## Facts

- Albert and Mary Gonzales brought a § 1983 civil-rights suit against Deputy Darrell Pierce in Louisiana, alleging racially motivated and unjustified traffic stops and detentions.
- NBC’s *Dateline NBC* filmed a traffic stop of a *Dateline* employee by Pierce using concealed recording equipment and later broadcast a segment suggesting the stop lacked probable cause.
- In discovery for the Louisiana litigation, both sides subpoenaed NBC in New York for unedited, unbroadcast video outtakes of the stop and for deposition testimony from NBC personnel about what occurred.
- NBC, a nonparty, refused to comply, asserting a federal qualified journalist’s privilege even though the materials were nonconfidential.
- The district court ordered NBC to produce the outtakes and an authenticating affidavit, and later held NBC in contempt for noncompliance.
- NBC appealed the compulsion and contempt orders.

## Issues

1. Whether federal law recognizes a qualified journalist’s privilege protecting nonconfidential press materials from compelled disclosure in civil litigation.
2. What standard governs when civil litigants may overcome that privilege to obtain nonconfidential materials from a nonparty press entity.
3. Whether the subpoenas for NBC’s outtakes and related testimony satisfied that standard.

## Decision

- The Second Circuit held that nonconfidential press materials are protected by a qualified journalist’s privilege under federal law.
- The court adopted a two-part showing to overcome the privilege in civil cases involving nonparty press entities: (1) likely relevance to a significant issue, and (2) not reasonably obtainable from other available sources.
- Applying that standard, the court affirmed the order compelling production because the outtakes were likely relevant to significant issues concerning Pierce’s conduct and credibility, and the footage was not reasonably obtainable elsewhere.
- The court affirmed the contempt order because NBC’s refusal persisted after a valid order compelling disclosure.

## Legal Principles

- Federal common law in the Second Circuit recognizes a qualified journalist’s privilege covering both confidential and nonconfidential press materials, including unbroadcast outtakes.
- For nonconfidential materials sought from a nonparty press entity in civil litigation, the privilege may be overcome upon a showing that:
  - the materials are of likely relevance to a significant issue in the case; and
  - the materials are not reasonably obtainable from other available sources.
- The privilege is weaker for nonconfidential materials than for confidential sources or information, but it still protects against unnecessary intrusion into newsgathering and editorial processes.
- A contempt sanction may be upheld when a press entity refuses to comply with a properly affirmed production order.

## Conclusion

The Second Circuit affirmed compelled disclosure of NBC’s nonconfidential outtakes and the contempt order, holding that a qualified journalist’s privilege applies but can be overcome in civil discovery when the material is likely relevant to a significant issue and unavailable from other sources.


Gonzales v. Nat’l Broad. Co., 194 F.3d 29 (2d Cir. 1999)