# The New York Times Co. v. Gonzales

> District Court, S.D. New York · March 2, 2005 · 382 F. Supp. 2d 457

URL: https://www.frixlaw.com/law-library/cases/2410752

## Case

- **Full name:** The NEW YORK TIMES COMPANY, Plaintiff, v. Alberto GONZALES, in His Official Capacity as Attorney General of the United States, and the United States of America, Defendants
- **Court:** District Court, S.D. New York
- **Decided:** March 2, 2005
- **Citations:** 382 F. Supp. 2d 457; 2005 WL 427911
- **Precedential status:** Published
- **Opinion:** Opinion by Sweet
- **Judges:** Sweet
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2410752

## How later opinions describe it (automated extraction)

- rejecting the argument that a Rule 17(c) motion to quash proceeding qualified as a “special statutory proceeding” because it could arise in any criminal matter
- recognizing privilege under Rule 501
- discussing the varied characterizations of opinion and holdings

## Opinion text

OPINION
SWEET, District Judge.
The defendants Alberto Gonzales (“Gonzales”) in his official capacity as Attorney General of the United States
1
and the
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United States of America (collectively, the “government”) have moved under Rule 12, Fed.R.Civ.P., to dismiss the complaint of The New York Times Company (“The Times”) seeking a declaratory judgment concerning the confidentiality of telephone records for two of its reporters, which records are held by a third-party telephone company. The Times has moved for summary judgment under Rule 56, Fed.R.Civ.P., seeking certain of the relief sought in its complaint. The government has cross-moved for summary judgment dismissing the complaint. Upon the facts found to be undisputed and the conclusions of law set forth below, the government’s motion to dismiss is denied, its cross-motion for summary judgment is granted in part and denied in part, and the motion of The Times is granted in part and denied in part.
The Issues Presented
These motions present competing considerations of the role of secrecy in our society. Secrecy may well be seen as the enemy of freedom when it conceals facts important to public understanding.
2
Yet here, both sides seek to enforce secrecy, albeit from dramatically different perspectives. The government, through a grand jury proceeding, seeks to investigate, and perhaps to prosecute, an alleged breach of a government secret, namely, the timing of the seizure of assets and Federal Bureau of Investigation (“FBI”) searches of the offices of two Islamic charities in the fall of 2001. The Times, in opposing the government’s efforts, seeks to keep confidential the identity of the sources known to two of its reporters who wrote articles during the same period.
At issue is the proper relationship between two vitally important aspects of our democracy: the free press on the one hand and the fair and full administration of criminal justice on the other. Secrecy in government appears to be on the increase.
See, e.g.,
Pete Weitzel,
Freedom of Information: A Zeal for Secrecy,
The American Editor, May-June-July 2004, at 4; Bill Moyers, Journalism Under Fire, Address at the Society of Professional Journalists 2004 National Convention (Sept. 11, 2004),
available at
http://www.spj.org/moy-ers_spch.pdf (last visited Feb. 22, 2005).
3
This development may well impact the ability of the press to report the news.
See, e.g.,
The Reporters Committee for Freedom of the Press,
Homefront Confidential: How the War on Terrorism Affects Access to Information and the Public’s Right to Know
(5th ed.2004),
available at
http://www.rcfp.org/homefrontconfiden-tial/ (last visited Feb. 22, 2005).
The free press has long performed an essential role in ensuring against abuses of governmental power. Indeed,
[T]he press serves and was designed to serve as a powerful antidote to any abuses of power by governmental officials and as a constitutionally chosen means for keeping officials elected by
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the people responsible to all the people whom they were selected to serve.
Mills v. Alabama,
384 U.S. 214, 219 , 86 S.Ct. 1434 , 16 L.Ed.2d 484 (1966) (observing that “[t]he Constitution specifically selected the press, which includes not only newspapers, books, and magazines, but also humble leaflets and circulars, to play an important role in the discussion of public affairs”) (internal citation omitted). Informed public opinion, as our Supreme Court has recognized, “is the most potent of all restraints upon misgovernment....”
Grosjean v. American Press Co.,
297 U.S. 233, 250 , 56 S.Ct. 444 , 80 L.Ed. 660 (1936);
see also Cox Broadcasting Corp. v. Cohn,
420 U.S. 469, 492 , 95 S.Ct. 1029 , 43 L.Ed.2d 328 (1975) (“Without the information provided by the press most of us and many of our representatives would be unable to vote intelligently or to register opinions on the administration of government generally.”);
New York Times Co. v. United States,
403 U.S. 713, 717 , 91 S.Ct. 2140 , 29 L.Ed.2d 822 (1971) (Black, J., concurring) (“In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy.... The press was protected so that it could bare the secrets of government and inform the people”).
In order to gather information on sensitive topics, reporters, particularly those investigating stories that implicate our government and public officials, often depend upon confidential sources. In the words of Max Frankel, the former Executive Editor of The Times, offered some thirty years ago in connection with the
Pentagon Papers
case:
4
In the field of foreign affairs, only rarely does our Government give full public information to the press for the direct purpose of simply informing the people. For the most part, the press obtains significant information bearing on foreign policy only because it has managed to make itself a party to confidential materials, and of value in transmitting those materials from government to other branches and offices of government as well as the public at large. This is why the press has been wisely and correctly called The Fourth Branch of Government.
(Affidavit of Judith Miller, sworn to Nov. 12, 2004 (“Miller Aff”), Ex. 8, at ¶7.)
Just as the ability of the press to report on issues of significance often depends on information obtained from others, so too is the ability of federal prosecutors to investigate and enforce the nation’s criminal laws dependent upon the power of the federal prosecutor to obtain, at times through compulsion, testimony and evidence necessary to determine whether a crime has been committed. It is axiomatic that, in seeking such testimony and evidence, the prosecutor acts on behalf of the public and in furtherance of the “strong national interest in the effective enforcement of its criminal laws.”
United States v. Davis,
767 F.2d 1025, 1035 (2d Cir.1985) (citations omitted). Indeed, it is a fundamental and “ancient proposition of law,”
United States v. Nixon,
418 U.S. 683, 709 , 94 S.Ct. 3090 , 41 L.Ed.2d 1039 (1974), that “ ‘the public ... has a right to every man’s evidence,’ except for those persons protected by a constitutional, common-law, or statutory privilege.”
Branzburg v. Hayes,
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408 U.S. 665, 688 , 92 S.Ct. 2646 , 33 L.Ed.2d 626 (1972) (citations omitted and alteration in original).
Here presented by the motions and cross-motion are the conflicting interests of the press and the federal criminal justice system — each institution, in turn, representing distinct interests of the public— under the particular circumstances presented by the parties to this litigation.
By this action, The Times seeks a declaratory judgment that the telephone records of two reporters employed by The Times, Judith Miller (“Miller”) and Philip Shenon (“Shenon”), relating to time periods of twenty-three and eighteen days, respectively, during the months following September 11, 2001, are protected against compelled disclosure by the First Amendment to the U.S. Constitution, federal common law and the guidelines of the U.S. Department of Justice (“DOJ”) set forth in 28 C.F.R. § 50.10 (the “Guidelines”).
5
The telephone records at issue, held by an unidentified third-party telephone company or companies, are being sought by the government as part of an investigation to uncover the identity of one or more government employees who purportedly “leaked” information to Miller and Shenon relating to the government’s plans to block the assets and search the offices of two Islamic charity organizations in the fall of 2001. According to The Times, the disclosure of the telephone records at issue would not only constitute an unacceptable violation of the privacy of both Miller and Shenon but would also likely reveal the identities of dozens of confidential sources who are of no relevance to the government’s investigation. It is the position of The Times that reporters are afforded both constitutional and common law protections with respect to the preservation of the identity of confidential sources, and that, under the circumstances of this case, the government has failed to establish that these protections are outweighed by the interest in effective law enforcement.
It is the government’s position that the relief sought by The Times is both unwarranted and inappropriate, as the grant of such relief would permit a federal district court of the Southern District of New York to interfere with and potentially enjoin an investigation currently being conducted by a federal grand jury in the Northern District of Illinois, thereby encroaching on the authority of the Chief Judge of that district. The government further argues that the reporter’s privilege invoked by The Times does not protect the telephone records in question and, even if it did, is outweighed by the public’s interests in law enforcement, the fair administration of criminal law, and the prevention of misconduct by government agents.
The statement of these issues establishes the sensitive and difficult nature of the task presented to the Court.
Prior Proceedings
6
This action was initiated on September 29, 2004 by the filing of a complaint by The Times seeking a declaratory judgment and alleging four causes of action. Count I alleges a violation of the First and Fifth Amendments of the U.S. Constitution by
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virtue of the government’s efforts to obtain and review the telephone records at issue without affording The Times an opportunity to be heard before a court of law. Counts II and III allege that the telephone records at issue are protected from disclosure under the First Amendment and by virtue of the reporter’s privilege under federal common law, respectively. Count IV alleges that the government has not complied with the Guidelines.
The parties subsequently agreed to maintain the status quo with respect to the records sought and agreed to a briefing schedule. On October 14, 2004, the government moved under Rule 12, Fed. R. Civ. P., to dismiss the complaint. On November 12, 2004, pursuant to Rule 56, Fed.R.Civ.P., The Times moved for summary judgment on Counts II, III and IV. On January 8, 2005, pursuant to Rule 56, Fed.R.Civ.P., the government cross-moved for summary judgment to dismiss the same claims. The parties argued all three motions on January 19, 2005, and the motions were marked fully submitted at that time.
Facts
The following facts are drawn from The Times’ Local Civil Rule 56.1 Statements, the government’s Local Civil Rule 56.1 Statement, and the supporting affidavits and affirmations submitted by the parties.
Miller has been an investigative reporter for The Times since 1977, serving as a bureau chief, editor, and special correspondent, and she has authored four books (including
Germs,
an analysis of the threat posed by germ warfare that was published in September, 2001). She shared a Pulitzer Prize for a series of articles concerning international terrorism including A1 Qaeda published in
The New York Times
in January 2001. She has written for The Times on national security, terrorism, the Middle East, and weapons of mass destruction.
Shenon has been a correspondent for The Times since 1981. He began his career at The Times as an assistant in the Washington bureau, and he subsequently served as a correspondent in Iran, Kuwait, Iraq, and Thailand. He then returned to The Times’ Washington bureau. Shenon has been nominated for a Pulitzer Prize. He has written for The Times on homeland security, terrorism, the work of the National Commission on Terrorist Attacks Upon the United States (commonly known as the 9-11 Commission), the organization of intelligence agencies, and the prosecution of Zacarías Moussaoui, an alleged co-conspirator in the attacks of September 11, 2001.
Miller and Shenon have utilized confidential sources consistently in their work, and both have testified that confidential sources are essential in their reporting. (Miller Aff. ¶ 17; Affidavit of Philip She-non, sworn to Nov. 9, 2004 (“Shenon Aff.”), at ¶ 12.)
Miller and The Times have reported on terrorism and the involvement of Islamic charities since 1993.
See, e.g.,
Judith Miller,
Israel Says that a Prisoner’s Tale Links Arabs in U.S. to Terrorism,
N.Y. Times, Feb. 17,1993, at Al.
On February 19, 2000,
The New York Times
published an article written by Miller that stated that the U.S. government was investigating more than thirty Islamic charities suspected of having ties with terrorist organizations.
See
Judith Miller,
Some Charities Suspected of Terrorist Role,
N.Y. Times, Feb. 19, 2000, at A5. According to the article, targets of this investigation included two U.S. entities: the Global Relief Foundation, Inc. (“GRF”), located in Bridgeview, Illinois, and the Holy Land Foundation for Relief and Development (“HLF”), located in Richardson, Texas.
See id.
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The October 1, 2001 edition of
The New York Times
carried an article co-authored by Miller stating that “administration officials” were recommending that GRF be added to a list of Islamic charities and organizations whose assets would be frozen because they were “suspected of providing money and support to [Osama bin Laden’s] terrorist operations.” Judith Miller
&
Kurt Eichenwald,
A Nation Challenged: The Investigation; U.S. Set To Widen Financial Assault,
N.Y. Times, Oct. 1, 2001, at Al. This article relied on information provided to Miller by confidential sources.
On November 4, 2001,
The Los Angeles Times
carried a front-page article reporting that federal authorities were “intensifying their scrutiny of Islamic American nonprofits,” including GRF and HLF, “as possible sources of funding for Al Qaeda and other terrorist organizations,” and that the Treasury Department was seeking financial records related to GRF, HLF and other charities. Lisa Getter
et al., Response To Terror; Sunday Report; Islamic American Nonprofits Face Increased Scrutiny in U.S.,
L.A. Times, Nov. 4, 2001, at Al. This article quoted an HLF director who claimed that he had been interviewed several weeks earlier by two FBI agents and that the agents communicated concerns that HLF was affiliated with terrorists.
See id.
At some time prior to December 3, 2001, Miller received information from one or more confidential sources concerning the government’s intent to freeze the assets of HLF. (Miller Aff. ¶ 9.)
On December 3, 2001, consistent with The Times’ policy of seeking comment from the subjects of its articles, Miller telephoned HLF and spoke with HLF representatives about the information that had been disclosed to her by one or more confidential sources. According to Miller, she sought comment from HLF at this time only “about the government’s intent to block HLF’s assets,” and she did not intend to tip-off HLF about the impending FBI search of HLF’s offices.
