leads to the

needless expenditure of time and money.

To put a finer point on it, Vary failed to articulate or even imply a good faith basis

for asserting any of these boilerplate objections. Certainly Vary’s counsel failed to rely on any of

them in opposing Fowler’s motion to compel compliance with the document subpoena. No

privilege/work product log nor any other showing of nexus between any document(s) withheld and

the privilege/protection invoked was submitted as would have been required by Fed. R. Civ. P. 45

and this Court’s local civil rules had there been any claim of attorney-client privilege or work

60

Vary Subpoena Objections (Dkt. 1-7, 22-mc-0063), at 5.

31

product protection.*' There was no substantiation for any claim of burden, and a reading of the

subpoena makes clear that there was nothing vague, ambiguous or overbroad about it. The

possession, custody and control objection was superfluous because the subpoena itself, by

incorporation of Fed. R. Civ. P. 34(a)(1)(A) in its definition of “document,” is expressly limited to

materials “in the responding party’s possession, custody, or control.”® Meanwhile, the purported

relevance objection failed to identify any extent to which any of the requests called for irrelevant

material.

Objections in these terms are inappropriate. This Court is unlikely to tolerate them

again.

Conclusion

For the foregoing reasons, Fowler’s motion to compel is GRANTED to the extent

that it seeks (a) production of Vary’s pre-2017 communications with Rapp, 2021 communications

with Darlow Smithson Productions, and documents regarding any interactions between Vary and

Fowler and (b) asupplemental deposition. Vary shall sit for a supplemental deposition not to exceed

four hours and answer, to the extent consistent with this Memorandum Opinion, all questions he

refused to answer at his initial deposition and all reasonable follow up questions and questions about

or relating to the newly produced documents and matters disclosed therein. The documents shall!

be produced no later than August 15, 2022. The supplemental deposition shall take place on a date

mutually acceptable to Vary and the parties, which shall be on or before September 9, 2022. It

61

See In re Chevron Corp., 749 F. Supp. 2d 170, 180 (S.D.N.Y. 2010), aff'd sub nom. Lago

Agrio Plaintiffs v. Chevron Corp., 409 F, App’x 393 (2d Cir. 2010); see also RG Abrams Ins.

y. L. Offs. of CR. Abrams, No. 221CV00194FLAMAAX, 2022 WL 422824, at *15 (C.D,

Cal. Jan. 19, 2022); Fed. R. Civ. P. 45(e}(2); S.D.N.Y. Local Civ. R. 26,2.

Fed, R. Civ. P. 34(a)(1).

32

otherwise is DENIED. In addition, the order to show cause dated June 13, 2022 (Dkt. 220, 20-cy-

9586) is discharged. Items 3, 4 and 5 listed in that order will be filed on the public docket on or after

August 11, 2022.

SO ORDERED.

Dated: August 9, 2022

ee Lewis. Kapl 1

United States District Judge