(Id.
¶ lOll.) Patrick J. Fitzgerald, U.S. Attorney for the Northern District of Illinois (“Fitzgerald”), representing the government, has stated that on the night of December 3, 2001, Miller disclosed to HLF personnel that “government action was imminent” (Affirmation of Patrick J. Fitzgerald, dated Nov. 19, 2004 (“Fitzgerald Aff.”), at ¶ 3), and that the HLF personnel were surprised by the information conveyed by Miller.
(Id.
¶ 5). According to Miller, “[t]hat government action was taken against [HLF] did not come as a surprise to even a casual observer.” (Miller Aff. ¶ 5.)
On December 4, 2001,
The New York Times
carried an article written by Miller that revealed that President Bush planned to announce that the federal government was freezing HLF’s assets.
See
Judith Miller,
U.S. To Block Assets It Says Help Finance Hamas Killers,
N.Y. Times, Dec. 4, 2000, at Al. This article was available on The Times’ website on the evening of December 3 and in the early editions of the December 4 newspaper, which were available at newsstands late in the evening on December 3.
On December 4, 2001, FBI agents searched HLF’s offices. According to Fitzgerald, the disclosure by Miller to HLF on December 3 had the effect of creating increased safety risks to the FBI agents conducting the search and of increasing the likelihood of destruction or concealment of evidence or assets. (Fitzgerald Aff. ¶ 3.) According to The Times, the government has provided no facts to support its assertion that the HLF search was so compromised.
At some point prior to December 13, 2001, Shenon received information concerning the government’s intent to freeze
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the assets of GRF. (Shenon Aff. ¶ 5.) This information came from one or more confidential sources.
(Id.)
Consistent with The Times’ policy of seeking comment from the subjects of its articles, on December 13, 2001, Shenon contacted a GRF representative about the information received from the confidential sources. The GRF representative referred Shenon to a GRF attorney with whom Shenon subsequently spoke. According to Shenon, he contacted GRF “for the purpose of seeking comment on the government’s apparent intent to freeze its assets.”
(Id.
¶ 7.) According to the government, Shenon disclosed to the GRF representatives that “government action was imminent.” (Fitzgerald Aff. ¶ 3).
Fitzgerald has noted that
The Washington Post
reported that GRF representatives were surprised by Shenon’s disclosure to them.
(Id.
¶ 5 (quoting Susan Schmidt,
Reporters’ Files Subpoenaed; New Leak Probe Concerns 2001 Raid on Islamic Charity,
Wash. Post, Sept. 10, 2004, at A16).) Shenon has stated that in light of prior news reports and prior government actions, the GRF raid was not a surprise. (Shenon Aff. ¶ 8.)
On December 14, 2001, FBI agents searched GRF’s offices. According to Fitzgerald, Shenon’s December 13 communication with GRF representatives put at risk the FBI agents who conducted the search and increased the likelihood that evidence and assets would be destroyed or concealed. (Fitzgerald Aff. ¶ 3.) According to The Times, the government has failed to come forward with any evidence that the investigation was compromised or that the FBI agents were endangered.
At some point after December 14, 2001, the U.S. Attorney’s Office for the Northern District of Illinois and the FBI Chicago Field Office commenced an investigation to determine whether government officials were responsible for disclosing to The Times that a search of GRF’s offices was imminent.
By letter dated August 7, 2002, Fitzgerald requested that The Times cooperate with the GRF investigation. To this end, Fitzgerald requested a voluntary interview with Shenon and voluntary production of the telephone records for Shenon for September 24 to October 2, 2001 and December 7 to December 15, 2001.
By letter dated August 13, 2002, George Freeman (“Freeman”), Assistant General Counsel of The Times, responded to Fitzgerald’s August 7 letter. Freeman stated that The Times had considered Fitzgerald’s request but could not comply because Shenon’s newsgathering activities, and, in particular, his conversations with confidential sources, were protected by the First Amendment, federal common law, applicable state law, and the Guidelines. The parties had no further communication until the summer of 2004.
By letter dated July 12, 2004, Fitzgerald informed The Times that his investigation had been expanded to include the alleged leak to Miller concerning the government’s plans to freeze HLF’s assets. Fitzgerald reiterated his previous request for a voluntary interview with Shenon and for voluntary production of the previously requested telephone records. Furthermore, he requested a voluntary interview with Miller and voluntary production of her telephone records for the following three time periods in 2001: September 24 to October 2, November 30 to December 4, and December 7 to December 15. Finally, pursuant to the Guidelines, Fitzgerald disclosed that he had been “duly authorized to obtain and review information from other sources, particularly those entities providing telephone service to
The New York Times,
Ms. Miller and Mr. Shenon.” (Affidavit of Floyd Abrams, sworn to Nov. 12, 2004 (“Abrams Aff.”), Ex. 3, at 2.) Fitzgerald warned that he intended to exercise
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this authority to obtain the telephone records “in very short order” if The Times refused to cooperate with the investigation.
(Id.)
After The Times received Fitzgerald’s July 12 letter, Freeman and Floyd Abrams (“Abrams”), outside counsel to The Times, contacted The Times’ telephone service providers. Freeman and Abrams requested that these providers notify The Times upon the receipt of any government subpoena for the telephone records of Miller and Shenon and that they not turn over such records to the government without first providing The Times an opportunity to mount a legal challenge to the compelled disclosure of such records. The telephone service providers responded that they would not undertake to inform The Times of any such subpoenas.
By letter of July 21, 2004, Freeman responded to Fitzgerald’s July 12 letter. Freeman stated that pursuant to the Guidelines and relevant case law, Fitzgerald had an obligation to exhaust all potential alternative sources for the sought information before resorting to compulsory process. Freeman stated that Fitzgerald’s letters had failed to indicate what steps, if any, Fitzgerald had taken to satisfy this obligation. Freeman’s letter stated:
We are especially concerned about your request regarding the phone records of two of our reporters. Obviously, were you to obtain such records, they would implicate not only the sources you claim exist with respect to the leaks you apparently are investigating, but, far more broadly, all of the sources that journalists Shenon and Miller had during [the] months indicated. This truly would be a fishing expedition well beyond any permissible bounds and would be a very serious violation of rights clearly protected by the First Amendment: with respect to all of their sources other than those implicated by your investigation, no showing would have been made by the government regarding the need to obtain those phone numbers and sources.
(Id.
Ex. 4, at 2.) Freeman stated that if the dispute over the telephone records for Miller and Shenon could not be otherwise resolved, The Times planned to litigate the issue. Freeman requested that subpoenas not be served on The Times’ telephone providers or other third parties until The Times was provided an opportunity, if necessary, to put the issue before a court.
By letter dated July 27, 2004, Fitzgerald responded to Freeman’s July 21 letter. Fitzgerald stated that pursuant to the Guidelines, The Times was not entitled to know what steps had previously been taken with respect to the investigation at issue. Fitzgerald stated: “We do not intend to engage in debate by letter. We will not delay further and will proceed.”
(Id.
Ex. 5, at 1.) Nonetheless, Fitzgerald invited Freeman to speak with him concerning The Times’ cooperation with the investigation.
After The Times received Fitzgerald’s July 27 letter, Abrams spoke with Fitzgerald by telephone. During the course of this conversation, Abrams asked Fitzgerald whether The Times’ telephone records were being sought in connection with a grand jury investigation and whether the telephone records had already been obtained. Fitzgerald declined to answer either question. However, Fitzgerald agreed to give Abrams a period of time to familiarize himself with the situation, and that, in the interim, the government would not seek to obtain any of The Times’ telephone records that it had not already obtained and that it would not review any such previously-obtained records.
By letter dated August 4, 2004, Abrams and Kenneth W. Starr (“Starr”), outside counsel to The Times, requested that Deputy U.S. Attorney General James Comey
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(“Comey”) grant The Times a meeting to discuss Fitzgerald’s efforts to obtain the telephone records for Miller and Shenon. Abrams and Starr stated that the telephone records at issue reflected hundreds of communications between Miller, Shenon and them respective confidential sources at a time when both reporters were investigating and reporting on an array of important and controversial issues. Abrams and Starr asserted that discovery of the telephone records could lead to the disclosure of potentially dozens of confidential sources without permitting The Times an opportunity to attempt to persuade a court that the records are protected. Finally, Abrams and Starr requested that the government not seek the telephone records at all or, in the alternative, agree to do so in a way that would afford The Times and its reporters the opportunity to assert that the records are protected.
Fitzgerald and Abrams spoke after the August 4 letter was delivered to Comey. According to Abrams, Fitzgerald at that time agreed that, pending a response from Comey, the government would continue to abide by his previous representations. (Abrams Aff. ¶ 12.)
By letter dated September 23, 2004, Co-mey declined The Times’ request for a meeting. Comey concluded that Fitzgerald’s conduct was proper in all respects:
Your complaint that [DOJ] failed to articulate a “need” for the records at issue presumes that we have an obligation to share with the
New York Times
a summary of the investigation to date before we can conduct our investigation. We have no such obligation and, indeed, are bound by law not to share sensitive investigative information with the press. Nor do we have an obligation to afford the
New York Times
an opportunity to challenge the obtaining of telephone records from a third party prior to our review of the records, especially in investigations in which the entity whose records are being subpoenaed chooses not to cooperate with the investigation .... Having diligently pursued all reasonable alternatives out of regard for First Amendment concerns, and having adhered scrupulously to [DOJ] policy, including a thorough review of Mr. Fitzgerald’s request within [DOJ], we are now obliged to proceed.
(Abrams Aff. Ex. 7, at 1-2.)
The Times initiated the present legal action on September 29, 2004. By letter dated October 14, 2004, Abrams informed the Court that “[w]e have engaged in fruitful discussions with counsel for the Government and can report that the Government has agreed to forgo any action to obtain records or to review any records that may have already been obtained until such time as [the Court] has ruled on the planned motions.... ” (Letter from Abrams to the Court of Oct. 14, 2004, at 1.)
In its brief dated October 27, 2004, the government stated for the first time that in connection with the HLF and GRF leaks, a grand jury empaneled in the Northern District of Illinois is currently investigating violations of law, including obstruction of justice, by federal government officials in the fall of 2001.
During the relevant time period from which telephone records are sought,
The New York Times
published fifteen articles written by Shenon and Miller. Many of these articles included information and statements provided by confidential sources. During this time period, Shenon and Miller also investigated and gathered information for numerous other articles that were not published until weeks later.
7
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(Miller Aff. ¶ 13; Shenon Aff. ¶ 11.) According to Miller and Shenon, the sought records will reveal hundreds of communications between Shenon and Miller and their confidential sources. (Miller Aff. ¶ 13; Shenon Aff. ¶ 11.)
Both Miller and Shenon have testified that the telephone records sought by the government will reveal communications with confidential sources that did not concern the HLF and GRF seizures (Miller Aff. ¶ 21; Shenon Aff. ¶ 15) as well as personal calls made by them. (Miller Aff. ¶ 12; Shenon Aff. ¶ 10.) Miller and She-non have both testified that disclosure of their confidential sources in this case would likely undermine their ability to elicit information from confidential sources in the future. (Miller Aff. ¶ 21; Shenon Aff. ¶ 12.)
Russell Scott Armstrong (“Armstrong”), a professional journalist with experience reporting on national securities matters and an expert on the use of secret and classified documents in daily journalism, has stated:
Many sources require ... guarantees of confidentiality before any extensive exchange of information is permitted.... [E]ven in public institutions that are known for their transparency and openness, officials and staff often require such guarantees of confidentiality before discussing sensitive matters such as major policy debates, personnel matters, investigations of improprieties and financial and budget matters.... Many types of reporting require the use of confidential sources. Prominent among these uses are ... investigative or “enterprise” journalism....
(Affidavit of Russell Scott Armstrong, sworn to Nov. 23, 2004 (“Armstrong Aff.”), at ¶¶ 9-10.) According to Armstrong, the broad use of secrecy in government and among corporate and institutional entities creates a need for journalists to rely on confidential sources.
(Id.
¶ 13.)
Jack Nelson, a former journalist with experience covering the administrations of U.S. presidents, has stated:
A reporter whose telephone records are turned over to prosecutors, thus potentially revealing dozens of confidential sources, would be greatly compromised in any future attempts to cover government. Other government sources who insist on confidentiality would have no reason to believe that the reporter could uphold such a promise and would refuse to cooperate. And it would undoubtedly have a ripple effect, silencing whistle-blowers and other government employees who might otherwise cooperate with the press in exposing government wrongdoing.
(Affidavit of Jack Nelson, sworn to Nov. 23, 2004 (“Jack Nelson Aff.”), at ¶ 6.) A Pulitzer Prize winner, Jack Nelson has catalogued a series of reports made possible through the use of confidential sources, including disclosures relating to Watergate, the pardon of President Nixon, allegedly improper activities of OMB Director Bert Lance and Billy Carter during the Carter presidency, Iran/Contra, and the Monica Lewinsky scandal. (Jack Nelson Aff. ¶ 5.)
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Jeffrey H. Smith (“Smith”), a lawyer with deep and varied experience in government, has testified by affidavit as to the function performed by government confidential sources:
As a long-time government attorney handling national security matters, I know that federal agencies benefit from the ability to have official speak confidentially, although in an authorized manner, with the news media.... This permits the government to get information to the public without attribution to a named official or without publicly declaring the statement as official policy.
(Affidavit of Jeffrey H. Smith, sworn to Nov. 23, 2004 (“Smith Aff.”), at ¶ 3.) Smith has stated that “[authorized disclosures ‘on background’ are substantially different than unauthorized leaks.”
(IcL
¶ 4.) “Nonetheless some leaks may be in the public interest.”
(Id.
¶ 5.)
Anna Nelson, a historian whose scholarship focuses on United States foreign policy, has stated:
Requiring journalists to reveal the identities of their sources, or obtaining the identity of those sources through telephone record subpoenas, would impoverish our knowledge of contemporary history since confidential sources are often the only sources available to the journalist and thus the original source for historians seeking to unravel public policy or foreign policy. A journalist’s exposure of the My-Lai incident is just such an example. The journalist was able to keep his sources confidential and as a consequence, historians have deepened their view of the way in which the war in Vietnam was fought.... The sources used by journalists are also important to counter the deliberate leaks from the government that are designed to influence the public.
(Affidavit of Anna Nelson, sworn to Nov. 23, 2004 (“Anne Nelson Aff.”), at ¶¶ 5-6.)
Discussion
I.
The Standards to be Applied
A.
The Rule 12(b) Standard
Rule 12(b), Fed.R.Civ.P., provides that a defendant may move to dismiss a complaint for “(1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, [and] (7) failure to join a party under Rule 19.” Fed.R.Civ.P. 12(b). Although the government has not specified which subsection of Rule 12 is being invoked in connection with its motion to dismiss the complaint, the grounds raised in the motion suggest that subsection (6) is the relevant provision.
In considering a motion to dismiss pursuant to Rule 12(b)(6), the Court construes the complaint liberally, “accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiffs favor,”
Chambers v. Time Warner, Inc.,
282 F.3d 147, 152 (2d Cir.2002) (citing
Gregory v. Daly,
243 F.3d 687, 691 (2d Cir.2001)), although “mere conclusions of law or unwarranted deductions” need not be accepted.
First Nationwide Bank v. Gelt Funding Corp.,
27 F.3d 763, 771 (2d Cir.1994) (quotation marks and citation omitted).
“ ‘[T]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.’ ”
York v. Ass’n of Bar of City of New York,
286 F.3d 122, 125 (2d Cir.) (quoting
Scheuer v. Rhodes,
416 U.S. 232, 236 , 94 S.Ct. 1683 , 40 L.Ed.2d 90 (1974)),
cert. denied,
537 U.S. 1089 , 123 S.Ct. 702 , 154 L.Ed.2d 633 (2002). In other words, “ ‘the office of a motion to dismiss is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be
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offered in support thereof.’ ”
Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co. of New York,
375 F.3d 168, 176 (2d Cir.2004) (quoting
Geisler v. Petrocelli,
616 F.2d 636, 639 (2d Cir.1980)). “[T]he court should not dismiss the complaint for failure to state a claim ‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ”
Ricciuti v. New York City Transit Auth.,
941 F.2d 119, 123 (2d Cir.1991) (quoting
Conley v. Gibson,
355 U.S. 41, 45-46 , 78 S.Ct. 99 , 2 L.Ed.2d 80 (1957));
accord Eternity Global Master Fund,
375 F.3d at 176-77 .
B.
The Rule 56 Standard
In considering a motion for summary judgment in an action for declaratory relief, courts apply the same standard under Rule 56, Fed.R.Civ.P., applicable to any other summary judgment motion.
See PDK Labs, Inc. v. Friedlander,
103 F.3d 1105, 1111 (2d Cir.1997);
Roe v. City of New York,
232 F.Supp.2d 240, 252 (S.D.N.Y.2002).
Pursuant to Rule 56, summary judgment may be granted only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
See
Fed.R.Civ.P. 56(c);
Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 , 106 S.Ct. 2548 , 91 L.Ed.2d 265 (1986);
SCS Communications, Inc. v. Herrick Co., Inc.,
360 F.3d 329, 338 (2d Cir.2004). The court will not try issues of fact on a motion for summary judgment, but, rather, will determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”
Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251-52 , 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986).
Summary judgment is appropriate where the moving party has shown that “little or no evidence may be found in support of the nonmoving party’s case. When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper.”
Gallo v. Prudential Residential Servs., Ltd. P’ship,
22 F.3d 1219, 1223-24 (2d Cir.1994) (internal citations omitted). If, however, “ ‘as to the issue on which summary judgment is sought, there is any evidence in the record from which a reasonable inference could be drawn in favor of the opposing party, summary judgment is improper.’ ”
Security Ins. Co. of Hartford v. Old Dominion Freight Line Inc.,
391 F.3d 77, 83 (2d Cir.2004) (quoting
Gummo v. Village of Depew,
75 F.3d 98, 107 (2d Cir.1996)).
“The party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists and that the undisputed facts establish her right to judgment as a matter of law.”
Rodriguez v. City of New York,
72 F.3d 1051, 1060-61 (2d Cir.1995) (citation omitted). This burden may be satisfied “by showing- — that is pointing out to the district court — -that there is an absence of evidence to support the nonmoving party’s case.”
PepsiCo, Inc. v. Coca-Cola Co.,
315 F.3d 101, 105 (2d Cir.2002) (per curiam) (internal quotation marks and citations omitted);
accord Goenaga v. March of Dimes Birth Defects Found.,
51 F.3d 14, 18 (2d Cir.1995).
In order to defeat a motion for summary judgment, the non-moving party must offer sufficient evidence to enable a reasonable jury to return a verdict in its favor.
See Anderson,
477 U.S. at 248 , 106 S.Ct. 2505 ;
Byrnie v. Town of Cromwell, Bd. of Educ.,
243 F.3d 93, 101 (2d Cir.2001);
Scotto v. Almenas,
143 F.3d 105, 114 (2d Cir.1998). In other words, the non-moving party “may not rely simply on conclusory statements or on contentions that the affi
*473
davits supporting the motion are not credible.”
Ying Jing Gan v. City of New York,
996 F.2d 522, 532 (2d Cir.1993);
accord Scotto,
143 F.3d at 114-15 .
A material fact is one that would “affect the outcome of the suit under the governing law,” and a dispute about a genuine issue of material fact occurs if the evidence is such that “a reasonable jury could return a verdict for the nonmoving party.”
Anderson,
477 U.S. at 248 , 106 S.Ct. 2505 ;
see also R.B. Ventures, Ltd. v. Shane,
112 F.3d 54, 57 (2d Cir.1997). Thus, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.”
Anderson,
477 U.S. at 248 , 106 S.Ct. 2505 ;
see also Quarles v. Gen. Motors Corp.,
758 F.2d 839, 840 (2d Cir.1985) (per curiam) (“[T]he mere existence of factual issues — where those issues are not material to the claims before the court — will not suffice to defeat a motion for summary judgment.”). In determining whether a genuine issue of material fact exists, a court must resolve all ambiguities and draw all reasonable inferences against the moving party.
See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 , 106 S.Ct. 1348 , 89 L.Ed.2d 538 (1986);
Gibbs-Alfano v. Burton,
281 F.3d 12, 18 (2d Cir.2002).
II.
The Motion to Dismiss Under Rule 12(b) Is Denied
Given the government’s theory of dismissal,
i.e.,
that the court should decline to exercise its discretion to declare the rights of the litigants, it is assumed that the government is proceeding pursuant to Rule 12(b)(6), Fed.R.Civ.P.
See, e.g., Alpine Group, Inc. v. Johnson,
No. 01 Civ. 5532(NRB), 2002 WL 10495 , at *4 (S.D.N.Y. Jan.3, 2002) (dismissing declaratory judgment claim on discretionary grounds pursuant to Rule 12(b)(6));
Gianni Sport Ltd. v. Metallica,
No. 00 Civ. 0937(MBM), 2000 WL 1773511 , at *6 (S.D.N.Y. Dec.4, 2000) (same);
Wilkinson v. Caronia Corp.,
No. 95 Civ. 5668(JSM), 1995 WL 653374 , at *1 (S.D.N.Y. Nov.7, 1995) (same).
For the reasons set forth below, the government’s motion is denied.
A.
The Requirements Of The Declaratory Judgment Act
The Declaratory Judgment Act provides in pertinent part that:
In a case of actual controversy within its jurisdiction ... any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.
28 U.S.C. § 2201 (a). The policy “animating the Declaratory Judgment Act ... is to enable parties to adjudicate their disputes before either suffers great damage.”
Starter Corp. v. Converse, Inc.,
84 F.3d 592, 596 (2d Cir.1996) (citing
In re Combustion Equipment Assocs.,
838 F.2d 35, 37 (2d Cir.1988)).
Not every dispute may be adjudicated in the federal courts as a declaratory judgment action. First, a basis for subject matter jurisdiction must exist apart from the Declaratory Judgment Act itself, as section 2201 “provides no independent basis for subject matter jurisdiction.”
Niagara Mohawk Power Corp. v. Tonawanda Band of Seneca Indians,
94 F.3d 747, 752 (2d Cir.1996) (citing
Albradco, Inc. v. Bevona,
982 F.2d 82, 85 (2d Cir.1992));
accord Starter,
84 F.3d at 594 .
8
Second, the
*474
Declaratory Judgment Act “permits declaratory relief only in cases presenting ‘actual controversies],’ 28 U.S.C. § 2201 (a), a requirement that incorporates into the statute the case or controversy limitation on federal jurisdiction found in Article III of the Constitution.”
Niagara Mohawk Poiver,
94 F.3d at 752 (alteration in original) (citing
Aetna Life Ins. Co. v. Haworth,
300 U.S. 227, 239-40 , 57 S.Ct. 461 , 81 L.Ed. 617 (1937)).
There is “no bright line rule for determining ‘whether the dispute presents a substantial controversy or merely an abstract question’.... Instead, courts must decide whether a justiciable controversy exists ‘on a case by case basis.’ ”
American Pioneer Tours, Inc. v. Suntrek Tours, Ltd.,
No. 97 Civ. 6220(DLC), 1998 WL 60944 , at *2 (S.D.N.Y. Feb.13, 1998) (citing
Kidder, Peabody & Co. v. Maxus Energy Corp.,
925 F.2d 556, 562 (2d Cir.1991)). As the Supreme Court explained in
Maryland Casualty Co. v. Pacific Coal & Oil Co.,
312 U.S. 270 , 61 S.Ct. 510 , 85 L.Ed. 826 (1941),
The difference between an abstract question and a “controversy” contemplated by the Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy. Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.
Maryland Cas.,
312 U.S. at 273 , 61 S.Ct. 510 . Thus, a declaratory judgment action “presents an actual controversy if ‘the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.’ ”
In re Prudential Lines Inc.,
158 F.3d 65, 70 (2d Cir.1998) (quoting
Maryland Cas.,
312 U.S. at 273 , 61 S.Ct. 510 );
accord Starter,
84 F.3d at 594-95 ;
Olin Corp. v. Consol. Aluminum Corp.,
5 F.3d 10 , 17 (2d Cir.1993).
Where it appears that “the contingent event upon which the controversy rests is unlikely to occur, the controversy lacks ‘sufficient immediacy and reality’ to warrant declaratory relief.”
In re Prudential Lines,
158 F.3d at 70 (citing
Certain Underwriters at Lloyd’s v. St. Joe Minerals Corp.,
90 F.3d 671 , 675 (2d Cir.1996) (observing that, “in the absence of an ‘actual controversy,’ a district court is without power to grant declaratory relief’) (citation omitted)). Similarly,
[t]he disagreement must not be nebulous or contingent but must have taken on fixed and final shape so that a court can see what legal issues it is deciding, what effect its decision will have on the adversaries, and some useful purpose to be achieved in deciding them.
Jenkins v. United States,
386 F.3d 415, 417-418 (2d Cir.2004) (quoting
Public Serv. Comm’n of Utah v. Wycoff Co., Inc.,
344 U.S. 237, 244 , 73 S.Ct. 236 , 97 L.Ed. 291 (1952)) (quotation marks omitted);
see also Certain Underwriters at Lloyd’s,
90 F.3d at 675 (observing that “[i]t is by now traditional law that ‘[t]he judicial power does not extend to ... abstract questions’ ”) (quoting
Wycoff,
344 U.S. at 242 , 73 S.Ct. 236 (internal quotation marks and citation omitted)). “Where the relief sought ‘would not resolve the entire case or controversy as to any [party] ..., but would merely determine a collateral legal issue governing certain aspects of ...
*475
pending or future suits,’ ” a subject of the declaratory judgment action does not qualify as a controversy under Article III.
Jenkins,
386 F.3d at 418 (quoting
Calderon v. Ashmus,
523 U.S. 740, 747 , 118 S.Ct. 1694 , 140 L.Ed.2d 970 (1998)). “Whether a real and immediate controversy exists in a particular case is a matter of degree and must be determined on a case-by-case basis.”
Kidder, Peabody,
925 F.2d at 562 .
B.
The Times Has Alleged An Actual Controversy
The government has not challenged the existence of subject matter jurisdiction over The Times’ claims pursuant to 28 U.S.C. § 1331 and § 1346(a)(2). Nor has the government raised any argument as to the propriety of venue pursuant to 28 U.S.C. § 1391 .
With respect to the Article III case or controversy requirement, the government has acknowledged that The Times has standing to assert its claim to a “legally cognizable [First Amendment] interest in the materials or information sought” by the government subpoena.
9
(Gov. Mem. Supp. Mot. Dismiss at 8-9.) It is well established that “[a] privilege may be invoked by a news gathering agency, in addition to a person engaging in news gathering dissemination.”
In re Williams,
766 F.Supp. 358 , 369 n. 12 (W.D.Pa.1991) (citing
United States v. Cuthbertson,
630 F.2d 139 (3d Cir.1980) (stating that a television network holds a privilege protecting against the disclosure of information gathered by its news reporters)),
aff'd by an equally divided en banc court,
963 F.2d 567 (3d Cir.1992);
Gulliver’s Periodicals v. Chas. Levy Circulating Co., Inc.,
455 F.Supp. 1197 (N.D.Ill.1978) (stating that “[a] publisher and [its] reporters are protected by the [F]irst [A]mendment ... from revealing the sources and source material on which they relied in writing and publishing [an] article”).
However, the government contends that the facts alleged, which it characterizes as concerning “hypothetical subpoenas issued in hypothetical circumstances[,]” (Gov. Mem. Supp. Mot. Dismiss at 7-8 n. 5), present merely a hypothetical question and no actual dispute. To the contrary, it is alleged that: (1) subpoenas have been threatened (Compl. ¶¶ 25 (quoting Letter of Fitzgerald to Watson of July 12, 2004, at 2), 28 & 30); (2) the Deputy Attorney General has stated that the Department is “obliged to proceed” (Compl. ¶ 30 (quoting Letter from Comey to Abrams of Sept. 23, 2004, at 2)); and (3) the government has previously rejected requests by The Times for details concerning when such subpoenas will issue. (ComplY 3).
Based on these allegations, The Times has properly stated: (1) that there is a substantial controversy, (2) that the parties have adverse legal interests, and (3) that the controversy has sufficient immediacy and reality.
See In re Prudential Lines,
158 F.3d at 70 . Therefore, declaratory relief is appropriate to allow the resolution of this dispute before it has “ripened to a point at which an affirmative remedy is needed.”
See
10B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,
Federal Practice & Procedure: Civil 3d
§ 2751, at 455 (1998).
Because this dispute involves First Amendment rights, the existence of a case and controversy is that much more apparent.
See City of Houston v. Hill,
482 U.S. 451 , 459 n. 7, 107 S.Ct. 2502 , 96 L.Ed.2d 398 (1987) (stating that the plaintiff had standing to seek declaratory and injunctive
*476
relief where a “genuine threat” existed that he would be prosecuted under an overbroad statute) (citation omitted);
Steffel v. Thompson,
415 U.S. 452, 458-59 , 94 S.Ct. 1209 , 39 L.Ed.2d 505 (1974) (stating that the petitioner presented an “actual controversy” within the meaning of Article III and the Declaratory Judgment Act where the threat of prosecution for distributing handbills was not “imaginary or speculative”);
see also Carlin Communications, Inc. v. Smith,
No. 83 Civ. 9004(CBM), 1984 WL 330 , at *6 (S.D.N.Y. May 8, 1984) (stating that “plaintiffs asserting the violation of First Amendment rights need not wait until they are subjected to criminal prosecution before challenging the statute in issue”).
Natco Theatres, Inc. v. Ratner,
463 F.Supp. 1124, 1127 (S.D.N.Y.1979) (stating that the plaintiff had standing to challenge a licensing statute on First Amendment grounds despite the fact that it had not yet applied for a license).
Under these principles and authorities, a justiciable controversy has been presented.
C.
The Discretionary Exercise of Jurisdiction
The government has urged the Court to decline to entertain The Times’ declaratory relief action on the following discretionary grounds: (1) that a motion to quash pursuant to Rule 17(c), Fed.R.Crim.P.,
10
is the more appropriate means of attacking a grand jury subpoena and (2) that this declaratory judgment action unreasonably encroaches on the authority of the District Court for the Northern District of Illinois, under whose auspices the subpoenas may issue.
The parties dispute the degree of discretion possessed by this Court in deciding whether to entertain a declaratory judgment action. According to The Times, “a district court is required to entertain a declaratory judgment action ‘(1) when the judgment will serve a useful purpose in clarifying and settling the legal relations in issue, or (2) when it will terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the proceeding.’ ”
Starter,
84 F.3d at 597 (quoting
Continental Cas.,
977 F.2d at 737).
The government contends that, pursuant to Supreme Court and Second Circuit cases decided after
Starter,
even where there is jurisdiction and an actual controversy, a district court retains discretion as to whether it will entertain a declaratory judgment action. The Supreme Court has explained:
Since its inception, the Declaratory Judgment Act has been understood to confer on federal courts unique and substantial discretion in deciding whether to declare the rights of litigants. On its face, the statute provides that a court
“may
declare the rights and other legal relations of any interested party seeking such declaration,” [ 28 U.S.C. § 2201 (a) ].... The statute’s textual commitment to discretion, and the breadth of leeway we have always understood it to suggest, distinguish the declaratory judgment context from other areas of the law in which concepts of discretion surface.
Wilton v. Seven Falls Co.,
515 U.S. 277, 286-87 , 115 S.Ct. 2137 , 132 L.Ed.2d 214 (1995) (emphasis in original and citations omitted).
The Second Circuit has subsequently affirmed a district court’s refusal to entertain a declaratory judgment action based on a “detailed analysis” of the following five factors: (1) “whether the judgment
*477
will serve a useful purpose in clarifying or settling the legal issues involved”; (2) “whether a judgment would finalize the controversy and offer relief from uncertainty”; (3) “whether the proposed remedy is being used merely for ‘procedural fencing’ or a ‘race to res judicata’ ”; (4) “whether the use of a declaratory judgment would increase friction between sovereign legal systems or improperly encroach on the domain of a state or foreign court”; and (5) “whether there is a better or more effective remedy.”
Dow Jones & Co., Inc. v. Harrods Ltd.,
346 F.3d 357, 359-60 (2d Cir.2003) (citations omitted).
Based on
Wilton
and
Dow Jones,
it is concluded that this Court possesses broad discretion concerning whether to exercise its jurisdiction to entertain a declaratory judgment action.
1.
The Availability of a More Appropriate Remedy
While conceding that the existence of another adequate remedy normally does not preclude declaratory judgment, the government asserts that pursuant to the advisory committee notes to Rule 57, Fed. R.Civ.P.,
11
a declaratory judgment should not be granted where a special statutory proceeding has been provided for the adjudication of the issue in dispute. The advisory committee notes relating to the 1937 adoption of Rule 57 state as follows:
A declaration may not be rendered if a special statutory proceeding has been provided for the adjudication of some special type of case, but general ordinary or extraordinary legal remedies, whether regulated by statute or not, are not deemed special statutory proceedings.
Id.
The government contends that just such a special statutory proceeding is available in this case: a motion to quash under Fed.R.Crim.P. 17(c).
12
According to The Times, a motion to quash is not a special statutory proceeding. However, neither party has cited authorities that define “special statutory proceeding” or that provide a criteria for determining whether a given proceeding constitutes a “special statutory proceeding.”
An influential commentator has provided the following useful description of the special statutory proceedings that are contemplated by the advisory notes to Rule 57:
It has already been noted that the declaratory action was not designed to interfere with the jurisdiction of special courts, but that on the contrary courts within their respective jurisdictions over persons and subject-matter were authorized by the Declaratory Judgment Acts to render declaratory judgments. Thus, when a probate court has jurisdiction over the construction of wills and matters of guardianship, it was not intended that courts of general jurisdiction should oust the jurisdiction of such special tribunals. In analogy thereto, where a special
statutory
procedure has been provided as an exclusive remedy for the particular type of case in hand, such as income tax assessment, tax abatement, workmen’s compensation, unemployment compensation, annulment of a bigamous
*478
marriage, that specific recourse must be followed. Thus, a court should not by declaratory judgment ordinarily interfere with the jurisdiction of an administrative commission, especially where the statute is not ambiguous and where the jurisdiction of the committee depends on a jurisdictional fact ... which the commission must in first instance determine.
Edwin Borchard,
Declaratory Judgments,
at 342-43 (2d ed.1941) (citations omitted and emphasis in original). Borchard’s definition of the term “special statutory pro
ceeding”
— ie., that it denotes a procedure that is intended as the exclusive means for the adjudication of a particular category of case
(e.g.,
income tax assessment cases or workers’ compensation claims) — is regarded as authoritative.
See, e.g., Lac D'Amiante du Quebec, Ltee v. American Home Assur. Co.,
864 F.2d 1033, 1042 (3d Cir.1988);
Washington Terminal Co. v. Boswell,
124 F.2d 235, 260 (D.C.Cir.1941);
Upham v. Dill,
195 F.Supp. 5, 10 (S.D.N.Y.1961).
The cases cited in the parties’ motion papers appear consistent with the above-described narrow definition of the term “special statutory proceeding.” Those cases identified only three types of proceedings that have been recognized as “special statutory proceedings”: (1) petitions for habeas corpus and motions to vacate criminal sentences,
see, e.g., Clausell v. Turner,
295 F.Supp. 533, 536 (S.D.N.Y.1969); (2) proceedings under the Civil Rights Act of 1964,
see, e.g., Katzenbach v. McClung,
379 U.S. 294, 296 , 85 S.Ct. 377 , 13 L.Ed.2d 290 (1964); and (3) certain administrative proceedings.
See, e.g., Deere & Co. v. Van Natta,
660 F.Supp. 433, 436 (M.D.N.C.1986) (involving a proceeding for decision on patent validity before U.S. patent examiners).
The procedure to quash a subpoena pursuant to Rule 17(c) does not fit the above-described narrow definition of the term “special statutory proceeding” because it was not adopted as the exclusive means of adjudicating a particular type of claim. Moreover, under the government’s construction, the “special statutory proceeding” exception to Rule 57 would overwhelm the rule. That is, under the government’s theory, any procedure available under the Federal Rules of Criminal Procedure or the Federal Rules of Civil Procedure (all of which are referenced in the United States Code) would suffice to satisfy the “special statutory proceeding” requirement, and the Declaratory Judgment Act would be rendered largely nugatory.
In the alternative, the government argues that in comparison to a declaratory judgment action, a motion to quash under Rule 17(c) is a more efficient and less cumbersome device for challenging the propriety of a grand jury subpoena. In particular, the government has raised concerns that discovery in this action might prove unwieldy or might improperly encroach upon grand jury secrecy. However, on the facts presented thus far, neither party has sought discovery of evidence put before the grand jury, and neither party has argued that it has suffered prejudice as a result of the absence of such evidence.
Moreover, an efficient mechanism exists for the disposition of any petitions for disclosure of grand proceedings that might arise during the course of this action.
See
Fed.R.Crim.P. 6(e)(3)(E)(i).
13
Pursuant to this mechanism, the district court for the Northern District of Illinois would retain
*479
substantial control over any such petition: “[a] petition to disclose a grand-jury matter ... must be filed in the district where the grand jury convened[J” Fed.R.Crim.P. 6(e)(3)(F), and the petitioned court has authority to rule on the petition if it can “reasonably determine whether disclosure is proper.... ” Fed.R.Crim.P. 6(e)(3)(G). Furthermore, in the event that it were to grant such a petition, the district court for the Northern District of Illinois has authority to direct disclosure “at a time, in a manner and subject to any other conditions that it directs.” Fed.R.Crim.P. 6(e)(3)(E).
More fundamentally, a motion to quash cannot, as the government claims, provide The Times with the same relief provided by a declaratory judgment. Rule 17(c), Fed.R.Crim.P., provides no authority or mechanism for a court to quash potential subpoenas that have been threatened but which have not yet been issued, and Rule 17(c) does not provide an avenue for relief in situations where subpoenas have been issued and there has been full compliance by the subpoenaed party. In contrast, an action for declaratory judgment pursuant to 28 U.S.C. § 2201 (a) — “which allows the court to declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought,” provides potential relief as to those records that have already been obtained as well as those that the government is currently seeking to obtain.
See, e.g., Doe v. Harris,
696 F.2d 109, 114 (D.C.Cir.1982) (holding that an individual whose records were subpoenaed from a third-party in a grand jury investigation had the right to seek declaratory relief concerning those subpoenas and the issuance of future subpoenas by any U.S. Attorney’s Office).
The government also argues that the Court should decline to entertain the present action because The Times has engaged in a form of procedural fencing, whereby it has attempted to circumvent the Federal Rules of Criminal Procedure to obtain an inappropriate tactical advantage. Since, on the facts set forth above, The Times cannot properly avail itself of the remedy afforded by Rule 17(c), there is no merit to the argument that The Times is attempting to circumvent the rule.
Based on the foregoing, the government has failed to demonstrate the existence of a more appropriate remedy that would justify refusal to entertain The Times’ declaratory judgment action.
2.
The Availability of a More Appropriate Venue
The government has not moved to dismiss this action pursuant to Rule 12(b)(3), Fed.R.Civ.P., on the ground of improper venue,
14
and it has not moved for a transfer of venue for the convenience of the parties pursuant to 28 U.S.C. § 1404 (a). Nonetheless, the government has contended that this Court should re
*480
frain from entertaining this action so that the issues raised by The Times can be decided by the U.S. District Court for the Northern District of Illinois.
The government argues that if the Court entertains this action, it could lead to wide-scale disruption of grand jury investigations by declaratory judgment actions scattered throughout multiple jurisdictions. To prevent such disruptions to grand jury proceedings, the government argues that this Court should adopt a
per se
rule that declaratory judgment actions to adjudicate issues relating to the compulsion of evidence by a grand jury may only be brought in the district where the grand jury sits. There is no support for such a
per se
rule in the plain text of 28 U.S.C. § 2201 (a). Moreover, Section 2201(a) enumerates certain types of disputes
(e.g.
those arising under 11 U.S.C. § 1146 , 26 U.S.C. § 7428 , and 19 U.S.C. § 1516a(f)(10)) for which declaratory judgment is unavailable, suggesting that declaratory judgment is generally available in other contexts. Nor has the government pointed to any other legal authority in support of its proposed
per se
rule. In the absence of any such authority, the Court declines to adopt this broad limitation on the availability of declaratory judgment.
Furthermore, in light of The Times’ substantial connection to this district, its choice of forum is entitled to substantial deference.
See, e.g., Wiwa v. Royal Dutch Petroleum Co.,
226 F.3d 88, 101 (2d Cir.2000) (“While any plaintiffs selection of a forum is entitled to deference, that deference increases as the plaintiffs ties to the forum increase.”). Finally, the facts of this case do not implicate the forum-shopping concerns identified by the
Dow Jones
court: Use of a declaratory judgment here will neither increase friction between sovereign legal systems nor improperly encroach on the domain of a state or foreign court.
See Dow Jones,
346 F.3d at 359-60 .
3.
The Appropriateness of the Relief Sought
The government argues that through this declaratory judgment action The Times seeks unwarranted and inappropriate injunctive relief. As previously stated,
see supra
note 5, The Times is not pressing its request for injunctive relief in connection with the motions and cross-motion addressed here. Moreover, the determination as to the existence and application of an evidentiary privilege is not, as the government contends, tantamount to a permanent injunction.
Under the principles and authorities set forth above, the government’s motion to dismiss the declaratory judgment action on Rule 12(b) grounds is denied.
III.
The Government’s Cross-Motion For Summary Judgment Is Granted
As
To Count TV Of The Complaint, And The Times’ Motion As To The Same Count Is Denied
As Count IV of its complaint, The Times has asserted that the government has failed to comply with the DOJ’s Guidelines with regard to the telephone records sought here and that, as a result, the government should be barred from seeking or obtaining those telephone records. The Guidelines in question, set forth in 28 C.F.R. § 50.10 ,
15
address,
inter alia,
the
*481
issuance of subpoenas to members of the media by the DOJ and the issuance of subpoenas for telephone records of members of the media. According to The Times, the Guidelines offer protection to a reporter’s confidential source information and that protection should be extended to the telephone records sought here. In opposition, the government has argued that the Guidelines do not support a private cause of action.
Initially announced in 1970 in what then-Attorney General John N. Mitchell termed an effort “to prohibit federal law enforcement officers from annexing the media as an investigative arm,”
16
and subsequently amended in 1980 to provide protection for telephone records of members of the media,
17
the Guidelines reflect a fundamental concern with “strik[ing] the proper balance between the public’s interest in the free dissemination of ideas and information and the public’s interest in effective law enforcement and the fair administration of justice.” 28 C.F.R. § 50.10 (a);
see also
28 C.F.R. § 50.10 (m) (noting “the intent of this Section to protect freedom of the press, news gathering functions, and news media sources ... ”).
This concern was expressly articulated in the Guidelines’ preamble:
Because freedom of the press can be no broader than the freedom of reporters to investigate and report the news, the prosecutorial power of the government should not be used in such a way that it impairs a reporter’s responsibility to cover as broadly as possible controversial public issues. This policy statement is thus intended to provide protection for the news media from forms of compulsory process, whether civil or criminal, which might impair the news gathering function.
28 C.F.R. § 50.10 . In accordance with the stated interests, the Guidelines are to be “adhered to by all members of the Department in all cases” in order to balance “the concern that the Department of Justice has for the work of the news media and the Department’s obligation to the fair administration of justice.... ” 28 C.F.R. § 50.10 .
By their terms, the Guidelines require members of the DOJ not to issue subpoenas to members of the news media in criminal cases before: (1) negotiations with the media members concerned have been pursued, during which negotiations the government has clarified its needs in the case and its willingness to respond to the media member’s concerns; and (2) the Attorney General has authorized the subpoena.
See
28 C.F.R. § 50.10 (c) & (e). The Guidelines further caution that “[a]ll reasonable attempts should be made to obtain information from alternative sources before considering issuing a subpoena to a member of the news media....” 28 C.F.R. § 50.10 (b).
In criminal cases, a request for the authorization of the Attorney General to is
*482
sue a subpoena to members of the news media is to be guided by the principle that,
[T]here should be reasonable grounds to believe, based on information obtained from nonmedia sources, that a crime has occurred, and that the information sought is essential to a successful investigation — particularly with reference to directly establishing guilt or innocence. The subpoena should not be used to obtain peripheral, nonessential, or speculative information.
28 C.F.R. § 50.10 (f)(1). In addition, requests for authorization are subject to the principle that, absent “exigent circumstances,” subpoenas to members of the media “should ... be limited to the verification of published information and to such surrounding circumstances as relate to the accuracy of the published information.” 28 C.F.R. § 50.10 (f)(4). Moreover,
Subpoenas should, wherever possible, be directed at material information regarding a limited subject matter, should cover a reasonably limited period of time, and should avoid requiring production of a large volume of unpublished material. They should give reasonable and timely notice of the demand for documents.
28 C.F.R. § 50.10 (f)(6).
With respect to subpoenas for the telephone records of a member of the media, the Guidelines provide that, prior to seeking a subpoena, the government should have pursued all reasonable alternative investigation steps and that no subpoena may be issued absent the Attorney General’s express authorization.
See
28 C.F.R. § 50.10 (b), (e)
&
(g)(1). Where such authorization is being sought,
There should be reasonable ground to believe that a crime has been committed and that the information sought is essential to the successful investigation of that crime. The subpoena should be as narrowly drawn as possible; it should be directed at relevant information regarding a limited subject matter and should cover a reasonably limited time period.
28 C.F.R. § 50.10 (g)(1). The Guidelines direct that negotiations with the affected member of the media shall be pursued in all cases in which a subpoena for telephone records is contemplated if it is determined that such negotiations would not pose a substantial threat to the integrity of the underlying investigation.
See
28 C.F.R. § 50.10 (d). They further direct that timely notice of the Attorney General’s determination to authorize a subpoena for telephone records and the DOJ’s intent to issue a subpoena shall be provided to the media member where such negotiations have occurred.
See
28 C.F.R. § 50.10 (g)(2). There is no requirement that further notice concerning the actual issuance of the subpoena be provided to the media member with whom negotiations have occurred.
But cf.
28 C.F.R. § 50.10 (g)(3) (providing that, when a subpoena for telephone records has been issued without prior notice, “notification of the subpoena shall be given the member of the news media as soon thereafter as it is determined that such notification will no longer pose a clear and substantial threat to the integrity of the investigation”).
The Guidelines, by their own terms, “are not intended to create or recognize any legally enforceable right in any person.” 28 C.F.R. § 50.10 (n). Drawing on this language, several courts of other circuits have concluded that no private cause of action to enforce the Guidelines exists.
See, e.g., In re Grand Jury Subpoena, Judith Miller,
397 F.3d 964, 976 (D.C.Cir.2005) (“Given the nature of the guidelines themselves, and the function they govern, we conclude, that the guidelines provide no enforceable rights to any individuals, but merely guide the discretion of the prosecutors.”);
In re Shain,
978 F.2d 850, 854 (4th Cir.1992) (concluding that DOJ attorneys had complied with the Guidelines and that,
*483
in any event, the Guidelines were “of the kind to be enforced internally” only);
In re Grand Jury Subpoena American Broadcasting Cos., Inc.,
947 F.Supp. 1314, 1322 (E.D.Ark.1996) (observing that, even if an appointed Independent Counsel were required to comply with the Guidelines, contrary to the language of 28 U.S.C. § 594 (f), the Guidelines, “by their own terms, confer no enforceable right on the subpoenaed person”);
see also In re Special Proceedings,
373 F.3d 37 , 44 n. 3 (1st Cir.2004) (noting that the Guidelines disclaim creation of legally enforceable rights and that “[c]ase law points in the same direction”) (citations omitted). In other words, the Guidelines are “ ‘of the kind to be enforced internally by a governmental department, and not by courts.’ ”
In re Grand Jury Proceedings No. 92-4,
42 F.3d 876, 880 (4th Cir.1994) (quoting
In re Shain,
978 F.2d at 854 ).
Notwithstanding the express disclaimer set forth in subsection (n) of the Guidelines, The Times takes the position that the Guidelines are both binding and privately enforceable, citing two cases in which district courts have quashed subpoenas issued to reporters.
See United States v. Blanton,
534 F.Supp. 295, 297 (S.D.Fla.1982) (holding that “if the party seeking the information is the United States, it must follow the Department of Justice guidelines, 28 C.F.R. § 50 .10” and concluding that the government had “failed to meet the legal tests set forth”);
cf. In re Williams,
766 F.Supp. at 371 (stating that the court had “considered” the Guidelines in arriving at the decision to quash a grand jury subpoena directed at a reporter and observing that “[i]t is manifestly clear that the government has not discharged the obligation imposed by these regulations”).
In invoking the Guidelines, the courts in both
Blanton
and
Williams
relied upon
Morton v. Ruiz,
415 U.S. 199 , 94 S.Ct. 1055 , 39 L.Ed.2d 270 (1974), as has The Times here, for the proposition that “[wjhere the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures. This is so even where the internal procedures are possibly more rigorous than otherwise would be required.”
Ruiz,
415 U.S. at 235 , 94 S.Ct. 1055 ;
see In re Williams,
766 F.Supp. at 371 n. 13 (citing Ruiz);
Blanton,
534 F.Supp. at 297 (same). In
Ruiz ,
the Court held that, before the Bureau of Indian Affairs could extinguish “the entitlement of ... otherwise eligible beneficiaries, it must comply, at a minimum, with its own internal procedures” concerning the publication of an “extremely significant eligibility requirement, affecting rights of needy Indians.”
Ruiz,
415 U.S. at 235 , 94 S.Ct. 1055 . The
Ruiz
Court concluded that the publication requirement was intended to confer a benefit on potential beneficiaries, and therefore declined to affirm the attempt of the Bureau of Indian Affairs to limit the availability of general assistance benefits based upon unpublished eligibility requirements.
See id.
at 236 , 94 S.Ct. 1055 .
While the Guidelines at issue here announce the DOJ’s “intent[ ] to provide protection for the news media from forms of compulsory process,” 28 C.F.R. § 50.10 , and its further intent “to protect freedom of the press, news gathering functions, and news media sources,” 28 C.F.R. § 50.10 (m), these expressions of intent simply reflect the goals underlying the DOJ’s policy with respect to the exercise of prosecutorial discretion in the context of dealings with members of the media.
See In re Grand Jury Subpoena, Judith Miller,
397 F.3d at 976 (concluding that the Guidelines “merely guide the discretion of the prosecutors”). It is neither the nature nor the purpose of the Guidelines to confer a legally enforceable benefit or right in any person, as they expressly acknowl
*484
edge,
see
28 C.F.R. § 50.10 (n),
18
rendering
Ruiz
and its progeny inapposite.
See In re Grand Jury Subpoena, Judith Miller,
897 F.3d at 976-77.
Because the Guidelines are just that — touchstones to assist the DOJ in its exercise of prosecutorial discretion' — and confer no substantive rights or protections such as may be privately enforced, the government’s motion for summary judgment as to Count IV is granted, and The Times’ motion for summary judgment as to that same count is denied.
IV.
The Times’ Motion For Summary Judgment As To Counts II and III Is Granted And The Government’s Cross-Motion For Summary Judgment On Those Same Counts Is Denied
A.
There Is A Qualified Reporter’s Privilege Under The First Amendment
According to The Times, the First Amendment to the U.S. Constitution prohibits a grand jury from compelling disclosure of a journalist’s confidential sources unless it first meets a stringent test reflecting a paramount public interest in the existence and maintenance of a press capable of furthering unfettered debate about matters of public interest. According to the government, a grand jury’s efforts to compel disclosure of a reporter’s confidential source do not implicate the First Amendment unless the grand jury investigation is conducted in bad faith, without legitimate law enforcement purpose, or to harass the press and disrupt relationships with news sources.
The resolution of this question hinges on the interpretation of
Branzburg v. Hayes,
408 U.S. 665 , 92 S.Ct. 2646 , 33 L.Ed.2d 626 (1972), which concerned First Amendment claims asserted by reporters who had been held in contempt either for failure to appear or for failure to testify before grand juries investigating criminal conduct of which the reporters had gained knowledge in the course of preparing stories for publication. In
Branzburg ,
the reporters argued that their newsgathering activities were protected by a qualified First Amendment privilege, pursuant to which
[a] reporter should not be forced either to appear or to testify before a grand jury or at trial until and unless sufficient grounds are shown for believing that the reporter possesses information relevant to a crime the grand jury is investigating, that the information the reporter has is unavailable from other sources, and that the need for the information is sufficiently compelling to override the claimed invasion of First Amendment interests occasioned by the disclosure.
Branzburg,
408 U.S. at 680 , 92 S.Ct. 2646 .
In a 5-4 decision, the Supreme Court upheld the contempt convictions. The
Branzburg
majority stated: “The issue in these cases is whether requiring newsmen to appear and testify before state or federal grand juries abridges the freedom of speech and press guaranteed by the First Amendment. We hold that it does not.”
Id.
at 667 , 92 S.Ct. 2646 . At the end of the majority opinion, the Court noted that “news gathering is not without its First Amendment protections, and grand jury investigations if instituted or conducted other than in good faith, would pose wholly
*485
different issues for resolution under the First Amendment.”
Id.
at 707 , 92 S.Ct. 2646 .
Justice Powell, who joined the
Branz-burg
majority, wrote a separate concurring opinion “to emphasize ... the limited nature of the Court’s holding.”
Id.
at 709 , 92 S.Ct. 2646 (Powell, J., concurring). Justice Powell stated that “[t]he Court does not hold that newsmen, subpoenaed to testify before a grand jury, are without constitutional rights with respect to the gathering of news or in safeguarding their sources.”
Id.
(Powell, J., concurring). Justice Powell proceeded to describe the proper framework for determining whether, pursuant to the rule adopted by the
Branzburg
majority, a given reporter can be compelled to appear and give testimony before a grand jury:
[I]f the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationship without a legitimate need of law enforcement, he will have access to the court on a motion to quash and an appropriate protective order may be entered. The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions.
Id.
at 710 , 92 S.Ct. 2646 (Powell, J., concurring). This language is prescient in view of the particular issue here presented.
In light of Justice Powell’s concurring opinion, courts and commentators have differed on how to categorize the opinion of the majority written by Justice White.
19
Some courts have taken the position that Justice White wrote for a plurality of the Court and that the scope of the
Branzburg
holding is controlled by Justice Powell’s narrow concurrence.
See, e.g., United States v. Smith,
135 F.3d 963, 969 (5th Cir.1998) (citing
In re Selcraig,
705 F.2d 789, 793 (5th Cir.1983));
In re Grand Jury 87-3 Subpoena Duces Tecum,
955 F.2d 229, 232 (4th Cir.1992);
see also
Robert D. Sack,
Sack on Defamation
§ 14.3.2 at 14-13-14-14 (3d ed.2004) (stating that “[b]e-cause Justice White’s plurality opinion was rather enigmatic and Justice Powell was the pivotal fifth vote, his concurring opinion has been treated as authoritative”). And at least one court has acknowledged at least the possibility that “[s]inee the [four] dissenting Justices would have gone further than Justice Powell in recognition of the reporter’s privilege, and preferred his position to that of the majority opinion ..., maybe his opinion should be taken to state the view of the majority of the Justices .... ”
McKevitt v. Pallasch,
339 F.3d 530, 532 (7th Cir.2003).
Other courts have concluded that Justice White wrote for the majority and that Justice Powell’s concurring opinion “neither limits nor expands upon its holding.”
In re Grand Jury Proceedings,
810 F.2d 580, 585 (6th Cir.1987);
see also In re
*486
Grand Jury Subpoena, Judith Miller,
397 F.3d at 970-971 ;
Silkwood v. Kerr-McGee Corp.,
563 F.2d 433, 437 (10th Cir.1977).
Courts also differ as to what, exactly, the
Branzburg
court actually held. The Supreme Court, although it has not addressed the issue of a reporter’s privilege since
Branzburg ,
has subsequently stated that “the First Amendment [does not] relieve a newspaper reporter of the obligation shared by all citizens to respond to a grand jury subpoena and answer questions relevant to a criminal investigation, even though the reporter might be required to reveal a confidential source.”
Cohen v. Cowles Media Co.,
501 U.S. 663, 669 , 111 S.Ct. 2513 , 115 L.Ed.2d 586 (1991);
see also University of Pennsylvania v. E.E.O.C.,
493 U.S. 182, 201 , 110 S.Ct. 577 , 107 L.Ed.2d 571 (1990).
Some circuit courts have taken the position that, in light of Justice Powell’s concurrence,
Branzburg
recognized some form of a qualified First Amendment reporter’s privilege.
See, e.g., Ashcraft v. Conoco, Inc.,
218 F.3d 282, 287 (4th Cir.2000);
United States v. LaRouche Campaign,
841 F.2d 1176, 1181 (1st Cir.1988);
United States v. Cuthbertson,
630 F.2d 139, 147 (3d Cir.1980);
Silkwood,
563 F.2d at 437 .
Other courts read
Branzburg
for the proposition that “there is no First Amendment privilege protecting journalists from appearing before a grand jury or otherwise providing evidence to a grand jury regardless of any confidence promised by the reporter to any source.”
In re Grand Jury Subpoena, Judith Miller,
397 F.3d at 969-970 ;
see also In re Grand Jury Proceedings,
5 F.3d 397, 400 (9th Cir.1993);
In re Grand Jury Proceedings (Storer Communications, Inc. v. Giovan),
810 F.2d 580, 583 (6th Cir.1987).
The first case from this circuit to interpret
Branzburg
was
Baker v. F & F Investments,
470 F.2d 778 (2d Cir.1972),
cert. denied,
411 U.S. 966 , 93 S.Ct. 2147 , 36 L.Ed.2d 686 (1973), in which the Second Circuit affirmed a district court’s refusal to order a journalist to disclose the identity of a confidential source to the plaintiffs in a federal civil rights class action.
See Baker,
470 F.2d at 785 . While the
Baker
court took the position that
Branzburg
did not control the outcome of the dispute before it, it did suggest that
Branzburg
could be read to recognize the existence of a qualified privilege that required case-by-case balancing of the interests militating for and against disclosure of a journalist’s confidential source.
Id.
at 784 . The
Baker
court stated:
Significantly, [Justice Powell] said that even in criminal proceedings, “[t]he asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions.”
Id.
at 784 (quoting
Branzburg,
408 U.S. at 710 , 92 S.Ct. 2646 (Powell, J., concurring)).
Ten years later, in
In re Petroleum Products Antitrust Litig.,
680 F.2d 5 (2d Cir.),
cert. denied sub nom. Arizona v. McGraw-Hill, Inc.,
459 U.S. 909 , 103 S.Ct. 215 , 74 L.Ed.2d 171 (1982), the Second Circuit vacated an order imposing civil contempt sanctions on a publisher who refused to disclose to civil litigants the identities of certain of its confidential sources.
See In re Petroleum Products,
680 F.2d at 9 . The
Petroleum Products
court held that the parties seeking disclosure had failed to make the requisite initial showing justifying such disclosure. The court stated:
*487
The law in this Circuit is clear that to protect the important interests of reporters and the public in preserving the confidentiality of journalists’ sources, disclosure may be ordered only upon a clear and specific showing that the information is: [1] highly material and relevant, [2] necessary or critical to the maintenance of the claim, and [3] not obtainable from other available sources.
Id.
at 7 (quoting
Baker,
470 F.2d at 783-85 ) (quotation marks omitted). Like the
Baker
court before it, the
Petroleum Products
court distinguished
Branzburg
on the ground that its holding was “limited to the grand jury setting.”
Id.
at 9 n. 12. Nonetheless, the
Petroleum Products
court cited a portion of the
Branzburg
majority opinion
20
for the proposition that a party seeking disclosure of a reporter’s confidential sources had the “burden of first seeking the information elsewhere.”
Id.
at 8 (citing
Branzburg,
408 U.S. at 706-07 , 92 S.Ct. 2646 ).
A year later, in
United States v. Burke,
700 F.2d 70 (2d Cir.),
cert. denied,
464 U.S. 816 , 104 S.Ct. 72 , 78 L.Ed.2d 85 (1983), the Second Circuit affirmed the quashing of a subpoena by which a criminal defendant sought to compel a publisher to produce notes and other work papers relating to a magazine article co-authored by the prosecution’s principal witness.
See Burke,
700 F.2d at 78 . The
Burke
court held that the qualified privilege articulated by the
Petroleum Products
court applied with equal force in criminal cases,
see id.
at 77 , stating that:
no legally-principled reason [existed] for drawing a distinction between civil and criminal cases when considering whether the reporter’s interest in confidentiality should yield to the moving party’s need for probative evidence.
Id.
The
Burke
court stated that the application of the
Petroleum Products
rule in the context of a criminal trial comported with the
Branzburg
decision, which “recognized the need to balance First Amendment values even where a reporter is asked to testify before a grand jury ... [.]”
Id.
(citing
Baker,
470 F.2d at 784-85 ). Applying the
Petroleum Products
three-factor test to the discovery dispute before it, the
Burke
court concluded that compelling the disclosure of the sought materials was not warranted because the party seeking disclosure had failed to make the requisite showing of necessity.
Id.
(stating that “the appellant has completely failed to make the clear and specific showing that these documents were necessary or critical to the maintenance of his defense”).
Finally, the
Burke
court indicated that the qualified reporter’s privilege previously recognized by the Second Circuit derives from the First Amendment.
See id.
The court stated that:
There exists no absolute rule of privilege protecting newsmen from disclosure of confidential sources. Instead, what is required is a case by case evaluation and balancing of the legitimate competing interests of the newsman’s claim to First Amendment protection from forced disclosure of his confidential sources, as against the [moveant’s] claim [that disclosure is warranted].
Id.
(quoting
United States v. Orsini,
424 F.Supp. 229, 232 (E.D.N.Y.1976),
aff'd,
559 F.2d 1206 (2d Cir.1977)).
In
von Bulow by Auersperg v. von Bulow,
811 F.2d 136 (2d Cir.),
cert. denied sub nom. Reynolds v. Von Bulow by Auersperg,
481 U.S. 1015 , 107 S.Ct. 1891 ,
*488
95 L.Ed.2d 498 (1987), the Second Circuit affirmed a civil contempt order against a witness who refused to produce certain subpoenaed documents
(i.e.,
investigative reports, notes, and a book manuscript) to a civil litigant.
See von Bulow,
811 F.2d at 146 . The witness argued that the documents, which were either written by her or on her behalf, were protected from disclosure pursuant to a qualified First Amendment privilege. The Second Circuit held that the witness could not avail herself of the qualified First Amendment privilege because she had not generated the sought materials with the intention of disseminating information to the public.
See id.
at 147 .
In so holding, the
von Bulow
court provided the following analysis of
Branzburg :
[T]he Supreme Court held that a journalist does not have an absolute privilege under the First Amendment to refuse to appear and testify before a grand jury to answer questions relevant to an investigation into the commission of crime.... The Court recognized, however, that a qualified privilege may be proper in some circumstances because
newsgathering
was not without First Amendment protection, [citation omitted].
Id.
at 142 (emphasis in original). Based on
Branzburg ,
the
von Bulow
court concluded that “the process of newsgathering is a protected right under the First Amendment, albeit a qualified one. This qualified right, which results in the journalist’s privilege, emanates from the strong public policy supporting the unfettered communication of information by the journalist to the public.”
Id.
In
United States v. Cutler,
6 F.3d 67 (2d Cir.1993), the Second Circuit had occasion to revisit the application of
Branzburg
in the criminal context. In
Cutler ,
the Second Circuit affirmed in part and reversed in part a civil contempt order entered against newspaper and television reporters who had refused to produce unpublished notes and outtakes
(i.e.,
unedited, unbroad-cast videotape footage) that had been subpoenaed by criminal defense attorney Bruce Cutler (“Cutler”), the defendant in a criminal contempt prosecution.
See Cutler,
6 F.3d at 68-69 . Cutler had sought the materials at issue to help him defend against a charge that, in the course of his representation of John Gotti (“Gotti”), he had intentionally and willfully violated Rule 7 of the Criminal Rules for the Southern and Eastern Districts of New York (“Local Criminal Rule 7”),
21
which limits the dissemination of public information by or on behalf of attorneys in connection with a pending criminal litigation.
The
Cutler
court acknowledged that
Burke
had recognized the existence of a qualified First Amendment reporter’s privilege,
see id.
at 71 , and it declined to address Cutler’s argument that
Burke
was “at odds with the majority
Branzburg
view that there should be no special threshold test for the compulsion of a reporter’s testimony before a grand jury or in a criminal case.”
Id.
at 73. Rather, the
Cutler
court stated that it was required to follow
Branzburg
because the facts before it were sufficiently similar to those of
Branzburg, see id.
at 73, and the
Cutler
court appears to have engaged in some form of the
Petroleum Products
analysis to determine if disclosure of the sought materials was warranted.
See id.
at 73-74 .
In holding that Cutler was entitled to both testimony from the reporters concerning his published statements and also unpublished notes and outtakes, the Second Circuit emphasized: (1) the necessity and relevance of such materials to Cutler’s defense and (2) the fact that such materi
*489
als were not available from any other source.
See id.
The
Cutler
court stated:
Other than Cutler’s own testimony, which of course cannot be compelled, the evidence that Cutler seeks from the Reporters and the TV Stations is probably the
only
significant proof regarding his assertedly criminal behavior. Further, even if Cutler should choose to testify, we see no justification for consigning him to his unassisted memory when clearly relevant evidence is readily available from the Reporters and TV Stations. Finally, one of Cutler’s major lines of defense is that the statements alleged to be contemptuous were in fact “replies] to charges of misconduct” that are expressly precluded from the purview of Rule 7. That defense would be undercut if Cutler could not obtain relevant evidence regarding the context of his statements that is available only from the Reporters and the TV Stations.
Id.
(emphasis and alteration in original).
In contrast, the court held that Cutler was not entitled to production of reporters’ unpublished notes concerning statements by government officials about Gotti and the Gotti criminal prosecution, which Cutler sought for the purpose of demonstrating that the vast majority of publicity concerning the Gotti case came from sources other than Cutler.
See id.
at 74 . The court took the position that such documents were not sufficiently material to justify compelled disclosure.
See id.
at 74-75 . The court stated:
The comparative impact of Cutler’s public statements and other publicity regarding the Gotti Case manifestly depends upon what was published on that subject, not upon what is in the Reporters’ unpublished notes. Similarly, the unpublished notes will cast no light on what Cutler was entitled to say “in response to
public allegations
that Mr. Cutler had engaged in misconduct,” ... and will provide no assistance to Cutler in establishing that his statements “concerned matters other than the pending
Gotti
case.” Finally, the content of the unpublished notes, by definition unknown to Cutler at the time that he made the statements upon which the contempt charges are premised, can hardly have affected his intent in making those statements.
Id.
(emphasis in original).
Finally, it should be noted that the
Cutler
court stated that the
Burke
holding should be limited to its facts because
“Burke’s
articulation of a general test applicable to all phases of a criminal trial was not necessary to the resolution of that case.”
Id.
at 73 .
In
Gonzales v. National Broadcasting Co., Inc.,
194 F.3d 29, 36-37 (2d Cir.1999), the Second Circuit affirmed orders by a district court holding the National Broadcasting Company, Inc. (“NBC”) in civil contempt and compelling NBC to produce certain outtakes from the news program
Dateline
to the parties to a federal civil rights action. In so holding, the
Gonzales
court affirmed that the Second Circuit had previously recognized the existence of a qualified privilege for nonconfidential information collected by reporters, and it concluded that the parties seeking this discovery had satisfied the
Petroleum Products
requirements for overcoming that qualified privilege.
See Gonzales,
194 F.3d at 30 . The
Gonzales
court stated that “where nonconfidential information is at stake, the showing needed to overcome the journalist’s privilege is less demanding than for material acquired in confidence.”
22
Id.
*490
The
Gonzales
court clarified two issues concerning the
Cutler
decision. ■ First,
Gonzales
stated that “[although [the
Cutler
court] did not apply the standards for overcoming the privilege elucidated in
Petroleum Products,
it is clear [the
Cutler
court] proceeded on the assumption that ... a qualified journalists privilege applied, and the defendant had to show a sufficient need for the information to overcome the privilege.”
Id.
at 34. Second, the
Gonzales
court stated that it understood
Cutler
to limit
Burke
to its facts only as to “how much of a showing was needed to
overcome
the privilege when the materials at issue were sought by a criminal defendant.”
Id.
(emphasis in original). According to
Gonzales ,
this limitation resulted from
Cutler’s
view that
“Burke
undervalued the needs of criminal defendants in putting on a defense.”
Id.
Based upon the Second Circuit’s interpretation of
Branzburg
in the cases just described, district courts in this circuit have recognized the existence of a qualified reporter’s privilege derived from the First Amendment.
See, e.g., Aequitron Medical, Inc. v. CBS, Inc.,
No. 93 Civ. 950(DC), 1995 WL 406157 , at *2 (S.D.N.Y. Jul.10, 1995) (stating that pursuant to the First Amendment, “courts in this Circuit have recognized a qualified privilege for journalists to protect confidential sources and other information obtained during the newsgathering process”) (citing
von Bulow,
811 F.2d at 142 );
PPM America, Inc. v. Marriott Corp.,
152 F.R.D. 32, 35 (S.D.N.Y.1993) (stating that “on a case-by-case basis, federal courts weigh a reporter’s claim to First Amendment protection from forced disclosure ... ”) (citing
Burke,
700 F.2d 70, 76-77 );
United States v. Sanusi,
813 F.Supp. 149, 154 (E.D.N.Y.1992) (stating that “[t]he First Amendment privilege for newsgathering is not absolute” and can be overcome if the
Petroleum Products
test is satisfied);
United States ex rel. Vuitton et Fils S.A. v. Karen Bags, Inc.,
600 F.Supp. 667, 669 (S.D.N.Y.1985) (stating that the Second Circuit has recognized a qualified First Amendment reporter’s privilege extending to both criminal and civil cases) (citing
Burke,
700 F.2d at 77 );
In re Forbes Magazine,
494 F.Supp. 780, 781 (S.D.N.Y.1980) (applying
Baker
to determine whéther reporter’s First Amendment interest in the non-disclosure of confidential source had been overcome);
In re Application of Consumers Union of United States, Inc.,
495 F.Supp. 582, 586 (S.D.N.Y.1980) (same).
In view of the foregoing, it is concluded that the Second Circuit, based on
Branzburg ,
has recognized a qualified First Amendment privilege, applicable in civil actions and in all phases of a criminal prosecution, that protects reporters from compelled disclosure of confidential sources.
See Burke,
700 F.2d at 77 . Pursuant to this qualified privilege, the party seeking disclosure must make “a clear and specific showing that the sought information is: [1] highly material and relevant, [2] necessary or critical to the maintenance of the claim, and [3] not obtainable from other available sources.”
Id.
at 76-77 (quoting
In re Petroleum Products,
680 F.2d at 7 (citing
Baker,
470 F.2d at 783-85 )). The burden to overcome the qualified privilege is diminished where: (1) the party seeking discovery is a criminal defendant,
see Gonzales,
194 F.3d at 34 n. 3 (interpreting
Cutler,
6 F.3d at 73 ) or (2) the sought materials are nonconfidential.
See id.
at 30.
The government’s contentions that this qualified privilege should not be applied in the context of a grand jury investigation do not overcome the conclusions set forth above.
*491
First, the government argues that
Branzburg
did not recognize a privilege requiring case-by-case balancing of the interests militating for and against disclosure of a journalists’ sources. The government argues that its position is buttressed by the recently decided
In re Grand Jury Subpoena, Judith Miller,
397 F.3d 964 (D.C.Cir.2005) at 969-70, in which the District of Columbia Circuit flatly rejected the interpretation of
Branzburg
urged by The Times.
See In re Grand Jury Subpoena, Judith Miller,
397 F.3d at 969-70 . The District of Columbia Circuit took the position that the First Amendment provides no privilege protecting a reporter from appearing before or providing evidence to a grand jury. As described above, the proper interpretation of
Branzburg
is an issue that has divided those circuits that have had occasion to consider it, and the interpretation of
Branzburg
urged by the government is contrary to the view adopted by the Second Circuit and the courts of this district.
Moreover, the government’s interpretation of
Branzburg
— i.e., that it held that the First Amendment right of reporters to gather information from confidential sources does not include a right to resist giving evidence in a grand jury investigation where there is no evidence or claim that the investigation is being conducted in bad faith or for the purposes of harassment — is tautological. That is, regardless of whether First Amendment interests are implicated, the recipient of an abusive subpoena already has the right to move to quash under Fed.R.Crim.P. 17(c).
See, e.g., United States v. R. Enterprises, Inc.,
498 U.S. 292, 299 , 111 S.Ct. 722 , 112 L.Ed.2d 795 (1991) (stating that “[gjrand juries are not licensed to engage in arbitrary fishing expeditions, nor may they select target of investigations out of malice or an intent to harass”);
In re Impounded,
241 F.3d 308, 313 (3d Cir.2001). Furthermore, if the government is correct that
Branzburg
only requires balancing where a grand jury subpoena is issued in bad faith or for the purpose of harassment, no balancing would ever be required: The legitimate First Amendment interest would always outweigh a subpoena issued in bad faith or for the purpose of harassment. The government’s contention is too broad.
Second, the government argues that the
Burke
decision is not dispositive of the issue of whether a qualified First Amendment privilege exists in the grand jury context. Although the government acknowledges that the
Burke
court stated that courts should “balance First Amendment values even where a reporter is asked to testify before a grand jury,”
Burke,
700 F.2d at 77 , the government argues that this statement should be disregarded because the
Burke
court allegedly misinterpreted
Branzburg
as well as the Second Circuit’s decision in
Baker .
However, the government provides no meaningful analysis to support this assertion; it merely reiterates its preferred construction of the
Branzburg
holding.
The government has also contended that the
Burke
court’s characterization of
Branzburg
should be disregarded as mere
dicta.
This argument ignores the fact that, to date, the Second Circuit has not had an opportunity to address how the qualified First Amendment reporter’s privilege should be applied in the grand jury context. Under such circumstances, the guidance of
Burke
and other Second Circuit cases, albeit in
dicta,
warrants particular attention because it suggests how the Second Circuit might decided the issue if and when it is put before the Court of Appeals.
The government also argues that
Burke
is irrelevant to the question of whether the qualified First Amendment privilege is available in the grand jury context because
*492
the
Cutler
court limited
Burke
to its facts.
See Cutler,
6 F.3d at 73, 75 . However, as noted above, the
Gonzales
court made clear that this limitation did not go to which phases of a criminal prosecution were subject to the rule adopted by
Burke. See Gonzales,
194 F.3d at 34 n. 3. Rather,
Burke
was limited to its facts only on the issue of “how much of a showing was needed to
overcome
the privilege when the materials at issue were sought by a criminal defendant.”
Id.
(emphasis in original).
In any event, the government has not offered a principled basis for concluding that the qualified First Amendment reporter’s privilege applies in the context of a criminal trial but not in the context of a grand jury investigation. The Second Circuit has stated repeatedly that the application of the privilege
(ie.,
the weight to be afforded to the interests militating for and against compelled disclosure) depends on the legal context in which the disclosure is sought. For example, the
Baker
court stated that the interests militating for disclosure of confidential sources in a civil case are less weighty than those militating for disclosure in a criminal investigation.
See Baker,
470 F.2d at 784-85 . The
Cutler
decision has been interpreted as holding that the interests militating for disclosure are more weighty when the party seeking disclosure is a criminal defendant.
See Gonzales,
194 F.3d at 34 n. 3. And the
Gonzales
court held that the interests militating against disclosure are less weighty when the sought materials are nonconfi-dential.
See id.
at 30 . All of these decisions, each of which was based on interpretation of
Branzburg ,
were premised on the assumption that a qualified First Amendment privilege exists that requires case-by-case balancing. The scope of the reporter’s privilege may vary depending on the context, but whether there is a qualified privilege rooted in the First Amendment is not dependent on the nature of the case.
As set forth above, The Times has demonstrated that there exists a qualified First Amendment reporter’s privilege with respect to confidential sources.
B.
There Is A Qualified Reporter’s Privilege Under The Common Law
In addition to the constitutional protection discussed above, The Times has invoked the federal common law, which, The Times asserts, would provide an independent basis for granting summary judgment in favor of The Times.
23
Specifically, The Times has urged that a common law reporter’s privilege protecting confidential sources should be recognized under Rule 501, Fed.R.Evid., in accordance with the methodology for recognizing privileges under Rule 501 set forth by the Supreme Court in
Jaffee v. Redmond,
518 U.S. 1 , 116 S.Ct. 1923 , 135 L.Ed.2d 337 (1996). According to the government, no basis to recognize a federal common law reporter’s privilege as to confidential sources exists, particularly in light of the holding and reasoning of
Branzburg v. Hayes,
408 U.S. 665 , 92 S.Ct. 2646 , 33 L.Ed.2d 626 (1972).
1.
Rule 501 and the Recognition of Federal Common Law Privileges
Three years after
Branzburg
was decided, Congress enacted the Federal Rules of Evidence. Among the Rules adopted was Rule 501, which provides, in relevant part:
*493
Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, state, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.
Fed.R.Evid. 501.
Prior to the adoption of Rule 501 in its current state, rules of evidence were proposed that defined nine specific testimonial privileges and indicated that these nine privileges were to be the exclusive privileges absent constitutional mandate, Act of Congress, or revision of the Rules.
See
Rules of Evidence for United States Courts and Magistrates, 56 F.R.D. 183 , 230-61 (1972). Congress rejected this defined approach in favor of the more flexible mandate embodied in Rule 501.
See Jaffee,
518 U.S. at 8 n. 7, 116 S.Ct. 1923 ;
Trammel v. United States,
445 U.S. 40, 47 , 100 S.Ct. 906 , 63 L.Ed.2d 186 (1980). As the Supreme Court has since explained,
In rejecting the proposed Rules and enacting Rule 501, Congress manifested an affirmative intention not to freeze the law of privilege. Its purpose rather was to “provide the courts with the flexibility to develop rules of privilege on a case-by-case basis,” 120 Cong. Rec. 40891 (1974) (statement of Rep. Hungate), and to leave the door open to change.
See also
S.Rep. No.93-1277, p. 11 (1974); H.R.Rep. No.93-650, p. 8 (1973), U.S.Code Cong.
&
Admin. News 1974, p. 7051.
Trammel,
445 U.S. at 47 , 100 S.Ct. 906 (internal footnote omitted);
see also In re Grand Jury Subpoena Dated Jan. 4, 1981,
750 F.2d 223, 224 (2d Cir.1984) (“The Senate Report accompanying enactment of Rule 501 expressly stated that judicial ‘recognition of a privilege based on a confidential relationship and other privileges should be determined on a case-by-case basis.’ ”) (quoting S.Rep. No. 93-1277, at 13 (1974), U.S.Code Cong.
&
AdmimNews 1974, pp. 7051, 7059). Thus, the Federal Rules of Evidence, that were eventually adopted specifically “acknowledge the authority of the federal courts to continue the evolutionary development of testimonial privileges in federal criminal trials ‘governed by the principles of the common law as they may be interpreted ... in the light of reason and experience.’ ”
Trammel,
445 U.S. at 47 , 100 S.Ct. 906 (quoting Fed.R.Evid. 501) (alteration in original);
see also United States v. Weber Aircraft Corp.,
465 U.S. 792, 803, n. 25 , 104 S.Ct. 1488 , 79 L.Ed.2d 814 (1984) (“Rule 501 was adopted precisely because Congress wished to leave privilege questions to the courts rather than attempt to codify them.”);
Jaffee,
518 U.S. at 9 , 116 S.Ct. 1923 (observing that Rule 501 “did not freeze the law governing the privileges of witnesses in federal trials at a particular point in our history, but rather directed federal courts to ‘continue the evolutionary development of testimonial privileges’ ”) (quoting
Trammel,
445 U.S. at 47 , 100 S.Ct. 906 ). As one court of this district has since commented, “Rule 501 is a rare, explicit congressional directive for fashioning federal common law.”
In re Appliedtion of Dow Jones & Co., Inc.,
No. 98 Misc. 8 -85(PKL), 1998 WL 883299 , at *4 (S.D.N.Y. Dec. 17, 1998) (citing Martha A. Field,
Sources of Law: The Scope of Federal Common Law,
99 Harv. L.Rev. 881, 935 n. 227 (1986)). Rule 501 applies to civil as well as criminal proceedings, and to proceedings before grand juries.
See
Fed. R.Evid. 1101.
Pursuant to Rule 501, the recognition and application of testimonial or other evidentiary privileges are governed by “the principles of the common law,” as
*494
interpreted “in the light of reason and experience.” Fed.R.Evid. 501. As the Supreme Court noted in
Jaffee ,
the common law principles underlying the recognition of privileges under Rule 501 “can be stated simply.”
Jaffee,
518 U.S. at 9 , 116 S.Ct. 1923 . At base is the principle recognized “[f]or more than three centuries ... that the public ... has a right to every man’s evidence.”
United States v. Bryan,
339 U.S. 323, 331 , 70 S.Ct. 724 , 94 L.Ed. 884 (1950) (citation and quotation marks omitted);
accord University of Pennsylvania,
493 U.S. at 189 , 110 S.Ct. 577 , 107 L.Ed.2d 571 (1990);
Jaffee,
518 U.S. at 9 , 116 S.Ct. 1923 . Given the primacy of this principle, the Supreme Court has cautioned that new privileges ought not to be “lightly created nor expansively construed, for they are in derogation of the search for truth.”
United States v. Nixon,
418 U.S. 683, 710 , 94 S.Ct. 3090 , 41 L.Ed.2d 1039 (1974) (footnote omitted);
accord University of Pennsylvania,
493 U.S. at 189 , 110 S.Ct. 577 . Exceptions to the general rule may be justified, however, “by a ‘public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.’ ”
Jaffee,
518 U.S. at 9 , 116 S.Ct. 1923 (citations omitted). In other words, an evidentiary privilege must “pro-motet] sufficiently important interests to outweigh the need for probative evidence” to be recognized under Rule 501.
Trammel,
445 U.S. at 51 , 100 S.Ct. 906 .
Thus, to determine “in light of reason and experience,” Fed.R.Evid. 501, whether an asserted privilege promotes sufficiently important interests so as to outweigh the countervailing need for probative evidence, the Court considers four factors, as set forth in
Jaffee :
(1) whether the asserted privilege would serve significant private interests; (2) whether the privilege would serve significant public interests; (3) whether those interests outweigh any evidentiary benefit that would result from rejection of the privilege proposed; and (4) whether the privilege has been widely recognized by the states.
See Jaffee,
518 U.S. at 10-13 , 116 S.Ct. 1923 ;
see also In re Special Counsel Investigation,
338 F.Supp.2d 16, 18 (D.D.C.2004) (acknowledging that
Jaffee
“articulatets] the analysis courts should undertake when determining whether to recognize a common law privilege under Rule 501”),
affd on other grounds by In re Grand Jury Subpoena, Judith Miller,
397 F.3d 964 (D.C.Cir.2005). The language and broad applicability of Rule 501 suggests, and
Jaf-fee
confirms, that in determining whether to recognize a privilege through consideration of the various factors identified above, a court should not distinguish between criminal and civil cases, or between criminal trials and grand jury proceedings.
See also Cuthbertson,
630 F.2d at 147 .
24
State precedent and the existence of consensus among the states are of particular importance in considering whether to recognize a privilege under Rule 501, as the Supreme Court has expressly recognized.
See Jaffee,
518 U.S. at 12-13 , 116 S.Ct. 1923 (“[T]he policy decisions of the States bear on the question whether federal courts should recognize a new privilege or amend the coverage of an existing one.”) (citing
Trammel,
445 U.S. at 48-50 , 100 S.Ct. 906 ;
United States v. Gillock,
445 U.S. 360 , 368 n. 8, 100 S.Ct. 1185 , 63 L.Ed.2d 454 (1980));
see also
*495
Pearson v. Miller,
211 F.3d 57, 67 (3d Cir.2000) (“The case for recognizing a particular federal privilege is stronger ... where the information sought is protected by a state privilege.”);
United States v. King,
73 F.R.D. 103, 105 (E.D.N.Y.1976) (“A strong policy of comity between state and federal sovereignties impels federal courts to recognize state privileges where this can be accomplished at no substantial cost to federal substantive and procedural policy.”) (citation omitted). Thus, the absence of unanimity among the federal courts as to a particular privilege under Rule 501 does not preclude recognition of the privilege in question where the states have uniformly recognized that privilege.
See Jaffee,
518 U.S. at 8, 14 , 116 S.Ct. 1923 . With respect to state precedent, the Supreme Court has deemed it “of no consequence that recognition of [a] privilege in the vast majority of States is the product of legislative action rather than judicial decision.”
Id.
at 13 , 116 S.Ct. 1923 .
2.
A Qualiñed Common Law Reporter’s Privilege Is Recognized Under Rule SOI
This case is not the first to pose the question of whether a reporter’s privilege with respect to the protection of confidential sources arises under Rule 501 and the federal common law. The Court of Appeals for the Third Circuit answered the question in the affirmative in
Riley v. City of Chester,
612 F.2d 708 (3d Cir.1979), explaining that,
The strong public policy which supports the unfettered communication to the public of information, comment and opinion and the Constitutional dimension of that policy, expressly recognized in
Branzburg v. Hayes,
lead us to conclude that journalists have a federal common law privilege, albeit qualified, to refuse to divulge their sources. Such a privilege has also been recognized by many other courts which have considered this question following the decision in
Branz-burg v. Hayes.
Riley,
612 F.2d at 715 (collecting cases). The following year, the Third Circuit held that
Riley
represented “persuasive authority” concerning the recognition of a qualified common law privilege in the context of a criminal trial in
United States v. Cuthbertson,
630 F.2d 139 (3d Cir.1980), explaining,
First, the interests of the press that form the foundation for the privilege are not diminished because the nature of the underlying proceeding out of which the request for the information arises is a criminal trial. [The press’] interest in protecting confidential sources, preventing intrusion into the editorial process, and avoiding the possibility of self-censorship created by compelled disclosure of sources and unpublished notes does not change because a case is civil or criminal.
Cuthbertson,
630 F.2d at 147 ;
see also In re Williams,
766 F.Supp. at 371 (recognizing a qualified federal common law reporter’s privilege in the grand jury setting).
Since that time, the courts of other circuits have repeatedly recognized the existence of a common law reporter’s privilege, specifically denominated as such, in various contexts.
See, e.g., United States v. Foote,
No. 00-CR-20091-01 (KHV), 2002 WL 1822407 , at *2 (D.Kan. Aug.8, 2002) (explaining that the Tenth Circuit has recognized “a qualified federal common law ‘journalist’s privilege’ ”) (footnote omitted);
Howard v. Antilla,
191 F.R.D. 39, 42 (D.N.H.1999) (construing the First Circuit’s opinion in
Bruno & Stillman, Inc. v. Globe Newspaper Co.,
633 F.2d 583 (1st Cir.1980), “to have fashioned a federal common law qualified privilege rule based on the First Amendment because the state jurisdictions involved had not codified a newsman’s privilege and their common law
*496
focused on the First Amendment origins of any such protection”);
McCarty v. Bankers Ins. Co.,
195 F.R.D. 39, 44 (N.D.Fla.1998) (stating that “the federal courts, including the Eleventh Circuit, and the district courts therein have overwhelmingly recognized a qualified privilege for journalists which allows them to resist compelled disclosure of their professional news gathering efforts and results, whether published or not”);
Cinel v. Connick,
792 F.Supp. 492, 499 (E.D.La.1992) (concluding that the federal common law reporter’s privilege recognized in the Fifth Circuit does not protect against the compelled disclosure of information unrelated to confidential sources).
But cf. In re Grand Jury Proceedings,
5 F.3d at 403 (expressing disinclination to “undermine”
Branzburg
by recognizing a federal common law reporter’s privilege in the context of grand jury proceedings). Most recently, the District of Columbia Circuit affirmed the lower court’s ruling in
In re Special Counsel Investigation,
338 F.Supp.2d 16 (D.D.C.2004) (concluding that no federal common law privilege existed in the context of a grand jury proceeding), without reaching any determination as to the existence of a common law reporter’s privilege.
See In re Grand Jury Subpoena, Judith Miller,
397 F.3d at 973 (“The Court is not of one mind on the existence of a common law privilege.... However, all believe that if there is any such privilege, it is not absolute and may be overcome by an appropriate showing.”).
25
The Second Circuit, in addition to recognizing a qualified reporter’s privilege arising under the First Amendment, as set forth above, has suggested that such a privilege may also be “rooted in federal common law,”
Gonzales,
194 F.3d at 35 n. 6, and several of the courts of this district have proceeded on an assumption that a qualified reporter’s privilege exists on just such a basis.
See, e.g., Pugh v. Avis Rent A Car Sys.,
No. M8-85, 1997 WL 669876 , at *3 (S.D.N.Y. Oct.28, 1997) (noting that “[ujnder federal common law journalists possess a qualified privilege not to disclose information prepared or obtained in connection with a news story ... ”) (citing
Burke,
700 F.2d at 76-78 );
In re Application of Waldholz,
No. 87 Civ. 4296(KMW), 1996 WL 389261 , at *2 (S.D.N.Y. July 11, 1996) (stating that, “[ujnder federal common law, journalists enjoy a qualified, but not an absolute, privilege with respect to information gathered in connection with the publication of an article.”) (citing,
inter alia, Burke,
700 F.2d at 76-78 ). Until now, however, no court in this district appears to have conducted an extended analysis of the existence of a reporter’s privilege as to confidential sources under the analytic structure established by
Jaf-
fee.
26
But cf. In re Application of Dow Jones & Co.,
1998 WL 883299 , at *4-6 (acknowledging the “teaching” of
Jaffee
as concerns Rule 501 but declining to recognize a federal common law reporter’s privilege with respect to nonconfidential material).
*497
Turning, therefore, to the first factor identified in
Jaffee ,
it is concluded here upon the record set forth above that the recognition of a reporter’s privilege would serve significant private interests by permitting investigative reporters to continue to secure information from confidential sources with greater assurance that they would not be compelled to reveal the information obtained or the source of that information or run the risk of court-imposed sanctions, either option posing a threat to the reporters’ ability to obtain confidential information in the future or to publish investigative stories at all. As the facts set forth above establish, disclosure of the identity of confidential sources would greatly hinder reporters’ ability to gather and report news in the future.
In particular, both Miller and Shenon have testified that without information they have obtained in the past on condition that the identity of their sources would be kept in confidence, neither journalist would have been able to report on a wide range of issues of national significance, such as the threat posed by international terrorists, the prospect of germ warfare, efforts to reorganize the United States’ intelligence agencies and plans to expand law enforcement’s powers to conduct surveillance. Furthermore, Shenon has suggested that, in the absence of the protection afforded by a recognized privilege,
Reporters and editors might eliminate information obtained from confidential sources from news reports if publication might result in subpoenas to themselves or their telephone companies. On some sensitive topics, the only available sources of information are confidential sources; the press might simply a

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2410752. Public record. Not legal advice.